A sentencing judge's mistaken belief as to the maximum penalty is a material error causing the sentencing discretion to miscarry where the judge placed reliance on the maximum in assessing gravity. Where a prisoner's health deteriorates from a statistical probability of death to a certainty of death within months, this constitutes fresh evidence warranting appellate intervention. Ill-health making imprisonment more onerous must be taken into account in fixing both the head sentence and the non-parole period, not merely the non-parole period.
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