A finding that a sentencing judge's error as to the maximum penalty was material and capable of affecting the sentencing discretion does not foreclose the application of s 280(1)(a) of the Criminal Procedure Act 2009 (Vic) to refuse leave to appeal where there is no reasonable prospect the Court of Appeal would impose a less severe sentence. The question whether the error could have materially affected the sentencing judge's instinctive synthesis is distinct from whether the Court of Appeal would itself impose a different sentence.
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