When sentencing a federal offender and considering whether to impose an ICO, the sentencing court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) at the third step (ICO consideration), not s 16A of the Crimes Act 1914 (Cth). The s 16A factors apply only at the first two steps (whether imprisonment is appropriate and the length of sentence). There are material differences between the two provisions, particularly regarding rehabilitation: s 3A(d) requires 'promoting' rehabilitation as a purpose of sentencing, whereas s 16A(2)(n) only requires consideration of the 'prospect of rehabilitation'. The question whether perceived leniency of an ICO can be a standalone basis for declining to impose one where community safety findings favour an ICO was left open.
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