In Western Australia, s 6(1) and s 6(2) of the Sentencing Act 1995 require that attention must always be paid to the maximum penalty (not merely 'almost always' as stated in Markarian), because the statutory penalty is a mandatory factor in determining seriousness. Where a case is properly characterised as in the worst category, a sentencing judge may use the maximum penalty as a starting point and make deductions, provided the mitigating factors are not complex. A sentence cannot be backdated under s 87 of the Sentencing Act 1995 where the offender was in custody for more than one reason during the relevant period.
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