A mere invitation to attend an event at which children are present, and subsequent attendance, cannot give rise to a position of trust for the purposes of sentencing aggravation. The concept requires a special relationship recognised by the common law as imposing a particular responsibility, determined by objective factors, not the subjective views of participants. Where a sentencing judge proposes to treat breach of trust as an aggravating factor, procedural fairness requires that the offender and counsel be put on notice. However, the proviso under s 280(1)(b) of the Criminal Procedure Act 2009 (Vic) may be applied where the sentence remains within the permissible range notwithstanding the error.
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