Murder and Manslaughter
Murder and manslaughter are among the most serious offences in all Australian jurisdictions. They are strictly indictable offences that can only be finalised in the Supreme Court. However, different states and territories have different sentencing regimes for these offences. This page outlines the laws surrounding murder and manslaughter in each jurisdiction.
Murder and manslaughter in New South Wales
In New South Wales, section 18 of the Crimes Act 1900 contains the definition of murder and states that any punishable homicide that does not amount to murder is manslaughter.
The maximum penalty for murder is life imprisonment and the maximum penalty for manslaughter is 25 years imprisonment.
New South Wales does not have a mandatory minimum term of imprisonment for murder; however, the standard non-parole period is 20 years.
New South Wales has a partial defence of provocation for a charge of murder. When a person is found to have committed murder under extreme provocation, they will be found guilty of the alternative charge of manslaughter.
Murder and manslaughter in Victoria
The maximum penalty for murder is life imprisonment. The maximum penalty for manslaughter is imprisonment for 25 years.
Under section 5 of the Victorian Sentencing Act 1991, a court sentencing a person for murder or manslaughter must impose a term of imprisonment unless particular circumstances exist; however there is no mandatory minimum period of imprisonment for these offences.
Victoria abolished the partial defence of provocation for murder charges in 2005.
Murder and manslaughter in Queensland
In Queensland, section 302 of the Criminal Code 1899 contains the offence of murder. A person who kills unlawfully under circumstances that do not amount to murder is guilty of manslaughter under section 303.
In Queensland, a person found guilty of murder will receive a mandatory sentence of life imprisonment. A non-parole period may be set, with the standard non-parole period being 20 years.
A finding of guilt for murder can be reduced to manslaughter if the accused was acting in response to provocation.
Murder in the ACT has a maximum penalty of life imprisonment. Manslaughter has a maximum penalty of 20 years imprisonment.
In the ACT, there is a partial defence of provocation available to a person charged with murder, reducing the conviction to manslaughter.
In WA, the offence of murder is set out in section 279 of the Criminal Code Act Compilation Act 1913 and the offence of manslaughter in section 280. The criminal Code Act Compilation Act 1913 contains a mandatory sentencing regime for both murder and manslaughter and there are different minimum terms of imprisonment that must be imposed for these offences depending on the circumstances they occur under and whether the offender was an adult or a child.
Western Australia has the partial defence of provocation for murder charges.
In the NT, murder carries a mandatory sentence of life imprisonment. The court must fix a non-parole period when sentencing a person for murder. Manslaughter carries a maximum penalty of imprisonment for life.
The NT has a partial defence of provocation available to murder charges, reducing the charge to manslaughter.
In South Australia, the offence of murder is set out in section 11 of the Criminal Law Consolidation Act 1935. Manslaughter is an offence under section 13.
Murder carries a mandatory sentence in life imprisonment in South Australia. Manslaughter has a maximum penalty of life imprisonment.
South Australia abolished the partial defence of provocation for murder charges in 2020.
Although the partial defence of provocation only exists in some jurisdictions, there are other legal defence to murder and manslaughter that are available in all states and territories.
The most common of these are summarised below.
The defence of self-defence applies in cases where the accused was acting in defence of themselves or of another person. This defence will be successfully made out if the accused reasonably believed that their actions were necessary in the circumstances and used a level of force that was proportionate to the threat faced.
The defence of mental impairment applies where at the time of the alleged offence the accused was suffering from a mental impairment that meant that they did not know what they were doing or did not know that what they were doing was wrong. A mental impairment may be a mental illness, intellectual disability or brain damage.
The defence of duress is available in relation to manslaughter in all jurisdictions and to murder in some jurisdictions. It applies when the accused carried out the act because of threats of death or really serious injury to a person. The defence will succeed if the threat was so serious that an ordinary person in the accused’s position would have yielded to it.
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Australian Murder And Manslaughter Laws By State
They are governed by different legislation in each state and territory but in all jurisdictions, murder carries a maximum penalty of life imprisonment. In some states, there are mandatory minimum sentences that must be imposed for murder and manslaughter.
In Queensland, murder is set out in section 302 of the Criminal Code 1899. A person who kills another person under circumstances that do not amount to murder is guilty of manslaughter, which is contained in section 303.
In Queensland, murder carries a penalty of imprisonment for life. If a person is sentenced for more than one count of murder, or has a prior conviction for murder, the court must impose a minimum non-parole period of 30 years. If the victim was a police officer, the court must impose a minimum non-parole period of 25 years.
Manslaughter also carries a penalty of imprisonment for life in Queensland.
Murder and manslaughter in New South Wales are defined in section 18 of the Crimes Act 1900. Murder is defines as causing a death with reckless indifference to life or with intent to kill or cause grievous bodily harm, or while committing a crime punishable by imprisonment for 25 years or more. Unlawful killing under any other circumstances amounts to manslaughter.
A person sentenced for murder in New South Wales will be imprisoned for the term of their natural life.
Manslaughter in NSW carries a penalty of 25 years imprisonment.
Murder and manslaughter are common law offences in Victoria. Under the Crimes Act 1958 murder carries a maximum penalty of life imprisonment, with a standard sentence of 25 years (or 30 if the victim was a custodial officer or emergency worker).
Manslaughter carries a maximum penalty of 25 years.
Australian Capital Territory
In the ACT, the crime of murder is contained in section 12 of the Crimes Act 1900 and carries a penalty of life imprisonment. Under section 15 of the Crimes Act, an unlawful homicide that does not amount to murder is manslaughter, which carries a maximum penalty of 20 years imprisonment. There is also an offence of aggravated manslaughter which occurs when the victim is a pregnant woman or where the offence involves family violence. When the offence is aggravated, the maximum penalty increases to 28 years imprisonment.
Manslaughter is set out in section 159 and carries a maximum penalty of 21 years.
Murder and manslaughter in the NT are governed by the Criminal Code Act 1983 and are dealt with by the Supreme Court.
In Western Australia, murder is governed by section 279 of the Criminal Code Act Compilation Act 1913. When an adult is found guilty of murder in WA, they must be sentenced to life imprisonment unless that sentence would clearly be unjust in the circumstances and the offender is unlikely to be a threat to the community when released.
Manslaughter in WA is governed by section 280 and carries a maximum penalty of imprisonment for life. If a person commits manslaughter in in the course of an aggravated home burglary, they must be sentenced to no less than 15 years imprisonment (for an adult) or three years (for a juvenile).
In South Australia, murder is set out in section 11 of the Criminal Law Consolidation Act and attracts a penalty of imprisonment for life. Manslaughter is set out in section 13 and carries a maximum penalty of imprisonment for life.