The statutory analogue for a common law offence provides only a reference point for sentencing and does not establish a de facto maximum penalty; a sentence exceeding the statutory analogue maximum is permissible. Breach of public trust is not an element of the offence of misconduct in public office but rather serves to emphasise the degree of departure from the proper standard, and reference to it in sentencing does not constitute double counting under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). For white collar offences involving breach of trust, prior good character is of less relevance as a mitigating factor because such crimes are only able to be committed because of the previous good character that placed the offender in a position of trust.
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