The two-step sentencing methodology from R v Pot, Wetangky and Lande (determining a notional sentence under general principles and then adjusting to the mandatory minimum) is erroneous. The correct approach under s 233C of the Migration Act 1958 (Cth) is that the statutory minimum and maximum penalties are the floor and ceiling within which the sentencing discretion is exercised, applying general sentencing principles. A case may attract the mandatory minimum penalty even if not all mitigating features are present and not all aspects of the offending are the least serious. The residual discretion to refuse a Crown appeal is not engaged merely because the prosecutor's submissions at first instance did not identify the correct methodology, particularly where the error resulted from acceptance of a submission made on the respondent's behalf.
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