For offences under s 56(1) of the Crimes Act 1900 (ACT) where the relationship occurred before 2 March 2018, the applicable maximum penalty is the historical maximum at the time of the offending (here, 14 years), not the current maximum of 25 years. The construction in R v Kellan, treating the 25-year maximum as a yardstick with the historical maximum as a cap, is not to be followed. The right in s 25(2) of the Human Rights Act 2004 (ACT) against retrospective heavier penalties extends to the use of maximum penalties as sentencing yardsticks, not merely to the ultimate sentence imposed.
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