Victorian Court of Appeal Rules on Seriousness of Statutory Murder versus Common Law Murder

‘Statutory murder’ is the unintentional killing of another person in the course of committing a crime of violence.

The offence has a long history, dating back to case law from the 1800s when it was referred to as the ‘felony murder’ rule. In 1980, the offence was included and defined under Victorian legislation in section 3A of the Crimes Act 1958 (Vic).

The key difference between ‘statutory murder’ and ‘common law murder’ is the offender’s intention:

  • To be convicted of common law murder, a person must have the intention to kill the victim or to inflict really serious injury (for example, firing a gun with the intention to kill).
  • To be convicted of statutory murder, a person need only have the intention to commit a crime of violence and, during the commission of the crime, the person’s actions cause the victim’s death (for example, a stray bullet from a warning shot hitting and killing the victim during an armed robbery).

For statutory murder, the fact that the person did not intend to kill the victim does not affect criminal liability – the person is liable to be convicted of murder as though he or she had killed the victim intentionally. This is the case even if the death was ‘accidental’ in the sense that the person in no way intended to harm the victim.

A conviction for statutory murder is in effect a conviction for common law murder, and the same maximum penalty – life imprisonment – applies.

The Victorian Court of Appeal recently considered the sentencing approach for statutory murder in Director of Public Prosecutions v Perry. In this case, the Director of Public Prosecutions appealed a sentence of 20 years’ imprisonment following the offender’s plea of guilty to statutory murder on the basis that the sentence was too lenient. A significant issue raised by the appeal was whether statutory murder is to be treated as a less serious offence than common law murder for the purposes of sentencing.

In deciding this issue, the court considered the history of the offence of statutory murder and its sentencing in Victoria, and compared how the Victorian approach diverged from that in New South Wales.

In New South Wales, statutory murder is treated as inherently equal in seriousness to common law murder, and an offender convicted of statutory murder is not necessarily considered by the courts to be less morally blameworthy than a person who kills intentionally. This approach contrasts with the approach that has (until now) been taken by Victorian courts, where convictions for statutory murder have tended to result in lower sentences compared with common law murder. Victorian courts have typically taken an offender’s lack of intention to kill within statutory murder as reducing his or her culpability.

In Perry, the Victorian Court of Appeal held that the New South Wales approach is correct, and that this approach should now be applied in Victoria. The court said: ‘the fact that intention does not have to be proved does not mean that statutory murder is inherently less serious than common law murder’.

The Court of Appeal held that sentencing practice should henceforth be changed accordingly.

The effect of this decision is that sentencing outcomes for murder will now not be affected by whether the offence was common law murder or statutory murder. In its judgment, the Court of Appeal explained that this is because of the following two sentencing factors:

  1. Maximum penalty – the guidance provided by the maximum penalty of life imprisonment is the same for both offences.
  2. Objective offence seriousness – the objective gravity of the offence of statutory murder and the offender’s culpability will vary according to the circumstances of the particular case before the sentencing court. Therefore, the offender’s intention, although not necessary to prove statutory murder, is relevant at the sentencing stage. This allows a court to have regard to whether the offender intended to cause any harm to the victim in committing the act that ultimately caused the victim’s death.

In applying this approach to the Perry case, the Court of Appeal indicated that a sentence of at least 25 years would have been appropriate on the charge of statutory murder. There were two highly aggravating circumstances that would have materially increased the sentence: the act that caused the victim’s death was intended to cause harm (the offender stabbed the victim twice in the upper chest region with a large-bladed knife) and the offender was under the influence of the drug ice at the time of the offending. However, as these points had not been raised by the prosecution before the sentencing judge, the Court of Appeal rejected the prosecution’s appeal to increase the sentence.

The importance of these two sentencing factors – the maximum penalty and objective offence seriousness – was recently highlighted in the Council’s advice on the most effective legislative mechanism to provide sentencing guidance to the courts. These factors were central to the Council’s evidence-based approach to formulating its view on the offences that need sentencing guidance and the most appropriate model for providing that guidance.  

The Council concluded that sentencing guidance is best provided by the courts, and recommended a suite of legislative reforms to enhance the guideline judgment scheme.

The Perry case provides an example of such court-led guidance – in this case through the vehicle of a sentence appeal.