Protective custody does not automatically warrant a sentencing discount. The court must assess the actual conditions of custody, including the degree of onerousness compared to the general prison population, the reasons for the prisoner being in protection, the prospects of remaining in protection, and the seriousness of the offence. Where the form of protective custody (such as SMAP) does not involve materially more onerous conditions, no discount may be justified. A replica firearm is a dangerous weapon under s 4 of the Crimes Act 1900 (NSW) and Sch 1 of the Weapons Prohibition Act 1998 (NSW), and the distinction between real and replica is irrelevant where victims could not appreciate the difference at the time.
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