A misstatement of the maximum penalty for a Form 1 offence taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not constitute House v R error, because the s 33 procedure does not involve imposing punishment for the Form 1 offence and the sentencing judge does not 'act on' the maximum for that offence. Where a sentencing judge misstates the maximum penalty for a principal offence, the error has the capacity to infect the sentencing discretion and will constitute House v R error unless the balance of the materials clearly demonstrates the judge in fact acted on the correct maximum.
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