An applicant faces real difficulty on a sentence appeal in contending that a sentencing judge erred by failing to take into account a material consideration for 'special circumstances' under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 when that consideration was not advanced to the sentencing judge. The risk of institutionalisation from extensive custodial history is capable of constituting special circumstances but must be raised at first instance.
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