Murder and manslaughter are two forms of homicide. Homicide is a blanket term for offences which cause the death of another person.
Both murder and manslaughter involve the death of another human being. Both are serious offences which inevitably carry with them significant periods of imprisonment. However, there are key differences between these offences, which differences are reflected in the kinds of sentences imposed.
The Definition of Murder
Murder is the most serious charge that a person can face. The maximum sentence available for the offence of murder is life imprisonment. Only the Supreme Court of Victoria can sentence an accused person for the offence of murder and impose such an extreme sentence. Like every other offence, a person can only be convicted of murder if they plead guilty to it or when the Prosecution has proven the offence beyond all reasonable doubt, and to the exclusion of all available defences.
There are three ways that a murder can be committed:
1. Intentional Murder
Where an accused person has caused the victim’s death whilst intending to kill or cause really serious injury, or being reckless as to that result. Normally this form of murder occurs when a person has killed someone with the intention of doing so (ie, a drive by shooting or domestic violence killing); or, when someone has committed such a serious assault that death has resulted.
2. Statutory Murder
Where an accused has caused the victim’s death in the course of or in the furtherance of an act of violence or the furtherance of a violent crime. This used to be referred to as the ‘felony murder rule’ and covers situations where there was no intention to kill or cause really serious injury, but a person was unintentionally killed. For example, during an armed robbery a gun may be produced in order to commit the robbery. However, there was no intention that anybody would be hurt. If, in the course of the armed robbery, the gun is discharged and a person is killed, this may constitute statutory murder.
3. Murder During Escape
Where an accused unintentionally causes a death during the course of escaping a lawful arrest. This offence is unusual and only occurs in very particular circumstances.
Sentences of imprisonment for murder are amongst the most severe of sentences. A person being sentenced for murder can expect a sentence consisting of a total effective sentence, with a non-parole period. A non-parole period is the period of time that a person must serve before being eligible for parole. What sentence will be imposed depends on a number of factors, including the circumstances of the accused.
The Definition of Manslaughter
Manslaughter is a serious offence, but less severe than murder. Manslaughter occurs where the death was unintentional and not committed in the furtherance of a separate crime of violence or during an escape from lawful custody. The offence of manslaughter is punishable by a maximum sentence of 25 years’ imprisonment, which (like the offence of murder) can only be imposed by the Supreme Court of Victoria.
There are two kinds of manslaughter:
1. Unlawful and Dangerous Act Manslaughter
This form of manslaughter occurs where:
- The accused has committed an act that caused the victim’s death (for example, the accused struck the deceased causing the injury that led to the death);
- The act was committed consciously, voluntarily and deliberately. For example, the act will not have been committed consciously if the accused was asleep at the time or in circumstances where they tripped and accidentally caused the death;
- The act was unlawful. For example, the accused unlawfully assaulted the deceased by striking him or her, which strike caused the deceased’s death. It will not be an unlawful act if, for example, if the accused is running to catch a train, collides with the deceased who then falls and subsequently passes away, because running is not unlawful; and
- The act was dangerous. It must be apparent from the facts of the case that the act(s) committed by the accused was dangerous. The test that is applied is whether a reasonable person, in the position of the accused, would have realised that he or she was exposing the victim to an appreciable risk of serious injury. In the case of a single punch or strike, section 4a of the Crime Act 1958 specifically declares a punch or strike to another person’s head or neck as being a dangerous act.
[Special Note: There are special provisions in place for ‘one punch / coward punch’ manslaughter cases whereby the Director of Public Prosecutions can issue a notice. Unless the notice is withdrawn, if the accused pleads guilty to ‘one punch / coward punch’ manslaughter, the Supreme Court must impose a non-parole period of ten years. This means that the accused will have to serve ten years before being eligible for release from custody.]
2. Negligent Manslaughter
This form of manslaughter occurs when:
- The accused owed the victim a duty of care. For example, the accused was the victim’s parent or carer;
- The accused breached that duty by being criminally negligent. Criminal negligence occurs when the accused, who owed the duty of care, acted in a way which fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of death or really serious injury, that it deserves criminal punishment;
- The act that breached the duty of care was committed consciously, voluntarily and deliberately. For example, an exhausted mother who rolls on top of her baby after falling asleep breastfeeding will not have acted consciously, voluntarily or deliberately;
- The breach of the duty caused the victim’s death; ie, the criminal negligence committed by the accused was a substantial or significant cause of the victim’s death. It does not need to be the only cause of the death, or the direct or immediate cause. For example, in circumstances where a child is so neglected that their health deteriorates and they contract an infection, which causes their death, the neglectful parent may be found to have caused their death by neglect even if the immediate cause was the infection.
Other Offences which Involve Causing the Death of Another Person
In addition to murder and manslaughter, there are other offences which involve causing the death of another person.
These include child homicide, infanticide, culpable driving and dangerous driving causing death. For further information in relation to these offences, please visit the practice areas on our website for a more comprehensive explanation of these offences and their penalties.
If you or a loved one has been charged with murder or manslaughter, it is essential to obtain the best possible legal advice as early as possible in the proceedings. Ideally, the accused person should obtain comprehensive legal advice before being interviewed. There are defences available to both offences and these defences should be explored before the accused commits to a plea. Get in touch with Galbally Parker for advice from our team of experienced murder lawyers and manslaughter lawyers.
