There are circumstances, however, where a sentencing court can conclude that the special circumstances of the case will overwhelm the presumption of imprisonment and impose a non-custodial sentence, if there is a potential of a “serious injustice.”  The standard is narrowly drawn and in the words of the Supreme Court case must be grounded upon circumstances that are “truly extraordinary and unanticipated” and that is so, even if the mitigating factors substantially outweigh the aggravating factors.  Usually, the core of the trial court’s analysis is whether the defendant’s conduct was idiosyncratic. 

The case of State v. Jarbath is a prime example of an idiosyncratic defendant who was convicted as a second degree offender and received a non-custodial term of imprisonment.  There, the defendant was a 21 year old women with serious mental deficiencies, including a psychosis.  She was charged with murder under circumstances where she dropped her 19 day-old son twice on a coffee table.  In that case, the court concluded that the defendant should receive a non-custodial term because of her inability to understand the consequences of her conduct and the serious impact incarceration would have on her well being. 

In another case titled, State v. Jabbour, the trial court decided to impose a non-custodial term against a defendant who had pled guilty to a second degree sexual assault on a 4 year old girl. Under that decision, the trial court noted that the defendant was “as sad, sorry, weak individual in need of psychiatric attention and that a period of incarceration will carry a high risk that is never overcoming his emotional difficulties.”  On appeal, the Supreme Court reversed the trial court’s decision and concluded that the defendant’s emotional problems were not idiosyncratic.  It also concluded that “defendants who commit serious crimes should expect to spend some time in prison.

On another occasions, an appellate court concluded that special circumstances associated with the incarceration of a police officer was not idiosyncratic and this special fact was insufficient to overcome the presumption of incarceration.