This table is intended to be used as a guide only. Individual cases should be read if they are to be relied upon.

 

Murder - Principles for Life Sentences - Summary

Summary of Principles for Life Sentences - NSW

Legislation
Section 19ACrimes Act:
(1) A person who commits the crime of murder is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life.
(3) Nothing in this section affects the operation of s.21(1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)."

Section 431B(1) of the Crimes Act:
A court is to impose a sentence of penal servitude for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
(commenced 30.6.1996; repealed 3.4.2000)

Section 61Crimes (Sentencing Procedure) Act1999:
(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."

(3) Nothing in subsection (1) affects s. 21(1)

(6) This section does not apply to a person who was less than eighteen years of age at the date of the commission of the offence."
(commenced 3.4.2000)

Section 21(1)Crimes (Sentencing Procedure) Act1999:
(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.

(4) The power conferred on a court by this section is not limited by any other provision of this Part.
(5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties."
(commenced 3.4.2000)

Caselaw
The Test Under s61 Crimes (Sentencing Procedure) Act 1999 is the Same as that Under the Common Law
S.61(1) does not add anything to the common law test for culpability - common law cases are still relevant.

Kalajzich (1997) 94 A Crim R 41 in relation to s.431B(1)
Harris (2000) 121 A Crim R 345 at [81-90]
Ngo (2001) 125 A Crim R 495 at [27]
Miles NSW CCA [276] 18.7.2002 at [5] (per Stein JA) and [139-140] (per Carruthers AJ).
Gilham [2009] NSWSC 138, Howie J, 11.3.2009 at [20]


Maximum Penalty is Reserved for the Worst Category of Cases - Not Worst Case.
The maximum penalty is intended for cases falling within the worst category of cases.

Ibbs (1987) 163 CLR 447 at 451-2
Knight (2006) 164 A Crim R 126 at [23]

This does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.

Veen (No. 2) (1986) 164 CLR 465 at 478.

Both these cases have been cited or quoted with approval in many subsequent cases.
Donai [2008] NSWSC 502 Fullerton J: not satisfied case fell into worst category of homicide but still imposed life on basis of combination of features of offence

[81] In all the circumstances, having regard to the findings I have made as to the high degree of criminality involved in the offences for which the offender stands to be sentenced, offending which is very close to the worst case category of offences where a double murder was premeditated and motivated by greed, and having regard to the other criteria provided for in s 61(1) of the Act to which I have referred, I am satisfied that life sentences are required. I am further satisfied that there is no adequate basis, in the exercise of discretion, for any lesser sentence to be imposed.

Burrell [2009] NSW CCA 163 at [245]


2-Stage Test
When considering whether it is appropriate to impose a sentence of life imprisonment the courts have adopted a 2-stage test - assessing first the objective culpability of the offence, then considering the relevance and impact of subjective features applicable to the offender.

Harris (2000) 121 A Crim R 345 at [90-93]
Valera NSWSC [1220] (Studdert) J 21.12.2000
Knight NSWSC [1011] (O'Keefe J) 8.11.2001 at [92]
Lewis NSW CCA [448] 9.11.2001 at [60-71]
Ngo (2001) 125 A Crim R 495 at [26]
Valera NSW CCA [50] 12.4.2002
Miles NSW CCA [276] 18.7.2002 at [52] (per Stein JA) and [204] (per Carruthers AJ)
Knight [2006] NSW CCA 292 at [23]
Barton [2007] NSWSC 651, Buddin J at [104]


The Objective Gravity of the Offence - The Test for Heinousness
The court must first assess the objective gravity of the offence.

Camilleri NSW CCA 8.2.1990 at p.2
Twala NSW CCA 4.11.1994 at p.2
Garforth NSW CCA 23.5.1994
Fernando (1997) 95 A Crim R 533 (Abadee J) at p.535
Fernando [1999] NSW CCA 66

Various tests have been formulated to identify the extreme level of objective gravity required to put a case in the worst category.

Clark NSWSC (Finlay J) 15.6.1990 at p.11
'No doubt the imposition of sentences for life will now be reserved for the worst and most heinous of murders such as may formerly have caused a judge to add a recommendation that the offender's papers be marked 'never to be released'.

quoted with approval in Duque NSWSC (Campbell J) 24.6.1991


Twala NSW CCA 4.11.1994 per Badgery-Parker at pp.6-7
(I)t must be possible to point to features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).

applied in many cases including
Fernando (1997) 95 A Crim R 533 (Abadee J) at p.535
Leonard NSWSC (Badgery-Parker J) 10.11.1997 at p.25-6
Fernando NSW CCA [66] 14.4.1999 at [343-344]
Glasby NSWSC (Sully J) 11.6.1998
Harris (2000) 121 A Crim R 345 at [84, 85]
Valera NSWSC [1220] (Studdert J) 21.12.2000 at p.29
Miles NSW CCA [276] 18.7.2002 at [6] (per Stein JA) and [173] (per Carruthers AJ)


Kalajzich(1997) 94 A Crim R 41 (Hunt CJ at CL) at 51
(T)he maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment. It must nevertheless be possible in the individual case to point to its particular features which are of very great heinousness, and there must be an absence of any facts mitigating the objective seriousness of the crime (as distinct from any subjective features mitigating the penalty to be imposed.)

cited with approval in
Glasby NSWSC (Sully J) 11.6.1998
Georgiou & Harrison NSWSC (Dowd J) 10.3.2000 at [90]
Ngo (2001) 125 A Crim R 495 at [27]


Arhurell  NSWSC (Hunt CJ at CL) 3.10.1997
The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one.

cited with approval in
Leonard NSWSC (Badgery-Parker J) 10.11.1997 at p.25-6
Harris (2000) 121 A Crim R 345 at [85]
Hyland, Parry, Yates NSWSC [470] (Ireland AJ) 7.6.2001 at [35]


Hillsley [2006] NSW CCA 312, 28.9.2006 at [26]
In many cases, even of murder, it may be possible to be reasonably assured that the offender will pose no substantial risk to the community when he or she is released. The notions of retribution, punishment, community protection and deterrence are not, of course, entirely independent of each other. However, there are some crimes which are so wicked that a sentence less than a life sentence cannot adequately reflect the community interest in retribution and punishment, quite apart from the potential for rehabilitation or any need to protect the community. In our view, this murder is a crime of this kind.

Knight  [2006] NSW CCA 292, at [23]
A life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment.
Factors Relevant to the Objective Gravity of the Offence
Assessing the objective gravity of the offence involves considering 'the circumstances surrounding or causally connected with the offence", leaving aside subjective mitigating factors such as remorse, pleas of guilty, prospects of rehabilitation and the like.

Harris (2000) 121 A Crim R 345 at [60]


The following factors have been considered relevant to assessing the objective gravity of the offence:

Totality - The whole of the criminal activity at the time of the murder, including other offences, charged and uncharged.

Garforth NSW CCA 23.5.1994
Offer NSWSC [839] (Greg James J) 25.8.2000 at [34-35]
Hyland, Parry, Yates NSWSC [470] (Ireland AJ) 7.6.2001 at [35]
Gilham [2009] NSWSC 138, Howie J, 11.3.2009
[49] Clearly the number of murders is a relevant fact in determining whether any one murder falls within the worst category, especially where the murders occur in close proximity and arise as part of a single planned enterprise.

Where the offender is being dealt with for multiple, although unrelated murders, the court should take into account the total criminality, and not consider each murder in isolation.

Baker NSW CCA 20.9.1995 at p.2
Street NSW CCA 17.12.1996 at p.20
Leonard NSWSC (Badgery-Parker J) 10.11.1997 at pp.22-5; NSW CCA 7.12.1998 at p.12-13
Harris (2000) 121 A Crim R 345 at [94]
Valera NSWSC [1220] (Studdert J) 21.12.2000
Villa NSWCCA [4] 13.4.2005.

In Hillsley [2006] NSW CCA 312, 28.9.2006 the offender was dealt with for murder and sexual offences, committed on two victims during the same course of conduct. The Court concluded the sentencing judge was wrong in not taking into account the sexual offences when assessing the seriousness of the murder.

[22] We are of the view that those assaults do indeed bear upon the culpability of the respondent for the murder and that, with the other associated facts to which we have referred, they place that murder in the worst class.

In Aslett [2004] NSWSC 1228, 15.12.2004 Wood CJ at CL concluded that the murder alone would not have qualified for a life sentence but in the context of the extensive, although unrelated, other offending in the months preceding and following the murder, the finding of dangerousness, and the negligible prospects of rehabilitation, there was no alternative but to impose a life sentence. On appeal ([2006] NSW CCA 360), the CCA found this reasoning was impermissible under McNaughton [2006] NSWCCA 242 (5-judge bench dealing with relevance of prior offending to sentence) - prior offending may diminish leniency but cannot increase a sentence. The life sentence was reduced to a determinate period of imprisonment.
While it may be possible to distinguish Hillsley and Aslett on the basis that the sexual offences in Hillsley were intimately related to the murder, Aslett does cast doubt on earlier cases involving multiple unrelated murders, an issue raised but not dealt with by McClellan CJ at CL:

[25] To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)). Be that as it may, as I have said, the approach to the issue of prior offending has been authoritatively determined in so far as this Court is concerned in McNaughton.

In Adanguidi [2006] NSW CCA 404, 15.12.2006 at [30]-[32] the CCA referred to McClellan's concern but found the issue did not arise where the multiple murders were all part of the same criminal episode. Applied in Johnson [2007] NSWSC 274 by Whealy J.

The extent to which "the deprived life and upbringing of the accused" may have contributed to the commission of the offence.

Harris (2000) 121 A Crim R 345 at [60]


Motive

Offer NSWSC [839] (Greg James J) 25.8.2000 at [35]


Matters affecting the intellect or appreciation of offender.

Offer NSWSC [839] (Greg James J) 25.8.2000 at [35]


Criminal record.

Smith NSW CCA [202] 14.6.2000 at [165]
Petrinovic NSWSC [1131] (Greg James J) 26.11.1999 at [38]
but see
Aslett [2006] NSW CCA 360, where the court concluded that under McNaughton [2006] NSW CCA 242 the criminal record of an offender cannot elevate a murder that, standing alone, would not justify a life sentence.


Premeditation
A failure to find premeditation does not remove case from category of worst type of case

Garforth NSWSC (Newman J) 9.7.1993 at p.12
Georgiou & Harrison NSWSC (Dowd J) 10.3.2000 at [88] citing Leonard NSW CCA 7.12.1998

but premeditation does not necessarily place murder in worst category

Mrish NSWSC (Hidden J) 13.12.1996 at p.9
Donai {2008] NSWSC 502, Fullerton J
[65] It is clear that premeditation alone does not necessarily place a case in the worst category (see for example, Chetcuti, NSW CCA 24.12.1993, referred to in the case of Burrell [2007] NSWCCA 65 at [327]) neither for that matter neither does the fact that the motivation for killing was financial (see Willard [2005] NSWSC 402; Mrish, Hidden J, NSWSC 13.12.1996; and Chetcuti). In the case of Chetcuti for example, the sentencing judge was satisfied to the criminal standard that Mr Chetcuti abducted his ex-wife against her will, drove her to the Parramatta Lakes Reserve, hit her on the head several times with a heavy object intending to kill her and whilst she was unconscious but still alive placed three rocks weighing a total of about 11 kilograms inside her clothing to weigh her body down. He then put her weighted unconscious body in the water of an inlet at Parramatta Lakes. His motivation was not financial. His motivation was to prevent his ex-wife from pursuing an application against him in the Family Court which he feared might result in him losing some of his property. A determinate sentence was imposed. Although the case was decided, both at first instance and on appeal, prior to the passage of s 61(1) of the Act, it is nevertheless indicative of the fact that there are cases which are gross in the extreme in terms of the extent of premeditation and the motive behind the murder where the maximum penalty has not been imposed. I should acknowledge, however, as was noted by McClellan CJ at CL in Burrell that:
'...there are other decisions of this Court which would point in a different direction. Contract killings have been found to fall in the worst category of case (see Cross, Grove J, unreported, 6.12.1996) where his Honour said that 'a deliberate killing for payment would prima facie finds its place in the worst category of case with the potential for the imposition of the maximum penalty.'  Hunt CJ at CL in Kalejich (1997) 94 A Crim R 41 said that he agreed with this statement although recognising that there may be contract killings which in all of the circumstances would not attract the maximum penalty (at 52)'.


Intent
If no intent to kill probably not worst case category

Mihailovic, Howard, Morgan & Young NSWSC (B-Parker J) 15.4.1991 at pp.18-19
Craig NSWSC (Abadee J) 14.4.1993 at p.15
Keir NSWSC [111] (Adams J) 29.2.2000 at [16]

In Taber & Styman NSWSC [93] 28.2.2003 Barr J made a specific finding of no intent to kill but still gave life sentence:

'although they did not intend or desire (the victim) to die I think that they cool callous indifference was as blameworthy as if they had'[40].

An appeal against conviction was successful and the CCA had no opportunity to consider the appropriateness of a life sentence.
In Hillsley [2006] NSW CCA 312, 28.9.2006 the court concluded

[17] In our view, the finding that the respondent intended only to cause grievous bodily harm does not in the circumstances here significantly reduce his culpability. Put another way, the culpability involved in the premeditated vicious attack of extreme violence on the victim in his own home is so grave that the mere fact that the respondent might not have intended to kill does not significantly mitigate the gravity of the offence

Tan [2007] NSWSC 684, Price J said

[46] The prisoner did not procure the attack so that the deceased would be killed. It was his intention to cause grievous bodily harm. A contract murder done with the intent to cause grievous bodily harm generally attracts a lesser sentence than a contract murder done with the intent to kill. However, there will be cases where a murder which results from a contract to inflict grievous bodily harm reflects similar criminality to a murder which was contracted with the intention to kill. In Hillsley [2006] NSWCCA 312 the Court said [at 16]:
[16]. Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In Nelson (NSWCCA 25.6.1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that 'there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill'; see also Wilson [2005] NSWCCA [112]'.
[47] In order to terrify Ma, an attack involving extreme cruelty was planned and procured by the prisoner upon the victim who had the misfortune to be Ma's brother-in-law. This was a contract attack. He was to be attacked at his home at a time when his wife, Ma's sister, was likely to be present. Acid was to be used not only to hideously disfigure him but also to inflict awful pain. Acting upon their instructions the assailants doused the deceased with hydrochloric acid on the verandah of his home. He was hit with a gun. As a result the deceased died a slow and horrible death. In these circumstances, although this was not a contract murder procured with the intent to kill, the culpability of the prisoner is not reduced nor is the gravity of the offence. The prisoner's level of culpability is such that the prisoner's crime, in my view, falls within the worst category of the offence of murder.


Any aggravating circumstance of the killing.

Leonard NSW CCA 7.12.1998
Georgiou & Harrison NSWSC (Dowd J) 10.3.2000
Adam NSWSC [144] (Wood CJ at CL) 19.2.1999
all citing Garforth NSW CCA 23.5.1994


Treatment of body

Knight [2006] NSW CCA 292 at [28]


Dangerousness of offender.
This factor has been mentioned in several cases, although it is unclear whether it forms part of the first or second stage of the test
Trotter(1993) 68 A Crim R 536 at p.3: declined to mitigate sentence for prisoner's mental retardation because of continuing danger to society.
Garforth NSW CCA 23.5.1994 at p.12

'We return to the concepts of dangerousness and rehabilitation. It is now well settled that the protection of society - and hence the potential dangerousness of the offender - is a relevant matter on sentence. ( Veen) This factor cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. But it can be used to offset a potentially mitigating feature of the case, such as the offender's mental condition, which might otherwise have led to a reduction of penalty. Mr Sides concedes that, in the case of homicides involving a high degree if culpability, the fact that the offender will be likely to remain a danger to the community for the rest of his or her life might justify the imposition of life imprisonment'.

Baker NSW CCA 20.9.1995 at p.8-9 (per Allen J in dissenting judgement, where court upheld life sentence): a life sentence may be appropriate where a killer is so fundamentally psychotic that it would never be safe to release him back into the community, although the evidence would need to be quite strong.
Leonard NSW CCA 7.12.1998

'It said that the question of potential dangerousness ( Veen (1988) 164 CLR 465) can be used to offset mental problems which may have led to a reduction in penalty. he Court held that if a person is likely to remain a danger to the community for the rest of his life, that in itself might justify the imposition of a sentence of life imprisonment'.

Short NSWSC [430] (Sully J) 7.5.1999 at [44]

'Had I been persuaded in the present matter that there was credible evidence capable , if accepted, of establishing ... that the prisoner '...is so fundamentally psychotic that it could never be safe to release him back into the community', I would not have hesitated to impose the indeterminate life sentence'.

Smith NSW CCA [202] 14.6.2000 at [165]

'In Veen (1987-88) 164 CLR 456 the High Court said that it was legitimate to take account of a person's criminal history when it illuminates his moral culpability in the offence, shows his dangerous propensity or indicates a need for condign punishment as a deterrence. All of these matters apply to the appellant in this present case'.

Offer NSWSC [839] (Greg James J) 25.8.2000 at [76-81].
Miles NSW CCA [276] 18.7.2002 at [173] (per Carruthers AJ)

'The question for this Court is whether this case reaches the level of culpability so extreme as to require a life sentence in terms of s.61(1) and the common law as explained in Twala. This involves an assessment of the respondent's moral culpability and dangerous propensity'.

Coulter NSWSC [101] Greg James J 24.2.2005: found dangerousness beyond reasonable doubt - considered life sentence required based upon combination of continued dangerousness and culpability of offence
Knight (2006) 164 A Crim R 126 at [23]

A life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; [ Kalajzich (1997) 94 A Crim R 41 at (50-51); Baker NSW CCA 20.9.1995; Garforth NSW CCA 23.5.1994.

Hillsley [2006] NSW CCA 312, 28.9.2006 at [24]

'Dangerousness alone, of course, is not sufficient to bring an offender within s.61(1), since the extent of an offender's culpability for the crime marks the outer limit of any appropriate punishment. Nevertheless, it is clearly a highly relevant factor, indeed, one to which the sub-section itself directs attention'.

Johnson [2007] NSWSC 274, Whealy J 29.3.2006: Failure to find dangerousness does not preclude imposition of life sentence.
Gilham [2009] NSWSC 138, Howie J, 11.3.2009 [life imposed although could not find dangerousness beyond reasonable doubt]
Application of Statutory Provisions
Merritt (2004) 146 A Crim R 309
S.61(1) sets out four indicia - retribution, punishment, community protection and deterrence - the section applies if the culpability of the offender is so extreme that any combination of the stated indicia requires the imposition of a life sentence. [52] per Wood CJ at CL.

'[52] In my assessment, the primary focus of the legislation is directed towards how extreme the offender's culpability is. Both Harris and Miles, and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life.
[53] While in most cases of extreme heinousness each of the relevant elements will be present to some degree, it is unlikely that they will be present to the same degree. For example, that might be so in the case of an offender who has a significant mental condition, which renders him of very great continuing dangerousness, but in whose case, in accordance with established sentencing principle, the element of personal deterrence may be of limited importance'.

The absence of future dangerousness does not rule out a sentence of life imprisonment. [54] per Wood CJ at CL
Tobias JA agreed with Wood CJ at CL but pointed out it would be rare for the culpability of the offence to justify life imprisonment where one of the indicia is absent.

[5] Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence.
[6] It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as [Wood CJ at CL) observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree.
[7] As his Honour also observes, it is the combination of the statutory indicia established on the evidence to which regard must be had. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence must be imposed.


Knight [2006] NSW CCA 292 at [23]
It is the combined effect of the four indicia in s 61(1) which is critical: Merritt (2004) 146 A Crim R 309
The absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559.

Coulter NSWSC [101] Greg James J 24.2.2005
At [49] - s.21A factors relevant to question of whether life sentence should be imposed

Donai [2008] NSWSC 502, Fullerton J
Not satisfied offence fell into worst case but still found life on basis of combination of other criteria

[81] In all the circumstances, having regard to the findings I have made as to the high degree of criminality involved in the offences for which the offender stands to be sentenced, offending which is very close to the worst case category of offences where a double murder was premeditated and motivated by greed, and having regard to the other criteria provided for in s 61(1) of the Act to which I have referred, I am satisfied that life sentences are required. I am further satisfied that there is no adequate basis, in the exercise of discretion, for any lesser sentence to be imposed

Categories of Cases
The courts have nominated certain cases as the type that call for a consideration of life imprisonment.

Professional or contract killer

Baker NSW CCA 20.9.1995 at pp.8-9 (per Allen J)
Adam NSWSC [144] (Wood CJ at CL) 19.2.1999 at [40-43]
Georgiou & Harrison NSWSC (Dowd J) 10.3.2000 at [92]
Glasby (2000) 115 A Crim R 465.
See also
Crofts NSWSC (Grove J) 6.12.1996 (A deliberate killing for payment would prima facie be a worst category case. A death resulting from deliberate wounding with intent to do grievous bodily harm for payment would inhere only fractionally less culpability)
Glasby (Suzette) NSWSC (Sully J) 11.11.1997 at pp.22-23 (It does not follow, however, that everyone connected, in whatever particular degree, with a particular contract killing, should be visited with the statutory maximum)
Kalajzich (1997) 94 A Crim R 41 (Hunt CJ at CL) at pp 50-51 (a deliberate killing for payment would prima facie find its place in the worst category of case with the potential for imposition of the maximum penalty, but noted that not every case of a contract killing would attract the maximum)
Irani NSWSC [475] (Barr J) 15.6.2001 at [28] (but not where the contract was to inflict grievous bodily harm and the offender intended only to inflict GBH)
Burrell [2007] NSW CCA 65, 16.3.2007 (planned killing for financial gain - no different to contract killing)
Tan [2007] NSWSC 684, Price J [contract to inflict GBH]
Burnes [2007] NSWSC 298, Fullerton J
[34] In light of the findings of fact that I have made, when viewed objectively, the murder is in my opinion just outside the worst category of case. It was a murder planned by one and executed by another in cold blood and in a milieu of drug dealing where financial motivations dominated. However, the fact that this offender killed at the request of and ultimately on the command of the person who had the primary motive to kill, operates to distinguish his criminality from that of his co-offender. That offender is in the worst category of case.
Donai [2008] NSWSC 502, Fullerton J
[64] That said, I am not satisfied that this case falls within the worst category of homicide or the most extreme case, although it falls very close to it. I am conscious in so saying that it is not simply because a worse case of contract killing can be envisaged but rather because this case, whilst premeditated and planned, was nevertheless unprofessional and, to an extent, amateurish.
[65] It is clear that premeditation alone does not necessarily place a case in the worst category (see for example, Chetcuti, NSW CCA 24.12.1993, referred to in the case of Burrell [2007] NSWCCA 65 at [327]) neither for that matter neither does the fact that the motivation for killing was financial (see Willard [2005] NSWSC 402; Mrish, Hidden J, NSWSC 13.12.1996; and Chetcuti). In the case of Chetcuti for example, the sentencing judge was satisfied to the criminal standard that Mr Chetcuti abducted his ex-wife against her will, drove her to the Parramatta Lakes Reserve, hit her on the head several times with a heavy object intending to kill her and whilst she was unconscious but still alive placed three rocks weighing a total of about 11 kilograms inside her clothing to weigh her body down. He then put her weighted unconscious body in the water of an inlet at Parramatta Lakes. His motivation was not financial. His motivation was to prevent his ex-wife from pursuing an application against him in the Family Court which he feared might result in him losing some of his property. A determinate sentence was imposed. Although the case was decided, both at first instance and on appeal, prior to the passage of s 61(1) of the Act, it is nevertheless indicative of the fact that there are cases which are gross in the extreme in terms of the extent of premeditation and the motive behind the murder where the maximum penalty has not been imposed. I should acknowledge, however, as was noted by McClellan CJ at CL in Burrell that:
'...there are other decisions of this Court which would point in a different direction. Contract killings have been found to fall in the worst category of case (see Cross, Grove J, unreported, 6.12.1996) where his Honour said that 'a deliberate killing for payment would prima facie finds its place in the worst category of case with the potential for the imposition of the maximum penalty.'Hunt CJ at CL in Kalejich (1997) 94 A Crim R 41 said that he agreed with this statement although recognising that there may be contract killings which in all of the circumstances would not attract the maximum penalty (at 52)'.
 

Psychotic killer

Baker NSW CCA 20.9.1995 at pp.8-9 (per Allen J) (where a danger to the community)
Adam NSWSC [144] (Wood CJ at CL) 19.2.1999 at [40-43]
Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002 at [75]


Cases involving kidnap and torture of children

Adam NSWSC [144] (Wood CJ at CL) 19.2.1999 at [40-43]


Repeat offender who has already served a previous sentence for murder

Adam NSWSC [144] (Wood CJ at CL) 19.2.1999 at [40-43]
but see
Aslett [2006] NSW CCA 360, where the court concluded that under McNaughton the criminal record of an offender cannot elevate a murder that, standing alone, would not justify a life sentence.


Thrill killing

Adam NSWSC [144] (Wood CJ at CL) 19.2.1999 at [40-43]
Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002 at [75]


Multiple murders

Baker NSW CCA 20.9.1995 at p.2 (per Gleeson CJ)
Harris (2000) 121 A Crim R 345 at [100]
Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002 at [75]
See however the comments in Aslett [2006] NSW CCA 360 where the court concluded prior criminal offending was not relevant to the assessment of the gravity of the murder. McClellan CJ at CL observed:
[25] To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)). Be that as it may, as I have said, the approach to the issue of prior offending has been authoritatively determined in so far as this Court is concerned in McNaughton.
Gilham [2009] NSWSC 138, Howie J, 11.3.2009
[49] Clearly the number of murders is a relevant fact in determining whether any one murder falls within the worst category, especially where the murders occur in close proximity and arise as part of a single planned enterprise.


Killings involving torture or undue savagery

Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002 at [75]


Killings that are extremely antithetical to society or the justice system

Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002 at [75] eg the premeditated killing of a police officer on the execution of their duty


At the same time the courts have made it clear that there is no value in attempting to construct a list of worst category cases, or even to compare facts of cases in order to determine a worst case category. The facts of each specific case needs to be weighed up and considered.
In Fernando (1997) 95 A Crim R 533 (Abadee J) at p.353-6 observed
'In order to determine whether a case falls within the worst case one does not adopt the approach, ... for example, that the case should be of the type where there has been a multiple murder, or murder of a child or of children. These may be examples of the worst category case, but they are no more than that. Indeed, such cases may provide single instant examples of when the circumstances of a particular case will answer the description of the worst category case: cf Milat NSWSC (Hunt CJ at CL) 27.7.1996 (multiple murders); Garforth NSW CCA 23.5.1994 a case involving murder of the young nine year old school girl Ebony Simpson. These cases lay down no rules of what will be relevant heinousness of conduct in all case. Heinousness of conduct is also to be determined by reference to the particular facts of the case as found'.

See also
Twala NSW CCA 4.11.1994 at pp.6-7
Baker NSW CCA 20.9.1995 at pp.8-9 (per Allen J in dissent)
Adam NSWSC [144] (Wood CJ at CL) 19.2.1999 at [40-43]
Offer NSWSC [839] (Greg James J) 25.8.2000 at [58]
Ngo (2001) 125 A Crim R 495 at [28]
Knight [2006] NSW CCA 292 at [23].


It is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness

Veen (No 2) (1988) 164 CLR 465 at 478
Petroff NSW CCA 12.11.1991
Knight (2006) 164 A Crim R 126 at [23]


Sentences of life imprisonment have been imposed in the following categories of murder. It is not suggested, however, that life imprisonment was imposed solely because each of the murders fell into a particular category, and, with the possible exception of political killings, it is possible to find cases in each category where determinate sentences have been applied.

Multiple Murders

Glover NSWSC (Wood J) 29.11.1990
Baker NSWSC (Newman J) 6.8.1993; NSW CCA 20.9.1995
Steele NSWSC (Hunt CJ at CL) 12.5.1994
Street NSWSC (Dunford J) 29.6.1995; NSW CCA 17.12.1996
Milat NSWSC (Hunt CJ at CL) 27.7.1996; NSW CCA 26.2.1998
Leonard NSWSC (Badgery-Parker J) 10.11.1997; NSW CCA 7.12.1998
Rose [1999] NSWCCA 327, 11.10.1999
Lewis NSWSC (Ireland J) 9.6.2000; [2001] NSW CCA 448
Harris (2000) 111 A Crim R 415; (2000) 121 A Crim R 345
Valera NSWSC [1220] (Studdert J) 21.12.2000; [2002] NSW CCA 50
Kanaan NSWSC (Greg James J) 31.10.2001; (2005) 157 A Crim R 238
Gonzales [2004] NSWSC 822
Villa [2005] NSW CCA 4
Adanguidi [2005] NSWSC 519; [2006] NSW CCA 404
Tiwary [2006] NSWSC 1156
Darwiche and Ors [2006] NSWSC 1167
Johnson [2007] NSWSC 274, Whealy J, 29.3.2007
Donai [2008] NSWSC 502, Fullerton J
Gilham [2009] NSWSC 138, Howie J, 11.3.2009


Repeat offender who has already served a previous sentence for murder

Cameron NSWSC (Newman J) 16.10.1992
Smith NSWSC 10.9.1998 (Simpson J); [2000] NSW CCA 202
Miles [2002] NSWSC 84; [2002] NSWCCA 276
Kanaan [2002] NSWSC 774; (2005) 157 A Crim R 238
Hore [2002] NSWSC 749; [2005] NSW CCA 3
Sievers [2002] NSWSC 1257; (2004) 151 A Crim R 426


Killing and sexual assault of young child

Trotter (1993) 68 A Crim R 536
Garforth NSWSC (Newman J) 9.7.1993; NSW CCA 23.5.1994


Vicious sexual assault and murder of female victim

Fernando (1997) 95 A Crim R 533 (Abadee J); [1999] NSW CCA 66


Contract killing

Glasby NSWSC (Sully J) 11.6.1998; (2000) 115 A Crim R 465
Rose [1999] NSW CCA 327
Lewis NSWSC (Ireland AJ) 9.6.2000; [2001] NSW CCA 448
Burrell [2007] NSW CCA 65, 16.3.2007
Tan [2007] NSWSC 684, Price J [contract to inflict GBH]
Burnes [2007] NSWSC 298, Fullerton J
[34] In light of the findings of fact that I have made, when viewed objectively, the murder is in my opinion just outside the worst category of case. It was a murder planned by one and executed by another in cold blood and in a milieu of drug dealing where financial motivations dominated. However, the fact that this offender killed at the request of and ultimately on the command of the person who had the primary motive to kill, operates to distinguish his criminality from that of his co-offender. That offender is in the worst category of case.
Donai [2008] NSWSC 502, Fullerton J


Killing in context of organised crime

Smith NSWSC 10.9.1998 (Simpson J); [2000] NSW CCA 202
Rose [1999] NSW CCA 327
Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002; [2006] NSW CCA 109
Darwiche and Ors [2006] NSWSC 1167


Gaol Killing

Fyffe [2002] NSWSC 751; [2005] NSW CCA 3
Hore [2002] NSWSC 749; [2005] NSW CCA 3


Mutilation of body

Suckling NSW CCA [36] 15.3.1999
Valera NSWSC [1220] (Studdert J) 21.12.2000; [2002] NSW CCA 50
Knight NSWSC [1011] (O'Keefe J) 8.11.2001; [2006] NSW CCA 292
Coulter [2005] NSWSC 101


Political Assassination

Ngo (2001) 125 A Crim R 495
Kanaan NSWSC [774] (Wood CJ at CL) 29.8.2002 at [75]


Killings involving torture or undue savagery

Adanguidi [2006] NSW CCA 404.


Worst Category Case Not Necessarily Life Sentence
A conclusion that the objective gravity of an offence places it in the worst category of murder does not lead automatically to a life sentence being imposed. The court must consider any subjective factors relevant to the accused, and has a discretion to impose a lesser sentence, if appropriate

Lett NSWSC (Ireland J) 4.3.1994 at p.8
Steele NSWSC Hunt CJ at CL 12.5.1994
Leonard NSWSC (Badgery-Parker J) 10.11.1997 at p.29
Smith NSWSC (Simpson J) 10.9.1998
Adam NSWSC [144] (Wood CJ at CL) 19.2.1999
Rose NSW CCA [327] 11.10.1999
Lewis NSWSC (Ireland J) 9.6.2000)


The construction of s.61(1) raised some debate about whether this discretion still existed.
Greg James J was of the opinion that once the criteria of s.61(1) was satisfied (ie once the court found that the objective gravity of the offence placed it in the worst category of cases) the imposition of life imprisonment was mandatory, and the court had no discretion to impose a lesser sentence.

Petrinovic (1999) NSWSC [1131] (Greg James J) at [25-37]
Offer NSWSC [839] (Greg James J) 25.8.2000 at [30] - considering the application of the identically worded s.431B(1)


The issue has now been settled, and the court continues to have the discretion to impose a lesser sentence.

Harris (2000) 121 A Crim R 345 at [90-93]
Ngo (2001) 125 A Crim R 495 at [26]
Miles NSW CCA [276] 18.7.2002 at [52] (per Stein JA) and [201] (per Carruthers AJ)
Fyffe NSWSC [751] (Barr J) 29.8.2002 at [23]
Merritt (2004) 146 A Crim R 309 per Wood CJ at CL at [36]
Burrell [2009] NSW CCA 163 at 246]


Subjective Factors
In some cases the heinous nature of the offences will be so great that the subjective features should be wholly or substantially disregarded.

Leonard NSWSC (Badgery-Parker J) 10.11.1997; NSWCCA 7.12.1998
Fernando (1997) 95 A Crim R 533 (Abadee J) at p.544-5
Harris (2000) 121 A Crim R 345 at [103]
Ngo (2001) 125 A Crim R 495 at [34]
Miles NSW CCA [276] 18.7.2002 at [52] (Per Stein JA) and [203] (per Carruthers AJ)
Adanguidi [2006] NSW CCA 404 at [34] - absence of relevant criminal record


Although subjective mitigating features are relevant when considering whether to impose a sentence of life imprisonment, the courts have made clear that the presence of a mitigating factor does not prevent the imposition of the maximum penalty:

Rehabilitation: the maximum penalty is not to be reserved for cases where there is no hope of rehabilitation

Garforth NSW CCA 23.5.1994
Baker NSW CCA 20.9.1995 at pp.11-12 per Barr J
Fernando (1997) 95 A Crim R 533 (Abadee J) at p.545-6
Fernando [1999] NSW CCA 66
Leonard NSW CCA 7.12.1998
Petrinovic NSWSC [1131] (Greg James J) 26.11.1999 at [49]
Knight [2006] NSW CCA 292 at [31]


Mental Illness: potential dangerousness may off-set mental problems.

Trotter (1993) 68 A Crim R 536 at p.3
Baker NSW CCA 20.9.1995 at p.8-9 (per Allen J)
Leonard NSW CCA 7.12.1998
Coulter NSWSC [101] Greg James J 24.2.2005


Assistance: assistance to authorities may not outweigh objective nature of offence

Rose NSW CCA [327] 11.10.1999


Youth: 's.61(1) does not provide a less or more stringent criterion dependent upon age'

Kanaan NSWSC [959] (Greg James J) 31.10.2001 at [52-53]
See also
Steele NSWSC (Hunt CJ at CL) 12.5.1994
Leonard NSW CCA 7.12.1998
Valera NSWSC [1220] (Studdert J) 21.12.2000.


General Principles of Sentencing
The test under s.61(1) is whether the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. This wording was used often in pre-s.61(1) cases

Fernando (1997) 95 A Crim R 533 (Abadee J) at p.544
Glasby (2000) 115 A Crim R 465 at [138]

The general principles of sentencing are still important in making a determination as to the appropriate sentence.

Garforth NSWSC (Newman J) 9.7.1993 at p.16
Bearing these considerations in mind the court should also take into account other elements of punishment amongst which number personal and general deterrence. In the instant case, a substantial determinate sentence would act as a sufficient personal deterrent to the prisoner. However, if general deterrence is to have any meaning, sentences of this Court should bring home to those who prey upon young girls that their actions will bring upon them stern retribution should they not stay their hands. There is also the important mater of public vindication of the law. The community rightly expects its courts to apply the criminal law with, in certain cases, mercy and in others with rigour.

Steele NSWSC (Hunt CJ at CL) 12.5.1994 at p.23
I referred earlier to the duty of the courts to see that he sentences which are imposed will operate in a deterrent manner - both as a powerful factor in preventing the commission of similar crimes by others in the future, and to ensure that the offender himself does not repeat his offences. That is not the only purpose of punishment. Rehabilitation (or reform) - the hope that the offender will be released back into the community a better person than when he left it - is also such a purpose, but sadly there is no realistic prospect that punishment will effect any particular rehabilitation in the present case. Retribution, or the taking of vengeance for the injury which has been done by the prisoner, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done. Such various purposes of punishment are to some extent conflicting in their nature, and different weight must be given to each in different cases, but rather to those who take the trouble to consider the facts of the case as they have been found or accepted by the court which imposes the sentence.

Baker NSW CCA 20.9.1995 at p.7 (per Gleeson CJ)
Rehabilitation and the prospect of offering a person some hope for release from incarceration prior to death are undoubtedly important considerations to be taken into account in favour of the present appellant. Sentencing, however, serves an important retributive function and the requirements of justice in a case involving the objective features of the present case in my view justify the decision taken by the sentencing judge.

Fernando (1997) 95 A Crim R 533 (Abadee J) at pp.544-5
First, there are some cases where the level of culpability of so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty: see Garforth. Next, rehabilitation and the prospect of offering person some hope from incarceration, whilst being important considerations and are to be taken into account in favour of persons in the position of each of the prisoners, nevertheless, the requirement of retributive judgments involving the objective features of an instant case may amply warrant not only a case being regarded as in the worst category of case but as warranting the imposition of the maximum penalty: see Baker and. Indeed, as the decision of Hunt CJ at CL illustrates there may in some cases falling within the category of worst class of cases, where there is even little utility in considering the prospects of rehabilitation. Indeed, it may be that in such cases the subjective circumstances generally of a prisoner himself can not play any real decisive part. In Milat Hunt CJ at CL emphasised that apart from a horrible crime or crimes requiring sentences operating by way of retribution, there may also be a need for the sentence to operate by way of public deterrence to ensure that those whose character may incline them to similar behaviour in the future will be reminded powerfully that severe punishment will be imposed should they give into temptation. ... Next the punishment should be seen to fit the crime. The sentences should also accord with the general moral sense of the community.

Lewis NSWSC (Ireland) 9.6.2000 at p.14
The community protection referred to in the (s.61(1)), in my view, is not confined to any threat which may be posed by the offender re-offending, but also includes that protection inherent in the general deterrence which like-minded persons may experience when contemplating the condign punishment their conduct may call down upon them.

Knight  NSWSC [1011] (O'Keefe J) 8.11.2001 at [88] and [90]
The community interest in heavy punishment and in retribution for the terrible crimes committed by the prisoner is high. A sentence is called for which accords with the general moral sense of the members of the community who are aware of the facts and who have taken the opportunity to consider the penalty imposed in that light as well as in the light of any subjective factors in favour of the prisoner ( Purdey (1993) A Crim R 441 at 445). ... In considering the penalty appropriate to the crime committed by the prisoner, it should be borne in mind that the principal of proportionality precludes the imposition of a sentence which extends beyond what is appropriate to such crime merely to protect society. The protection of society is, however, a material factor in fixing an appropriate penalty. ( Veen (No.2) (1987-8) 164 CLR 465 at 473).
Terrible Significance of Life Imprisonment
The courts have made numerous references to the terrible significance of a sentence of life imprisonment, while at the same time recognising their duty to impose the sentence in appropriate circumstances.

McCafferty NSWSC (Wood J) 15.10.1991 at p.22
In particular it seems to me to be important to pay full regard to the obvious legislative preference for determinate sentences and to the positive incentive which a minimum release date offers for a prisoner. It is a clear milestone towards which the prisoner can work, and it has been recognised consistently as a positive factor in the rehabilitation process.

Petroff NSWSC (Hunt CJ at CL) 12.11.1991 at pp.1-2, 13-14
The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment the offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive, and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by prison authorities. ... A civilised country does not act in the way that Moses laid down. Capital punishment has been abolished, and (except in extraordinary circumstances, which do not exits in this case) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. In addition to retribution - and of course deterrence - the purpose of punishment is also to reform the offender as far as possible, and ultimately to release that offender back into the community a better person than when he or she left it.

Corrigan NSWSC (Finlay J) 15.4.1993 at p.13
(T)he best interests of justice will rarely be served by the offender being locked up for the term of his natural life where reform and rehabilitation have little or no meaning.

Crump NSW CCA 30.5.1993 per Allen J at pp 38, 55
It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: 'show could this apparently well adjusted applicant be the person who committed such a crime?'s Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person." ..."I appreciate that the legislation in its present form empowers the Supreme Court to throw away the key, to deny to the prisoner any prospect of ever again being