Frequently Asked Questions

Q: If there is an error in the way that the maximum penalty has been viewed: What is the effect of the error?

An incorrect view of the maximum penalty may require intervention by an appellate court, but there are a number of factors to be considered as Callaway JA noted in R v Beary [2004] VSCA 229; (2004) 11 VR 15 [at 21]:

“First, the law is settled in the State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view... in Mason J’s words, a factor may be so insignificant in a particular case that the failure to take into account could not have materially affected the decision. Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not reopen the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is reopened, the Court may be of opinion that no different sentence should be passed.”  



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