Murder and manslaughter are among the most serious criminal offences and attract some of the harshest penalties courts can impose. In Western Australia, the Criminal Code Compilation Act governs the crimes of murder and manslaughter and alternative homicide offences. The Act prescribes mandatory minimum sentences that apply to adults and children found guilty of these offences.
Several offences relating to causing deaths are also found in the Road Traffic Act 1974.
Definition of murder
Under Section 279 of the Criminal Code Compilation Act, a person commits murder if they:
- Intend to cause the death of a person (regardless of whether or not they intended to kill the person who was actually killed); or
- Intend to cause an injury likely to endanger the life of a person; or
- Cause a death by an act that is done in prosecution of an unlawful purpose and that is likely to endanger human life (regardless of whether or not they intended to hurt anyone).
Penalty for murder
An adult who is found guilty of murder must be sentenced to life imprisonment unless:
- A life sentence would clearly be unjust in the circumstances; and
- The person is unlikely to be a threat to the safety of the community when released (in which case the person must be imprisoned for 20 years).
A juvenile who is found guilty of murder is liable to a maximum penalty of imprisonment for life or detention until released by order of the governor.
An adult who commits a murder in the course of an aggravated home burglary is liable to imprisonment for a maximum of life and a minimum of 15 years.
A juvenile who commits a murder in the course of an aggravated home burglary is liable to imprisonment for a maximum of life and a minimum of three years. The offender must have a conviction recorded and the court must not suspend any part of the term of imprisonment imposed.
Defences to murder
Self-defence and provocation are the most commonly raised defences to murder.
It is a full defence to a charge of murder if the accused was acting in self-defence. For the defence of self-defence to succeed, the accused must have believed on reasonable grounds that it was necessary to act as he or she did in self-defence. The act done is self-defence must have been proportionate to the threat faced (Section 248).
It is a partial defence to a charge of murder if the accused was acting in self-defence but the amount of force used in self-defence was excessive (ie was not a reasonable response to the threat faced). Where this is established, the accused is found guilty of manslaughter and not of murder.
Provocation is a partial defence to murder. If it is successfully raised, the accused iwll be found guilty of manslaughter rather than murder. The defence applies if there was provocative conduct by the deceased which caused the accused to lost self-control and kill the victim. The provocative conduct must be serious enough that it could have caused an ordinary person to lose control and kill (Section 246).
Other criminal defences such as mental impairment and immature age may also be applicable where a person is charged with a homicide offence.
Under Section 280, a person who unlawfully kills a person in circumstances that do not constitute murder, is guilty of manslaughter. The maximum penalty for manslaughter is imprisonment for life. For an accused to be found guilty of manslaughter, the death of the victims must have been reasonably foreseeable.
If manslaughter is committed in the course of an aggravated home burglary, the following minimum penalties apply:
- For an adult, imprisonment for 15 years;
- For a juvenile, imprisonment for three years.
Unlawful assault causing death
Under Section 281, a person commits a crime if they unlawfully assault a person who dies as a result of the assault. The maximum penalty for this crime is imprisonment for 20 years. A person can be found guilty under this provision even if the death of the victim was not reasonably foreseeable.
If this offence is committed in the course of an aggravated home burglary, the court must impose a sentence of no less than:
- For an adult, imprisonment for 15 years;
- For a juvenile, imprisonment for at least three years.
Attempt to unlawfully kill
Under Section 283, a person who attempts to unlawfully kill another is guilty of a crime and liable to a maximum penalty of imprisonment for life.
Dangerous driving causing death
Under Section 59 of the Road Traffic Act 1974, a person is guilty of a crime if they cause the death of another person by causing an accident whilst under the influence of alcohol or drugs or by driving in a dangerous manner. The maximum penalty for this offence is imprisonment for 20 years.
Careless driving causing death
Under section 59BA of the Road Traffic Act, a person is guilty of a crime if the cause another person’s death by driving without due care and attention. The maximum penalty for this offence is imprisonment for three years or a fine of 720 penalty units.
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