Under s 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO is available whenever an aggregate sentence does not exceed 3 years, regardless of the length of any indicative sentence. A sentencing judge who declines to consider an aggregate sentence under s 53A, thereby precluding the availability of an ICO, commits an error of law amenable to correction on appeal. A sentence must not be structured for the purpose of either achieving or avoiding the availability of an ICO.
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