Where a sentencing judge considers an incorrect maximum penalty, the sentencing discretion miscarries and the appellate court must resentence. For historical offences under the repealed s 76 of the Crimes Act 1900, the broad range of conduct encompassed by that provision and historical sentencing patterns from the relevant period must be taken into account. The Court's earlier decisions on historical s 76 offences may be used as a guide without requiring an independent inquiry into sentencing patterns at the relevant time.
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