An introduction to maximum penalties and criminal law
A gauge as to the level of seriousness the legislature treats a criminal offence can be ascertained via the maximum penalty. To illustrate the point we can look to s 5(2)(a) of theSentencing Act 1991 (VIC) as our legislative example which states “…. in sentencing an offender a court must have regard to… the maximum penalty prescribed for the offence.”
Further context in relation to the significance of the maximum penalty can also be found in case law in the case of Markarian v The Queen  HCA 25; (2006) 228 CLR 357; (2005) 215 ALR 213; (2005) 79 ALJR 1048 where the majority of the High Court said [at 31]:
“[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”
What purpose does the maximum penalty serve?
The maximum penalty serves a number of purposes which includes a limit on judicial discretion when imposing a sentence, ascertaining whether an offence is indictable or summary, providing guidance to the class of proscribed conduct in relation to the offence, and serving as a punitive function for potential offenders.
What happens if the maximum penalty changes before the offence has been committed?
In the event that a person commits an offence before a change in the maximum penalty, the court will still be required to sentence the person in accordance to the revised penalty. However, it should be noted that the court shall also have regard to current sentencing practices as well.
If there is an error in the way that the maximum penalty has been viewed: What is the effect of the error?
An incorrect view of the maximum penalty may require intervention by an appellate court, but there are a number of factors to be considered as Callaway JA noted in R v Beary  VSCA 229; (2004) 11 VR 15 [at 21]:
“First, the law is settled in the State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view… in Mason J’s words, a factor may be so insignificant in a particular case that the failure to take into account could not have materially affected the decision. Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not reopen the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is reopened, the Court may be of opinion that no different sentence should be passed.”
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