What is child homicide?
Child homicide is a serious offence under section 5A of the Crimes Act 1958 in Victoria. Child homicide is committed by a person whose conduct results in a child being killed in the circumstances of manslaughter. The child must be under the age of 6 years for the offence to apply.
If you or someone you know is facing charges related to child homicide, it is crucial to understand the legal implications and seek advice from an experienced criminal lawyer immediately. A qualified criminal defence lawyer can help protect your rights, provide legal advice, and build a strong defence strategy tailored to your case.
Child homicide charges
Child homicide, as defined by section 5A of the Crimes Act 1958, occurs when a person, by their conduct, kills a child under the age of 6 years in circumstances that amount to manslaughter.
Child homicide is an alternative charge to manslaughter and homicide by firearm. Accordingly, child homicide has the same elements as the common law offence of manslaughter but with the additional element that the victim is a child under 6 years of age.
Elements of child homicide
To convict a person of child homicide, the prosecution must prove that the person committed the offence of manslaughter against a child under 6 years. Manslaughter is defined as the unlawful killing of a person in circumstances that do not amount to murder, and there are two kinds:
- Manslaughter by unlawful and dangerous act;
- Negligent manslaughter.
The prosecution must prove the following elements beyond reasonable doubt to convict a person of child homicide:
- The accused’s act or omission caused the death of a child under 6; and
- The death was caused by an unlawful and dangerous act or omission; or
- The death was caused by criminal negligence (negligent manslaughter).
While any acts by the accused must have been conscious, voluntary and deliberate, it is not necessary that the accused intended to kill the victim.
For negligent manslaughter, the prosecution must prove that the accused owed the victim a duty of care, which was breached by criminal negligence committed consciously and voluntarily, causing the victim’s death. Unlike unlawful and dangerous act manslaughter, the prosecution does not need to establish that the act causing death was unlawful for criminal negligence (Wilson v R (1992) 174 CLR 313).
The penalties for child homicide
Offenders convicted of child homicide are likely to face lengthy imprisonment terms, with a maximum penalty of 25 years’ imprisonment for the most serious offences.
As child homicide is a level 2 offence if the offender was 18 or older at the time of the offence, a custodial order must be imposed unless special reasons apply under section 5(2H) of the Sentencing Act 1991.
Child homicide is, by definition, a serious offence and ‘the courts have a responsibility to impose sentences which send a strong and unequivocal message to the community that any person who unlawfully caused the death of a young and vulnerable child by either criminal negligence or by an unlawful and dangerous act will…suffer a deprivation of [their] liberty for a significant period of time’ (Staples v The Queen [2021] VSCA 307, [72]).
Defences for child homicide
If you are facing charges of child homicide, you may have a defence available, such as if the prosecution fails to establish all elements of the charge. For instance, you might have a defence if no duty of care was owed to the victim, or if the act or omission in question was neither unlawful nor dangerous
Other defences may include mistaken identity (someone else committed the offence) or automatism (your actions were not conscious and voluntary). See Criminal Defences for more.
Where child homicide cases are heard
Cases of child homicide are heard in the Supreme Court of Victoria, which has jurisdiction over serious criminal cases, such as murder, manslaughter and treason.
What to do next
If you’ve been charged with child homicide, it is essential to take immediate action to protect your legal interests. Child homicide is a serious offence, and while the penalties vary depending on the circumstances of the case, a person found guilty will face imprisonment unless special circumstances apply.
Contact us to make an appointment with a specialist criminal defence lawyer with experience in handling manslaughter and child homicide cases. Your lawyer will guide you through the legal process, provide expert advice and work tirelessly to defend your case.
At Dribbin & Brown Criminal Lawyers, our team of experienced criminal defence lawyers is dedicated to providing high-quality legal representation to individuals facing charges of child homicide. We understand the complexities of these cases and are committed to fighting vigorously for our clients’ rights and interests. Contact us today for a confidential consultation to discuss your case and learn how we can help.
The legislation
Crimes Act 1958 – Section 5A Child homicide
A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that constitute manslaughter is guilty of child homicide and liable to level 2 imprisonment (25 years maximum).
Note
Child homicide is a category 2 offence under the Sentencing Act 1991. See subsection (2H) of section 5 of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.
