Murder and Serious Offences in WA

• Murder is a Schedule II offence under section 279 of the Criminal Code 1913 (WA).
• This offence is a strictly indictable offence. It must be finalised in the Supreme Court, but still commences in the Supreme Magistrates Court. The maximum penalty is life imprisonment.
• If you plead guilty or are found guilty, the court can impose a sentence of life imprisonment and set a non-parole period.

If you have been charged with Murder, the prosecutor must prove beyond a reasonable doubt that:

1. That you are the person who did the things asserted constituting the offence
2. That you killed a person
3. The killing of that person was unlawful
4. That you intended to cause the death of that person or intended to cause a bodily injury of such nature to endanger or likely endanger that person’s life

A lawyer will meticulously analyse the evidence presented by the prosecutor, craft a robust defence strategy tailored to your case, challenge the prosecution’s case, and advocate for your rights throughout the legal proceedings. They will explore all possible avenues for defence, such as establishing mitigating circumstances, casting doubt on intent or unlawful killing, and ensuring fair treatment under the law to secure the best possible outcome for you.

What are the circumstances of murder?

Section 279(1) of the Criminal Code provides three circumstances in which an unlawful killing amounts to murder. These circumstances are:

1.  if the accused intended to cause the death of the person killed or another person; or
2. if the accused intended to cause a bodily injury of such a nature as to endanger or be likely to endanger, the life of the person killed or another person; or
3. if the death was caused by an act done in the prosecution of an unlawful purpose and the act was likely to endanger human life.

What does ‘unlawfully killing’ and ‘insanity’ mean?

The killing of a person will not be unlawful if the accused is not criminally responsible for the killing having regard to s 27 of the Code (insanity). When a defence of insanity is raised under s 27 of the Code to a charge of murder, it is necessary to decide if the accused is criminally responsible for causing the death of the deceased before deciding if the State has proved that the accused had one of the requisite intentions for murder. The issue of insanity falls to be determined before the issue of intent.

What does ‘intended to cause death’ mean?

The prosecution must prove that an accused had the relevant intention to kill the deceased or someone else which imports a wholly subjective test.

What does ‘intended to cause a bodily injury’ mean?

The prosecution must prove the accused’s subjective intent to cause bodily injury and establish objectively that the injuries endangered or were likely to endanger life. The test is partly subjective and partly objective.

What does it mean by ‘intended to endanger life’?

The test in s 279(1)(c) of the Criminal Code is objective. The jury, or a judge sitting alone, must determine whether the act was “of such a nature as to be likely to endanger human life. The word “likely” in this context is meant to convey the notion of a substantial or real chance as distinct from what is a mere possibility.

What defences to the charge of murder may be available?

There are a number of defences that may be available to you if you have been charged, including:

• Self-defence
• Reasonable use of force to prevent home invasion.
• Accident, unwilled act, duress, extraordinary emergency or mistake of fact.

Some partial defences which may reduce the charge from murder to manslaughter include:

• Intoxication
• Insanity

However, insanity does not lead to an acquittal in the ordinary sense and can lead to custody orders being made and indefinite detention in a psychiatric facility.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. If you’re facing a murder charge, it’s essential to understand that a conviction is highly likely if you plead or are found guilty. The severity of the sentence will hinge on various factors including case specifics, personal background, and criminal history.

Q. Should I plead guilty to a murder charge?

A. This will depend on a number of factors including, for example:

• whether you accept that you are the person alleged to have committed the offence
• whether you killed a person
• whether that killing was unlawful
• whether you intended to kill that person
• whether you were acting in self-defence or have another available defence

You may accept that you committed murder but:

• your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as manslaughter or unlawful assault causing death.
• you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of a murder charge?

A. A person who is convicted of murder must be given life imprisonment unless:

1. that sentence would be clearly unjust given the circumstances of the offence and the person; and
2. the person is unlikely to be a threat to the safety of the community when released form imprisonment.

In this case the person is liable to imprisonment for 20 years.

It is important that a lawyer properly prepares and presents your case to persuade the court to reduce the length of the gaol sentence or non-parole period.

• Kidnapping is a Schedule II offence under section 332 of the Criminal Code 1913 (WA).
• This offence is strictly indictable. It must be finalised in the District Court but still commences in the Magistrates’ Court. The maximum penalty is 20 years imprisonment.
• Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

If you have been charged with kidnapping, the prosecutor must prove beyond a reasonable doubt that:

1. You are the person who is alleged to do the things that constitute the offence
2. That you detained the complainant
3. That when the complainant was detained, you did so with an intent to gain a benefit, or cause a detriment, prevent or hinder the doing of an act by the complainant who was lawfully entitled to do that act, or compel the doing of an act by the complainant who is lawfully entitled to abstain from doing that act.
4. That the accused intended to gain the benefit, cause the detriment, prevent the complainant from doing an act, or compel the complainant to do the act by threat or demand.

What does it mean by ‘detain’?

A person who deprives another person of personal liberty by:

• taking the other person away or enticing the other person away; or
• confining or detaining the other person in any place; or
• in any other manner

is said to detain that other person.

What does it mean by ‘threat’?

Threat means a threat to kill, injure, endanger or cause harm or detriment to any person.

In proceedings for an offence against this section, alleging or proving that a threat or demand was actually made is unnecessary.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to a charge of kidnapping?

A. This will depend on a number of factors including, for example:

• whether you accept that you are the person accused
• whether you detained the complainant
• whether you intended to gain a benefit, cause a detriment, prevent or hinder or compel the doing of an act

You may accept that you committed the offence but:

• your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as  deprivation of liberty.
• you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of 

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for kidnapping is 20 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence. Your lawyer will tirelessly advocate for your rights and interests throughout the legal process, striving to achieve the most favourable outcome possible given the circumstances.

• Threats to kill is an offence under section 338B(1) of the Criminal Code 1913 (WA).
• It can be dealt with in either the Magistrates Court or the District Court. The maximum penalty is 14 years imprisonment, however if dealt with in the Magistrates Court the maximum penalty is 3 years imprisonment and/or a fine of $36,000.
• If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with threats to kill, the prosecutor must prove beyond a reasonable doubt that:

1. You are the person who is alleged to do the things that constitute the offence.
2. That you made a threat
3. That the threat was a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting a threat to kill
4. That the threatened killing was unlawful

What does ‘making a threat’ mean?

The threat may be “a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat” to do various things.

The words alleged to constitute a threat must constitute, objectively speaking, a declaration of an intention to kill. The meaning of words may depend on the circumstances in which they are used, and any task of construction will ordinarily involve an examination of those circumstances.

Q. If I plead guilty or am found guilty of a threat to kill, will a conviction be recorded?

A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. A lawyer can play a pivotal role in helping you navigate a threat to kill charge and potentially avoid a conviction. They will meticulously assess the details of your case, explore all available legal defences, and advocate on your behalf to mitigate the severity of the charges.

Q. Should I plead guilty to threatening to kill?

A. This will depend on a number of factors including, for example:

• whether you accept that you are the person accused
• whether you made a threat
• the threat was a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting a threat to kill
• whether you were acting unlawfully

You may accept that you committed the offence but:

• your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as threats under section 338B(1).
• you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of threatening to kill someone?

A. Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for threats to kill is 14 years imprisonment, however, the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol.

• Stalking is a Schedule II offence under section 338E of the Criminal Code 1913 (WA).
• It can be dealt with in either the Magistrates Court or the District Court. The maximum penalty is 8 years imprisonment, however if dealt with in the Magistrates Court the maximum penalty is 2 years imprisonment and/or a fine of $24,000.00.
• If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded.

If you have been charged with stalking, the prosecutor must prove beyond a reasonable doubt that:

1. That you are the person accused, or an accomplice
2. The you pursued another
3. That you did so with intent to intimidate that person or a third person
4. That you did act with lawful authority

If a person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate that person or a third person is guilty of a simple offence with a maximum penalty of imprisonment of 12 months and/or a fine of $12,000.00.

Your lawyer will dissect the prosecutor’s case, scrutinising the evidence presented and challenging each element required for conviction.

What does it mean to ‘intimidate’?

Intimidate, in relation to a person, includes —

1. to cause physical or mental harm to the person;
2. to cause apprehension or fear in the person;
3. to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
4. to compel the person to do an act that the person is lawfully entitled to abstain from doing;

What does it mean to ‘pursue’?

Pursue, in relation to a person, includes —

1. to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
2. to repeatedly follow the person;
3. to repeatedly cause the person to receive unsolicited items;
4. to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;
5. whether or not repeatedly, to do any of the foregoing in breach of a restraining order or bail condition.

For the purpose of deciding whether an accused person has pursued another person —

1. the accused is not to be regarded as having communicated with or followed that person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with or follow that person;
2. an act by the accused on a particular occasion is not to be taken into account for the purpose of deciding whether the accused watched or beset a place where that person lived, worked or happened to be, or the approaches to such a place, if it is proved by or on behalf of the accused that on that occasion the accused did not know it was such a place.

Q. If I plead guilty or am found guilty of stalking, will a conviction be recorded?

A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Q. Should I plead guilty to stalking someone?

A. This will depend on a number of factors including, for example:

• whether you accept that you are the person accused
• whether you pursued another person
• whether you do so with intent to intimidate the person
• whether you had lawful authority to do so

You may accept that you committed the offence but:

• your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge.
• you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of stalking? 

A. Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for stalking is 8 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol or reduce the length of the gaol sentence.