A Crown statement that injuries are not 'really serious' (i.e. not grievous bodily harm) may be treated as a concession that injuries are 'not substantial' for the purposes of s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), depending on the context. Where a sentencing judge proposes not to accept a Crown concession on a material issue, the judge must raise the concern to give counsel the opportunity to address it. The dissent (Brereton JA) provides a strong contrary analysis that 'not really serious' and 'not substantial' are distinct concepts, and this point remains open for future consideration.
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