On a sentence appeal in the ACT, the test for receiving further evidence under s 37N(3) of the Supreme Court Act 1933 (ACT) is not whether the court is satisfied the evidence would have produced a different sentence. The relevant enquiry is whether the absence of the evidence had a realistic capacity to occasion a miscarriage of justice — that is, whether the material had the capacity or potential to materially impact the sentence. Where a psychological report relevant to Bugmy considerations was not tendered through misadventure and through no fault of the appellant, and the sentencing judge noted the limited information before the court on subjective matters, the sentencing process miscarried.
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