An offender's prior criminal record does not aggravate the offence under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) but is relevant to the offender under s 21A(4). Where unchallenged evidence establishes that protective custody involves significant restrictions beyond normal imprisonment, the sentencing judge is obliged to recognise those conditions and impose a lesser sentence. However, the reduction for protective custody should be limited where the evidence of ongoing protective custody is slight and the offender is not in strict protection.
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