A sentencing judge who receives a submission that an ICO should be imposed must engage with that submission, consider it, and express a conclusion in relation to it, including consideration of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, on resentencing, an ICO will not be appropriate where the offender is due for imminent release on recognizance, as the ICO would constitute a more severe punishment than the existing sentence. The question whether s 66 or s 16A of the Crimes Act 1914 (Cth) governs the consideration of an ICO for Commonwealth offences was left open.
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