Murder (VCE SSCE Legal Studies): Revision Notes
Murder
Murder represents the most serious criminal offence within the legal system. It is an indictable offence that carries the maximum penalty of life imprisonment and requires mandatory imprisonment unless exceptional circumstances exist.
What is murder?
Murder is the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification.
Murder belongs to a broader category of crimes called homicide, which encompasses all offences involving the killing of another person without legal justification. While murder is the most serious homicide offence, there are several other types:
- Manslaughter – the unintentional killing of a person resulting from reckless, dangerous or negligent behaviour
- Infanticide – when a mother kills her child under two years of age while suffering from a mental condition caused by the effects of childbirth
- Child homicide – the killing of a child under six years of age in circumstances that would typically constitute manslaughter
- Culpable driving causing death – causing another person's death while driving negligently, recklessly, or under the influence of drugs or alcohol
- Homicide by firearm – killing a person by discharging a firearm in circumstances that would normally be manslaughter (such as recklessly or negligently firing a gun)
Murder is classified as a 'Category 1' offence, which means courts must sentence offenders to imprisonment unless very narrow exceptional circumstances exist. The maximum penalty is life imprisonment.
Elements of murder
To secure a murder conviction, the prosecution must prove all four elements beyond reasonable doubt. If even one element cannot be proven, the accused cannot be found guilty of murder. The four elements are:
Element 1: The killing was unlawful
The prosecution must establish that the accused had no legal justification or lawful reason for causing the victim's death.
Legal justifications that would make a killing lawful include:
- A soldier killing an enemy combatant during warfare
- Police officers acting within the course of their duties
- A person acting in reasonable self-defence
- A person acting under duress
If the accused can demonstrate they had a legal justification, the killing was not unlawful and murder cannot be proven.
Element 2: The accused's acts were voluntary
The prosecution must prove the accused committed the acts while awake, aware and in full control of their bodily actions. This means:
- The accused must not have been sleepwalking or experiencing an epileptic seizure
- The actions must have been deliberate, not the result of an unintentional accident
- The accused must have had conscious control when committing the act
For example, if someone unintentionally falls and accidentally causes another person's death, this element would not be satisfied because the act was not voluntary.
Element 3: The accused committed acts that caused the victim's death
This element has two components that must both be proven:
First, the prosecution must prove the accused committed specific acts (such as firing a gun or stabbing with a knife).
Second, the prosecution must establish causation – that there was a direct and unbroken causal link between the accused's actions and the victim's death. Causation means the accused's actions were the reason the victim died, and the death would not have occurred when it did without those actions.
If something intervenes to break the causal link between the accused's actions and the death, the accused may not be guilty of murder.
Example of broken causation:
Stefan punched Damon during an argument and left him under a tree. Although Damon could have left, he chose to remain there. Minutes later, lightning struck the tree, causing a branch to fall and kill Damon.
Analysis: The lightning strike breaks the causal link – Damon's death was caused by the lightning, not by Stefan's punch.
Important requirement: The victim must be a living person who has been born. The killing of an unborn child or an animal may constitute a different type of crime, but not murder.
Element 4: The accused acted with intent to kill or cause serious harm
The prosecution must prove the accused possessed mens rea (a 'guilty mind') at the time of the killing. Specifically, the prosecution must establish that when committing the acts, the accused either:
- Intended to kill someone or cause them really serious injury, or
- Knew it was probable that death or really serious injury would result from their actions
This mental element distinguishes murder from other homicides like manslaughter, where the killing is unintentional.
Defences to murder
An accused person can defend against a murder charge in two ways:
Challenging the elements
The accused may argue that one or more of the four elements has not been proven beyond reasonable doubt. For example:
- They did not intend to kill or seriously harm the person
- There was a break in causation between their actions and the victim's death
- Their actions were not unlawful
If all elements except intention can be proven, the accused may instead be charged with and found guilty of manslaughter.
Raising a legal defence
Several general defences are available for murder charges. These defences generally demonstrate that the accused could not or did not form the intention to commit the offence:
- Self-defence – the accused must believe their actions were necessary to protect themselves or another person from death or significant serious injury
- Mental impairment – the accused was suffering from a mental condition that affected their understanding or control
- Duress – the accused acted under threat of death or significant serious injury. Evidence of family violence may support this defence. Note: duress cannot be raised if the threat came from someone the accused voluntarily associated with to commit violence
- Sudden or extraordinary emergency – the emergency must involve risk of death or serious injury
- Automatism – the accused was not in conscious control of their actions
- Intoxication – the accused's capacity was affected by drugs or alcohol
- Accident – the killing occurred accidentally without intent
Case example: R v Dhakal [2018]
A 51-year-old chef stabbed an intoxicated customer to death after an argument. The accused claimed he acted in self-defence, fearing the customer might attack him. However, the customer never had a weapon or appeared to be obtaining one.
Outcome: The jury unanimously found him guilty of murder and he was sentenced to 23 years' imprisonment with a minimum 17-year non-parole period.
Possible sanctions
Under section 3 of the Crimes Act 1958 (Vic), the maximum penalty for murder is life imprisonment.
Understanding life imprisonment
Life imprisonment does not necessarily mean spending one's entire life in prison. Courts typically set a non-parole period, which is the minimum time the offender must serve before applying for release back into the community under supervision and strict conditions. This means:
- Life imprisonment = serving a sentence (either in prison or under community supervision) for the rest of one's life
- After the non-parole period, offenders can apply for parole (supervised and conditional release)
In cases where releasing the offender would pose unacceptable risk to the community, judges can impose life imprisonment with no parole, meaning the offender will never be released from prison.
Standard sentences
The Sentencing Act 1991 (Vic) establishes standard sentences as guidelines for judges when determining sentences for 13 serious indictable offences, including murder. A standard sentence represents what should be imposed for 'middle of the range of seriousness' offending before considering other factors.
Standard sentences for murder:
- 25 years' imprisonment for general murder cases
- 30 years' imprisonment if the victim was an emergency worker (police officer, paramedic, firefighter, or medical professional delivering emergency care) or custodial officer (prison officer) on duty
Factors affecting sentencing
Courts consider numerous factors that may increase or decrease the sentence from the standard:
Nature and gravity of the offending
- Use of a weapon (type and manner of use considered)
- Commission of the attack in a public space, particularly in front of children
- These factors typically result in higher sentences
Vulnerability of the victim
- Attacks on particularly vulnerable victims result in increased seriousness
- Vulnerable victims include: young people under 18, elderly persons, people with physical disabilities, or people with significantly impaired intelligence or mental disorders
Offender's conduct after committing the offence
- Cruel or heartless behaviour after the offence (such as concealing the body) increases sentence severity
- Positive actions (calling an ambulance, cooperating with police, demonstrating genuine remorse) can lessen the sentence
Offender's personal circumstances
- Mental health, personal history, character, and previous convictions are all considered
- May increase or lessen sentence severity
Whether the murder was planned or premeditated
- Planned murders typically receive more severe sentences
- Spontaneous actions without prior planning may result in lesser sentences
Guilty plea
- Judges must impose a less severe sentence if the offender pleads guilty
- The timing of the guilty plea matters – earlier pleas result in greater sentence reductions
- Early guilty pleas spare victims' families the trauma of trial and save prosecution resources
Case example: DPP v Gonzalez [2022]
A 76-year-old man with terminal cancer pleaded guilty to murdering his former partner by shooting her twice at close range.
Sentencing factors considered:
- Age, ill health, and good character prior to the offence
- Seriousness of the offending (shooting at close range)
- Guilty plea
Outcome: The judge sentenced him to 24 years' imprisonment with a 17-year non-parole period, stating that the seriousness of the offending could not go unpunished simply due to age and health. The sentence would have been 29 years with a 23-year non-parole period without the guilty plea. The judge acknowledged it was highly likely the offender would die in prison.
Trends and statistics
Victoria
According to the Victorian Sentencing Advisory Council, murder sentencing has shown a slight declining trend in recent years:
| Year | Number of offenders sentenced for murder |
|---|---|
| 2017–2018 | 27 |
| 2018–2019 | 25 |
| 2019–2020 | 24 |
| 2020–2021 | 9 |
| 2021–2022 | 12 |
Between 2017–2018 and 2021–2022, 97 people were sentenced for murder in Victoria's Supreme Court, representing approximately 2.8% of all cases sentenced in Victoria's higher courts (County Court and Supreme Court).
Key statistics for the year ending 30 June 2022:
- All 12 offenders received immediate imprisonment
- Average imprisonment length (excluding life sentences): 20 years and 6 months
Offender demographics (1 July 2016 to 30 June 2021):
- Approximately 91% of those convicted were male
- Approximately 73% of offenders were aged between 25 and 54 years
Murder rate:
According to the Victorian Crime Statistics Agency, recorded murder offences per 100,000 population have remained stable at less than one murder per 100,000 people between 2018 and 2022.
| Year | Recorded murder offences | Offences per 100,000 population |
|---|---|---|
| 2018 | 53 | 0.8 |
| 2019 | 59 | 0.9 |
| 2020 | 62 | 0.9 |
| 2021 | 52 | 0.8 |
| 2022 | 51 | 0.8 |
The number of recorded murder offences is higher than the number of offenders sentenced because some offenders may plead guilty to lesser offences (such as manslaughter, homicide by firearm, or child homicide) before trial, or be found guilty of a lesser offence by the jury.
Northern Territory comparison
Comparing crime statistics between Australian jurisdictions is challenging due to differences in legal definitions, reporting practices, and statistical periods. However, broad comparisons reveal significant differences.
The Northern Territory has the highest murder rate in Australia – approximately three times higher than Victoria's rate. While there were only six murder offences in the year ending January 2023, this equates to 2.4 murders per 100,000 population (compared to less than 1 per 100,000 in Victoria).
| Year | Recorded murder offences (NT) | Offences per 100,000 population (NT) |
|---|---|---|
| 2019 | 4 | 1.6 |
| 2020 | 4 | 1.6 |
| 2021 | 5 | 2.0 |
| 2022 | 5 | 2.0 |
| 2023 | 6 | 2.4 |
The Northern Territory murder rate has trended upward, increasing from 1.6 in the year ending January 2019 to 2.4 in the year ending January 2023. Experts suggest the broader 'homicide and related offences' rate (which includes murder, attempted murder, manslaughter and driving causing death) has increased due to growing social disadvantage and financial hardship, leading to higher levels of alcohol and drug consumption, family dysfunction, and mental health conditions.
Possible impacts of murder
Murder, being the most serious crime, creates devastating impacts across multiple levels: the victim and their family, the broader community, and the offender themselves.
Impacts on the victim and their family and friends
The most obvious impact is the irreversible loss of life. Beyond this, murder creates profound and lasting trauma for the victim's family and friends.
Immediate and emotional impacts:
- Shock, fear, grief, confusion and anger
- Significant emotional trauma, potentially worsened when family members witness the attack, discover the body, or learn graphic details about the death
- Long-term psychological distress, particularly in unresolved cases or cases taking years to resolve through the legal system
- Ongoing stress on significant dates (anniversary of death, victim's birthday)
Legal system challenges:
Families may feel they have limited rights when dealing with the legal system. However, the Victims' Charter Act 2006 (Vic) establishes basic principles ensuring victims (including family members):
- Are treated with respect, courtesy and dignity
- Are informed about investigations, prosecutions, trials and sentencing processes
- Can provide a victim impact statement to the court, allowing the sentencing judge to understand and consider the crime's effects
- Can seek financial compensation for their loss
Media scrutiny:
Families may be subjected to unwanted media attention, making their private lives public. Media reports, published images and speculation can cause great distress.
Example: George Halvagis case
George Halvagis, whose 25-year-old daughter Mersina was murdered in 1997 at Fawkner Cemetery, endured two trials after the murderer successfully appealed his first conviction. The accused was ultimately sentenced to life imprisonment with no parole in 2009 (he was already serving two life sentences for murdering two other women).
Positive outcome: Mr Halvagis has spent over 20 years supporting victims of crime and their families, promoting victim support groups, campaigning for law reform, and voluntarily attending the Supreme Court to support other victims. In 2020, he was awarded the Order of Australia Medal for his services.
Impacts on the community
Murder affects the entire community, not just those directly connected to the victim.
Erosion of confidence:
- Destroys public confidence in police and the criminal justice system's ability to protect the community
- People living near where a murder occurred may no longer feel safe
- Broader community members may feel vulnerable and become cautious about where they go and with whom they interact
Community response:
Particularly cruel or brutal murders can spur communities into action. Recent examples include vigils and gatherings of hundreds of people at Parliament House Melbourne and local parks following the murders of young women in Melbourne, demonstrating community solidarity against violence.
Impacts on the offender
Offenders convicted of murder face numerous serious and lasting consequences.
Imprisonment:
- Lengthy imprisonment periods, with maximum penalty of life imprisonment with no parole
- The most serious offenders may never be released from prison
Personal and family consequences:
- Offenders may experience shame and remorse
- Family and friends may suffer anxiety, stress, shame, guilt and social isolation
- Significant legal costs
- Financial hardship for families, especially when the offender was the main income earner
Post-release challenges:
Upon release from prison, offenders may struggle with:
- Re-establishing connections with family and friends
- Finding employment and housing
- Emotional wellbeing affected by imprisonment experience
Exam guidance
When answering questions about murder:
- Identify all four elements systematically – use the UVCI mnemonic (Unlawful, Voluntary, Causation, Intent) to ensure you address each element
- Apply elements to the scenario – don't just list elements; explain how each does or does not apply to the facts given
- Consider defences carefully – identify which defences might apply and explain why
- Use legal terminology accurately – employ terms like mens rea, causation, non-parole period correctly
- Reference cases where appropriate – cases like R v Dhakal and DPP v Gonzalez illustrate key principles
- Distinguish between recorded offences and sentenced offenders – understand why these numbers differ
Common command words:
- Analyse – break down the elements and examine how they apply to a situation
- Evaluate – assess the effectiveness of sanctions or the strength of defences
- Assess – consider multiple perspectives on impacts or sentencing factors
Remember!
Key points to remember:
- Murder is the most serious homicide offence, defined as the unlawful and intentional killing of a human being by a person who acted voluntarily and without lawful justification
- All four elements must be proven beyond reasonable doubt: the killing was unlawful, the acts were voluntary, the acts caused the victim's death (with unbroken causation), and the accused intended to kill or cause serious harm
- Maximum penalty is life imprisonment, but offenders typically receive sentences with non-parole periods allowing eventual supervised release
- Standard sentences are 25 years (general) or 30 years (emergency worker victims), but actual sentences depend on numerous factors including nature of offending, victim vulnerability, and guilty pleas
- Victoria's murder rate has remained stable at less than 1 per 100,000 population, while the Northern Territory has approximately three times higher rate
- Impacts are devastating and wide-reaching, affecting victims' families through trauma and grief, communities through eroded confidence, and offenders through lengthy imprisonment and lasting consequences
Highlighted key terms:
- Homicide – killing of another person without legal justification
- Causation – direct and unbroken causal link between actions and death
- Mens rea – 'guilty mind' or mental element of crime
- Standard sentence – guideline sentence for middle-range offending
- Parole – supervised conditional release after serving minimum term
- Victim impact statement – statement to court detailing effects of crime on victim
Critical framework: The four elements of murder (UVCI: Unlawful, Voluntary, Causation, Intent) must all be proven beyond reasonable doubt. If any element is missing, murder cannot be established, though alternative charges may apply.