Research Monograph 7 — “Special circumstances” under the Sentencing Act 1989 (NSW)

“Special circumstances” under the Sentencing Act 1989 (NSW)

This paper examines the imposition of custodial sentences under the Sentencing Act 1989 (NSW) with particular focus on the use of minimum and additional terms. First, an analysis is conducted of the incidence of the various types of custodial sentences imposed at first instance in Local and Higher Courts during the 1992 calendar year. This analysis focuses on those sentences where the additional term exceeds one third of the minimum term. Such sentences require a finding of "special circumstances" as there has been a departure from the statutory formula: s 5(2) of the Sentencing Act 1989. Secondly, an analysis of "special circumstances" appeals to the Court of Criminal Appeal heard during the 1992 calendar year is conducted in similiar terms. 

Having demonstrated that "special circumstances" are frequently found by judges both at first instance and on appeal, this paper then looks at the way in which the Court of Criminal Appeal has given guidance on the meaning and use of ''special circumstances". This paper ultimately suggests that traditional sentencing principles, as well as the need to maintain judicial discretion, inform cases where the additional term is extended beyond one-third of the minimum term.

Paperback, 17 pp, November 1993, ISBN 0 7310 2082 0