Mandatory life sentences under s 61

For offences of murder and serious heroin or cocaine trafficking, s 61 Crimes (Sentencing Procedure) Act 1999 provides that the court is to impose a sentence of life imprisonment if the court is satisfied of certain conditions.

The predecessor to s 61, s 431B Crimes Act 1900, was inserted into the Crimes Act by the Crimes Amendment (Mandatory Life Sentences) Act 1996 (effective 30 June 1996), but repealed on 3 April 2000 as a consequence of the enactment the Crimes (Sentencing Procedure) Act.

Section 61 applies to all sentencing proceedings commenced after that date regardless of when the offence occurred: Ngo v R [2013] NSWCCA 142 at [61].

[8-600] Availability


Section 61 Crimes (Sentencing Procedure) Act 1999 does not apply to a person who was less than 18 years of age at the date of the offence: s 61(6).


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

The use of the phrase “can only be met” renders the section devoid of content because it effectively leaves the court no room to impose a sentence other than life: Ngo v R at [29]. It is difficult to reconcile the terms of s 61(1) with the preservation of s 21(1) Crimes (Sentencing Procedure) Act (general power to reduce penalties) in s 61(3): Ngo v R at [30].

Serious drug offences

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 that it is further satisfied that:


the offence involved:


a high degree of planning and organisation, and


the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and


the person was solely or principally responsible for planning, organising and financing the offence, and


the heroin or cocaine was of a high degree of purity, and


the person committed the offence solely for financial reward.

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 a 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.

[8-610] Application

Burden of proof

The burden of proving that a case falls within s 61 rests on the Crown, and the standard of proof is beyond reasonable doubt: R v Merritt (2004) 59 NSWLR 557 at [35].

Discretion — murder cases

There is a tension between the apparent mandatory requirement to impose a life sentence when a murder case falls within s 61(1), and s 61(3), which preserves the discretion under s 21(1) Crimes (Sentencing Procedure) Act 1999 to impose a lesser sentence: R v Harris (2000) 50 NSWLR 409 at [93]; Dean v R [2015] NSWCCA 307 at [69]. This tension has been resolved in favour of recognising the continued existence of the discretion under s 21, even if the s 61(1) criteria are met, when the offender’s subjective circumstances justify a lesser sentence than one of life imprisonment: R v Merritt (2004) at [36].

Discretion — drug cases

Section 61(5) states that nothing in the requirements under s 61(2):

… limits or derogates from the discretion of a court to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence.

The effect of s 61(5) is that, even if all of the conditions in s 61(2) are not satisfied, a judge in the exercise of discretion may still impose a life sentence. A judge would be justified in imposing a life sentence, notwithstanding that all of the conditions in s 61(2) were not satisfied, only if the judge found that the offence for which the offender was being sentenced fell within the worst category of cases (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256) for that offence: R v Attallah [2005] NSWCCA 277 at [174].

Two-step process

A two-step process is involved in determining whether a life sentence is mandated. The court must first determine whether, on the objective facts, the level of culpability is so extreme that it warrants the maximum penalty; then the court must determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty: R v Miles [2002] NSWCCA 276 at [204]; R v Merritt at [37]; Dean v R at [73].

There must be an assessment that the level of culpability is such that a life sentence is required, having regard to the four indicia specified in s 61(1), before one can sensibly apply s 21(1): Dean v R at [95]. Neither Muldrock v The Queen (2011) 244 CLR 120 or Markarian v The Queen (2005) 228 CLR 357 render such an exercise impermissible: Dean v R at [96]. Logically, a determination of the level of culpability for the purposes of s 61(1) must take place before consideration of whether a lesser sentence than life imprisonment should be imposed under s 21: Dean v R at [96].

Guilty plea

The fact that an offender pleads guilty does not automatically preclude the availability of a life sentence: R v Penisini [2004] NSWCCA 339 and cases cited therein at [13].

Subjective features

In some cases, the objective circumstances may be so appalling as to overwhelm the offender’s subjective circumstances, including their prospects of rehabilitation: R v Miles at [203]. In R v Ngo (No 3) (2001) 125 A Crim R 495, Dunford J, in imposing a life sentence under s 61(1), said that he was satisfied that “the level of culpability in the commission of the offence [was] so extreme that the subjective features must be disregarded …”: at [42].

Effective life sentence due to age

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 [17]. In that case, the court rejected a submission that the sentence was a life sentence “in disguise”: at [16]–[17].

[8-620] Extreme culpability

The court in R v Merritt (2004) 59 NSWLR 557 explored the question of whether a sentencing judge must be satisfied, before passing a life sentence, that the culpability was so extreme that the community interest in each of the four indicia referred to in s 61(1); namely: retribution, punishment, community protection, and deterrence, could only be met through the imposition of a life sentence. The court outlined four possible interpretations at [42] and chose the third “purposive” interpretation at [54]:

… that such a [life] sentence is required if the culpability is so extreme that the community interest, in the combined effect of such of the four indicia as are applicable, could only be met by such a sentence (a construction which would embrace a circumstance where any one or more of those factors may be of itself insufficient, or inapplicable). [Emphasis in original.]

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: R v Merritt at [6].

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

In Dean v R [2015] NSWCCA 307, it was open to the sentencing judge to hold that the appellant’s offending (of burning down a nursing home) came within the operation of s 61(1) notwithstanding that the murders were committed by way of reckless indifference to human life rather intention to kill: Dean v R at [56]. In assessing the objective gravity of the offending as falling within the worst case category the judge took into account the number of victims, the applicant’s motive and the mental element of recklessness: Dean v R at [42]. The sentencing judge was entitled to reject the submission that the applicant was less culpable because he did not intend to kill or harm anyone in the nursing home. His moral culpability was assessed by reference to his foresight that there was a real chance of several deaths as a result of his actions: Dean v R at [135].

The mental condition of the offender may temper the objective criminality, even for multiple killings. In R v Merritt, the court found that the sentencing judge gave insufficient weight to the applicant’s state of mind (chronic adjustment disorder with depressed mood) when he killed his three children, and that the judge placed undue significance on the applicant’s inability to explain his actions: at [73].

The offender’s knowledge of the degree of harm that will be caused by the offence is relevant to their culpability: R v Lewis [2001] NSWCCA 448 at [67]. In that case, the court found it was relevant that the applicant knew the death of the victim would deprive five children of their mother.

[8-630] Comparison with common law cases that attract the maximum

Murder cases

The test of extreme culpability in s 61(1) “broadly accords with the common law approach” of the “worst case category” (as that term was used prior to The Queen v Kilic (2016) 259 CLR 256): R v Merritt (2004) 59 NSWLR 557 at [51]; R v Harris (2000) 50 NSWLR 409 at [87]–[90]. The use of the expression worst case “category” should no longer be used: see [10-005] Cases that attract the maximum.

Some guidance was given on “heinousness” in R v Arthurell (unrep, 3/10/97, NSWCCA), per Hunt CJ at CL:

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.

Further examples of murder cases that attracted life sentences pursuant to the application of s 61(1), often in conjunction with a finding of “worst case”, are:

  • Ngo v R [2013] NSWCCA 142, where the victim was a politician — s 61(1) was applied to find an extreme level of culpability: at [79]

  • R v Hore [2005] NSWCCA 3, which involved a brutal prison murder — the sentencing judge found extreme culpability under s 61(1) and that the murder was in the “worst category”: at [333]

  • R v Coulter [2005] NSWSC 101, where an 11 year old girl was murdered and mutilated by her mother’s cousin — s 61(1) applied and “worst case” found: at [68]

  • R v Gonzales [2004] NSWSC 822, in which the offender was sentenced to three life sentences for murdering his mother, father and sister — s 61(1) was applied and “worst case” found: at [110]–[111]

  • R v Sievers (2004) 151 A Crim R 426, in which the offender murdered his girlfriend — the judge did not err in finding extreme culpability under s 61(1) despite conceding that the murder on its own (without regard to the offender’s murder of his previous wife and his future dangerousness) was not in the “worst category”: at [49], [53]

  • R v Walsh [2009] NSWSC 764, in which the offender murdered his wife and grandchildren — s 61(1) was applied and two of the three murders were found to be in the “worst category”: at [40].

  • Dean v R [2015] NSWCCA 307, in which the offender pleaded guilty to 11 counts of murder after he burnt down a nursing home where he was employed as a registered nurse.

For further guidance on the imposition of life sentences for murder see Murder at [30-030].

Drug cases

In drug cases, as explained above at [8-600], the court must be satisfied of an extreme level of culpability and the additional factors outlined in s 61(2) as to the degree of planning, role of the offender, purity of the drug, and motivation of financial reward. In R v Attallah [2005] NSWCCA 277, the court considered these requirements in relation to the common law standard of “worst case category”. Justice James (Buddin and Rothman JJ agreeing) stated at [174]:

A judge would be justified in imposing a life sentence, notwithstanding that all of the conditions in s 61(2) were not satisfied, only if the judge found that the offence for which the offender was being sentenced fell within the worst category of cases of that offence.

An example of a “worst case” in which a life sentence was imposed for the supply of a large commercial quantity of heroin was R v Chung [1999] NSWCCA 330.

Although the offence was committed before the commencement of the former s 431B Crimes Act 1900 (the predecessor to s 61), the court found that the requirements of s 431B would have been met in this case, as the applicant was “a ruthless profiteer from the widespread distribution of high grade heroin, occupying a position towards the pinnacle of a well organised criminal network”: at [30]. After comparison with R v Chung. However, the court in R v Attallah concluded that neither the terms of s 61(2) nor the “worst case category” threshold (as that term was used prior to The Queen v Kilic) under the common law had been satisfied, and consequently the court overturned the life sentence: R v Attallah at [222]–[223].

[8-640] Multiple offences

In R v Harris (2000) 50 NSWLR 409, a case involving three murders, it was stated that the existence of multiple offences can be taken into account when assessing the level of the offender’s culpability: at [94]. However, prior convictions cannot be taken into account in a collective manner with the present offence for which the offender is being sentenced, in order to arrive at a finding of “extreme culpability”. Rather, the present offence standing alone must be an offence of extreme culpability, justifying a life sentence: Aslett v R [2006] NSWCCA 360 at [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].