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

"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."

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).

Ibbs (1987) 163 CLR 447 at 451-2.

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

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]

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

“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

(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)

(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]

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]

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.

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.

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

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]

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.

[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.

[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.

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

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

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

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.

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

Mrish NSWSC (Hidden J) 13.12.1996 at p.9

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]

“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].

[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

[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.

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

Knight [2006] NSW CCA 292 at [28]

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

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.

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]

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

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.

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]

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.

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

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

“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].

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

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

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

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

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.

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

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

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

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

Adanguidi [2006] NSW CCA 404.

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)

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)

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]

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

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]

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

Rose NSW CCA [327] 11.10.1999

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.

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

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.

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.

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.

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.

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.

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).

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.

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.

(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.

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: 'how could this apparently well adjusted applicant be the person who committed such a crime?' 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 free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that.

A conclusion that the offences are in the worst category of murder “…does not, however, lead automatically to a life sentence being imposed. The Legislature has shown an obvious preference for determinate sentences to be imposed. I have previously expressed the view that, except in extraordinary circumstances, society is not well served by locking away a murdered and throwing away the key. I still adhere to that view.

(W)e do not intend to diminish the terrible significance of a sentence of life imprisonment. Nor did Newman J. His Honour quoted the following passage from the judgement of Hunt CJ at CL in Petroff (NSWSC 12.11.1991): "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." We acknowledge the force of these sentiments. That is why life imprisonment is to be imposed only in the worst type of case. Nevertheless there are cases in which such a severe punishment fits the crime. This is one such case.

Such a sentence cannot lightly be imposed in any civilised society. There are of course, circumstances in which in a civilised society such a sentence may be called for. Such cases will be quite exceptional. But clearly they exist. The law so provides.

It is obvious that the imprisonment of an offender for the term of his natural life is, to say the very least, a draconian punishment. The existence of such a penalty has excited strong, and sometimes passionate responses from individual judges. … To acknowledge, as I do with all respect, the worth of the human philosophy that underpins this powerful statement does not entail, and cannot be permitted ever to entail, a departure from the simple proposition that, whether judges like it or not, Parliament has declared in section 19A that it is consistent with current community standards of civilised behaviour that imprisonment for the term of the offender’s natural life is, at least for the worst type of murder, a proper and appropriate punishment.

I am fully conscious that, in making the radical amendments to sentencing for murder that it did in 1989, the legislature was signalling its intention that the sentence of life imprisonment should be reserved for offences of the very worst kind. It is not envisaged that life imprisonment would be the norm for convictions of murder, but rather that it would be exceptional cases that attracted that penalty. In that sense the maximum penalty available for murder is, like the maximum penalty available for other charges, to be used sparingly.

It has been recognised that except in circumstances of very great heinousness, where it can be postulated that there are no facts mitigating the seriousness of the crime, the interests of society are not necessarily well served by locking up an offender and throwing away the key. … Particularly is that the case for a young man for whom a life sentence, without hope of release, may well be an utterly crushing outcome and one that provides no incentive for rehabilitation or cooperation within the prison system.

I have particular regard for the terrible significance of a sentence of life imprisonment as provided for by s.19A, which removes forever the prospect of release …

The considerations which moderate the meting out of punishment, whilst keeping at the forefront the policy objectives of sentencing (to which I have already referred) are not applied because of what is due to the offender but what is due to ourselves as a civilised and humane community. It is not so much because we respect the criminal but because we respect ourselves. The inability to provide eligibility for parole so that a life sentence must be served entirely in prison emphasises the importance of the rule which restricts its imposition to the most serious kind of case

(A sentence of life imprisonment) has terrible significance … particularly in the case, as here, of an offender of comparative youth. … But (the decision of Harris (2000) 121 A Crim R 345 at [79] - [100]) is authority that the absence of the ability to impose a non-parole period in such circumstances and subjective considerations should not mitigate against the imposition of the life sentence where the heinousness of the crimes, their moral culpability and the lack of prospects of avoiding recidivism, require the sentence to be passed to protect the community.

No-one would deny the gravity of the life sentence in New South Wales. The prisoner is condemned to die in gaol, without any prospect of release on parole: s25A(6) of the Sentencing Act, 1989. The possibility of the exercise of the Royal prerogative of mercy is so remote as to be discounted. …
It is true that a crime falling within the worst category may attract the maximum sentence prescribed even though it is possible to envisage a worse case: Veen [No 2] (1987-88) 164 CLR 465 at 478. However, imprisonment for life in this State is different from other maximum sentences. They still embrace the prospect of release in the future, however distant. The life sentence does not. It should be reserved for crimes of the utmost heinousness, where considerations of retribution, general deterrence or protection of society are such as entirely to displace any claim by the prisoner for compassion and the community’s interest in the rehabilitation of offenders.

Robinson NSWSC [972] (Adams J) 19.10.2000 [38]
Harris (2000) 121 A Crim R 345 at [122]
Kanaan NSWSC [959] (Greg James J) 31.10.2001 at [52]
Ngo NSWSC [1021] (Dunford J) 14.11.2001 at [43]

Harris (2000) 121 A Crim R 345 at [134]
Valera NSWSC [1220] Studdert J 21.12.2000
Kanaan NSWSC [959] (Greg James J) 31.10.2001 at [52]
Ngo NSWSC [1021] (Dunford J) 14.11.2001 at [43]
see also the discussion in
Robinson NSWSC [972] (Adams J) 19.10.2000 [36] - [42]
Merritt NSWSC [1159] (Greg James J) 4.12.2002 at [64]
Sievers [2002] NSWSC 1257 (Sully J) at [64], [68].

Life imprisonment under s.19A of the Crimes Act is an extremely blunt instrument. There is much to be said for the power of the court to specify a minimum term in association with a life sentence under that section but the legislature has chosen not to confer that power.

I do, however, observe that there would be merit in either permitting (the imposition of a non parole period on a sentence of life imprisonment) or in extending the life sentence re-determination procedure to such cases.
The concerns which exist, in relation to the imposition of indeterminate life sentences, without any option of release on licence or parole, are well known. Such a sentence can be crushing, particularly for a young offender, whose life expectancy, on current tables, may well exceed the fifty-odd years that would apply in the case of the present respondent.
The effect of the current law is to continue and to reinforce a division between different categories of persons imprisoned for life, and to condemn those sentenced under s.19A of the Crimes Act, or under s.33A of the Drug Misuse & Trafficking Act 1985, to an even harsher form of punishment than an indeterminate sentence that was terminable by the Executive. Such an offender has no prospect of release, save for the prerogative of mercy.
The decisions in Bugmy (1990) 169 CLR 525 (at 537) and Mitchell (1996) 70 ALJR 313 at 320, confirm the notorious inaccuracy of predictions of future dangerousness, yet in a case such as the present that is precisely what is required. It may be that after a lengthy period of imprisonment, counselling and simple maturing, that an offender sentenced to life ceases to be dangerous.
Lengthy experience with the life sentence re-determination procedure has graphically demonstrated that to be the case, and has seen a controlled and safe return to society of offenders once considered hopelessly violent and dangerous. See the observations of Allen J, in Crump NSWCCA 30 May 1993:
"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: 'how could this apparently well adjusted applicant be the person who committed such a crime?' 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."
His Honour later added:
"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 free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that."
In suitable cases, it is possible by an appropriately framed sentence, to preserve the possibility of a return to prison to complete the original life sentence, in the event of serious re-offending. Persons now sentenced to life under s.19A of the Crimes Act or under s.33A of the Drug Misuse and Trafficking Act are, however, denied all opportunity of release even if wholly rehabilitated.
On the other hand, if an offender is sentenced to a term of years with a non parole period, and remains unsettled, unrehabilitated and dangerous, he or she can be denied parole, yet the time will come, at the expiration of the head sentence, when release must occur, with all the undesirable consequences that this entails. An attempt to deal with that problem by legislation failed in Kable (1996) 189 CLR 51.
As Adams J observed in Robinson at para 35 the grant of power to fix a non parole period in a case such as the present, and I would add, the extension of the re-determination procedure to life sentences under s.19A Crimes Act and s.33A Drug Misuse and Trafficking Act, would not offend against the so-called doctrine of "truth in sentencing". Neither would involve any form of remissions or an exercise of executive clemency. Moreover, the imposition of a non parole period and a head sentence, either at the time of the original sentencing or upon a re-determination, involves a determination by the Court of the minimum and maximum periods that the prisoner must or could serve. Each is stated at the time of sentence or re-determination, and the later release of the prisoner can be decided by the Parole Board, which is in a position to act in the light of its accumulated experience and current information concerning the prisoner's mental state and progress towards rehabilitation. Moreover, it is to have regard to the principle that the public interest is of primary importance.
The concerns that exists in this regard, particularly for those persons who may face potential life sentences in their twenties or early thirties, with the problems of institutionalisation, and the risk of the establishment of a significant population of geriatric prisoners, are such that this area of sentencing, in my view, warrants reconsideration.
The desirability of a review is, in my view reinforced by the circumstance that, depending on the relevant legislation, a specific power or duty to set a non parole period for life sentences exists in Victoria (s.11 Sentencing Act 1991), in Tasmania (s.18 Sentencing Act 1997), in Western Australia (s.90 Sentencing Act 1995), and in South Australia (s.32 Criminal Law (Sentencing) Act 1998). A similar power is implicit in Queensland (s.157 Penalties & Sentences Act 1992) although the period set for release is governed pursuant to s.166(1) of the Corrective Services Act 1988 and s.305(1) of the Criminal Code 1899.
The Northern Territory (s.53 Sentencing Act 1995) does preserve a similar exemption to that in New South Wales in the case of life sentences for murder. The ACT legislation (s.7 Parole Act 1976) does not require a non parole period in the case of a life sentence; nor, it seems, does it expressly exclude it. The Crimes Act 1914 (Cth) however, makes express provision for the fixing of non parole periods for persons serving " federal life sentences" (s.19AB(1)(d)). One consequence of this is that an offender sentenced to life for the most serious form of drug offence charged under the Customs Act (1901) may have a non parole period, while an offender sentenced to life for the most serious form of drug trafficking under the Drug Misuse & Trafficking Act 1985 (NSW) cannot.
New South Wales and the Northern Territory alone, it would therefore appear, deny the Court the power to fix a non parole period for a person serving a life sentence for murder, or for serious heroin and cocaine trafficking. Whether New South Wales should retain the harsh and discriminatory regime that exists for those now sentenced to life is a matter suitable, in my view, for review.

I echo the remarks of Wood CJ at CL in Harris at [123] that Parliament might usefully give consideration to whether the Court should have power to fix a non-parole period in cases to which s 61(1) applies.

I share the view of the Court of Criminal Appeal in Harris that it is much to be regretted there cannot be an opportunity at some time in the future to evaluate the offender's prospects for release in circumstances where an appropriately informed authority can consider the protection of the community looking at what has happened during the years that would have to elapse before such consideration might be given.

The current case is one where, for similar reasons to those outlined by me in Harris it would, in my view, have been far preferable for the Court to have retained a capacity to specify a lengthy non-parole period for the murder offence, given the extremely harsh consequences of a life sentence for a 33 year old, with no hope of release, and no incentive for rehabilitation.

There may well be cases where, having regard, inter alia, to the nature of the offence, the antecedents of the offender, and his age at the time of sentence, (quite apart from seemingly imponderable considerations concerning the future protection of the community), the justice of the case, in the opinion of the sentencing judge, requires him to find affirmatively that the prisoner should remain incarcerated for the term of his natural life. Taylor (of the Russell Street bombing case) who was aged 51 was held by the sentencing judge to be that category. However, in the present case the judge did not, so it would appear, regard the applicant as being in that category. Since the applicant is aged only 21 years, it would be surprising if the judge ere to have held otherwise. In the present case, I am of the view that it would have been possible for the judge to make a determination of the period which justice requires to be served, notwithstanding the fact that it cannot be said with any confidence that at some future time the community would not be put at undue risk if the applicant were to be released. It must steadily be borne in mind that the court in fixing a non-parole period is not attempting to decide when (and where a life sentence has been imposed) or whether the prisoner is to be released; it is doing no more than empowering the Parole Board to make that decision after the expiration of the non-parole period. (see Currey [1975] VR 647 per Young CJ at 650; per Lush J at 652-3). If upon all the evidence available to it at the time, the board forms the view that the protection of the community demands the continued incarceration of a prisoner, then it would not grant release to parole. For that reason I am of the opinion that the judge erred in holding that by reason of that fact that the extent of the potential risk posed by he applicant’s release into the community cannot at this time be calculated, it was inappropriate to fix a minimum term (per Southwell J at p.196)

In Denyer Crockett J described each of the three attacks as of scarcely credible cruelty and barbarity. At 192 his Honour said this
Guilt of the crime of murder, of itself, is not sufficient to require the sentencer to abstain from fixing a non-parole period. We were told of a number of cases where such a period was fixed where murder was the offence and the circumstances of its commission were every bit as sickening as those in the present case. Moreover, perpetrators of multiple killings have not been denied the benefit of an order fixing a non parole period.
A little later his Honour continued, at 193:
Since the abolition of the death penalty for murder and the creation of a power to fix a non parole period for those sentenced for murder, with one exception, no prisoner has been denied such an order.
These statements are, with respect correct, although since Denyer was decided Edmunds … has been added to Taylor. There is nevertheless a danger that the observations of Crockett J will be taken to support proportions which they were not intended to support and to which we would not subscribe. The same danger may be said to exist with regard to a passage in the joint judgement in R v Iddon and Crocker (1987) 32 A Crim R 315 at 326:
Of course, the crime of murder is grave and the applicants’ conduct in this case loathsome. Nor can any significant extenuating features be found. But that is probably true of most, if not all, premeditated killings that can be described as “executions” … It is obvious that many cases calculated to arouse much greater abhorrence than did this one regularly come before the courts.
It would be wrong to attempt to derive from the passages cited any of the following propositions (with each of which we would disagree): That it will scarcely ever be appropriate to refuse to fix a non parole period in a case of murder; that an appropriate case for such a refusal may be expected to arise very rarely - perhaps once in a decade; that because cases of murder where the crime is very sickening and of the most extreme cruelty and barbarity are not so very rare a sentencing judge should not be much impressed by the horrifying circumstances of such a crime in considering whether to fix a non parole period; that the fact that the offender is to be sentenced for more killings than one is irrelevant or of little weight in the consideration of whether to fix such a period. Horrifying murders are not as rare as they used to be. Sentencing and appellate judges may gain considerable familiarity with these crimes. It would be unfortunate if the fact that truly horrifying murders are no longer as rare as they once were gave rise to the impression that they may not in appropriate circumstances be punished with the utmost severity. And sentencing and appellate judges must not allow their familiarity with horrifying crime to blunt their sensibility. Sentencing is governed by the intellect, but the emotions also have their proper part to play. These include abhorrence of what is abhorrent as well as merciful compassion. Often a moral judgment from which emption cannot be absent must be made about the wickedness of a crime. Victim impact statements may, as tis very case shows, serve as a reminded to judges to whom vile crimes are no novelty of their effect on the indirect victims and of the lasting grief and legitimate indignation to which they may give rise.
As regards what may for brevity be called multiple murders, generally speaking at all events, the fact that the offender has committed not one but two or more murders is an important matter in considering whether to decline to fix a non parole period. Judges who sentence murderers must not fail to have proper regard to what used to be called the sanctity of human life - a phrase not heard nowadays in the criminal courts ... in considering what justice according to law requires having regard to the terms of s.11(1). Perhaps in recent years other considerations have at times been allowed to overshadow this. The criminal who kills not one but two, three or four human beings can be given no longer sentence than the killer of a single victim. Two, three or four life sentences, served, as they must be, concurrently, are of the same duration as a single one. Differentiation is possible only as regards the non parole period - by increasing that period or refusing to fix one at all. Of course, everything depends on the circumstances. The perpetration of multiple killings may in a given case not even warrant the imposition of a life sentence, let alone the further momentous step of denial of the possibility of parole. We wish only to make it plain that, while everything depends on the circumstances of the particular case, those who kill a number of victims in horrendous circumstances, where no substantial factor pointing towards clemency is present, . must in general expect to be seriously considered for the possible imposition of life senetn4ces unmitigated by the hope of parole.
A further passage in the joint judgment in Iddon and Crocker at 328 should be noted: “Certainly … if there are cases in which no minimum term is to be set, then this is not one of them.” This appears to accept that one possible view is that a judge sentencing for murder can in no circumstances refuse to fix a non parole period. Such a view is plainly inconsistent with s.11(1) of the Sentencing Act. Iddon and Crocker is a frequently cited decision. It is probable that the passage referred to has on occasions led to undue reluctance on the part of judges to deny a prisoner the possibility of parole in murder cases, upon the basis that this should rarely, if ever be done. Sentencing judges must remain fully conscious of what has been said on decisions of the highest authority about rehabilitation and the beneficial objects to be served by the fixing of a non parole period. They will remain well aware that a sentence of life imprisonment with no possibility of parole is a sentence of the utmost severity. It is a dreadful sentence, at all events for an offender who is not of an advanced age. But dreadful crimes, especially where the past history is bad, may require dreadful punishment.

“His Honour seems to have relied solely on the nature of the offence in determining that the applicant should ever be afforded the possibility of parole. As to this, the judge rightly emphasised the enormity of this offence. The crime was a vile one; if it has an redeeming features, Mr Grace was unable to draw them to our attention. And when one brings into account the oast history of the applicant, the view that the possibility of parole should be denied is confirmed. The prisoner’s heartless concealment of the child’s body; his previous behaviour and his previous convictions; his subsequent conviction, which resulted (as we were informed) in a suspended sentence; his signal and singular and lack of remorse; his conversations and other conduct after the offence, tending to show (as do his previous behaviour and convictions) that he is a danger to the community; the bleakness of his prospects of rehabilitation - all these considerations reinforce the view that a non parole period ought not to be fixed. The applicant’s lack of remorse is strikingly shown by his statements that he wanted to put the incident out of his mind because he was looking forward to an enjoyable holiday which he had planned and the costs of which he did not want to see wasted by any disagreeable thoughts. Not only was the judge entitled to conclude that ‘the nature of the offence or the past history of the offender’ made the fixing of a non parole period inappropriate, but it would have been surprising if his Honour had reached a different conclusion. Whether the case was one of wilful murder or of reckless murder, it was well open to the judge to determine that parole should never be available.” (p.490)

It is not to be thought that a plea of guilty will necessarily and in all circumstances save a murderer from life imprisonment. Of the correctness of that proposition I have no doubt. I will add that I also have no doubt that a plea of guilty will not necessarily and in all circumstances save a murdered from a sentence of life imprisonment without the possibility of parole. (per Brooking JA at [12])

(T)here are some occasions, fortunately very few, where … the elements of denunciation, retribution and general deterrence must predominate over the prospects of rehabilitation as sentencing considerations, to the extent that no minimum term should be fixed. [37]

It is true that subs (2a) states that the court “may” order that the prisoner in question is not to be eligible for parole. The power this reposed in the court is conditioned upon a determination by the court that it considers that the making of the order “is appropriate”. But it does not follow that, if the court has concluded that such an order is appropriate, the court then has a discretion in the matter.” (p.312)
The phrase "considers ... appropriate" indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper. Here, there were two possible outcomes. The first was to leave intact the authority of the Governor, in the circumstances identified in subss (1) and (2) of s 40D, to release the appellant on parole at a date not earlier than 20 years from sentence. The second was to withdraw that power from the Governor by denying authority ever to order the release of the appellant on parole. The sentencing judge had regard to a range of matters. He said "I continually return to the intrinsic seriousness of the offences." But, rightly, in our view, his Honour decided that the resolution of the issue before him depended upon an assessment of the balance to be struck between the circumstances of the offence and the factors militating in favour of the possibility of parole. In particular, Owen J considered whether the more general and objective factors relating to punishment outweighed the potential of the appellant to be rehabilitated through the medium of parole. His Honour was entitled to have regard to the unchallenged expert evidence that the appellant would not constitute a danger to the public, drug taking to one side, and that he had a constructive attitude to the future. Thus, his Honour acted on the footing, as in the circumstances he was bound to do, that there was at least some potential for the rehabilitation of the appellant. Owen J, again correctly to our minds, had regard to the possibility of the later emergence of facts, presently unascertainable, but apparent 20 years or more hence, which might then indicate that the appellant no longer constitutes a danger to the public and is otherwise deserving of release on licence. There is no substance in the submission that the sentencing judge did other than strike a balance between considerations which bore upon the making of a choice between the competing outcomes for which the legislation provided. The legislation does not, contrary to the view advanced by Ipp J, indicate any particular "overriding factor". Nor, in our view, did the sentencing judge fail to give "significant weight", assuming that to be the proper way to express the point, to the circumstances of the offences. Rather, as we have indicated, his Honour said that he continually returned, in the course of his consideration of the matter, to the intrinsic seriousness of the offences. His Honour is to be taken as having meant what he said.

Resource Centre, Office of the Correctional Services Commissioner, (03) 9627 6600 (ph)