Where parties agree on a sentencing issue in written submissions but do not raise it in oral submissions, the sentencing judge's silence on the issue does not constitute a denial of procedural fairness. Practitioners must raise agreed positions orally if they wish to ensure the judge addresses them. A sentencing judge is not bound by agreements between the parties on discretionary matters such as leniency under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and no legitimate expectation of acceptance arises.
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