Summary of Principles for Life Sentences - NSWLegislationSection 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community protection and deterrence can only be met through the imposition of that sentence.(commenced 30.6.1996; repealed 3.4.2000)Section 61Crimes (Sentencing Procedure) Act1999:(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder,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)CaselawThe Test Under s61 Crimes (Sentencing Procedure) Act 1999 is the Same as that Under the Common LawS.61(1) does not add anything to the common law test for culpability - common law cases are still relevant.
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.
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.
Both these cases have been cited or quoted with approval in many subsequent cases.Donai  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
Burrell  NSW CCA 163 at 2-Stage TestWhen 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.
The Objective Gravity of the Offence - The Test for HeinousnessThe court must first assess the objective gravity of the offence.
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'.
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).
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.)
Arhurell NSWSC (Hunt CJ at CL) 3.10.1997The 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.
Hillsley  NSW CCA 312, 28.9.2006 at 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  NSW CCA 292, at 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 OffenceAssessing 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.
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.
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.
Hillsley  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.
Aslett  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 ( NSW CCA 360), the CCA found this reasoning was impermissible under
McNaughton  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
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:
Adanguidi  NSW CCA 404, 15.12.2006 at - 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  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.
Matters affecting the intellect or appreciation of offender.
PremeditationA failure to find premeditation does not remove case from category of worst type of case
but premeditation does not necessarily place murder in worst category
IntentIf no intent to kill probably not worst case category
Taber & Styman NSWSC  28.2.2003 Barr J made a specific finding of no intent to kill but still gave life sentence:
An appeal against conviction was successful and the CCA had no opportunity to consider the appropriateness of a life sentence.In
Hillsley  NSW CCA 312, 28.9.2006 the court concluded
Tan  NSWSC 684, Price J said
Any aggravating circumstance of the killing.
Treatment of body
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 testTrotter(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
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
Short NSWSC  (Sully J) 7.5.1999 at 
Smith NSW CCA  14.6.2000 at 
Offer NSWSC  (Greg James J) 25.8.2000 at [76-81].Miles NSW CCA  18.7.2002 at  (per Carruthers AJ)
Coulter NSWSC  Greg James J 24.2.2005: found dangerousness beyond reasonable doubt - considered life sentence required based upon combination of continued dangerousness and culpability of offenceKnight (2006) 164 A Crim R 126 at 
Hillsley  NSW CCA 312, 28.9.2006 at 
Johnson  NSWSC 274, Whealy J 29.3.2006: Failure to find dangerousness does not preclude imposition of life sentence.Gilham  NSWSC 138, Howie J, 11.3.2009 [life imposed although could not find dangerousness beyond reasonable doubt]Application of Statutory ProvisionsMerritt (2004) 146 A Crim R 309S.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.  per Wood CJ at CL.
The absence of future dangerousness does not rule out a sentence of life imprisonment.  per Wood CJ at CLTobias 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.
Knight  NSW CCA 292 at It is the combined effect of the four indicia in s 61(1) which is critical:
Merritt (2004) 146 A Crim R 309The 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  Greg James J 24.2.2005At  - s.21A factors relevant to question of whether life sentence should be imposedDonai  NSWSC 502, Fullerton JNot satisfied offence fell into worst case but still found life on basis of combination of other criteria
Categories of CasesThe courts have nominated certain cases as the type that call for a consideration of life imprisonment.Professional or contract killer
Cases involving kidnap and torture of children
Repeat offender who has already served a previous sentence for murder
Killings involving torture or undue savagery
Killings that are extremely antithetical to society or the justice system
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'.
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
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
Killing and sexual assault of young child
Vicious sexual assault and murder of female victim
Killing in context of organised crime
Mutilation of body
Worst Category Case Not Necessarily Life SentenceA 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
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.
The issue has now been settled, and the court continues to have the discretion to impose a lesser sentence.
Subjective FactorsIn some cases the heinous nature of the offences will be so great that the subjective features should be wholly or substantially disregarded.
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
Mental Illness: potential dangerousness may off-set mental problems.
Assistance: assistance to authorities may not outweigh objective nature of offence
Youth: 's.61(1) does not provide a less or more stringent criterion dependent upon age'
General Principles of SentencingThe 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
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.16Bearing 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.23I 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.544-5First, 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.14The
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  (O'Keefe J) 8.11.2001 at  and 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 ImprisonmentThe 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.22In 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, 13-14The 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, 55It 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