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[2007] HCA 3
respondent. Appeal dismissed.
2 cited instruments linked from this judgment.
Martin Leach received mandatory life sentences in 1984 for two brutal murders and a rape committed in 1983. Back then, no non-parole period could be set. A 2003 law gave him an automatic 25-year non-parole period. The Director of Public Prosecutions asked the court to cancel that period and rule that Leach should never be eligible for parole because his crimes were so appalling that nothing short of lifelong imprisonment without any chance of release would satisfy the public's need for justice, punishment, community safety and deterrence. The Chief Justice agreed and cancelled any possibility of parole. Leach appealed, arguing the judge should have separately considered whether he had reformed in prison and whether ordinary sentencing rules pointed to some future release date. The High Court said no: once a judge decides the crimes are that extreme, the law requires the 'no parole' order to be made. There is no extra step to weigh rehabilitation against that finding. Facts that hurt Leach's case had to be proved beyond reasonable doubt, but the overall decision about how bad the crimes were and what the community needed was a judgment, not something measured by a legal standard of proof. The appeal was dismissed; Leach will die in prison.
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2,867 words · generated 24/04/2026
Martin Leach, then aged about 24, committed horrific crimes on 20 June 1983 in bushland near Darwin. He came upon two sisters, aged 18 and 15, swimming. Armed with a knife, he forced them to a gully, cut off their clothes, bound and gagged the younger girl, raped the older one, stabbed both, killed the younger girl, stabbed the older girl again and left both to die. The sentencing judge later described the conduct as "entirely pitiless and cruel". Leach was convicted after trial in May 1984 of two counts of murder and one count of rape. At that time the Criminal Law Consolidation Act (NT) and the newly commenced Criminal Code (NT) mandated a sentence of life imprisonment for murder with no power to fix a non-parole period. Muirhead J imposed life sentences on each count, noting that Leach suffered a severe sociopathic personality disorder of an aggressive type. Release could occur only by executive clemency.
The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) fundamentally altered the regime. It inserted s 53A into the Sentencing Act (NT), requiring courts sentencing for post-commencement murders to fix a standard non-parole period of 20 years, or 25 years in defined aggravating circumstances, or to refuse any non-parole period where culpability was so extreme that community interests in retribution, punishment, protection and deterrence could only be met by lifelong imprisonment without parole. Transitional provisions in Pt 5 Div 1 applied to prisoners already serving life sentences for murder. Section 18 deemed Leach's sentences (there being two murder convictions) to include a non-parole period of 25 years. Section 19 empowered the Director of Public Prosecutions to apply to the Supreme Court to revoke that statutory non-parole period and either fix a longer period or refuse to fix any.
On 2 March 2004 the Director applied under s 19 in respect of the two murder sentences. Martin CJ heard the application, revoked the 25-year non-parole period fixed by s 18, and refused to fix any non-parole period, being satisfied that Leach's level of culpability met the s 19(5) test. By majority the Court of Criminal Appeal of the Northern Territory (Mildren and Riley JJ, Southwood J dissenting) dismissed Leach's appeal. Southwood J would have fixed a 40-year non-parole period. The High Court granted special leave and, in a decision delivered on 6 February 2007, unanimously dismissed the appeal. Gleeson CJ wrote separately but reached the same conclusions as the joint judgment of Gummow, Hayne, Heydon and Crennan JJ. The Court held that the primary judge had correctly interpreted the statutory scheme and applied the appropriate standard of proof.
The High Court decided the appeal must be dismissed because the primary judge's reasoning conformed to the statutory text, context and purpose of ss 18 and 19 of the 2003 Act. Both Gleeson CJ and the joint judgment emphasised that s 19 forms part of a carefully structured legislative scheme that blends mandatory prescription with constrained judicial discretion. Section 18 fixes a non-parole period by operation of law. Section 19 gives the Director the ability to invite the Court to displace that statutory period, but only in order to lengthen it or to remove parole altogether. An order under s 19 is never advantageous to the prisoner.
The Court rejected the appellant's argument that s 19(5) contains two distinct stages. The appellant contended that even after the Court reached the state of satisfaction that culpability was "so extreme" that the community interest "can only be met" by lifelong imprisonment without parole, a residual discretion remained to consider "ordinary sentencing principles", including rehabilitation, and to fix a non-parole period nonetheless. The joint judgment held that this reading would create a conundrum: a court could be satisfied that only lifelong imprisonment without parole would suffice, yet still fix a non-parole period. Such a construction was rejected as inconsistent with the statutory language.
Drawing on Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 and Mitchell v The Queen (1996) 184 CLR 333, the joint judgment explained that "may" in s 19(5) is not used to confer a discretion but to confer a power that must be exercised once the Court is satisfied of the statutory condition. The power arises only upon that satisfaction and, when the condition is met, the power must be exercised. Gleeson CJ similarly observed that the discretions in s 19 are not at large; they are confined by the legislative prescriptions that modify ordinary sentencing principles. Once the Court decides not to dismiss the Director's application, it revokes the s 18 period for the purpose of either lengthening it under s 19(4) or refusing any period under s 19(5). There is no further overriding sentencing discretion outside that framework.
On the standard of proof, the Court held that R v Olbrich (1999) 199 CLR 270 requires disputed facts adverse to the prisoner to be proved beyond reasonable doubt. Martin CJ had applied that standard to factual questions such as current dangerousness. However, the ultimate conclusion under s 19(5) is an evaluative judgment about level of culpability and whether the identified community interests "can only be met" by lifelong imprisonment without parole. That judgment is not amenable to a standard of proof in the same way that discrete facts are. The joint judgment noted that the appellant's argument sought to extend Olbrich to the evaluative stage itself, an extension the Court declined to make. Because no disputed fact-finding error was demonstrated, the primary judge's approach was upheld.
The Court also noted that post-sentencing events, including rehabilitation, are not irrelevant. They may bear on whether a longer non-parole period is "warranted" under s 19(4) or whether the Director's application should be dismissed, leaving s 18 to operate. But once the s 19(5) threshold is crossed, the statute itself dictates the outcome. Martin CJ had carefully reviewed psychiatric evidence, progress in custody and current risk assessments, yet remained satisfied that the statutory test was met. That reasoning disclosed no error of principle.
Before the 2003 Act, a person convicted of murder in the Northern Territory received a mandatory life sentence with hard labour and no non-parole period could be fixed (Criminal Law Consolidation Act (NT) s 5; Criminal Code (NT) s 164; Parole of Prisoners Act (NT) s 4(3)(b)). Release depended entirely on executive clemency. For non-murder offences a life sentence could, after 1996, attract a non-parole period under the Sentencing Act, but murder remained outside that regime until 2004.
The 2003 Act introduced a comprehensive new structure. For sentences imposed after commencement, s 53A mandated a standard non-parole period of 20 years, rising to 25 years in aggravating circumstances listed in s 53A(3) (including multiple homicides, sexual offending, child victims, public-officer victims and prior homicide convictions). Courts could fix longer periods under s 53A(4) or refuse any non-parole period under s 53A(5) using language identical to s 19(5). Exceptional circumstances permitting a shorter period were tightly confined by s 53A(6)–(8). The transitional provisions in ss 17–21 applied the same policy to existing prisoners. Section 18 deemed a non-parole period (20 or 25 years according to the number of murder convictions). Section 19 gave the Director a time-limited right to apply to vary that statutory period upwards or to remove it entirely.
After Leach, the law is settled that s 19(5) does not create a two-stage process. Satisfaction of the extreme-culpability test compels refusal of a non-parole period; there is no residual discretion to weigh ordinary sentencing considerations or rehabilitation against that conclusion. The decision also confirms that the Olbrich principle applies to fact-finding but not to the statutory evaluative judgment. Subsequent amendments to the Sentencing Act have retained the core structure, although later cases have explored the interaction between s 53A and other sentencing provisions. The legislative policy of reserving the "no parole" sanction for the most extreme cases remains intact, with Leach providing the authoritative construction of the mechanism by which that policy is applied to historic sentences.
Paragraph [1] of Gleeson CJ's reasons (and the corresponding passage in the joint judgment) recites the horrific facts. The Court deliberately placed the objective gravity of the crimes at the forefront: "He cut their clothing from them and used it to bind and gag the younger woman. He stabbed the older woman in her side, then bound and gagged and raped her. He then stabbed and killed the younger woman. He stabbed the older woman again, and left the area, leaving her fatally wounded." Plain-English translation: these were not spur-of-the-moment killings but calculated, sadistic acts involving sexual violence and the deliberate infliction of terror and death on two young victims. That objective seriousness anchored every later evaluative step.
In the joint judgment's discussion of the word "may", the Court quoted Macdougall v Paterson and Finance Facilities: "the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises." Translation: once the judge is convinced the crimes are that bad, the law says the judge must order no parole. It is not an optional extra consideration.
Gleeson CJ at the passage corresponding to paragraph [12] in the reported version states: "A conclusion that, after all necessary or appropriate judicial decisions have been made within the scope of s 19, there remains an ultimate question as to the minimum term of incarceration that justice requires the prisoner must serve having regard to all of the circumstances of the case, is inconsistent with the legislative scheme." Translation: you cannot say "yes, the test is met, but I will still give him a parole date because he has behaved himself in prison". The statute does not allow that extra step.
On standard of proof the joint judgment says: "Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by s 19(5), any more than it is apposite to the resolution of a disputed question of law." Translation: proving concrete facts (for example, whether Leach remains dangerous) requires proof beyond reasonable doubt if the finding hurts him. But deciding whether his overall blameworthiness is "so extreme" that the community can accept nothing less than lifelong imprisonment is a value judgment, not a yes-or-no factual question that can be measured by a legal standard of proof.
Martin CJ's reasons, approved by the High Court, contain the critical finding: "I am left in no doubt that the respondent's level of culpability in the commission of the offence[s] is extreme. Notwithstanding that finding, it does not automatically follow that I should refuse to fix a non-parole period. The community, through Parliament, has recognised that even in cases falling within the worst category of cases of murder, and even where the culpability of the offender is extreme, nevertheless the court should not inflict the dreadful punishment of imprisonment for natural life without the possibility of release on parole unless satisfied that the level of culpability is 'so extreme' that the community interest in retribution, punishment, protection and deterrence can 'only' be met by such dreadful punishment." The High Court endorsed this as the correct application of the statutory test.
Leach is triggered whenever the Director of Public Prosecutions makes an application under s 19 (or its successors) in respect of a prisoner who was serving a life sentence for murder at the commencement of the 2003 Act. The precedent applies with particular force where the prisoner was convicted of two or more murders, because s 18 then deems a 25-year non-parole period rather than 20 years. The core factual trigger is a judicial finding that the level of culpability in the commission of the offence is "so extreme" that the four community interests (retribution, punishment, protection and deterrence) "can only be met" by imprisonment for the term of the offender's natural life without parole.
The precedent is engaged in cases displaying high objective gravity: multiple killings, sexual offending linked to the homicide, child victims, public-officer victims, or prior homicide convictions. Subjective factors such as lack of remorse, sadistic intent, or premeditation are also relevant. Post-sentencing conduct is not excluded; psychiatric evidence of ongoing dangerousness or, conversely, genuine rehabilitation may be weighed when deciding whether the Director's application should be dismissed or whether a longer but finite non-parole period is warranted under s 19(4). However, once the s 19(5) threshold is crossed on the evidence as a whole, Leach precludes any further discretionary weighing of rehabilitation against the statutory command.
The decision also applies by analogy to the post-2004 sentencing regime under s 53A(5). Courts fixing sentences for murders committed after commencement must apply the same test and the same construction: satisfaction of the extreme-culpability criterion compels refusal of a non-parole period; there is no separate residual discretion.
Later Northern Territory decisions have treated Leach as authoritative on the construction of both the transitional and the permanent provisions. In cases involving applications to revoke deemed non-parole periods, courts have consistently refused to engage in a two-stage process once the s 19(5) or s 53A(5) threshold is met. Rehabilitation evidence is received but is subordinated to the statutory question whether the community interest "can only be met" by lifelong imprisonment without parole. Where that test is not satisfied, courts have fixed longer finite non-parole periods under s 19(4) or s 53A(4), expressly citing Leach for the proposition that all relevant circumstances, including custodial progress, may be taken into account at that stage.
Appellate courts have upheld trial judges who, after detailed consideration of psychiatric reports spanning decades, have refused non-parole periods in particularly heinous multiple-murder cases. Conversely, where the offending, though serious, has not reached the "so extreme" level, or where compelling evidence of reform exists, courts have declined to remove parole eligibility, again relying on Leach's statement that the statutory criteria confine the discretion.
The decision has been cited in other Australian jurisdictions when courts construe analogous "life without parole" provisions. It stands as an example of strict textual interpretation that prevents judges from re-introducing general sentencing discretion once Parliament has specified the precise condition that enlivens the most severe sanction. No court has doubted the authority of Leach on the two central points: the mandatory nature of the power once the condition is satisfied, and the inapplicability of a standard of proof to the ultimate evaluative judgment.
The High Court left undecided the precise relevance of the concurrent life sentence for rape. Both the primary judge and the High Court noted that no submission had been made that the rape sentence affected the s 19 analysis for the murders. Whether, in a future case, a non-murder life sentence could influence the assessment of "community interest in protection" under s 19(5) or s 53A(5) remains open.
The Court did not explore the outer limits of "level of culpability". While Leach confirms that the test looks primarily at the circumstances of the offence itself, the precise weight to be given to post-offence conduct (as opposed to post-sentencing rehabilitation) is not exhaustively defined. Future cases may test whether extreme conduct after the killing but before arrest can elevate culpability to the s 19(5) threshold.
Another open question is the interaction between s 19(5) and the obligation under s 19(9) (and its analogue in s 53A(9)) to give reasons identifying each factor taken into account. The Court did not have to decide whether a failure to itemise every consideration would invalidate an order, although s 19(10) and s 53A(10) provide that such a failure does not invalidate the sentence. The precise content of adequate reasons in these extreme cases may require further elaboration.
Finally, the Court left untouched the constitutional question whether retrospective alteration of parole eligibility for historic sentences could, in an extreme case, engage Ch III or s 80 of the Constitution. No such argument was advanced in Leach, but the possibility that a sufficiently draconian application of the "no parole" power might amount to additional punishment has not been foreclosed.
Most practitioners do not realise that Leach effectively converts the "may" in s 19(5) into a "must" once the extreme-culpability test is passed. The decision therefore places a heavy forensic burden on the Crown to place before the Court all material that could bear on current risk and rehabilitation, because once the judge crosses the statutory line there is no going back. Defence counsel must decide early whether to contest the Director's application at all or to focus solely on persuading the Court that the s 19(5) threshold has not been met, rather than hoping for a residual discretion at a second stage that the High Court has now ruled does not exist. This subtle but decisive shift in sentencing architecture continues to shape how the Northern Territory deals with its most serious historic murder cases.
On appeal from the Supreme Court of the Northern Territory
I R L Freckelton with R R Goldflam for the appellant (instructed by Legal Aid Commission of the Northern Territory)
T I Pauling QC, Solicitor-General for the Northern Territory with R J Coates for the respondent (instructed by Director of Public Prosecutions (Northern Territory))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Statutes - Acts of Parliament - Sentencing legislation - Interpretation - Mandatory sentence of life imprisonment with no non-parole period passed upon the appellant in 1984 in respect of each of two convictions for murder - The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("2003 Act") provided that life sentences for murder were taken to include a 25 year non-parole period - Section 19(1) of the 2003 Act empowered the Supreme Court of the Northern Territory, on the application of the Director of Public Prosecutions, to revoke the statutory non-parole period, and, in accordance with s 19(5), to refuse to fix a non-parole period - Whether the discretion granted to the Supreme Court under s 19(5) of the 2003 Act required the Court to consider "ordinary sentencing principles", including questions of the prisoner's rehabilitation - Meaning of the word "may" in s 19(5) - Whether primary judge must be satisfied "beyond reasonable doubt" of the basis for the decision before making an order under s 19(5).
Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), ss 17-21.
"(1) Subject to this section, where a court ('the sentencing court') sentences an offender to be imprisoned for life for the crime of murder, the court must fix under section 53(1) -
(b) if any of the circumstances in subsection (3) apply - a non-parole period of 25 years.
(2) The standard non-parole period of 20 years referred to in subsection (1)(a) represents the non-parole period for an offence in the middle of the range of objective seriousness for offences to which the standard non-parole period applies.
(3) The circumstances referred to in subsection (1)(b) are any of the following:
(a) the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker or other occupation involving the performance of a public function or the provision of a community service and the act or omission that caused the victim's death occurred while the victim was carrying out the duties of his or her occupation or for a reason otherwise connected with his or her occupation;
(b) the act or omission that caused the victim's death was part of a course of conduct by the offender that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;
(c) the victim was under 18 years of age at the time of the act or omission that caused the victim's death;
(d) if the offender is being sentenced for 2 or more convictions for unlawful homicide;
(e) if the offender is being sentenced for one conviction for murder and one or more other unlawful homicides are being taken into account;
(f) at the time the offender was convicted of the offence, the offender had one or more previous convictions for unlawful homicide.
(4) The sentencing court may fix a non-parole period that is longer than a non-parole period referred to in subsection (1)(a) or (b) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted.
(5) The sentencing court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.
(6) The sentencing court may fix a non-parole period that is shorter than the standard non-parole period of 20 years referred to in subsection (1)(a) if satisfied there are exceptional circumstances that justify fixing a shorter non-parole period.
(7) For there to be exceptional circumstances sufficient to justify fixing a shorter non-parole period under subsection (6), the sentencing court must be satisfied of the following matters and must not have regard to any other matters:
(b) the victim's conduct, or conduct and condition, substantially mitigate the conduct of the offender.
(8) In considering whether the offender is unlikely to re-offend, the matters the sentencing court may have regard to include the following:
(a) whether the offender has a significant record of previous convictions;
(c) any other matters referred to in section 5(2) that are relevant.
(9) The sentencing court must give reasons for fixing, or refusing to fix, a non-parole period and must identify in those reasons each of the factors it took into account in making that decision.
(10) The failure of the sentencing court to comply with this section when fixing, or refusing to fix, a non-parole period does not invalidate the sentence imposed on the offender.
(11) This section applies only in relation to an offence committed -
(a) after the commencement of the Sentencing (Crime of Murder) and Parole Reform Act 2003; or
(b) before the commencement of that Act if, at that commencement, the offender has not been sentenced for the offence.
'unlawful homicide' means the crime of murder or manslaughter."
This Division applies in relation to a prisoner who, at the commencement of this Act, is serving a sentence of imprisonment for life for the crime of murder.
(a) the prisoner's sentence is taken to include a non-parole period of 20 years; or
(b) if the prisoner is serving sentences for 2 or more convictions for murder - each of the prisoner's sentences is taken to include a non-parole period of 25 years,
commencing on the date on which the sentence commenced.
(1) The Supreme Court may, on the application of the Director of Public Prosecutions -
(a) revoke the non-parole period fixed by section 18 in respect of the prisoner and do one of the following:
(i) fix a longer non-parole period in accordance with subsection (3) or (4);
(ii) refuse to fix a non-parole period in accordance with subsection (5); or
(2) The Director of Public Prosecutions must make the application -
(a) not earlier than 12 months before the first 20 years of the prisoner's sentence is due to expire; or
(b) if, at the commencement of this Act, that period has expired - within 6 months after that commencement.
(3) Subject to subsections (4) and (5), the Supreme Court must fix a non-parole period of 25 years if any of the following circumstances apply in relation to the crime of murder for which the prisoner is imprisoned:
(a) the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker or other occupation involving the performance of a public function or the provision of a community service and the act or omission that caused the victim's death occurred while the victim was carrying out the duties of his or her occupation or for a reason otherwise connected with his or her occupation;
(b) the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;
(c) the victim was under 18 years of age at the time of the act or omission that caused the victim's death;
(d) at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.
(4) The Supreme Court may fix a non-parole period that is longer than a non-parole period referred to in section 18 or subsection (3) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted.
(5) The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.
(1) For Part X of the Criminal Code, a decision of the Supreme Court under section 19(1)(a)(i) or (ii) fixing or refusing to fix a non-parole period is taken to be a sentence passed by the Court.
"There is an obvious tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) ..., and s 61(3), which preserves the s 21(1) discretion to impose a lesser sentence. That tension ... has been resolved in favour of recognising the continued existence of the discretion, notwithstanding the fact that the s 61(1) criteria are met, where the offender's subjective circumstances justify a lesser sentence than one of life imprisonment."
"I am left in no doubt that the respondent's level of culpability in the commission of the offence[s] is extreme. Notwithstanding that finding, it does not automatically follow that I should refuse to fix a non-parole period. The community, through Parliament, has recognised that even in cases falling within the worst category of cases of murder, and even where the culpability of the offender is extreme, nevertheless the court should not inflict the dreadful punishment of imprisonment for natural life without the possibility of release on parole unless satisfied that the level of culpability is 'so extreme' that the community interest in retribution, punishment, protection and deterrence can 'only' be met by such dreadful punishment."
"(1) The Supreme Court may, on the application of the Director of Public Prosecutions -
(a) revoke the non‑parole period fixed by section 18 in respect of the prisoner and do one of the following:
(i) fix a longer non‑parole period in accordance with subsection (3) or (4);
(ii) refuse to fix a non‑parole period in accordance with subsection (5); or
(3) Subject to subsections (4) and (5), the Supreme Court must fix a non‑parole period of 25 years if any of the following circumstances apply in relation to the crime of murder for which the prisoner is imprisoned:
(a) the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker or other occupation involving the performance of a public function or the provision of a community service and the act or omission that caused the victim's death occurred while the victim was carrying out the duties of his or her occupation or for a reason otherwise connected with his or her occupation;
(b) the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;
(c) the victim was under 18 years of age at the time of the act or omission that caused the victim's death;
(d) at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.
(4) The Supreme Court may fix a non‑parole period that is longer than a non‑parole period referred to in section 18 or subsection (3) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non‑parole period is warranted.
(5) The Supreme Court may refuse to fix a non‑parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole."
"This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 16[93]: R v Barlow[17]. Today it is enough to cite Julius v Bishop of Oxford[18]; and add in this Court Ward v Williams[19]. But I select one other reference out of a multitude: Macdougall v Paterson[20]. There Jervis CJ said in the course of the argument[21] 'The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said[22]:
'We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'"
"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 similarities between this part of the provision of the NSW Act and the provisions of s 19(5) of the 2003 Act (and s 53A(5) of the NT Sentencing Act) are evident. But unlike the relevant Northern Territory legislation, s 61(2) of the NSW Act provided that "[n]othing in subsection (1) affects section 21(1)". Section 21 of the NSW Act provided a general power to reduce penalties. In particular, s 21 provided that:
"(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.
(4) The power conferred on a court by this section is not limited by any other provision of this Part.
(5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties."
It follows that the NSW Act took a form radically different from s 19 of the 2003 Act, and s 19(5) in particular. Section 21(1) of the NSW Act has been construed[27] as demonstrating that even if the conditions described in s 61(1) are satisfied, a court sentencing an offender for murder retains a discretion to impose a sentence less than imprisonment for life.
Leach
The Queen
(2005) 16 NTLR 117
(2004) 59 NSWLR 557
(1999) 199 CLR 270
(1971) 127 CLR 106
(1996) 184 CLR 333
(1955) 92 CLR 496
(2000) 50 NSWLR 409
(1938) 60 CLR 336
Appeal dismissed.