What Does the Law Say About Murder Charges in NSW?

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It’s reported that on Monday morning last week, a 62-year-old man has allegedly repeatedly stabbed his 57-year-old wife to death, while their three grandchildren witnessed it.

At about 10am, police and paramedics from five ambulance crews arrived at the Berala home to find the 57-year-old woman with fatal stab wounds.

While paramedics did their best to treat the woman, she died.

The home soon after was turned into a crime scene when the 62-year-old man was formally arrested and taken by police to the Auburn police station.

The 62-year-old man is now facing a murder charge and has been refused bail.

As investigating police are waiting for the coroner’s report, police in the interim are appealing to the public who may have seen or have any information or camera footage to assist police by contacting Crime Stoppers on 1800 333 000.

Police believe that the alleged attack is a domestic-violence incident in the home between the husband and wife.

Reports reveal that the husband and wife did not reside in the Berala home, but were caring for young children at the time.

The children are believed to be the couple’s grandchildren who may have witnessed the alleged horrific attack.

Acting Inspector Chris Laird said, “If (the children) did witness it, that’s just a horrible thing to have happened.”

“The tragic consequence today show how serious domestic violence is in our community and how police are very committed to ensure that the perpetrators are brought to justice.”

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What Does the Law Say About Murder Charges in NSW?

Murder is defined in section 18 Crimes Act 1900 (NSW) as the act or omission to do something which causes the death, in circumstances it was done or omitted to be done with reckless indifference to human life or with the intent to kill or inflict grievous bodily harm on a person.

It also includes an act or omission to do an act with an attempt to commit a crime carrying at least a maximum penalty of 25-years imprisonment (or an act or omission to do an act during or immediately after the commission of a crime that carries a maximum penalty of least 25-years imprisonment).

Murder in NSW carries a maximum penalty of life imprisonment. It only gets imposed by the Court if the culpability or criminality of the crime is so extreme that a life sentence is required considering the community interest in retribution, punishment, community protection and deterrence (section 61(1) Crimes (Sentencing Procedure) Act 1999 (NSW)).

So how does the court decide to impose a life sentence on someone convicted of murder? The Court here looks into factors such as, extent of violence, premeditation and any provocation- to name a few.

The Court also considers factors specific to the convicted person, such as mental state, age, any expressions of remorse and insight and prospects of rehabilitation.

If the sentencing court determines not to impose a life imprisonment sentence, the court must then consider imposing the 20-years standard non-parole period, which is to be used only as a guide rather than a mandatory requirement.

What does this standard non-parole period mean? This means that if the offence fits in the mid-range of objective seriousness for offences of this kind, the court is to consider imposing a minimum of 20-years full-time custody known as the non-parole period before the offender is eligible for release back into the community on parole.

When considering if the offence fits in the mid-range objective seriousness, the court will look at factors like extent of premeditation, violence used, whether there was any provocation involved.

Note, that the standard non-parole period for murder only applies to offences committed after 1 February 2003.

A person accused and charged of murder in NSW will be guilty only if the prosecution is able to prove each of the following elements of the crime beyond reasonable doubt:

The accused person voluntarily committed the act or omission that caused the other person’s death.
At the time of this, the accused person either:
1. Had the intention to cause the other person really serious injury or permanent/serious disfigurement; or
2. Had the intent to kill the other person; or
3. Realised the probability that his/her conduct would cause the death; or
4. Was in the process of committing a criminal offence carrying at least a maximum penalty of 25-years imprisonment- constructive murder.

Click here for an outline as to the defences to a murder charge in NSW.

For more information on this topic, contact our team anytime on our 24/7 hotline (02) 8606 2218.

Our experienced criminal lawyers specialise in criminal law and appear across all courts.

Published on 15/11/2019