When assessing the hardship of protective custody for sentencing purposes, the relevant comparison is between the offender's conditions and those of the general prison population, not between the offender and other offenders of the same class housed in similar conditions. A diagnosed mental condition that is exacerbated by the conditions of protective custody is relevant to the offender's experience of incarceration and may warrant a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Expert reports tendered without objection should not be subjected to trenchant criticism by the sentencing judge on grounds not raised by the Crown.
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