Special circumstances and the non-parole period.

The short version.

The non-parole period is the time an offender must serve in custody. The balance is the time that can be served on parole. Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) caps the parole period at one-third of the non-parole period, unless the court finds special circumstances. Worked through, that default fixes the non-parole period at 75 per cent of the head sentence. A special circumstances finding lets the court set a shorter non-parole period against the same head sentence, with a longer time on parole. The head sentence does not change. What changes is how much of it must be served before the offender is eligible for release.

What is a non-parole period?

The non-parole period is the minimum time an offender must spend in custody before they can be considered for release on parole. The High Court in Power v The Queen (1974) 131 CLR 623 described it as the minimum time that justice requires the offender to serve, having regard to all the circumstances of the offence. It is the floor on time in custody, not the whole sentence.

Release at the end of the non-parole period is not always automatic. For a sentence with a non-parole period of three years or less, the court itself orders release to parole at the end of the non-parole period. For a non-parole period of more than three years, the State Parole Authority decides whether the offender is released. Either way, if the offender is released, the balance of the sentence is served in the community under supervision, and a breach can return them to custody.

What are special circumstances in sentencing?

Special circumstances is a finding a sentencing court can make under section 44(2). Its effect is to change the ratio between the non-parole period and the head sentence. Without the finding, the non-parole period sits at about 75 per cent of the total. With the finding, the court can set a lower non-parole period and a longer parole period. The head sentence stays the same.

The term is not defined in the Act. The courts have given it content case by case. The Judicial Commission of NSW examined the question in its Sentencing Trends and Issues paper No 42. The most common reason judges gave for finding special circumstances was the offender's need for a longer period of supervision in the community after release.

The 75 per cent rule, and how the finding changes it.

Section 44(2) is written as a cap on the parole period. The balance of the sentence, which is the parole period, must not be more than one-third of the non-parole period, unless the court decides there are special circumstances for it being more. Run the arithmetic and that default puts the non-parole period at 75 per cent of the head sentence.

Take a four-year sentence. The default non-parole period is three years, with one year on parole. If the court finds special circumstances, it can set the non-parole period below three years. A finding might produce a non-parole period of two years and six months, with eighteen months on parole. The four-year head sentence is unchanged. The offender becomes eligible for release earlier and is supervised on parole for longer. The same approach applies to an aggregate sentence under section 44(2A) and (2B), where one non-parole period is set for two or more offences.

The court must record its reasons for the finding. That is a requirement of the section, not a formality. A finding made without recorded reasons, or a refusal to consider the question when it was squarely raised, can be a ground of appeal.

What counts as special circumstances?

There is no closed list. The cases and the Judicial Commission study group the common bases into a handful of themes.

The need for supervised parole.

Where an offender will benefit from a longer period of structured supervision and support in the community, a longer parole period serves both rehabilitation and the protection of the community. This is the most common basis for the finding.

The accumulation of sentences.

Where sentences are served one after another, the total non-parole period can grow longer than the offending warrants. A special circumstances finding adjusts the overall ratio so the aggregate non-parole period reflects the principle of totality.

Youth and a first time in custody.

A young offender, or one in custody for the first time, may face a harder time inside and a greater need for support on release. Both are recognised bases for the finding.

Health, disability, and background.

Mental illness, intellectual disability, and the kind of profound deprivation the High Court considered in Bugmy v The Queen (2013) 249 CLR 571 can each support a finding, where they bear on the offender's prospects and need for supervision.

Onerous custody.

Time served in protective custody, or in conditions harsher than usual, can be recognised through the finding. A finding on any of these bases is not guaranteed. The court has a discretion. It can decline to find special circumstances, or find them and give them only limited effect on the ratio.

Can a non-parole period be reduced?

Yes, in two different ways, and it helps to keep them apart.

At the sentence itself, a special circumstances finding under section 44 reduces the non-parole period relative to the head sentence. This is the ordinary route, and it happens in the sentencing court on the day.

After the sentence, a non-parole period can be reduced on appeal, but only if there is an error. A NSW sentence appeal is not a second opinion. The Court of Criminal Appeal looks for a specific error, or for a sentence that is manifestly excessive. If error is shown, the court re-exercises the discretion, guided by Kentwell v The Queen [2014] HCA 37. A failure to deal with special circumstances when they were plainly raised can be a ground. We set out how that works in our note on sentence appeals in NSW.

What three factors must a judge consider when sentencing?

Sentencing is not a formula. The High Court in Markarian v The Queen (2005) 228 CLR 357 called it an instinctive synthesis, where the judge weighs all the relevant factors and arrives at a single sentence. Three threads run through every sentencing exercise.

First, the objective seriousness of the offence. What was done, the harm caused, and the offender's role in it. Second, the subjective circumstances of the offender. Age, background, health, prior record, and prospects of rehabilitation. Third, the purposes of sentencing in section 3A. Punishment, deterrence, protection of the community, rehabilitation, accountability, denunciation, and recognition of the harm done.

Special circumstances draws on the second and third of these. It is where the offender's need for supervision and rehabilitation is given practical effect in the structure of the sentence. The aggravating and mitigating factors that feed the exercise are set out in section 21A.

What the Court of Criminal Appeal said in 2026.

Special circumstances is sometimes argued as if it were reserved for rare or unusual cases. The Court of Criminal Appeal rejected that idea again this year. In Gillette v R [2026] NSWCCA 59, decided on 20 May 2026, the Court dismissed a sentence appeal arising from two specially aggravated break and enter offences at Lake Macquarie, where two men entered homes armed with a rifle and an axe. The applicant argued, among other grounds, that the sentencing judge gave too little weight to special circumstances.

The Court restated the principle as it dismissed the appeal. A circumstance being "sufficiently special" to justify varying the statutory ratio does not have to be "rare", "unusual" or "exceptional", and a wide range of factors can amount to special circumstances. Yehia J said so and Hamill J agreed. The Court considered the earlier authorities, including R v Simpson (2001) 53 NSWLR 704 and R v Fidow [2004] NSWCCA 172.

Gillette is also a reminder of the limits. The sentencing judge had made only a slight variation of the statutory ratio, and the Court found no error in that. The non-parole period still has to reflect the objective gravity of the offending and the need for general deterrence. A finding of special circumstances makes a longer parole period possible. It does not fix how large the reduction must be.

The practical point for an accused person has two sides. The threshold is not high, so a sound, evidence-based argument for special circumstances belongs in almost every plea that ends in custody. The size of any adjustment is a matter for the judge, and it is held in check by the seriousness of the offence.

What this means if you are facing a sentence.

Special circumstances is one of the few levers a defence has over the shape of a custodial sentence. It does not shorten the head sentence. It can shorten the time in custody and lengthen the support on release. The argument has to be built on evidence. A report on the offender's rehabilitation needs, a history that shows the value of supervision, or a clear totality problem in accumulated sentences gives the court a basis to make the finding and record its reasons.

The work starts before the sentence hearing. The material that supports a special circumstances finding is the same material that supports a plea in mitigation: psychological reports, evidence of treatment, and a clear account of the offender's prospects. It also sits alongside the question of whether full-time custody is needed at all, or whether an intensive correction order or a conditional release order is open. Good preparation is what turns the argument from an assertion into a finding.

Frequently asked.

What does a three-year non-parole period mean?

It means the offender must spend at least three years in custody before they can be released on parole. It is the earliest point of release, not a guaranteed release date. For a non-parole period of more than three years, the State Parole Authority decides whether to release the offender. The head sentence keeps running, and the balance is served in the community on parole if release is granted.

What is the meaning of special circumstances?

A reason, on the facts of the case, for the court to set a non-parole period below the standard 75 per cent of the head sentence. The most common reason is the offender's need for a longer period of supervised parole. The court must record its reasons under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Can special circumstances be found for any offence?

The section applies to sentences of imprisonment generally. For an offence with a standard non-parole period, the standard period is a reference point for the non-parole period, but a special circumstances finding can still adjust the ratio between the non-parole period and the head sentence. The court still has to set a non-parole period that reflects the objective seriousness of the offence.

What are the four options for sentencing?

NSW does not have a fixed list of four. The penalties run on a ladder from least to most serious: a section 10 dismissal or conditional release order without conviction, a fine, a conditional release order with conviction, a community correction order, an intensive correction order served in the community, and full-time imprisonment. A non-parole period only arises once the court decides on full-time imprisonment.

What are five things a magistrate considers when sentencing?

The objective seriousness of the offence, the aggravating and mitigating factors in section 21A, the purposes of sentencing in section 3A, the offender's subjective circumstances, and any plea of guilty or assistance to authorities. The same factors apply in the Local Court and the higher courts.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 27 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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