The Applicability of s 61 of the Crimes (Sentencing Procedure) Act
117 In determining whether s 61 applies, it is the combined effect of the Court's findings concerning the four indicia referred to in the section, being the community interest in retribution, punishment, community protection and deterrence, that must be considered. The Crown submits that the unmitigated gravity of the crime is such that a sentence of life imprisonment is mandated. The offender counters that his younger age means that a life sentence amounts to "cruel and unusual punishment". I do not accept that submission. Life is the maximum penalty specified for murder and to impose that which Parliament has provided for cannot be to impose a cruel and unusual punishment. Some instances of murder are so grave that the maximum penalty is the only appropriate penalty. Where the features referred to in s 61 are established, it is the mandatory penalty.
118 The Court was referred to one instance involving the killing of a child where life imprisonment was imposed, R v Holdom [2018] NSWSC 1677, although it was argued that the case could be distinguished because two murders were committed by that offender, of a child and her mother. That offender also pleaded guilty and had a dysfunctional background, features which also distinguish it from the offender's case, although not in a way favourable to him. There are others, including R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep), where the deceased was a 9-year-old child. That matter proceeded after a plea of guilty was entered. These decisions are of interest, as are the statistics that show the imposition of a life term is uncommon, but it is necessary to make an assessment of the circumstances surrounding or causally connected to the offence in deciding whether s 61 applies: R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469; Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 at [616]–[637].
119 I have already set out my conclusion that the murder of Charlise Mutten was a gravely serious crime, falling at the top of the range of objective gravity for offences comprehended by s 18(1)(a) of the Crimes Act. This was a shockingly callous crime of very great heinousness; it was gravely reprehensible and extremely wicked. There are no facts which can mitigate its seriousness: R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unrep); R v
