A sentencing judge does not necessarily err by taking pre-sentence custody into account through reduction of the non-parole period rather than backdating the sentence, although backdating remains the preferred practice. Where a sentencing judge proceeds on the basis of an incorrect maximum penalty, and the sentence imposed exceeds or approaches the true maximum, error is established. A sentence for an offence under s 33B(1)(a) of the Crimes Act 1900 (NSW) that is outside the top of the range shown by Judicial Commission statistics and comparable cases will be held manifestly excessive.
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