Late at night on a street, Alan, dressed up as a horrible ghost, "jump scared" Betty and her brain going blank, she pull out her gun to shoot Alan.
After one shot, she realised the ghost was a human being, so she stopped and called an ambulance, but the rescue was not successful.
How will Betty be sentenced?
I am effectively (or also) asking whether, if convicted, the facts described can be taken into account as mitigating factors at sentencing?
Self defence was codified in the Crimes Act 1900 in 2001.
Section 418(1) provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) sets out the circumstances where self-defence is available. The questions to be asked by the jury under s 418(2) are succinctly set out in R v Katarzynski [2002] NSWSC 613 at [22]–[23] which was approved in Abdallah v R [2016] NSWCCA 34 at [61]. Section 419 provides that the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
Self defence does not have to be raised by the defendant for the jury to consider it - it must be eliminated by the prosecution. Where self-defence is an issue in the case (i.e. there is evidence that could support a reasonable doubt that the accused acted in self defence) the judge must direct the jury on how to deal with it.
For a murder case, the direction must include:
The maximum sentence for murder is life or 25 years imprisonment. The actual sentence depends on the severity of the crime and any mitigating circumstances in accordance with the sentencing guidelines. For the circumstances you describe Alice cold expect 6-10 years if convicted.
There are different categories of manslaughter, this one falls neatly into the excessive self defence category. In sentencing, the judge must explicitly decide if the convicted person intended to kill or cause grievous bodily harm by their act or not. Alice used a gun; she intended to kill or cause GBH, this will increase her sentence. Because this is a relatively rare outcome (there are lots of convicted murderers and lots of acquittals, but very few manslaughter due to excessive self defence) its difficult to estimate the sentence. Say 4-10 years.
I take your description to be a summary of the defense's argument, made in Washington courts. Betty is guilty of second degree murder, and since it's not reasonable to believe that a ghost, which does not exist, was trying to seriously injure or kill her, she will not succeed in her attempt at a self-defense defense. The jury concludes that at the relevant instant, she intended to kill the ghost. She has committed a Class A felony, which carries a maximum penalty of life in prison and $50,000 fine.
The judge works through the guidelines, also there is a hearing to gather pertinent facts. We then need to know if she is a repeat offender: for simplicity's sake we assume she has no bad marks on her permanent record. She actually did it, this is not an attempt, conspiracy or solicitation. Betty's best hope is an "exceptional sentence", one outside the prescribed range (lower than normal, due to mitigating circumstances), allowed under RCW 9.94A.535 if the court "finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence". There is no mandatory minimum sentence for second degree murder, however since she committed a felony with a firearm, per RCW 9.94A.533 she earns a 5 year sentence enhancement. The offense level is XIV, we assume an offender level 0 (otherwise squeaky clean), the standard sentence is 123-220 months, but add 60 for the gun.
The judge then considers possible reduction of sentence under RCW 9.94A.535, being influenced by the claim that the victim was an initiator, the defendant made a good faith effort to "compensate" the victim, perhaps committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct, demonstrated a capacity to appreciate the wrongfulness of the act (and was not drunk or on drugs). The judge is aware than the prosecution (or defense) can appeal any reduction in the sentence below the minimum. Some reduction is thus possible, but reduction to a token sentence would not survive appeal by the prosecution. Suspended sentences are not possible and the first-time offender waiver is not available for murder.
In most US jurisdictions I believe the charge will be some variation of manslaughter. Not because they attempted to kill a “ghost” but because they didn’t —- in fact in the situation described they didn’t attempt to kill anyone, they simply reacted to a fright, notionally it might as well have been a squirrel and the victim an innocent bystander. Their reaction was lethal but essentially both undirected and unplanned.
Consider a similar scenario, she is walking down the street, hears a person making a loudish “ahh” sound behind her, and turns and delivers a strike to the throat that kills the person behind her —- who had just stubbed his toe (hence the “ahh” sound). She acted recklessly, and someone died.
The exact sentence will vary by jurisdiction (ranging from 10 months to 30 years).
If there was thought involved, such as recognition that someone wearing a mask randomly attacking you while you were walking down the street probably has lethal intent, self defense might apply (depending on jurisdiction and exact circumstances), in which case she might reasonably hope for no charges or acquittal.
Most jurisdiction will have a “reasonable” clause for self defense, so that a reasonable person in the same or similar circumstances would have believed that they or someone else were in danger of death or serious injury. But that will require recognition of the threat.
This reminds me of the target shooting scene in Men in Black, everyone except for J shot without thinking anything beyond “scary looking”. No threat assessment, no self defense.
