The Law and Penalties for Murder in NSW

By Sahar Adatia and Jimmy Singh

On September 14, 2018 a NSW woman who murdered her boyfriend using a large carving knife after she suspected he had killed her cat was jailed for at least 12 years.

In April this year, Rachel Impson was found guilty of murdering her partner, Michael “Mick” Insley, after believing he had a hand in the death of her cat, Angel.

The incident occurred on the night of October 26, 2014 at a secluded spot at Windang’s Picnic Island in the Lake Illawarra region, where she had been living in a tent.

Insley, 39, had appeared outside her tent with no invitation and no notice.

When Impson emerged from her tent, armed with the large carving knife, the 42-year-old woman fatally stabbed him in the back as he attempted to run away. She claimed she was, in fact, afraid that night following a previous incident where Insley had “footy-tackled” her.

She also told police that she stabbed her partner as a self-defence measure because he had an umbrella.

“I am the victim … I was just defending myself … I had a knife, he had an umbrella,” Imspon said.

The previous day, she had accused Insley of killing her cat, Angel after the RSPCA phoned her to advise the cat was discovered run over after it went missing.

In retaliation, she sent a text message to Insley with the warning, “I know you killed Angel, watch your back c***.”

The pair had been in a relationship for a few weeks before the stabbing occurred. Impson had initially moved in with his family, not long after which the couple moved into a tent on Picnic Island.

Impson pleads not guilty to murder

On April 24, 2018 Impson appeared in court and pleaded not guilty to the murder of her boyfriend.

Instead, she pleaded guilty to his manslaughter based on the grounds of considerable impairment arising from an “abnormality of the mind”.

Impson’s lawyers argued that she suffered an undiagnosed bipolar disorder along with a borderline personality disorder at the time the murder took place. Thus, while the evidence would give the impression of her being “a horrible, manipulative woman,” the jurors should keep in mind that there were psychiatric reasons behind this.

However, a NSW Supreme Court rejected the plea and the jury found her guilty of the more serious charge of murder. She was thus remanded in custody until her sentence hearing in August.

“You lying f*****g cow” – from repentance to emotional outburst over murder

During the sentence hearing, Impson gave evidence that she regretted fatally stabbing her boyfriend and admitted she is sorry.

“I couldn’t be more sorry … it’s all I think about … it’s part of who I am, part of who I’ll be forever,” she said.

She claimed that Insley had formerly threated her cat on several occasions but had come to the realisation that if anyone is to blame for the death of Angel, it is her, because she did no look after her pet properly.

However, shortly afterwards, Impson became overcome by heightened emotions in the witness box, and eventually erupted at the prosecutor.

“You’re accusing me of things I didn’t do, you lying f*****g cow.”

Impson refuted having a history of manufacturing allegations about people when she did not get her way. Meanwhile, Insley had told people she was “crazy” and that she was falsely conveying to people that he was abusing her.

The court then heard victim impact statements on behalf of Mr Insley’s family. He was described by family and friends as a kind-hearted man with a beautiful smile, and a son who was always willing to help others.

Impson jailed for at least 12 years

Last Friday, Impson appeared at the Supreme Court where Justice Michael Walton handed her a jail term of at least 12 years.

In jailing her, he found there had been a “modest degree of provocation” by Insley towards Impson, who equipped herself with the carving knife when he arrived unpredictably.

He also detailed that she was in a “heightened emotional state” due to the death of her cat and also the state of her mental health.

Outside the court, the sister of the victim, Linda Reynolds, said she did not have confidence in “one word” of a letter of apology that had been written by Impson.

She also stated that the family was satisfied with the sentence, however, “no amount of time will ever be enough … eventually she will get out.”

Given Impson’s history of mental illness, Justice Walton said it was improbable that she will reoffend and that she had a reasonably decent outlook of rehabilitation.

“I consider the offence to be in the low range of objection seriousness,” he said.

Justice Walton set a maximum jail term of 18 years.

The Law and Penalties for Murder in NSW

In NSW, murder is viewed as the most serious criminal offence. It is closely related to manslaughter charges – which is often an unintentional, accidental or dangerous conduct that causes a victim to die.

What is the Maximum Penalty for Murder in NSW?

You can expect to face up to a life imprisonment for committing the offence of murder under section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Life imprisonment means that you will be required to spend the rest of your natural life behind bars in prison unless the Judge sets a ‘non-parole period’.

How Does a Judge Assess Whether or Not to Impose a Life Sentence for Murder?

Before a Judge can impose a life sentence for murder, the prosecution must first prove (beyond reasonable doubt) that the extent of criminality involved in the offence was so extreme that only a life imprisonment is appropriate given the purposes of punishment.

The purposes of punishment include the community interest in punishment, community protection, deterrence and retribution.

The Judge here will look into the extent of seriousness of the offence in order to assess the extent of the offender’s criminality. The higher the extent of criminality is, the more inclined a Judge will be towards imposing a life imprisonment sentence.

When assessing the extent of seriousness for the offence, the Judge will consider things like, degree of premeditation, any provocation, extent of violence used.

However, the more compelling ‘subjective’ features are found of an offender convicted of murder, the less likely the Judge will impose a life imprisonment sentence. ‘subjective’ features include whether the offender shows remorse, insight, and contrition. Whether there is any explanation for the offence such as mental illness which contributed to the offence and ultimately whether the offender has prospects of being rehabilitated so that the community will be safe if he/she is ultimately released back into the community at a later stage in life.

The Judge will ultimately look at and assess between the ‘subjective’ features and extent of criminality when deciding whether to impose a life sentence or not.

What Happens if the Judge Decides Not to Impose a Life Sentence for Murder?

If a Judge believes that it would not be appropriate to impose a sentence of life imprisonment to an offender convicted of murder, the Judge will then be required to impose a ‘non-parole’ and ‘parole’ period of imprisonment on the offender.

‘non-parole’ period is the period an offender is required to remain behind bars in prison, while the ‘parole’ period is the time the offender can be released back into the community while under supervision by probation and parole.

When considering the extent of ‘parole’ and ‘non-parole’ period on a sentence for murder, a Judge will assess your prospects of rehabilitation (amongst other things). For example, if you receive a term of imprisonment of 10 years imprisonment (out of which you get a ‘non-parole’ period of 8 years, and a ‘parole’ period of 2 years), the Judge can reduce the 8 years by the same extent it increases the parole period. The greater your prospects of rehabilitation are, the more likely the Judge will reduce your ‘non-parole’ period of imprisonment.

Murders After 1 February 2003: The ‘Standard Non-Parole’ Period for Murder

If a particular murder case is assessed by the Judge to fall within the middle of the range of objective seriousness, then the law requires the Judge to consider imposing a standard 20 years non-parole period of imprisonment. This is referred to as the ‘standard non-parole period’ and only applies to convicted offenders for murders committed after 1 February 2003.

However, even if a particular murder case is assessed by the Judge to fall in the middle of the range of objective seriousness, the Judge is not compelled to impose the standard 20 years non-parole period. This is because the standard non-parole period is to be used by Judges only as a guide, not a mandatory rule.

The mid-range of objective seriousness is referred to a case falling in the middle of the range of seriousness for this offence after considering the objective features of a case. In assessing whether a murder case falls within the mid-range of objective seriousness, the Judge will look into ‘objective’ features which include, the level of premeditation, planning, extent of violence used, whether the murder was in view of public or children. For example, the greater the premeditation, planning and violence used in the murder, the more likely the Judge will form a view that the murder falls towards (or possibly even past) the mid-range of objective seriousness.

Under section 18 of the Crimes Act 1900 (NSW), you will be guilty of murder if:

1. You voluntarily did something which causes a victim to die; and
2. At the time of committing the act that caused the death, you:
   • Intended to cause the victim a really serious injury or permanent or serious disfiguring; or
   • You intended to kill the victim; or
   • You foresaw the probability of your action(s) causing death; or
   • Were committing another crime carrying a maximum penalty of at least twenty-five years imprisonment. This is referred to as constructive murder.

There are a few common defences that commonly arise in murder trials. For example, it is a defence to a murder charge if any one of the following defences apply to a person accused of murder in NSW:

• You were acting in self-defence.
• The death caused to the victim was not substantially contributed by your actions.
• The death caused to the victim wasn’t a reasonably foreseeable consequence of your actions.
• The death caused to the victim wasn’t a natural consequence of your actions.
• The death caused to the victim was caused by an intervening event considered the sole cause.
• Your actions that are said to have caused the death to the victim wasn’t seen by you at the time as a probable consequence.
• Mental health defense: where at the time of your actions that caused the victim’s death, you were suffering from a mental illness of a kind that caused you to not have control of your actions, or caused you to not be aware of the quality & nature of your actions, or caused you to not be aware of the rightness or wrongness of your behaviour that caused the death.
• You involuntarily consumed alcohol or drugs that resulted in you being incapable of forming an intention or either kill or cause a really serious injury or permanent disfiguring of the victim.
• Automatism: where something external to your body such as, medication, caused involuntary movements of your body. This can include sleep walking, epileptic fit.

Understandably, someone charged with murder will want the best criminal defence lawyers Sydney has to offer. Murder is an extremely serious crime.

While those that are found guilty and convicted will face these heavy penalties, some would argue that a life sentence of imprisonment is too severe for any offender convicted of murder. Others believe that a life sentence is either appropriate or not enough as a penalty to those who take away someone’s life.

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