An error by a sentencing judge as to the maximum penalty for an offence does not necessarily vitiate the exercise of the sentencing discretion. The error must be material — that is, it must have affected or been capable of affecting the sentence actually imposed. Where the magnitude of the error is small (here, 18 vs 20 years) and the sentencing range is far removed from the maximum, the error may be immaterial. The passage in Kentwell stating that the appellate court does not assess the degree to which error influenced the outcome presupposes that a material error of the House v The King type has first been established.
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