05/11/2007 - 10:37

Law Reform Commission's Homicide laws review released

05/11/2007 - 10:37


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The Law Reform Commission of Western Australia has released details of a planned overhaul of the State's homicide laws, including an expansion of sentencing options, which Attorney-General Jim McGinty has pledged to consider.

The Law Reform Commission of Western Australia has released details of a planned overhaul of the State's homicide laws, including an expansion of sentencing options, which Attorney-General Jim McGinty has pledged to consider.



The full text of an announcement from the office of Mr McGinty is pasted below

Major changes to Western Australia's homicide laws.

The charges of wilful murder and murder would be consolidated into one charge and sentencing options expanded as part of a major overhaul of the State's homicide laws proposed by the Law Reform Commission of Western Australia.

Attorney General Jim McGinty said the plan to consolidate wilful murder and murder into one offence was part of 45 recommendations made by the commission after a two-and-a-half year review of homicide laws.

"The report is very impressive and I have no doubt it will lead to tougher sentences for murderers which are more in line with community expectations in ensuring punishment matches the seriousness of their crime," Mr McGinty said.

"The minimum non-parole period for murder would be increased from seven to 10 years and carry a presumptive penalty of life imprisonment with a 10-30 year non-parole period.

"This would significantly increase the power of judges to impose harsher non-parole periods of up to 30 years, whereas currently a person convicted of murder can only be sentenced to a non-parole period of up to 14 years."

The 'never to be released' sentence would become available for all murders. It is currently limited to persons convicted of wilful murder only.

Dante Arthurs

The Attorney General said the problems encountered in prosecuting Dante Arthurs over the killing of an eight-year-old girl in a suburban shopping centre would not be repeated if the Government accepted the commission's recommendations.

The Director of Public Prosecutions did not pursue the more serious charge of wilful murder against Dante Arthurs because it was concerned that it could not prove that he intended to kill the girl; and instead accepted a guilty plea to the lesser charge of murder.

Under the proposed changes, murder would be defined as unlawful killing with intent to kill, or intent to cause bodily injury likely to endanger life.

Murder would also include a death during the prosecution of an unlawful purpose by an act likely to endanger human life (felony murder).

One Punch Deaths

Mr McGinty said the people involved in assaulting Leon Robinson in 2002 and in the more recent case of Skye Barkwith would not be able to walk free under the proposed changes to the law.

In both cases, the accused were acquitted of manslaughter and the jury were not presented with alternative verdicts.

The Law Reform Commission said that in those types of cases, it was essential that alternative offences were available to the jury to consider whether an accused could be held criminally responsible for any harm that was reasonably foreseeable.

A major new proposal was to provide an alternative verdict to manslaughter of 'intent to cause grievous bodily harm' - meaning if a jury were not satisfied beyond reasonable doubt that a person was guilty of murder or manslaughter, it would be open to them to convict the accused of intentionally doing grievous bodily harm or any one of a number of other applicable statutory alternative verdicts.

Self Defence

The Attorney General said the laws regarding self-defence would be significantly expanded under the proposals, to ensure people who killed as a genuine means of self-preservation or to protect others, were not treated as criminals.

Self-defence remained a complete defence, but redefined to allow self-defence where:

  • force was objectively reasonable;
  • provide that acts of self-defence may be reasonable even if not proportionate;
  • remove the requirement for an immediate threat of harm, provided harm was inevitable; and
  • home invasions - provide that force intended to kill or cause grievous bodily harm could not be used in defence of property only, but lethal force may (in certain circumstances) be used if there was fear of personal harm.

"This change in the definition of self-defence will enable people to properly protect themselves without fear of criminal penalties," Mr McGinty said.

It is proposed to also introduce 'excessive self-defence' in WA, where an accused had genuinely killed in self-defence, but made an error of judgment in assessing the appropriate response or force. It would be a partial defence that reduced the offence of murder to manslaughter.

The commission said that in cases of domestic violence, its expanded test of self-defence or 'excessive self-defence' could be used in some cases where a person had killed an abusive partner.


The Law Reform Commission has recommended the partial defence of provocation be abolished for homicide cases as it condones violence; it is a defence not always used in deserving cases; and it is a defence that could be better dealt with in sentencing.

The Attorney General said the provocation proposal was likely to be supported by the Government because violence in the community would not be tolerated.

Other Major Proposals

Mandatory life imprisonment would be replaced by the presumptive penalty, meaning a person convicted of murder must be sentenced to life imprisonment, unless this would be clearly unjust given the circumstances of the offence.

Mr McGinty said judges would have discretion to depart from the mandatory life sentence in exceptional cases where there was less criminal culpability such as mercy killings, victims of domestic violence, suicide pacts and infanticide, and the offender posed no threat to the community.

The commission had recommended repeal of the offence of infanticide because it said it could be adequately dealt with by the new murder offence and sentencing discretion.

There is a proposal to create a new offence of 'dangerous navigation causing death' to cover boating, similar to dangerous driving causing death, and it could also be used as an alternative to manslaughter.

The Attorney General said the simplification of homicide charges and the associated penalties was expected to result in more offenders pleading guilty and therefore result in fewer trials, saving victims families and witnesses the added ordeal of a lengthy trial.

In welcoming the report, Mr McGinty said the Government would give detailed consideration to the Law Reform Commission's recommendations.


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