Homicide refers to an unlawful act or omission that causes the death of a human being. There are two main types of homicide: murder and manslaughter. Murder is the more serious offence, but both will be heard in the highest courts of NSW and attract severe penalties. The main difference between these offences is the mental state of the accused in causing death.
What is murder?
Murder refers to intentionally causing the death of a person. Under section 18(a) of the Crimes Act 1900 (NSW), murder is committed when:
- A voluntary act or omission of the accused causes the death of a person (the physical element), and
- That voluntary act or omission was done with (the mental element):
- Reckless indifference to human life,
- Intent to kill, or
- Intent to inflict grievous bodily harm.
Murder is also committed when a voluntary act or omission of the accused, that causes the death of a person, was done in an attempt to commit an offence punishable by at least 25 years imprisonment. This is called “constructive murder”.
The mental element
The mental element for murder is important and distinguishes this crime from manslaughter. When the mental element of a murder charge cannot be proven, the charge will likely be downgraded to manslaughter.
There are three distinct mental elements which can establish the offence of murder. The prosecution only needs to prove one for the accused to be found guilty. The lowest form of intention possible is “reckless indifference to human life”. This is where someone foresees or realises that their action would probably result in the death of another person, and then does the act anyway. The other two mental elements for the offence of murder are “intent to inflict grievous bodily harm” and “intent to kill”.
Constructive murder (murder in an attempt to commit another offence)
Constructive murder is another way an accused can be found guilty of murder. This occurs where the act which caused death happened in an attempt to commit, or during or immediately after the commission of, a serious offence which is punishable by at least 25 years imprisonment..
Accidently shooting someone during a bank robbery could be charged as constructive murder. Under this method of charging, the prosecution does not have to prove intention to cause harm. The mental element is “constructed” or attributed to the accused based on the circumstances of the offence.
What is manslaughter?
Manslaughter is any unlawful killing of another human being, which does not amount to murder. Manslaughter is a crime under section 18(b) of the Crimes Act. There are two broad categories of manslaughter: voluntary manslaughter and involuntary manslaughter.
Voluntary manslaughter is established in circumstances where the accused could be charged with murder, but there are mitigating circumstances such as provocation or substantial mental impairment which reduce the offender’s culpability. For example, a death caused by excessive self-defence could be charged as voluntary manslaughter.
There are two types of involuntary manslaughter at common law:
- Manslaughter by unlawful and dangerous act.
- Manslaughter by criminal negligence.
An assault which results in death could be charged as involuntary manslaughter by an unlawful and dangerous act.
Criminal negligence occurs where there is “a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.” Many cases of manslaughter by criminal negligence involve the failure of parents to obtain medical assistance for their child who has suffered serious injury.
The maximum penalty for murder is life imprisonment.
The maximum penalty for manslaughter is 25 years imprisonment.
Typical sentencing guidelines
Most people found guilty of murder will receive a prison sentence.
Manslaughter, however, covers a wide range of circumstances and criminality. Sentences for manslaughter vary significantly.