Counsel's decision not to invoke s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and instead rely on evidence of assistance to authorities as evidence of remorse may constitute a rational forensic choice rather than incompetence, particularly where the assistance is limited and seeking a s 23 discount might undermine a finding of remorse. The question of whether evidence of assistance can properly serve both as evidence of remorse and as the basis for a discrete s 23 discount without double counting remains unresolved, with Wilson J and Dhanji J taking different views.
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