A Crown Prosecutor's written submission that offending falls at a particular point on the spectrum of objective seriousness, expressed in the language customarily used when advancing a submission, does not constitute a binding concession that constrains the sentencing judge's assessment. The procedural fairness obligation identified in DL v The Queen arises only where the Crown has made a true concession, not merely advanced a submission. When sentencing for a detention offence under s 86(1), the sentencing judge may take into account the circumstances prevailing during the detention, including threats, even where those circumstances overlap with counts on which the jury could not agree, provided the judge does not take into account the specific criminal acts the subject of those unresolved counts.
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