Australia: The offence of murder in NSW

A man has been charged with murder after a fatal stabbing at a Newcastle petrol station

The 24 year old was charged after allegedly stabbing a 54 year old man at a petrol station in Newcastle just after 8pm on Saturday, 13 December 2020, causing the older man's death.

Police allege that the suspect, Zack Mavin, attempted an armed robbery at a service station before walking down the road to another service station, where he had an altercation with the 54-year old alleged victim who had been walking his daughter's dog.

It is alleged that Mr Mavin stabbed the victim in the stomach, leading to his death.

Police found the suspect at a nearby house, arrested and conveyed him to the police station where he was charged with murder.

Mr Mavin was formally refused bail in Newcastle Local Court.

Murder is an offence under section 18 of the Crimes Act 1900 (NSW) which attracted a maximum penalty of life in prison.

The section states:

"Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her."

To establish the offence of murder, 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, and
• Did so with the intention to kill or inflict grievous bodily harm, or with reckless indifference to human life

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.

Self-defence is a defence against the charge of murder, as the courts recognise that people have the right to defend themselves from violent physical attacks and threats.

This defence can include defending someone else from an attack.

The law provides that a person is not guilty of murder if they had a lawful cause or excuse for their actions.

An example of this may be where a surgeon carries out a surgical procedure that involves a serious injury and the patient dies.

Mental illness can also be used as a defence.

Last year, a 38-year old father who stabbed his 5-year old son to death was found not guilty by reason of mental illness.

In delivering judgement, Acting Justice Peter Hidden found that the man, who was diagnosed with schizophrenia in 2003, stabbed his son in the midst of a psychotic episode and didn't realise that what he was doing was wrong.

Justice Hidden noted that the man's condition was well known to his family and mental health professionals, and also relied upon two expert reports tendered to the court from respected forensic psychiatrists. He ordered that the man remain in a mental health facility indefinitely.

In New South Wales, the maximum punishment for murder is life imprisonment, and in our state life means for the term of the person's natural life.

There is also what's known as a 'standard non-parole period' (SNPP) of 20 years for murder.

This means that the guidepost or reference point for the sentencing judge when he or she is deciding how long a person must spend behind bars before being eligible to apply for release on parole is 20 years behind bars.

Murder is a strictly indictable offence, which means that proceedings cannot be finalised in the Local Court unless they are withdrawn by the prosecution.

And Mr Mavin's appearances to date have been in the Newcastle Local Court, all murder cases must be referred to and finalised in the Supreme Court of New South Wales.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.