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  • Writer's pictureGeoff Harrison

Special Circumstances


Criminal Barrister, Criminal Lawyer, Criminal Solicitor, Best Criminal Barrister, Best Criminal Lawyer, Best Criminal Solicitor, Special Cirucmstances, s44 Crime (Sentencing) Procedure Act 1999

Published by Geoff Harrison | 6 June 2024


A finding of Special Circumstances is a discretionary exercise for the sentencing magistrate or judge as per s44(2) of the Crimes (Sentencing Procedure) Act 1999; the effect of the court making a finding of special circumstances is that the statutory sentencing ratio is altered from the standard non-parole period being 75% of the head sentence. Hence, generally, the sentence is amended to allow for a shorter non-parole period and a longer period on parole. However, it is also open to the judge to increase the non-parole period above the statutory ratio: see Wakefield at [26]. The fact that an offender is to be incarcerated for the first time does not, in itself, lead to a finding of special circumstances. In Collier v R [2012] NSWCCA 213, McClellan CJ at CL stated at [35]-[36]:


It was submitted to this Court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of a finding of special circumstances.


Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special.


As to what has been constituted as special circumstances: see Sentencing Bench Book: [7-514] What Constitutes Special Circumstances.


Other Sources:


Cases:


Extracted Legislation:

CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 44

Court to set non-parole period


(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).


(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).


(2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.


(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).


(2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B.


(3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.


(4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule.


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