Section 37B(1)(b) of the Evidence Act 1958 (Vic) (now Part 8.29 Division 5 of the Criminal Procedure Act 2009) applies where the particular offence as charged involves assault, injury or threat of injury, even if those are not necessary elements of the offence in every case. The relevant inquiry is directed to the elements of the offence with which the particular accused has been charged, not to whether the offence category necessarily involves assault in all its possible forms. In sentencing, a judge is not required to have regard to the maximum penalty for an alternative lesser offence that does not appropriately address the character of the offending. The absence of a discernible motive for offending is a relevant consideration in assessing prospects of rehabilitation.
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