Section 4F(2) of the Crimes Act 1914 (Cth) applies only to variations in penalties for existing offences, not to the creation of new replacement offences in different legislation. Payment of penalty tax under the Income Tax Assessment Act 1936 (Cth) is a form of extra-curial punishment that must be assessed on its merits in each case, rather than dismissed as of 'small account' as stated in DPP v Hamman. Where Parliament has repealed an offence and enacted replacement offences with lower maximum penalties, the sentencing court is entitled — and bound — to take into account Parliament's changed attitude to the seriousness of the offending when exercising the sentencing discretion, even though the transitional provisions preserve the higher maximum penalty for the repealed offence.
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