The Crime of Murder in New South Wales

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By Paul Gregoire and Ugur Nedim

Michael Murphy died of natural causes at Long Bay prison hospital on 21 February. The 65-year-old was one of a group of five men found guilty of committing the horrific sexual assault and murder of Sydney nurse Anita Cobby.

On the night of 2 February 1986, Murphy, two of his brothers and two other men, pulled Cobby into the back of their car while she was walking home from Blacktown train station and mercilessly assaulted her. They later dragged her through a barbed wire fence, slit her throat and left her to bleed to death in a Prospect paddock.

“This was a calculated killing done in cold blood,” then Justice Alan Maxwell remarked during the ensuing sentencing proceedings. The former NSW Supreme Court Judge cried during the sentencing, as he described the crime as “one of the most horrifying physical and sexual assaults” he’d ever come across.

For the crime of murder, Murphy and his co-offenders were sentenced to life imprisonment.

Murder is considered the most serious of all crimes. It is the offence most often associated with being sent away for life. However, not all convicted murderers spend the rest of their lives behind prison walls.

The most serious of crimes

Section 18 of the Crimes Act 1900 contains the offence of murder.

To establish the offence, the prosecution must prove beyond reasonable doubt that a person voluntarily committed an act or made an omission which caused the death of another person, in circumstances where the person had the intention to kill, or to cause grievous bodily harm, or displayed a reckless indifference to human life, or during an attempt to commit, or during or after the commission of, an offence punishable by at least 25 years in prison.

The maximum penalty for murder is life imprisonment. Standard non-parole periods (SNPP) apply to the offence, the length of which depend on who is murdered. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend inside before being eligible to apply for release on parole.

The general SNPP for the murder of an adult is 20 years in prison. However, if the deceased was under 18 years of age, the SNPP is 25 years. If the victim is from a number of prescribed occupations, including the police or emergency services, the SNPP increases to 25 years.

Section 19B of the Crimes Act requires a person who murders a police officer to be sentenced to life imprisonment. This applies when an officer is murdered in the execution of his or her duty, or killed as an act of retribution in relation to their position.

Assessing murder

Contained in section 18 are a number of ways that different murders can be assessed, such as intent to kill compared with an intent to cause grievous bodily harm or a reckless indifference to life. Generally speaking, having an intent to kill is considered more objectively serious than the latter mentioned categories.

Then there’s the difference between constructive murder – death caused whilst attempting to perpetrate another crime. In that regard, there is no hard and fast rule that such murders are to be considered less seriously.

Attempted murder

When an individual tries to take another’s life – whether intentionally or recklessly – and fails to do so, they can be found guilty of attempted murder. The various attempted murder offences carry a maximum sentence of 25 years, along with an SNPP of 10 years.

The crimes are contained in sections 272829 and 30 of the Crimes Act. The most serious examples of these offences are considered to be grave despite the survival of the victim, often outweighing any mitigating effect usually accorded to an offender’s ‘special circumstances’, or prospects of rehabilitation.

Conspiracy to murder

Another homicide-related offence, which is contained in section 26 of the Crimes Act, is conspiring to commit murder. It involves soliciting, encouraging, persuading or endeavouring to persuade another individual to commit a murder.

The lengthy prison sentence of up to 25 years and SNPP of 10 years that conspiracy to murder carries are aimed at providing “a clear indication that the offence is one of the most serious in the criminal calendar” and to thereby deter those who might contemplate it.

Crimes of homicide

Murder and manslaughter are the two homicide crimes set out in section 18 of the Crimes Act.

Manslaughter occurs when a person commits a fatal act that was not consciously intended to kill the other and doesn’t otherwise constitute murder. The maximum penalty for manslaughter is 25 years in prison.

The partial defence of provocation can be argued against a murder charge. It involves the defendant having been provoke to such an extent that they lost control, and are therefore less culpable for their actions. Provocation can thereby reduce murder to manslaughter.

Murder accessories

Accessories to murder come in two shades, those before the fact and those after it. As set out in section 346 of the Crimes Act, an individual who has acted as an accessory before the committing of a murder is liable to the same maximum penalties that the actual murderer is.

While under the provisions of section 349, an accessory after the fact of a murder is liable to up to 25 years in gaol. There’s a wide range of behaviours that can make an individual an accessory after the fact, and assisting in the disposal of a body is amongst the most serious examples of this crime.

Self-defence

Section 418 of the Crimes Act provides that a person is not responsible for a crime where they believed the conduct was necessary to defend themselves or another, or to prevent the unlawful deprivation of their liberty or that of another, or to protect their own property or that belonging to another, or to prevent a criminal trespass, where the conduct was a reasonable response to the circumstances as the person perceived them.

However, it is important to note that section 420 makes clear that self-defence is not available for an intentional or reckless killing where the person’s conduct was to protect property or prevent a criminal trespass.

For the term of their natural lives

Section 19A of the Crimes Act stipulates that a convicted murderer is liable to a maximum penalty of life imprisonment, which means “for the term of the person’s natural life”.

And section 61 of the Crime (Sentencing Procedure) Act 1999 outlines that “a court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability” pertaining to the offence is so extreme it threatened the community.

Indeed, that is what former Justice Alan Maxwell did when he directed in the file of each of the five men who took Ms Cobby’s life that they are “never to be released”. The final four now await the same fate as Michael Murphy, to expire within the walls of prison.

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