A failure to have regard for public safety is an inherent characteristic of the offence of commercial supply of cocaine and cannot be taken into account as an aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) unless its nature or extent goes beyond what ordinarily might be expected. A misstatement of the maximum penalty by a sentencing judge constitutes error even where the maximum penalty is not again referred to before sentence is imposed. Where sentencing error is established, the appellate court must exercise its own independent sentencing discretion, but the appeal will be dismissed if no lesser sentence is warranted in law.
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