The Court of Criminal Appeal held that a sentencing judge erred by taking into account the strength of the Crown's case and the offender's continued denial of the nature of his access to child-abuse material when quantifying the utilitarian discount under s 16A(2)(g) of the Crimes Act 1914 (Cth), as these are subjective matters that may only be considered as part of the instinctive synthesis, not in quantifying the utilitarian discount. The Court also held that the Crown should not be permitted to resile from its concession at the sentencing hearing that the plea was entered at the first reasonable opportunity, applying Zreika principles, and increased the discount from 20% to 25%, resentencing accordingly. The Court left open the precise threshold (whether 'exceptional circumstances' or some lesser standard) required for a party to resile from concessions made below.
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