When a sentencing judge refers to the wrong maximum penalty, this constitutes error with the capacity to influence the sentence requiring re-sentencing, but the appellate court exercises its sentencing discretion afresh and may dismiss the appeal if no lesser sentence is warranted in law. The test under s 6(3) of the Criminal Appeal Act 1912 (NSW) is composite: a lesser sentence must be both 'warranted in law' and one that 'should have been passed'. Where a sentencing judge explicitly adverts to totality principles and deliberately commences a sentence before the expiry of an existing non-parole period, the inference is that accumulation was intentional and within the sentencing discretion.
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