Sentencing Council

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Imposing a life sentence for murder under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) involves a two-stage test

NSW Court of Criminal Appeal, 16 July 2021 

McNamara v R [2021] NSWCCA 160

The offender was convicted by a jury of murder and supplying a large commercial quantity of drugs. He was sentenced to life imprisonment for the murder.

The offender appealed against his life sentence for murder. One of the grounds of appeal was that the sentencing judge erred in applying s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Under s 61(1)a court is to impose a sentence of life imprisonment for murder if "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". It was submitted that the sentencing judge erred in adopting and applying a two-stage test for the application of s 61(1).

The Court of Criminal Appeal (CCA) found that the two-stage approach to s 61(1) is appropriate:

  • The first stage is to assess whether the offender's culpability warrants a life sentence, by reference to the circumstances surrounding or causally connected to the offence. Such circumstances include the objective seriousness of the offence as well as the offenders mental state, motive or personal background.
  • The second stage is to assess whether a lesser sentence is warranted because of other matters such as remorse confessions, pleas of guilty and prospects of rehabilitation.

The CCA found that the sentencing judge correctly considered all of the factors relevant to s 61 and there was no error. The Court dismissed the appeal.