The Victorian Court of Appeal has expressly doubted the correctness of the NW Frozen Foods/Mobil Oil approach under which courts must accept agreed penalties if they fall within the 'permissible range'. The Court held that an agreed penalty should be treated as no more than a submission with no binding force, even if within the range. Agreed statements of facts in civil penalty proceedings must present a full and accurate picture of the contravention; failure to do so may result in the court seeking further information or departing from the agreed penalty. Where a respondent does not participate in an appeal on the understanding that the appellant seeks only the agreed penalty, the court cannot exceed that penalty without affording the respondent an opportunity to be heard.
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