Under s 61(1) the court is to sentence an offender convicted of murder to life imprisonment if:

The Court of Criminal Appeal has observed that s 61(1) is “devoid of any content” given the fundamental obligation of all sentencing judges is to impose a sentence that is appropriate in all the circumstances, and where a judge is satisfied the offender’s culpability is so extreme that the stated community interests can only be met by the imposition of a life sentence, there is no room to impose a sentence other than life: Ngo v R [2013] NSWCCA 142 at [29]; El-Zayet v R; Aouad v R; Osman v R [2015] NSWCCA 196 at [43]. In a similar vein, in R v Harris [2000] NSWCCA 469 (R v Harris (CCA)) the Court held that s 61(1) effectively restates the common law concerning the imposition of life sentences for murder: [87]–[88], [90].

Under s 61(2) the court is to sentence an offender convicted of “a serious heroin or cocaine trafficking offence” to life imprisonment if the court is satisfied of the same level of culpability as stated above for murder and is further satisfied:

A “serious heroin or cocaine trafficking offence” is defined by s 61(7) to mean an offence of supplying or knowingly taking part in the supply of not less than a commercial quantity of heroin or cocaine under s 25(2) Drug Misuse and Trafficking Act 1985, or an offence committed by an adult of supplying not less than the commercial quantity of heroin or cocaine to a child aged under 16 years pursuant to s 25(2A), and in either case, the quantity of drug is a large commercial quantity.

Section 61 does not apply to a person who was less than 18 years of age at the date of the offence: s 61(6), although the common law may still apply to such offenders.

Life sentences have been imposed under s 61(1) on young adults for murder: see for example Gonzales v R [2007] NSWCCA 321. In R v Leonard (unrep, 7/12/98, NSWCCA), a case in which the common law applied, McInerney J said:

The burden is on the Crown to establish beyond reasonable doubt that a case falls within s 61(1): R v Merritt (2004) 59 NSWLR 557 at [35]. However, not all of the factors which would lead to a conclusion that s 61(1) is applicable must be established beyond reasonable doubt: Adanguidi v R [2006] NSWCCA 404 at [55]. It is the combined effect of the findings concerning the indicia in s 61(1) (retribution, punishment, community protection, and deterrence) that must be considered in the assessment of whether an offender’s culpability is extreme: R v Merritt at [52], [54].

Further, the absence of one or more of the indicia in s 61(1) will make it more difficult for a sentencing judge to be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of a life sentence: R v Merritt at [5]. However, the absence of the indicia of personal deterrence in a particular case (such as when an offender has a mental condition) is unlikely to affect the decision to a significant degree: at [6].

The absence of a finding of future dangerousness does not necessarily rule out the applicability of s 61(1): at [54].

Examples of cases where the Court of Criminal Appeal dismiss an appeal against a life sentence pursuant to s 61(1) and discuss extreme culpability are R v Lewis [2001] NSWCCA 448 and Dean v R [2015] NSWCCA 307.

Section 61(3) preserves the discretion under s 21(1) to impose a lesser sentence, notwithstanding the apparent mandatory requirement in s 61(1) to impose a life sentence for murder in certain circumstances. Therefore, even if the s 61(1) criteria are met, when the offender’s subjective circumstances justify a lesser sentence than life imprisonment, the lesser sentence may be imposed: R v Merritt at [36]; see also R v Harris (CCA) at [93]; R v Ngo [2013] NSWCCA 142 at [30]; Dean v R [2015] NSWCCA 307 at [69].

This necessarily involves a two-stage process when determining whether a life sentence is appropriate, but one that is different to the staged approach to sentencing disavowed in Markarian v The Queen (2005) 228 CLR 357 and Muldrock v The Queen (2011) 244 CLR 120: Rogerson v R at [636]; Dean v R [2015] NSWCCA 307 at [96].

The two-step process embodied by s 61(1) was articulated in R v Harris (NSWSC) at [84]–[85], endorsed in R v Harris (CCA) at [60] and adopted in subsequent cases including R v Valera at [8]; R v Miles [2002] NSWCCA 276 at [204]; R v Merritt at [37]; Knight v R at [23]; and Dean v R at [73].

The first stage involves considering the requirements of s 61(1), which focuses on the offender’s “level of culpability” and circumstances surrounding or causally connected to the offence. This directs attention to objective factors, such as the objective seriousness of the offence, and subjective factors with a causative influence on the offender’s culpability, such as the offender’s background, motive and mental state. The second, discretionary, stage under s 21(1) is deciding whether a lesser sentence is warranted. This invites consideration of subjective matters such as remorse, admissions, assistance, guilty pleas and their timing, and prospects of rehabilitation: R v Harris (NSWSC) at [84]–[86]; R v Harris (CCA) at [60]; Rogerson v R at [628], [634]–[636]; CC v R [2021] NSWCCA 71 at [81].

In CC v R, Adamson J described the distinction in the two steps drawn in R v Harris (NSWSC) as one between factors relevant to the offender’s level of culpability and factors relevant to the sentence to be imposed, observing that there was a degree of overlap between the two, but that “the instinctive synthesis required as part of the exercise of the sentencing discretion” involved considering all relevant matters, not just those affecting the offender’s culpability in the commission of the offence: [81]–[83]. This approach was subsequently approved in Rogerson v R at [635], but as to the use of the descriptors “objective” and “subjective” in relation to the two-stage process, the Court said at [636]:

See also the discussion in Ney v R [2023] NSWCCA 252 at [63]–[66], in which the Court emphasised the weight to be afforded to overlapping factors at each stage is a matter for the sentencing judge.

In accordance with the two-step approach to s 61(1), the heinousness of the conduct and the inherent criminality in the offending may be such that evidence with respect to an offender’s subjective features may be properly disregarded, or given very little weight: Adanguidi v R [2024] NSWCCA 82 at [323]; see also R v Harris (CCA) at [103]–[104]; R v Miles [2002] NSWCCA 276 at [203].

Accordingly, life sentences have been imposed where the offender has pleaded guilty and/or has no criminal history: see for example Dean v R at [146], [148]; Adanguidi v R [2006] NSWCCA 404 at [33]–[34]; Knight v R at [37].

Similarly, a life sentence is not reserved only for those cases where there are no prospects of rehabilitation: Knight v R at [23] citing R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unrep, 20/9/1995, NSWCCA); R v Garforth (unrep, 23/5/1994, NSWCCA).

It is not correct to reason that, because a sentencing judge has declined to impose a life sentence pursuant to s 61(1), a term of imprisonment that would expire in the offender’s old age cannot or should not be imposed: Barton v R [2009] NSWCCA 164 at [16]–[27] citing Goebel-McGregor v R [2006] NSWCCA 390 at [128]–[129]; Des Rosiers v R [2006] NSWCCA 16 at [30]; Ta’ala v R [2008] NSWCCA 132 at [42] cf R v Chang [2003] NSWCCA 327 at [67]; R v Folbigg [2005] NSWCCA 23 at [189]–[190]. In Barton v R, the Court rejected a submission that the sentence was a life sentence “in disguise”: [16]–[17].

The common law permitted the number of murders to be take into account when considering whether a life sentence was warranted, and a similar approach has been taken in relation to s 61(1): R v Quill (a pseudonym) [2005] NSWCCA 4 at [93]; R v Harris (CCA) at [94]; see also R v Baker (unrep, 20/9/95, NSWCCA). However, McClellan CJ at CL said in Aslett v R [2006] NSWCCA 360 at [25]:

The Court found the sentencing judge erred in imposing life imprisonment in light of other prior offences, having concluded the offence standing alone would not have justified such a sentence: [26]–[27]. The difficulty identified in Aslett v R does not arise in the context of multiple murders committed as part of a single episode of criminality. In such a case, the objective criminality of one offence is capable of informing the objective criminality of another, and the court may have regard to the whole of the conduct in determining the level of culpability involved in the commission of each offence: Adanguidi v R (2006) 167 A Crim R 295 at [32].