Three Sydney teenagers have been charged with murder after the fatal stabbing of a 16-year old boy which police believe may have been the result of an argument over a girl.
Police and emergency services were called to a home in Mt Druitt last month where a boy had suffered a single stab wound to his chest. Paramedics performed CPR but the teeanger died at the scene.
Charged with murder
Last week, detectives released CCTV footage of the three males they believed to be involved in the incident.
Two 17-year old boys and a 16-year old have now been arrested and charged with murder, as well as affray and possessing a knife in a public place.
The news follows the recent arrest of another three Sydney teenage youths, who have been charged with murder over the fatal stabbing of Uati “Pele” Faletolu, a sideshow worker at the Sydney Royal Easter Show.
The age of legal responsibility
In New South Wales, the law assumes that children aged under the age of 10 cannot be found guilty of an offence.
This principle is enshrined in section 5 of the Children (Criminal Proceedings) Act 1987.
Children aged between 14 and 17 can be charged and convicted of a criminal offence – but they will be tried in a special children’s court, which applies different sentencing principles and laws to preserve the child’s best interests. It is not until a person turns 18 (or 17 in Queensland) that they can be tried as an adult in an adult court.
The law is a little more complicated for children aged between 10 and 14: Most Western countries apply the principle of doli incapax to that age bracket – which is a presumption that children of that age are incapable of forming the intention required to commit crimes.
This, however, is a rebuttable presumption – meaning that if the prosecution is able to establish that a child understood what they were doing was ‘seriously wrong’ – along with each element of the offence in question – the child can be tried and convicted of a crime.
But some say that 10 is far too young to be held criminally responsible – and argue that the time is ripe to raise the minimum age of criminal responsibility in line with international legal principles.
The offence of murder in New South Wales
Murder is an offence under section 18 of the Crimes Act 1900 which carries a maximum penalty of life imprisonment.
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Caused the death of another person,
- Did so by way of a voluntary act or omission,
- Did so with the intention to kill or inflict grievous bodily harm, or with reckless indifference to human life, or during or immediately after the commission of an offence punishable by a maximum penalty of 25 years in prison (constructive murder).
An act or omission is considered to have ‘caused the death’ of another if it was a ‘substantial or significant caused’ of the death, even if some other cause was also operating at the time.
An act or omission will have caused death unless there is a break in the chain of causation, which will only occur if the original injury is merely the setting in which the subsequent cause operates, or if the subsequent cause is so overwhelming that it significantly diminishes the relevance of the original cause.
Examples of where the chain of causation is not broken include:
- Where the victim refuses medical treatment on religious grounds,
- Where subsequent medical treatment is poor, unless the injury had almost healed, and
- Where the victim engaged in unconscious acts that led to death.
The prosecution must prove causation, and a defendant is entitled to an acquittal if the prosecution fails to do so.
For example, a defendant was found not guilty in a case where the prosecution was unable to disprove that an underlying disease was the cause of the complainant’s death.
Voluntary act or omission
The defendant’s act or omission must be voluntary, and automatism (acting unconsciously) is a defence to murder.
So, for example, a person must be found not guilty if they commit the act while ‘sleepwalking’ in the absence of self awareness and self control.
Intention to kill or cause grievous bodily harm
An intention to kill or cause grievous bodily harm (GBH) means that at the time the defendant engaged in the subject act or omission, he or she meant to kill or cause GBH to the victim.
GBH means ‘very serious harm’, and includes but is not limited to:
- Any permanent or serious disfigurement,
- The destruction of a foetus, other than by a medical procedure, and
- Any grievous bodily disease.
The required intent may be established where:
- A continuous course of events led to the victim’s death, and the defendant meant to kill or cause GBH at any time during those events,
- The defendant meant to kill or cause GBH but genuinely believed his or her actions would not lead to that outcome, or
- The defendant meant to kill or cause GBH to a particular person but instead caused the death of a bystander.
Reckless indifference to human life
A defendant is recklessly indifferent if he or she did, or omitted to do, an act foreseeing that death would be the probable result.
Constructive murder, sometimes called ‘felony murder’, is where another person’s death occurred during or immediately after the defendant or an accomplice committed, or attempted to commit, a criminal offence punishable by a maximum penalty of at least 25 years in prison.
Such offences include:
- Robbery while armed with a dangerous weapon,
- Robbery with wounding, and
- Sexual intercourse with a child under 10 years.
Penalty for murder
Section 19A of the Crimes Act 1900 prescribes a maximum penalty of life imprisonment for the offence of murder, and it is important to be aware that in New South Wales life imprisonment means ‘for the term of a person’s natural life’.
Standard non parole periods
Murder offences also carry what’s known as ‘standard non parole periods’ (SNPP), which are guideposts of reference points for a sentencing judge when determining the minimum term a person must spend behind bars before he or she is eligible to apply for release on parole.
The SNPPs for murder are:
|Murder — of a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work
|Murder — where the victim was a child under 18 years of age
|Murder — in other cases
Defences to murder
Self defence is the most common defence to murder.
The defence is contained in section 418 of the Crimes Act 1900, which states that a person is not criminally responsible if he or she believes the actions were carried out in self-defence, and the conduct is a reasonable response to the perceived circumstances.
Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.
The defence is available where the conduct is necessary to:
(a) defend oneself or another person, or
(b) prevent or terminate the unlawful deprivation of ones liberty or the liberty of another person, or
(c) protect property from unlawful taking, destruction, damage or interference, or
(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.
This extends to situations where a person steps in to defend another person.
However, section 420 of the Act makes clear that self-defence is not available where a person uses force that involves the intentional or reckless infliction of death only to protect property or prevent a trespass.
And section 421 provides that where a person uses excessive force to defend themselves or another, including to prevent the unlawful deprivation of liberty, and that force results in their target’s death, the person will be criminally responsible for manslaughter rather than murder provided that he or she believed the conduct was necessary in the circumstances.
Significantly, section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence. If the prosecution is unable to do this, the defendant must be acquitted.
As mentioned above, automatism is also a defence to murder.
Youth homicide – the statistics and risk factors
In 2020, The World Health Organization released figures that show worldwide, there are 200,000 homicides (about 42% of the number of homicides globally each year) which occur in the 10-29 year age group, 84% of them, involving young males.
At the time of releasing the statistics, WHO branded youth violence – bullying, physical fighting, physical and sexual assault and homicide – a severe global health problem which urgently needs addressing.
The impact on our committees of this violence, particularly those which result in premature death or severe physical injury, have life-long impacts. According to WHO, the most significant risk factors of teen violence are:
- Attention deficit, hyperactivity, conduct disorder, (ADHD) or other behavioural disorders
- early involvement with alcohol, drugs and tobacco
- low commitment to school and school failure
- exposure to violence in the family
- Lack of parental or guardian supervision
- Lack of life and social skills such as anger management, conflict resolution and problem solving.
There is also decades of research which suggests that exposure to media violence – television /video games can increase a person’s tendency to engage in violent conduct.