Complete Guide on Murder & Manslaughter Laws in NSW

Murder Definition

Definition of murder is found in section 18(1)(a) of the Crimes Act 1900. Murder is basically, an act or omission by an accused person, causing death to another person where the death occurred due to the accused person acting or omitting to act with a reckless indifference to human life, or with an intention to kill, or an intention to inflict grievous bodily harm.

It also includes a situation where an accused person does an act or omits to do an act either during, or immediately after the act/omission, being an act/omission that constitutes a separate crime that carries a maximum penalty of at least 25-years in jail.

Manslaughter vs Murder

What is the difference between murder and manslaughter? Murder is a voluntary act causing another person to die in circumstances the offender intended to cause death or intended to cause a really serious injury or permanent or serious disfigurement or committed the act that caused death regardless of being aware that death is probable. On the other hand, manslaughter is an unintentional, dangerous or accidental act that causes another person to die.

Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. Voluntary manslaughter, on the other hand, has the murder elements but the culpability of the offender’s conduct is reduced due to provocation or substantial impairment by abnormality of mind.

What is Felony Murder or Constructive Murder?

Constructive murder is also known as felony murder and occurs when a person commits a separate criminal offence carrying up to at least 25-years imprisonment, while at the same time or afterwards results in the death of another person.

An example of this is where death results either at the time of or after an accused person commits the crime of robbery armed with a dangerous weapon (R v Patsalis [2001] NSWCCA 476).

Elements of Murder | What the Police Must Prove in Court

There are four types of murder in Australia, each with its own elements. The police must prove each of the elements in order for there to be a verdict of ‘guilty’ against the accused person.

You will be guilty of murder if the prosecution can prove each of the following elements beyond reasonable doubt

1. You voluntarily did something resulting in the death of another person; and
2. At the time of doing so, either one of the following apply:
   • You Intended to cause really serious injury or permanent or serious disfigurement to the other person; or
   • Intended the other person to die; or
   • Had realised the probability that your actions would cause death, but did it anyway; or
   • Constructive murder: where you were committing some other crime punishable with a maximum penalty of 25-year or more imprisonment, during which time death resulted to another person.

The above 4 points are the 4 different categories or types of murder in Australia.

If police evidence is inadequate to prove each element of a murder charge, then through negotiations with the prosecution at an early stage, the charge can be ‘no billed’ and dismissed.

Murder Sentence & Penalties | How Long Do You Go to Jail for Murder?

When Can a Convicted Murderer Get Life Imprisonment for Murder in NSW?

Section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a Judge to impose a life imprisonment sentence for murder.

While the maximum penalty for murder is life behind bars, a life sentence for murder will only occur if:

1. The accused person is found guilty of murder; and
2. The prosecution prove beyond reasonable doubt that the level of criminality in the case was so extreme that only life imprisonment would be appropriate given the purposes of punishment.

Purposes of punishment here include, general and specific deterrence, community interest in punishment, community protection and the need for retribution.

When assesses the extent of criminality for any particular murder offence, the Judge will make this assessment by considering many factors, including:

1. Degree of any premeditation
2. If there was any provocation
3. The extent of violence used leading up to, during and after the murder.

The more level or extent of criminality the Judge finds, the more likely the Judge will lean towards imposing the life sentence.

However, the stronger the subjective factors the Judge finds, the less likely the Judge will impose a life sentence, and instead more likely impose a fixed term of imprisonment.

‘Subjective factors’ here include personal circumstances of the offender, including mental health, any expressions of remorse and insight into the offending conduct by the offender, prospects of rehabilitation and any compelling explanation by the offender.

One of the main concerns a Judge will have is whether the community will be safe if a convicted murderer is eventually released from prison after serving time.

If the Judge Decides Not to Impose a Life Imprisonment Sentence for Murder

In cases where a Judge decides not to impose a life imprisonment sentence to a convicted murderer, the Judge will impose an imprisonment sentence comprising of a non-parole period followed by a parole period.

As the non-parole period is the minimum period required to spend behind bars, the parole period is the period the offender is eligible to be conditionally released (under supervision) on parole before the full term of the sentence is completed by the offender.

A Judge will determine the length of the non-parole and parole period by considering factors, including the prospects of rehabilitation. There will usually be a greater period of parole with a lesser non-parole period as the prospects of rehabilitation are higher.

As of 1 February 2003, the law now attracts a 20-years standard non-parole period if the Judge assesses the murder to fit in the scope of the mid-range of objective seriousness for offences of this kind. A Judge must consider this as a guide, not a mandatory rule in every murder sentence (where life imprisonment is not imposed).

When a Judge assesses whether the convicted murderer falls in the middle of the range of objective seriousness for this type of crime, the Judge will consider factors, such as:

1. Whether there was premeditation or planning and if so, how much
2. Level of violence used by the convicted murderer
3. Circumstances of the murder i.e. was it in view of public or children?

On the other hand, the greater the level of objective seriousness, the higher the non-parole period is likely to be.

Defences to a Murder Charge

When is self-defence cannot apply to murder charges?

Self-defence cannot be successfully argued in a murder or manslaughter charge if force is applied involving either intentional or reckless infliction of death for the purposes of protecting property or to prevent criminal trespass (or to remove a person committing criminal trespass), according to section 420 of the Crimes Act.

Murder Cases

There are many types of murder cases, each carrying up to life imprisonment, which can also be reduced to a fixed term of imprisonment depending on the circumstances of the crime and the individual.

Below are some of the types of murder cases in Australia, and what the law says on each one.

Domestic Violence Murders

When a murder occurs in the context of domestic violence, the sentencing Judge will give greater weight to the purposes of punishment, such as protection of the community, general deterrence and denunciation. This will likely lead to a heavier sentence for murder, which can be a factor to consider when determining whether or not a life sentence should be imposed.

Domestic violence crimes generally conform to a pattern where a male attacks or kills a woman with whom the male is or was in an intimate relationship when the woman expresses a desire to leave the relationship.

The case of Cherry v R [2017] NSWCCA 150 said, that rigorous and demanding consequences for the perpetrators of domestic violence are necessary to protect partners, family members and wider community.

Accessory to Murder

It is also a serious criminal offence for being an accessory before the fact to murder or being an accessory after the fact to murder. Each have different maximum sentencing penalties.

Accessory Before the Fact to Murder

An accessory before the fact to murder will face the same maximum sentence as for someone convicted for murder (section 346 of the Crimes Act 1900 (NSW)).

An accessory before the fact to murder is when a person instigates and plans the murder, but does not actually commit the murder/killing.

The 20-years standard non-parole period for murder does not apply to an accessory before the fact to murder.

Accessory After the Fact to Murder

An accessory after the fact to murder will face up to 25-years in jail under section 349(1) Crimes act 1900 (NSW).

The case of R v Dileski (2002) said, that an accessory after the fact to murder is when person A provides assistance to help the person who committed the murder to evade justice.

For example, a person will generally face a heavier sentence for assisting in disposing a body after a murder, as opposed to assisting the murderer clean up.

In another example, there will likely be a lighter sentence imposed on an accessory after the fact to murder if the accessory had a personal relationship with the person who committed the murder, due to a sense of emotional attachment or misguided loyalty.

Attempted Murder

Attempted murder carries up to a maximum penalty of 25-years imprisonment, and encompasses various forms of offending outlined in sections 27, 28, 29 and 20 Crimes Act 1900 (NSW). These offences also carry a 10-years standard non-parole period.

Types of attempted murder includes, attempting to kill by poison, wounding, setting fire to property, gun shot, drowning, suffocating, strangling or any other means.

The case of R v Rae [2001] NSWCCA 545 said that the sentence that actually gets imposed will usually not be the maximum prescribed. It will depend on the determination and skill of the attempt, motive, extent of premeditation, likelihood of causing death and injury inflicted.

For example, In Rae’s case, the seriousness of the attempted murder were amongst the most serious/worst of this kind. The offender had doused his ex-girlfriend in petrol and set her alight after breaking into her home.

Conspiracy/Solicit to Murder

Conspiring to murder or soliciting to murder has a maximum penalty of 25-years imprisonment, under section 26 Crimes Act 1900 (NSW). This offence carries a 10-years standard non-parole period.

This type of crime is considered very serious and usually attracts a heavy sentence. This is largely because it is a cold blooded motive in contracting a job to kill to a professional, thereby reducing the offender’s chances of detection.

Examples of soliciting to murder, include soliciting a person B to kill person C. This includes engaging a hit man to kill a person.

Another example is in the case of The Queen v Killic (2016), where the conspiracy to kill a witness in a criminal case was considered to be amongst the most serious type of this kind of offending.

Murder of Police Officers

The Judge is required to impose a life sentence to a convicted murderer if the victim (deceased) is a police officer who was on duty at the time of the murder. This is reflected in section 19B of the Crimes Act 1900 (NSW) and only applies to murders after 23 June 2011.

The Court is also required to impose a life sentence of imprisonment if a police officer is murdered as a consequence of or in retaliation for actions of the officer in the execution of his/her duty, where the offender knew or ought to have known that the person killed was a police officer.

The life jail sentence only applies if the offender had either intended to kill the police officer or the offender was involved in criminal conduct risking serious harm to the police officer. This occurred in the case of R v Jacobs (No9) [2013] NSWSC 1470.

Multiple Murders

The sentencing Judge can take into account whether the offender committed multiple murders when deciding on imposing a life sentence of imprisonment. In those cases, it may justify the imposition of a life sentence in jail as outlined in the case of R v Baker (unrep, 20/9/95, NSWCCA).

The objective seriousness of a previous murder is capable of contributing to the objective seriousness of the next murder, even though they are two separate killings. This can then allow a sentencing Judge to justify a life sentence.

Contract killings

The seriousness of a murder is increased if the murder was motivated by a desire for economic gain, to prevent a victim or witness from giving evidence in criminal proceedings. A deliberate killing for financial reward is considered amongst the worst categories of murder that can warrant a life imprisonment sentence, as outlined in the case of R v Crofts (Unrep, 6/12/96, NSWSC).

Not every contract killing will warrant life imprisonment. The person who pays will likely get a less serious sentence than the person who kills as expressed in R v Kalajzich (1997) 94 A Crim R 41.

Mutilating the Body After or During Killing

Cutting one or more parts of a body or causing injury to a body part causing the body part to be permanently damaged, detached or disfigured during or after a killing can significantly increase the seriousness of the murder, which could warrant a life sentence.

Murder Involving Prolonged Suffering & Torture

The case of Charbaji [2019] NSWCCA 28 involved a murder committed by the offender with an intent to kill in circumstances that the killing was brutal, cruel and callous involving the deceased being tortured over a long period of time. These are features that increase the seriousness of the murder, which may warrant a life sentence.

The case of R v Lewis [2001] NSWCCA 448 involved the offender knowing that killing Ms Pang would result in Ms Pang’s 5 children to be deprived of a mother, which amounts to serious harm in addition to the death of Ms. Pang caused by the offender’s conduct. The harm caused by depriving the 5 children of a mother in a situation the offender was aware of this at the time was taken into account in increasing the seriousness of the murder, which can go towards the consideration of imposing a life sentence.

Having said that, the law does yet does not allow a sentencing Judge to take into account when sentencing a murderer, the impact of the victim’s death on family members. But it can be taken into account if there is evidence of substantial “injury, emotional harm, loss or damage caused by the offender”.

Future Danger to the Community

When a convicted killer is being sentenced for murder by a Judge, when considering whether to impose a life sentence, the Judge can take into account the potential dangerousness of the offende.

For example, a homicide or murder involving a high level of criminality or seriousness where the offender will likely remain a danger to the community for the rest of his/her life can justify a life imprisonment sentence, unless you can produce evidence showing otherwise. This was reflected in the case of R v Garforth (Unrep, 23/5/95, NSWCCA).

Killing Political Figures for Political Ends

The fact that a killing was motivated for a political purpose or to achieve a political end increases the seriousness of a murder offence. This can be taken into account by a sentencing Judge when determining whether to impose a life sentence to a convicted murderer.

The case of R v Ngo [2001] NSWSC 1021 said that premeditated killing is considered a most serious offence, but the seriousness is increased greatly if it involves a killing of a member of Parliament for political ends. This is because it’s also an offence against the government, and strikes at the very fabric of our public institution.

Murder from Planned Extortion or Bribery

The case of R v Liew (Unrep, 24/12/93, NSWCCA) outlines that a planned extortion (i.e. extorting money) coupled with murder generally places the murder in the most serious categories of murder offences. This can be taken into account when a court considers imposing a sentence of life imprisonment.

Murder in the Presence of the Deceased’s Children

Where a murder takes place in sight or in-front of the deceased’s child or children, the seriousness of the murder increases which can then allow a Judge to take this into account In determining the imposition of a penalty of life imprisonment by a sentencing Judge in a murder case. The fact of killing someone in sight of the deceased’s child increases the level of criminality of murder has been reflected in the case of R v Miles [2002] NSWCCA 276 and section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999.

Manslaughter NSW | Manslaughter Sentence Australia | Defences

Manslaughter comprises of voluntary manslaughter and involuntary manslaughter in NSW. An involuntary manslaughter sentence will generally be lighter than a voluntary manslaughter offence.

Manslaughter sits just below murder as amongst the most serious types of assaults under the law. However, manslaughter is considered less serious of a crime than murder.

There are various types of manslaughter charges in NSW, each having its own set of elements and seriousness. A manslaughter charge is dealt with in the Supreme Court and carries heavy penalties upon conviction in court.

What is the minimum sentence for manslaughter? There is no minimum sentence prescribed for the offence of manslaughter in NSW. The sentence ultimately depends on the features of each particular case and its objective seriousness. This also applies in a negligent manslaughter sentence

The charge of manslaughter is found in the NSW Crimes Act 1900, section 24.

Manslaughter Meaning | What is Manslaughter Charges?

To define manslaughter, you must first distinguish between the types of manslaughter. This will then allow you to understand the manslaughter definition according to law. Equally, you must also understand the difference between murder and manslaughter.

Voluntary manslaughter is often considered partial defences to a murder charge.

Voluntary manslaughter occurs if the offender’s offending conduct results in the death of another person in circumstances of provocation, excessive self-defence, or where the offender was ‘substantially impaired by abnormality of the mind’.

So what’s the involuntary manslaughter definition? Involuntary manslaughter occurs if the offender caused death to another person as a result of an unlawful and dangerous act or as a result of criminal negligence.

Negligent manslaughter example and meaning? Manslaughter by criminal negligence here is not the kind of careless or negligent conduct that often occurs in society. Nor is it the general traffic or driving offences unless it has a quality of criminal negligence warranting criminal punishment for manslaughter under the law.

Section 24 of the Crimes Act 1900 (NSW) states that “provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.

Types of Manslaughter | What Police Must Prove in Court

The police are required to prove each elements of manslaughter beyond reasonable doubt before a court can return a ‘guilty’ verdict. The below are what the police must prove for each type of manslaughter charge under the law.

Elements of Voluntary Manslaughter

Manslaughter by Provocation

You will be guilty of Manslaughter by ‘extreme provocation’ if the prosecution can prove each of the following elements beyond reasonable doubt, under section 23 Crimes Act:

• You committed murder; and
• Your actions which caused the death of another person was in response to that person’s conduct; and
• That other person’s conduct was towards you (or affected you) was a criminal offence carrying up to 5-years jail or more; and
• The other person’s conduct was what caused you to lose your self-control in that the act by you that caused the death occurred while you were in an emotional state (not from a deliberate act of vengeance, revenge or hatred); and
• Such conduct by the other person which caused you to lose control could’ve (possibly) caused an ordinary person to lose self-control to the extent of intending to kill or inflict really serious injury on that other person.

The law considers the ‘ordinary person’ as someone who has minimum powers of self-control expected of an ordinary citizen who’s sober, of the same age and maturity level as you.

As an alleged offender, being intoxicated by voluntarily consuming alcohol is not taken into account when the court decides on whether an ordinary person could have lost self-control in the way the alleged offender did.

It is worthy to note that, the following situations don’t constitute ‘extreme provocation’:

• Your conduct causing the death was in response to a non-violent sexual advance from the other person who has ended up dead; or
• Your conduct causing the death was conduct you committed to after you had incited the other person who has ended up dead to commit the conduct in order to give yourself an excuse to use violence against him/her.

Manslaughter by Substantial Impairment by Abnormality of the Mind

You will be guilty of manslaughter by substantial impairment (by abnormality of mind) if the prosecution can prove each of the following elements beyond reasonable doubt, under section 23A Crimes Act:

• Your conduct caused the death of another person; and
• Your capacity to comprehend or understand the events or judge whether your conduct was right or wrong, or control yourself was ‘substantially impaired by an abnormality of mind’; and
• Such ‘abnormality of mind’ was from an underlying condition you have. This means that the condition was a pre-existing physiological or mental condition, which does not necessarily have to permanent; and
• The impairment was so substantial that it warrants your liability for murder to be reduced to manslaughter.

It is important to note here that, your intoxication (if you were) from drugs or alcohol is not considered when the court determines whether or not the above essential elements are satisfied to prove this charge.

Manslaughter by Excessive Self-defence

You will be guilty of Manslaughter by Excessive Self-defence if the prosecution can prove each of the following elements beyond reasonable doubt, under section 421 Crimes Act:

• You used force that caused another person to die; and
• You used that force under a belief that it was necessary to protect yourself from that other person; and
• A reasonable person in your shoes would consider that the force you used was unreasonable in the circumstances you perceived it at the time, or would consider that your response was excessive.

It is important to note that intoxication from consuming alcohol or drugs voluntarily can be takin into account. This can be used in determining whether the circumstances that you perceived at the time that you believed your actions to be necessary to protect yourself were necessary.

However, the case of R v Katarzynski [2002] NSWSC 613 says that intoxication cannot be taken into account in determining whether your alleged self-defence conduct was a reasonable response to what you had in fact perceived in those circumstances.

Elements of Involuntary Manslaughter

Manslaughter by Unlawful and Dangerous Act or Conduct

You will be guilty of Manslaughter by unlawful and dangerous conduct if the prosecution can prove each of the following elements beyond reasonable doubt:

• You did an act that caused the death of another person; and
• That conduct was the substantial contributor to the death; and
• You intended to commit the act; and
• Your act was unlawful (not including traffic infringements per se); and
• Your act was dangerous because a reasonable person in your shoes would have realised that it exposed another person to risk of serious injury in those circumstances at the time.

Criminal Negligent Manslaughter

You will be guilty of Manslaughter by criminal negligence if the prosecution can prove each of the following elements beyond reasonable doubt:

1. You owed a legal duty of care to another person. This duty must be one legally recognised i.e. parent/child, patient/doctor, employer/employee, or a circumstance you assume a duty of care upon another person; and
2. You committed a voluntary act or omission which caused the other person’s death where that death was substantially caused or accelerated by your act/omission; and
3. Your act or omission breached your duty of care to that other person by one of the following ways:
   1. You failed to exercise the standard of care that a reasonable person in your shows would have exercised in those circumstances at the time; or
   2. You did what a reasonable person in your position wouldn’t have done in those circumstances at the time.
4. And, your act or omission resulted in criminal negligence meriting criminal punishment for manslaughter because:
   • You act or omission fell so far under the standard of care that a reasonable person would have exercised in those circumstances; and
   • Your act or omission was such a great risk that death or at least a really serious bodily harm would be caused; and
   • As a result, it therefore deserves punishment as a criminal offence.

Manslaughter Penalties | Manslaughter Sentence NSW

Defences to Manslaughter

FAQ

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