A sentencing judge who proposes to reject unchallenged evidence of an offender must afford the offender an opportunity to address the court's concerns before doing so; failure to do so constitutes a denial of procedural fairness. In assessing the objective seriousness of market misconduct offences under ss 1041A(c) and 1041B(1)(b) of the Corporations Act 2001 (Cth), the court must consider the actual and lasting impact of the offending conduct on the market, not merely the arithmetic of transitory price movements. Where both sentencing error and denial of procedural fairness are established, and remittal would defeat the object of the appeal, the appellate court may re-exercise the sentencing discretion on its own assessment of the evidence.
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