When sentencing for a common law offence with no maximum penalty, a statutory offence created by another Parliament provides little if any assistance in predicting the unexpressed intention of the State legislature. A sentencing judge is not obliged to provide reasons for departing from the maximum penalty of a proposed statutory analogue; the sentencing discretion remains unfettered. The 'mistaken facts' ground in House v The King does not open up findings of fact to re-evaluation as on a rehearing but is limited to identifying clear mistakes of material fact. The question of the precise standard of appellate review where a sentencing judge is said to have mistaken the facts was left open.
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