Manslaughter is a serious criminal offence under Australian law, distinct from murder but still carrying significant penalties. Manslaughter involves the unlawful killing of another person without the intention to kill or cause grievous bodily harm.
If you have been charged with manslaughter, speak to an expert defence lawyer. Preparation is critical to achieve a favourable outcome in relation to any matter. Don’t leave it to the last minute.
This article explores the meaning of manslaughter, its legal framework, examples, potential sentences, and its differentiation from related offences such as murder or homicide.
Manslaughter Meaning
Manslaughter refers to the unlawful killing of another person in circumstances where the offender did not have the intent required for the offence of murder. Manslaughter typically involves negligence, recklessness, or an act that is unlawful but without murderous intent. Manslaughter is a common law offence. In Victoria, the punishment for the offence of manslaughter is found under section 5 of the Crimes Act 1958.
Traditionally, manslaughter has been divided into two categories: voluntary and involuntary manslaughter.
Involuntary Manslaughter
Involuntary manslaughter is defined as an unlawful killing in which the accused did not possess the mental or fault element required of murder. Types of involuntary manslaughter include manslaughter by criminal negligence or manslaughter by unlawful and dangerous act. These categories of manslaughter may overlap.
Manslaughter by unlawful and dangerous act causing death
One form of manslaughter is ‘manslaughter by an unlawful and dangerous act causing death’. To prove this offence, the prosecution must prove the following elements beyond reasonable doubt:
- That the accused committed an act that caused the death of another person;
- That the relevant act was committed consciously, voluntarily and deliberately;
- That the relevant act was “unlawful”; and
- That the relevant act was “dangerous”.
A defence exists to the offence of manslaughter if the accused’s act was not unlawful, such as in circumstances of consent, duress of self-defence (Boughey v R (1986) 161 CLR 10; R v Lamb [1967] 2 QB 981).
Importantly, while consent is generally a defence to offences such as assault, this defence is not likely to be available in cases where a death occurs. For example, consent is not a defence to deaths that occur during sadomasochistic sexual activities (R v Stein (2007) 18 VR 376; R v Emmett 18/6/1999 Vic CA; R v McIntosh [1999] VSC 358).
However, the fact that consent may not be relevant to a charge of unlawful and dangerous act manslaughter does not mean that it will be irrelevant to a charge of negligent manslaughter (R v Cato [1976] 1 WLR 110).
Manslaughter by criminal negligence
- The accused owed the victim a duty of care;
- The accused breached that duty of care by criminal negligence;
- The act which breached the duty of care was committed consciously and voluntarily;
- The accused’s breach of the duty of care caused the victim’s death (R v Sood (Ruling No 3) [2006] NSWSC 762).
For negligent manslaughter, the accused must owe the victim a legal duty of care (Nydam v R [1977] VR 430). For manslaughter by criminal negligence, the prosecution does not need to establish an element of malice (R v Lavender (2005) 222 CLR 67). Furthermore, a key difference between unlawful and dangerous act manslaughter is that negligent manslaughter does not require that the accused’s actions were unlawful (Wilson v R (1992) 174 CLR 313).
Vehicular manslaughter
Vehicular manslaughter, which is the offence of culpable driving causing death in Victoria, occurs when a person’s negligent or reckless operation of a motor vehicle results in the death of another person. Section 318(1) of the Crimes Act 1958 creates the offence. Culpable driving causing death has the following elements:
- The accused was driving a motor vehicle;
- The driving was culpable; and
- The culpable driving caused the death of another person.
The accused’s driving will be “culpable” if he or she drives the motor vehicle:
- Recklessly (s318(2)(a));
- Negligently (s318(2)(b));
- Whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle (s318(2)(c)); or
- Whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle (s318(2)(d)).
A person drives recklessly if they consciously and unjustifiably disregard a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from their driving (s318(2)(a)). Negligence arises if the driver fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case (s318(2)(b)).
The maximum penalty for culpable driving causing death in Victoria is 20 years imprisonment (s318(1)).
Legal representation is crucial in these cases to navigate the complexities of the charge, the potential defences and severe penalties.
Workplace manslaughter
Workplace manslaughter, also known as industrial manslaughter, is an offence under section 39G of the Occupational Health and Safety Act 2004 (OHS Act) in Victoria.
The criminal offence applies to negligent conduct by an employer or an officer of an organisation that breaches a duty under the OHS Act and causes the death of another person who was owed the duty. The workplace manslaughter provisions apply to deaths that occur after 1 July 2020.
It was introduced under the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic), and applies to deaths that occur on or after 1 July 2020.
The offence of workplace manslaughter under section 39G of the OHS Act provides that a “person” or an “officer of an applicable entity” (who is not a volunteer) must not engage in conduct that:
- Is negligent; and
- Constitutes a breach of an applicable duty that the entity owes to another person; and
- Causes the death of that other person
A “person” is defined in section 5 of the OHS Act to include a body corporate, unincorporated body or association and a partnership, in addition to a natural person. Section 39G(2) applies to officers of an applicable entity. The definition of “officer”, which is the same as in the Corporations Act 2001 (Cth), captures individuals with the power and resources to improve safety, including directors and those who participate in making decisions that significantly affect the organisation’s financial standing (OHS Act s5).
The maximum penalty for workplace manslaughter is 25 years imprisonment for an individual and 100,000 penalty units for a body corporate (which is $19,759,000 from 1 July 2024 to 30 June 2025).
Voluntary Manslaughter
Voluntary manslaughter refers to cases where the elements of murder are satisfied except that due to mitigating circumstances, such as the use of excessive force in self-defence, a suicide pact or diminished responsibility, the accused is convicted of manslaughter instead of murder.
The difference between murder and manslaughter
The difference between murder and manslaughter is in the accused’s intent. Murder is charged when the accused is alleged to have intentionally caused someone’s death, typically with premeditation or an understanding that their actions are likely to result in another person’s death. However, manslaughter is charged when the mental element for murder is absent, with the death arising from negligence or recklessness. For example, a deliberate stabbing resulting in death is likely to be charged as murder, while a fatal accident caused by reckless conduct is likely to result in a manslaughter charge. Understanding the difference between these charges is crucial in determining charges and penalties.
Manslaughter Sentence
The penalties for manslaughter in Victoria reflect the gravity of the offence. Under the Crimes Act 1958, manslaughter carries a maximum sentence of 20 years imprisonment. Manslaughter is a category 2 offence if committed by an offender on or after 20 March 2017 by an offender who is aged 18 years or more at the time of offending (Sentencing Act 1991 s3). For a category 2 offence, the court must impose a custodial sentence under Division 2 of Part 3 (other than a sentence of imprisonment in addition to a CCO in accordance with s44) unless specified circumstances exist (Sentencing Act 1991 ss3, 5(2H)).
While manslaughter is less serious than murder, it is treated as an extremely serious offence. The fact of taking a life is the key element when assessing the gravity of the offence, and sentencing manslaughter is highly dependent of the facts of the case.
Sentencing considerations include:
- The degree of negligence or recklessness involved.
- Whether the offender showed remorse.
- Aggravating or mitigating factors, such as prior convictions or cooperation with authorities.
Each case is unique, and the court evaluates the circumstances thoroughly before determining the appropriate sentence.
What is the minimum sentence for manslaughter?
From 1 November 2014, a statutory minimum non-parole period of 10 years applies to a conviction for manslaughter committed in circumstances of gross violence and manslaughter by a single punch or strike (ss 9B(2), 9C(2)). However, the minimum non-parole period does not apply to these offences if the offender was less than 18 at the time of the offence (ss 9B(4), 9C(6)(b)) or the court finds special reasons not to apply the statutory minimum (ss 9B(2), 9C(2)).
Attempted Manslaughter
Attempted manslaughter refers to an attempt to commit manslaughter without completing the act resulting in death. While rare in prosecutions, this charge may arise if there is evidence of a substantial step toward committing manslaughter.
For instance, engaging in reckless behaviour that places another person at significant risk of death but does not result in a fatality could potentially lead to a charge of attempted manslaughter. However, proving such a charge can be legally complex.
Manslaughter Defences
Several defences may apply to manslaughter charges, depending on the specific circumstances of the case. Self-defence is a complete defence under section 322K of the Crimes Act 1958. The defence applies if the accused genuinely believed their actions were necessary to protect themselves or another, and their response was reasonable in the circumstances as they perceived them. For an accused who acts excessively in self-defence, murder charges may be reduced to manslaughter.
Although the defence of provocation was abolished in Victoria in 2005, a verdict of voluntary manslaughter may still be delivered if the accused acted in response to provocation. Other defences, such as duress (acting under the threat of harm) and automatism (involuntary actions due to a medical condition or lack of control), may also be available. An experienced criminal lawyer can assess your case and determine the most effective defence strategy for manslaughter charges.
Manslaughter Cases
See the following manslaughter case examples:
Vu v The Queen [2020] VSCA 59
Case Summary
- In the Victorian Court of Appeal, the applicant, Hung Anh Vu, was indicted to stand trial on charges of murder, attempted murder, intentionally causing serious injury, and recklessly causing serious injury.
- The jury returned a verdict of not guilty to the murder charge, but guilty to manslaughter, and not guilty to charges of attempted murder and intentionally causing serious injury, but guilty to recklessly causing serious injury.
- The applicant was sentenced to a total effective sentence of 15 years’ imprisonment with a non-parole period of 11 years.
- The applicant applied for leave to appeal against his sentence on several grounds, including that the order for cumulation was excessive and infringed the totality principle, and that the individual sentences imposed for both offences, the order for cumulation and the total effective sentence were manifestly excessive.
Procedural History
- The applicant was found not guilty of murder but guilty of manslaughter and recklessly causing serious injury.
- The applicant was sentenced to a total effective sentence of 15 years’ imprisonment with a non-parole period of 11 years.
- The applicant sought leave to appeal against that sentence on five grounds.
Grounds for Appeal
- The order for cumulation was excessive and thereby infringed the totality principle.
- The learned sentencing judge erred by granting the applicant only a modest benefit for the utilitarian value of his plea offer.
- The learned sentencing judge erred by granting the applicant no benefit for his plea offer other than for its utilitarian value.
- The learned sentencing judge erred by not treating as mitigating the conduct of the applicant immediately after the offending.
- The individual sentences imposed for both offences, the order for cumulation and the total effective sentence were manifestly excessive.
Judgement:
- The court concluded that leave to appeal against the sentence should be refused on grounds 2, 3, 4 and 5 (in part). However, they granted leave to appeal and allowed the appeal on grounds 1 and 5 (in part).
- The court found that the individual sentences were stern but within the permissible range, as was the total effective sentence. The court also found that the applicant’s conduct demonstrated a very high level of criminality. The court resentenced the applicant to 13 years and six months’ imprisonment with a non-parole period of 10 years.
Smith v The Queen [2020] VSCA 159
Case Summary:
- The applicant, Smith, was charged with the crime of manslaughter.
- The incident occurred on 15 April 2015, where Smith killed KR by non-consensually choking and strangling her with his hands during consensual sexual activity.
- Smith pleaded guilty to manslaughter on 6 June 2018.
- The maximum penalty for manslaughter is 20 years’ imprisonment. Smith was sentenced to 13 years’ imprisonment with a non-parole period of 10 years.
- Following the incident, the applicant buried KR’s body in secret and concealed her whereabouts for 20 months.
- The applicant was diagnosed with a heart condition and has had five heart attacks. He has been prescribed medication for his condition and remains on medication while in custody.
- The applicant has a history of drug use, including cannabis and methylamphetamine, and has a number of prior convictions, including for assault, recklessly causing injury, dishonesty offences, drug offences and weapons offences.
- The applicant faces the risk of deportation following his release from prison.
Procedural History:
- Smith was initially charged with murder. After a contested committal, he was committed for trial on the charge of murder.
- On 21 May 2018, before the trial scheduled to commence in June 2018, Smith offered to plead guilty to manslaughter.
- On 31 May 2018, the prosecution accepted the offer, and Smith was arraigned.
- On 6 June 2018, Smith pleaded guilty to manslaughter.
- The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive. The court refused leave to appeal.
Grounds for Appeal:
- The judge erred in characterising the offending as a ‘very serious example’ of the crime of manslaughter.
- The judge erred in allowing the applicant’s ‘disrespectful, contemptuous and misogynistic views and opinions about women’ to overwhelm the proper exercise of the sentencing discretion.
- The sentence and non-parole period are manifestly excessive.
Judgement:
- The Court of Appeal refused the application for leave to appeal. The court found no specific error and deemed the sentence of 13 years’ imprisonment, although stern, was within the range reasonably open to the sentencing judge in the circumstances of the case. The court also emphasised the gravity of the offence and the applicant’s misogynistic views, which he acted upon in killing KR. The court expressed strong denunciation of male violence against women, stating that such conduct will attract very heavy sentences.
- The court considered the objective gravity of the offending and the applicant’s moral culpability to be great. The court also took into account the applicant’s prior convictions for crimes of violence, his misogynistic and dehumanising views of women, and his post-offence conduct. The court acknowledged that the applicant’s plea of guilty, his poor health, and the prospect of his deportation to the United Kingdom after serving his sentence were mitigating factors. However, the court found that these factors did not outweigh the severity of the applicant’s offending and post-offence conduct. The court refused the application for leave to appeal.
What court is manslaughter heard in?
In Victoria, manslaughter is heard in the Supreme Court of Victoria. Experienced legal advice is essential to understand this juristiction and the procedure for manslaughter cases.
Why you need a manslaughter lawyer
If you are facing manslaughter charges, engage an experienced manslaughter lawyer to ensure the best possible outcome for your case. Manslaughter is a complex offence and often involves detailed legal and factual arguments about negligence, recklessness, or intent.
A skilled lawyer will thoroughly examine the evidence, identify potential defences, and advocate on your behalf.
Whether the charge relates to criminal negligence, an unlawful or dangerous act, or a vehicular incident, our manslaughter lawyers can provide the expert guidance needed to navigate the legal system and protect your rights.
