Regan Harms who heads up the Hannay Lawyers Sydney office recently had the privilege of instructing Mr Tomislav Bicanic of Counsel in the decision of SH v R [2026] NSWCCA 35 addressing guilty plea discounts, impermissible sentencing factors and resiling from concessions.
The NSWCCA held two of the sentencing Judge’s considerations were impermissible. The utilitarian value of a guilty plea is an objective assessment — the strength of the Crown’s case is simply irrelevant to it. Equally, a sentencing judge cannot reduce the discount by reference to the offender’s subjective explanation for their conduct when quantifying utilitarian value under s 16(2) (9) of the Crimes Act 1914 (Cth).
On resentence, the Court increased the discount to 25%, having accepted the plea was entered at the first reasonable opportunity. The Court also confirmed that the Crown cannot resile from written concessions made at the sentence hearing – citing the enduring principle in Zreika v R [2012] NSWCCA 44.
