The likelihood that a sexual offender will serve part of a sentence in protective custody remains a well-entrenched factor that sentencing judges must take into account in favour of the prisoner, both in determining sentence length and in considering special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Evidence as to the specific conditions of protective custody is desirable but not essential. A sentencing judge's failure to consider this factor constitutes a miscarriage of the sentencing discretion. Counsel's withdrawal of a submission on protective custody, induced by the judge's rejection of the submission, does not preclude the issue being raised on appeal.
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