Where delay in sentencing is substantially caused by the prosecution's erroneous invocation of a statutory provision that has no application to the case, the resulting delay cannot be treated as having conferred a 'benefit' on the offender so as to reduce the mitigatory weight of that delay. The avoidance of a provision that never applied is not a relevant 'benefit'. Practitioners should be alert to the transitional provisions in s 162 of the Sentencing Act 1991 (Vic) when considering the applicability of s 5(2H) to offences straddling the commencement date of 20 March 2017.
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