Defence counsel seeking to rely on protective custody as a mitigating factor on sentence must provide evidence of how the particular protection regime makes the offender's experience of imprisonment harsher than mainstream conditions; a bare assertion from the Bar table that a client is in protection is insufficient. The weight to be given to protective custody depends on the source of the need for protection, the particular circumstances, and the likely duration. The question whether protective custody attributable to the prisoner's own violent conduct or risk of violence is an irrelevant sentencing consideration remains open.
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