An erroneous statement of the maximum penalty for a Form 1 offence does not necessarily vitiate the sentencing discretion; the error must be assessed for materiality having regard to all the circumstances, including the relative seriousness of the Form 1 offence compared to the principal offence. While a sentencing judge does not technically 'act on' the maximum penalty for a Form 1 offence (per Campbell v R), the discretion may still miscarry if the erroneous maximum penalty constitutes an extraneous or irrelevant matter that guided or affected the sentence for the principal offence. The principles governing backdating of sentences following parole revocation apply analogously to revocation of ICOs. Where the effective non-parole period exceeds 75% of the total effective sentence by only a very modest amount (here 1.5%), this does not of itself support an inference that the sentencing judge failed to consider the ratio.
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