Where multiple sentences of imprisonment are imposed in the same proceeding for offences committed in lawful custody under s 72 of the Crimes (Sentencing) Act 2005 (ACT), the identification of 'primary sentence' and 'existing sentence' remains uncertain, with three different approaches articulated by the Court of Appeal. The harshness of an aggregate sentence assessed by reference to the totality principle is capable of constituting 'special circumstances' under s 72(4). A finding of special circumstances is a discretionary finding of fact that cannot be set aside merely because the appellate court disagrees with the conclusion. The Court has recommended legislative review of Part 5.3.
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