This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Murder and Manslaughter and Other Homicides (WA)


Murder and manslaughter are among the most serious criminal offences that can be committed in Western Australia. In Western Australia, the Criminal Code Compilation Act governs murder, manslaughter and other homicide offences. The Act prescribes mandatory minimum sentences that can be imposed on both adults and children who are found guilty of these offences.

The Road Traffic Act 1974 also contains offences that involve causing death.

Definition of murder

Under Section 279 of the Criminal Code Compilation Act, a person is guilty of murder if they:

  • Intended to cause the death of a person (regardless of whether or not they intended to kill the person who was killed); or
  • Intended to cause an injury that is likely to endanger the life of a person; or
  • Cause death by an act done in pursuit 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 offender who is found guilty of murder must be sentenced to imprisonment for life unless:

  • It would clearly be unjust to impose a life sentence in the circumstances; and
  • The offender is unlikely to be a threat to the safety of the community when they are released (in which case the person must be sentenced to imprisonment for 20 years).

A child offender who is found guilty of murder is liable to a maximum penalty of imprisonment for life or detention until they are released by order of the governor.

An adult who commits the offence of murder in the course of an aggravated home burglary is liable to imprisonment for a maximum period of life and a minimum period of 15 years.

A juvenile who commits a murder in the course of an aggravated home burglary is liable to a maximum period of life imprisonment and a minimum period of three years. Courts must impose a conviction on the offender and must not suspend any part of the term of imprisonment imposed.

Manslaughter

Under Section 280, where a person unlawfully kills a person in circumstances that do not amount to murder, they are guilty of manslaughter. The maximum penalty for a charge of manslaughter is life imprisonment. For an accused to be found guilty of manslaughter beyond a reasonable doubt, the death of the victim must have been reasonably foreseeable.

If manslaughter is committed in the course of an aggravated home burglary, minimum penalties apply as follows:

  • For an adult offender, imprisonment for 15 years;
  • For a child, imprisonment for three years.

Defences to murder and manslaughter

The most commonly raised defences to murder are self-defence and provocation.

Self-defence

It is a full defence to murder if the accused acted in self-defence. For this defence to succeed, the accused must have had reasonable grounds to believe that their actions were necessary in self-defence or in defence or another person. 

If the accused was acting in self-defence but used excessive force (in other words, their actions were not a reasonable response to the threat they faced) this is a partial defence to a charge of murder. Where it is established that the accused’s actions were excessive self-defence, the accused will be found guilty of manslaughter instead of murder.

Provocation

In Western Australia, provocation is a partial defence to murder. If provocation is successfully raised, the accused will be found guilty of manslaughter rather than murder. The defence applies where there was provocative conduct by the victim which caused the accused to lose their self-control and kill the victim. The provocative conduct must have been serious enough that it could have caused an ordinary person to lose their self-control and kill the victim (Section 246).

Other criminal defences such as the defence of mental impairment and immature age (where an accused is under the age of 14) may also be applicable where a person is charged with murder or manslaughter

Unlawful assault causing death

Under Section 281, a person commits a crime if they unlawfully assault a person and the person dies as a result of the assault. The maximum penalty for this is imprisonment for 20 years. This offence is different to manslaughter in that a person can be found guilty of it even if the death of the victim was not reasonably foreseeable.

If unlawful assault causing death is committed during an aggravated home burglary, the court must impose a term of imprisonment no less than:

  • For an adult, 15 years;
  • For a juvenile, three years.

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 a person by causing an accident whilst under the influence or by driving in a dangerous manner. The maximum penalty is imprisonment for 20 years.

Careless driving causing death

Section 59BA of the Road Traffic Act states that a person is guilty of a crime if they cause the death of another person’s by driving without due care and attention. The maximum penalty for this offence is three years imprisonment or a fine of 720 penalty units.

If you require legal advice or representation in relation to a homicide offence or in any other legal matter, please contact Armstrong Legal. 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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