The Law on Mandatory Life Sentences in NSW

By Jimmy Singh and Tayla Regan

If a life imprisonment is given by the court, it means the offender will remain in prison until the day of his or her death. He or she can entertain no hope or expectation of ever being released.

Release can be ordered in very rare circumstances by the executive exercising the royal prerogative of mercy (commonly known as the Queen’s pardon).

Life imprisonment was introduced in NSW in 1990. Since then, 16 people in NSW have received life sentences, out of which, 3 have died in custody. These figures are much higher than in any other state in Australia.

When Can a Court Impose a Penalty of Life Imprisonment?

Any top criminal lawyer in Sydney can tell you, that some may consider a life sentence to be too severe of a penalty regardless of the seriousness of the crime. On the other hand, others may believe that those who commit very serious crimes do not deserve an opportunity to walk free in the community ever again.

Only some few offences carry maximum life sentences. Generally a life sentence is reserved for only the ‘worse cases’.

A maximum penalty of imprisonment for life may be given to those who are guilty of:

Our community demands that a heavy penalty be applied for certain kinds of serious crimes. The heinous Sydney murder committed by Robert Xie in 2009 is a good example of this.

The Case of R v Xie [2017] NSWSC 63

The facts of the case

In the early hours of 18 July 2009, 5 bodies were discovered in a North Epping home.

There was no sign of forced entry into the home and no evidence of a disturbance in the house that would indicate a robbery of some kind.

In 3 of the 4 bedrooms upstairs, there laid the bodies of 5 people, including 2 children, who were victims of severe injuries inflicted by a hammer-like weapon.

Blood was described as being painted all over the walls and pooled on the carpet of the rooms.

After a lengthy investigation, a man by the name of Lian Bin Xie, also known as Robert, was arrested and charged in 2011 for the murder of the 5 victims.

Shockingly, Robert was in fact the brother in law and uncle of some of the victims involved in the heinous crime.

After a trial which extended for over 6 months, Robert was found guilty by a jury on each of the 5 counts of murder.

The Court considered a number of factors before sentencing Robert to a severe penalty, particularly the manner in which the murders were calculated and planned.

The murder weapon

The murders were committed with the use of a rope attached to a single hammer-like weapon.

The rope was attached so that Robert did not lose control whilst he swung the weapon at the victims in a fast motion with a severe degree of force.

The key to enter the home

The Court was satisfied that Robert entered the house with a key.

It was held that the key was cut from a spare key that remained with Robert’s wife, who was one of the victims’ sisters, for safe keeping.

In combination with the easy access to the key and Robert’s familiarity with the layout of the house, it was held that the murders were thoroughly considered prior to the morning of the murders.

The Alibi

Robert also sedated his wife in the hours leading up to the murders so that he could secure an alibi that he was at home in bed at the time of the incident.

Evidence given by a prison informer and of a recorded conversation with a witness was displayed to the jury to support his premeditated actions.

The Result

Upon sentence, the Judge had this to say: “The commission of a series of intentional and brutal killings of five members of a family, including two children, in their family home in the early hours of the morning whilst they are sleeping or on being roused from sleep, in a single episode of brutal and calculated murderous violence, is a course of offending that can only be described as heinous in the extreme.”

In 2017, Robert was sentenced on each count to imprisonment for the remainder of his life.

He was 53 years old at the time.

Mandatory Life Sentences

Section 61 Crimes (Sentencing Procedure) Act 1999 creates mandatory life sentences for certain offences if the prosecution can establish certain requirements.

This means, the court is required to give a life sentence if you commit murder or a serious heroin or cocaine trafficking offence in NSW, only if the prosecution can prove beyond reasonable doubt as to each of the following requirements:

In the case of murder:

  • There was an extreme level of culpability (criminality by you), and
  • The community interest in retribution, punishment, community protection and deterrence can only be met through imposing a life sentence.

In the case of serious heroin or cocaine trafficking:

  • There was an extreme level of culpability (criminality by you), and
  • The offence involves a supply or knowingly taking part in the supply of at least a commercial quantity of heroin or cocaine (or an offence committed by an adult of supplying a commercial quantity to a child under 16 years; and
  • The community interest in retribution, punishment, community protection and deterrence can only be met through imposing a life sentence; and
  • The offence involved each of the following:
    • A high degree of planning and organisation;
    • Use of other people acting under your directions;
    • You were the principally responsible for planning, organising and financing it;
    • The heroin or cocaine was of a high purity;
    • You did it purely for a financial reward.

The court is still given a discretion not to impose a life sentence, even where those conditions in s61 are met. The court can still choose to not impose a life sentence under s21 Crimes (Sentencing Procedure) Act where the subjective features of your case justify a lesser sentence in the way expressed in the case of R v Merritt (2004) NSWCCA.

In fact, in the case of a serious heroin or cocaine trafficking offence, a Judge can still give a life sentence where the mandatory requirements under s61 are not met, but only where the case falls within the worst category of cases in the way expressed in the case of R v Attallah [2005] NSWCCA 277 at [174].

Given that the penalty should only be reserved for the absolute worst crimes, section 61 sets a very tough criteria to satisfy.

Factors Considered by the Court When Imposing a Life Sentence

Generally, a two-step process is involved when considering the necessity for a term of life imprisonment.

First, the court must find that the facts of the case and the offender’s actions were so severe that a life sentence ought to be considered.

If the crime attracts such a consideration, the court must then decide whether there were any circumstances, personal or other, that may deter the court away from such a heavy penalty (of life).

For example, where the court does not believe that there is a need to protect the community from this individual, and where there is another more appropriate type of punishment available.

In other cases, the individual facts of the crime may be so appalling that the need to sentence a person to prison for the remainder of his/her life overcomes any possible prospects of rehabilitation that person had.

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