61 Mandatory life sentences for certain offences
(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder 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.
77 The Crown submits that the offender's level of culpability is so extreme as to require the Court to sentence the offender to the maximum available penalty. The burden of establishing that proposition is on the Crown: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [35]. Where the question of a mandatory life sentence arises, the Court must proceed by examining the objective gravity of the offence, thereafter, considering the capacity of other features including from the offender's subjective case to mitigate the seriousness of the crime.
78 The first step in the determination of sentence, and in assessing whether s 61 applies, is to consider the gravity of the crime.
Gravity
79 Charlise's young age is a significant feature of the gravity of the crime. She was not just a child as contemplated by the regime of SNPPs provided by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, she was a very young child in the context of Item 1B of that Table. A SNPP of 25 years applies to the murder of a child under the age of 18 years; Charlise, at nine years and five months of age at the time of her death, was significantly below the upper age limit of under 18.
80 Because of her young age, she necessarily looked to the adults around her for her care and maintenance. At the time of her death, Charlise had been committed to the care of the offender, who stood in the position of a parent or carer to her. He had been trusted by Ms Mutten to look after Charlise whilst travelling to and staying at a relatively unpopulated place, where the offender was the only adult, or person of any age, present. Charlise had come to refer to the offender as "daddy" and she was entitled to his care and protection. This crime represents an egregious breach of Charlise's and Ms Mutten's trust.
81 Because of the quetiapine in her system, however it got there, Charlise was even more vulnerable than a child of nine years would ordinarily be. Dr Judith
