Manslaughter and infanticide

[40-000] Introduction

The Crimes Act 1900 (NSW) does not define manslaughter, except to provide that it comprises all unlawful homicides other than murder: s 18(1)(b). There are only two categories of manslaughter at common law: manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence: The Queen v Lavender (2005) 222 CLR 67 at [38]. They are referred to as forms of “involuntary manslaughter” because the ingredients of each do not include intent to kill or inflict grievous bodily harm. Under the Crimes Act there are three statutory categories of manslaughter, based on the reduction of murder to manslaughter by reason of provocation (s 23), substantial impairment (s 23A), or excessive self-defence (s 421). The first two are referred to as forms of “voluntary manslaughter”. The third category may or may not be described that way depending upon whether the fact finder accepts the presence of an intent to kill or cause grievous bodily harm: Ward v R [2006] NSWCCA 321 at [40].

A protean crime

The maximum penalty for manslaughter is 25 years imprisonment: s 24. Since the offence covers a wide variety of circumstances, calling for a wide variety of penal consequences, determining an appropriate sentence for manslaughter is “notoriously difficult”: R v Green [1999] NSWCCA 97 at [24]. Although some assistance may be received from a consideration of facts of other cases and the sentences imposed therein, those cases do not determine an inflexible range: R v Green at [24].

Spigelman CJ said in R v Forbes [2005] NSWCCA 377 at [133]–[134]:

manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder.

It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. [Citations omitted; emphasis in original.]

In R v Blacklidge (unrep, 12/12/95, NSWCCA), Gleeson CJ said:

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. [Citations omitted.]

Similar observations were made in R v MacDonald (unrep, 12/12/95, NSWCCA).

In R v Dawes [2004] NSWCCA 363, a case involving the killing of a severely disabled 10-year-old boy by his mother, Dunford J said at [31]:

Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involved the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected including that of the disabled, the handicapped, the criminal, the derelict and the friendless.

An assessment of the objective criminality of an offence of manslaughter will depend on the factual findings made by the sentencing judge: R v MD [2005] NSWCCA 342 at [62]. In that case it was also said at [65]:

In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.

Where the offence of manslaughter involves either an intention to kill or an intention to cause grievous bodily harm, the degree of harm the offender knows will be caused by the offence may be highly relevant to their moral culpability: Sheiles v R [2018] NSWCCA 285 at [29]–[39]. See also Murder — Aggravating factors and cases that attract the maximum at [30-040].

There is a degree of overlap in sentencing for murder and manslaughter, and a higher sentence may be warranted in a manslaughter case than in a murder case, although ordinarily a conviction for murder would attract a greater penalty: R v Hoerler [2004] NSWCCA 184 at [26]–[28], [30].

It is very difficult to identify any pattern of sentencing: R v Hill (unrep, 18/6/81, NSWCCA). Limited assistance is to be derived from sentences in other cases: Taber v R [2007] NSWCCA 116 at [102].

Use of statistical data

Statistical data on sentencing for manslaughter is similarly of limited assistance; reliance on such data has been described as “unhelpful and even dangerous”: R v Vongsouvanh [2004] NSWCCA 158 at [38]. Sentencing statistics for manslaughter are of such limited assistance that they should be avoided: R v Wood [2014] NSWCCA 184 at [59].

[40-010] Categories of manslaughter

In some cases the basis for manslaughter — particularly after a jury trial — is unclear. In the case of a jury trial, members of the jury may have been satisfied of guilt on different bases: R v Dally [2000] NSWCCA 162 at [56], [64], [68]. In the five-judge case of R v Isaacs (1997) 41 NSWLR 374, the court held that although the trial judge has the power to question the jury with a view to eliciting the basis upon which they brought in their verdict, the exercise of such a power “is, save in exceptional circumstances, to be discouraged rather than encouraged” (at 377); see also at 379–380; and Cheung v The Queen (2001) 209 CLR 1 at [18]. It is for the judge to determine the facts relevant to sentencing, bound by the need to ensure such facts are consistent with the jury’s verdict: Isaacs at 378, 380; see further Fact finding following a guilty verdict at [1-440].

Although there are different categories of manslaughter — some involving the requisite intent for murder, others not — there is no hierarchy of seriousness between voluntary and involuntary manslaughter: R v Isaacs at 381. As Smart AJ put it in R v Dally at [64], “It is not the variety of manslaughter but the facts which determine the objective gravity of the offence. Neither variety [in that case, provocation or unlawful and dangerous act] is inherently more serious than the other”.

Similarly, Spigelman CJ said in R v Hoerler [2004] NSWCCA 184 at [29]:

Even a case where there is present an intention to kill or maim, which would constitute murder but which is reduced, by reason of provocation or diminished responsibility, to a charge of manslaughter, will not necessarily attract a higher sentence than other forms of manslaughter, including the one relevant here, i.e. killing by an unlawful and dangerous act. As a five judge bench of this Court, including Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, said in R v Isaacs (1997) 41 NSWLR 374 at 381:

“The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences.”

In R v Ali [2005] NSWSC 334 at [56], it was said that “it is often not of any great consequence whether a killing is characterised as coming within any particular head of manslaughter. Rather, the critical question is what sentence is required to reflect the objective and subjective facts, and, if necessary, deterrence”.

Unlawful and dangerous act

Manslaughter by unlawful and dangerous act does not involve an intention to kill or inflict grievous bodily harm. However, the unlawful and dangerous act involved must be an intentional and voluntary one and it must be established that 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: Wilson v The Queen (1992) 174 CLR 313 at 333.

Although there is no murderous intent involved in manslaughter by unlawful and dangerous act, there will be cases where a heavy sentence will be appropriate: R v Maguire (unrep, 30/8/95, NSWCCA). In that case James J said:

So far as comparing different instances of manslaughter by unlawful and dangerous act is concerned, although all such acts after the decision of the High Court in Wilson v The Queen must be such that a reasonable person in the position of the offender would have realised he was exposing another person to an appreciable risk of serious injury, the possible range of such acts and the possible range of culpability of the agents who performed those acts is very great.

Where the unlawful and dangerous act is of high objective gravity, the offence may be assessed as so grave as to warrant the maximum penalty. For example, in Clare v R [2008] NSWCCA 30, the unlawful and dangerous act was anal intercourse with a three-year-old child, causing the child to vomit and asphyxiate. McClellan CJ at CL said that the “abuse of a 3 years old child for sexual gratification by anal penetration resulting in death is a crime of utmost gravity”: Clare v R at [48].

It is not a matter in mitigation that an offender neither desired nor contemplated the deceased’s death; if the offender had so contemplated, there would be liability for murder: R v Chapple (unrep, 14/9/93, NSWCCA).

Criminal negligence

Manslaughter by criminal negligence arises when the accused does an act “consciously and voluntarily without any intention of causing death or grievous bodily harm but in circumstances which involved such 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”: Nydam v The Queen [1977] VR 430 at 445, approved in The Queen v Lavender (2005) 222 CLR 67 at [136].

In R v George [2004] NSWCCA 247, the offender failed to provide proper care (nutrition, hydration, medication and medical care) for his 86-year-old mother, for whom he was the primary carer. On appeal against sentence, the court said at [19]:

The views which [were] expressed by Wood CJ at CL in Regina v Wilkinson NSWSC 9 April 1998, concerning the heavy responsibility which rests upon carers of young children, to provide for their well being and to secure medical care when needed, in our view, apply equally to those who care for the elderly and infirm. An appeal from that sentence was dismissed (R v Wilkinson [1999] NSWCCA 248), and it supports the proposition that offences of this kind must generally be regarded as objectively serious. However, the extent of that criminality will very much depend upon the individual case.

The sentence was reduced to 3½ years imprisonment with a non-parole period of 2 years. The court, however, thought it necessary to state that “at the most, other cases can do no more than become part of a range of sentencing, which in the case of manslaughter is wider than for any other offence”: R v George at [48].

Many cases of manslaughter by criminal negligence involve the failure of parents to obtain medical assistance for their children following the infliction of injuries: R v Wilkinson [1999] NSWCCA 248 (non-parole period of 3½ years, additional term of 3 years); R v Eriksson [2001] NSWSC 781 (non-parole period of 18 months, balance of 18 months); Hill v R [2003] NSWCCA 16 (non-parole period of 4½ years, balance of 1½ years). In R v O’Brien [2003] NSWCCA 121, the offender failed to have her 14-month-old child hospitalised when advised by medical practitioner that urgent hospitalisation was required. A non-parole period of 3 years, with a balance of 2 years was imposed. In dismissing the appeal against sentence, Dunford J said at [74]:

This was a very serious offence. The appellant allowed her 14 months old, helpless and defenceless child to die. She was the child’s mother, the person from whom above all others, the child was entitled to expect nurture, care, sustenance and protection, and she failed the child in her most important duty, with fatal results. I cannot see how a sentence of less than that imposed by his Honour could be properly regarded as reasonably proportionate to the nature and circumstances of the offence.

In BW v R [2011] NSWCCA 176, the court accepted the offending involved was in the worst category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256): BW v R at [63], [73]. In that case, the applicant’s 7-year-old daughter died after a period of “protracted and cruel neglect where the applicant showed not a shred of care to [her] suffering … over a long period of time”: BW v R at [63]. The court concluded that the non-parole period of 12 years with a balance of term of 4 years while heavy was well within range: BW v R at [73].

Significant sentences may be imposed in other cases of criminal negligence involving members of the public. In R v Simpson [2000] NSWCCA 284, the deceased died by coming into contact with an electric wire system erected by the offender to protect an area of land used to grow marijuana. A non-parole period of 6 years and balance of 3 years was imposed; see also R v Cameron (unrep, 27/9/94, NSWCCA), where a non-parole period of 8 months and balance of 1 year and 4 months was imposed. The conduct in Davidson v R [2022] NSWCCA 153 was considered to be an unprecedented and “very serious” example of criminally negligent conduct with “catastrophic consequences” involving as it did one act of criminally negligent driving causing the death of four children walking on a public footpath and injury to three other children: [40] (Brereton JA); [138] (Adamson J); [333]–[334] (N Adams J). The offender’s appeal on the basis of manifest excess was allowed, by majority, and he was re-sentenced to an aggregate sentence of 20 years with a non-parole period of 15 years (reduced from 28 years with a non-parole period of 21 years).


Under s 23 Crimes Act 1900, murder is reduced to manslaughter where the act or omission causing death was done or omitted under provocation. The partial defence is available where the act or omission is the result of a loss of self control induced by the deceased’s conduct where that conduct could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or inflict grievous bodily harm.

Reference to other provocation cases may not be helpful. Barr J said R v Green [1999] NSWCCA 97 at [32]:

comparison of the sentences in each of the cases to which I have referred and the similarities and dissimilarities in the facts which gave rise to those sentences illustrate the difficulties faced not only by a trial judge in determining a proper sentence but by an appellant who seeks by reference to such cases to demonstrate that the sentence imposed was outside the available range of sentencing discretion.

It has been said many times that provocation is a concession to human frailty: R v Chhay (unrep, 4/3/94,NSWCCA) Gleeson CJ at 11. In R v Morabito (unrep, 10/6/92, NSWCCA), Wood J said that “manslaughter, even though committed under provocation, is recognised as a major crime and is one which calls for a correspondingly grave measure of criminal justice being meted out to the guilty party”; see also R v Bolt [2001] NSWCCA 487 at [58].

Factors relevant to the determination of the level of culpability in provocation cases were set out by Hunt CJ at CL in R v Alexander (unrep, 26/10/94, NSWSC):


the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;


the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and


the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.

In R v Cardoso [2003] NSWCCA 15 at [10], the court acknowledged the sentencing judge’s application of R v Alexander, above, at 144 as a “familiar discussion of the approach to sentence for provocation manslaughter”.

In R v Bolt, above, at [35] it was observed that “as a matter of logic, the degree of provocation must reduce the objective gravity of the offence, and also the degree of violence employed must increase the objective gravity of the offence”. It was also noted that extreme provocation may be accompanied by excessive violence, pointing in opposite directions on the question of objective gravity: R v Bolt at [36], [46]. A strong adherence to particular values may be relevant to the gravity of the provocative act: R v Khan (unrep, 27/5/96, NSWCCA).

In exceptional cases involving a history of domestic violence perpetrated by the deceased a non-custodial sentence may be appropriate: R v Bogunovich (unrep, 30/5/85, NSWSC); R v Alexander, above, at 145.

The authors of the Judicial Commission monograph Partial Defences to Murder in New South Wales 1990–2004 identified 65 cases where offenders were sentenced upon the basis of provocation defences between 1990 and 2004: see p 8 and the list at p 84 of the publication.

Substantial impairment

Section 23A Crimes Act 1900 provides that murder is reduced to manslaughter where a person’s capacity to understand events, or to judge whether the person’s actions were right to wrong, or to control himself or herself, was substantially impaired because of a mental health impairment or cognitive impairment, provided the impairment was “so substantial as to warrant liability for murder being reduced to manslaughter.” Section 23A(8)(a) provides that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment. Section 23A(8) defines cognitive impairment for the purposes of s 23A.

As in the case of manslaughter by provocation, what is ordinarily involved in manslaughter by substantial impairment is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life: R v Blacklidge (unrep, 12/12/95, NSWCCA).

The relevant impairment diminishes — but does not negate — the offender’s responsibility: Blacklidge, above; R v Dawes [2004] NSWCCA 363 at [34]; see also R v Low (unrep, 13/8/91, NSWCCA). As stated in R v Low, “it is quite wrong to take the view that merely because there is an element of diminished responsibility, which substantially impairs a person’s judgment, that that is the end of the matter and a light sentence must inevitably follow”: at 18. In R v Cooper (unrep, 24/2/98, NSWCCA), Gleeson CJ said, “in some circumstances, a case of manslaughter based on diminished responsibility could attract the maximum penalty for manslaughter”. In one case involving five counts of manslaughter by diminished responsibility, the offender was sentenced to concurrent head terms of 25 years imprisonment with non-parole periods of 18 years: R v Evers (unrep, 16/6/93, NSWCCA). At the other end of the spectrum, the offenders in R v Sutton [2007] NSWSC 295 received five-year good behaviour bonds for the manslaughter by substantial impairment of their severely disabled son.

It is necessary for a sentencing judge to consider the degree to which an offender’s mental condition was impaired beyond that required to make out the partial defence: R v Keceski (unrep, 10/8/93, NSWCCA). While an impairment of greater degree may tend towards a further diminution in culpability, it may also raise the issue of future dangerousness. As stated in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477, where the offender’s sentence of life imprisonment for manslaughter (the maximum penalty at the time) was upheld by the High Court at 476–477:

There is an anomaly, however, in the way in which the mental abnormality which would make an offender a danger if he were at large is regarded when it reduces the crime of murder to manslaughter pursuant to s 23A. Prima facie, a mental abnormality which exonerates an offender from liability to conviction for a more serious offence is regarded as a mitigating circumstance affecting the appropriate level of punishment … However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment … And so a mental abnormality which makes an offender a danger to society when he is at large but which diminished his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.

In Catley v R [2014] NSWCCA 249, it was held that the sentencing judge did not err in finding that the offender’s mental condition (psychosis) did not play a great part in the commission of the offence and to the extent that it did, the concomitant reduction in his culpability had already been taken into account because he had been found guilty of manslaughter rather than murder.

For a historical summary of the law and cases in this area, see the Judicial Commission monograph Partial Defences to Murder in New South Wales 1990–2004 where the authors identified 56 diminished responsibility and 18 substantial impairment cases between 1990 and 2004: see pp 8 and 80–82 of the publication.

Excessive self-defence

Excessive self-defence has an ephemeral history as a partial defence. After a number of lower court rulings, the High Court confirmed it as a partial defence in Viro v The Queen (1978) 141 CLR 88, but later abolished it in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 664. It was resurrected by Parliament in NSW in the Crimes Amendment (Self-Defence) Act 2002. The partial defence to murder of excessive self-defence appears in s 421 Crimes Act 1900, which commenced operation on 22 February 2002. It applies to offences whenever committed, except where proceedings were instituted before the commencement of the provision: s 423.

Section 421(1) provides the defence of excessive self-defence reduces murder to manslaughter if:


the person uses force that involves the infliction of death, and


the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:


to defend himself or herself or another person, or


to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

The defence is available where a person uses lethal force and the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary to defend himself or herself or another person or to prevent the unlawful deprivation of liberty. If the act causing death is deliberate and is committed with the intent to kill the deceased or inflict grievous bodily harm, an accused is guilty of manslaughter where it is found that there was a reasonable possibility that the accused believed his or her conduct was necessary in his or her own self-defence, but where the fact finder is satisfied beyond reasonable doubt that his or her response was not reasonable in the circumstances as he or she perceived them to be: Ward v R [2006] NSWCCA 321 at [41].

Range of conduct

Where a plea of manslaughter on the basis of excessive self-defence is accepted by the Crown, all the elements of murder are present and it is for the court to determine whether the offender intended to kill or commit grievous bodily harm, or acted with reckless indifference to human life: Grant v R [2014] NSWCCA 67 at [64], [66]; Lane v R [2013] NSWCCA 317 at [50]. It is an acceptance by the offender that his or her mental state was one which, but for the availability of excessive self-defence in s 421 Crimes Act, was sufficient to amount to murder: Grant v R at [66]. The state of mind must be proved beyond reasonable doubt: Grant v R at [77]. The circumstances can vary widely. For example, in R v Nguyen [2013] NSWCCA 195, the respondent discharged his pistol and the bullet struck a police officer in the upper arm. Another police officer then discharged his weapon at the offender, however, the bullet struck the victim’s neck and he later died in hospital. The Crown accepted the plea on the basis of excessive self-defence, that is, he did not know the victim was a police officer and there was a reasonable possibility that he genuinely believed it was necessary to shoot at the victim whom he believed intended to rob him.

The emphasis in s 421 on the response of an offender “in the circumstances as he or she perceives them” requires a sentencing judge to make a finding as to what the offender perceived the circumstances to be, and to evaluate the degree to which the conduct departed from what would have been a reasonable response to those circumstances as perceived: Smith v R [2015] NSWCCA 193 at [45], [56], [59]. Both questions are central to the sentencing exercise where excessive self-defence is made out: Smith v R at [45], [59].

In Smith v R, the sentencing judge erred by failing to make a direct or express finding of what the applicant perceived the circumstances to be. The content of the applicant’s belief was never clearly articulated. The lack of any finding or reference to the circumstances “as perceived” by the applicant had repercussions in the evaluation of the degree to which the applicant’s response was unreasonable: Smith v R at [36], [61].

Certain of these principles and others were summarised in Newburn v R [2022] NSWCCA 139 at [39] as follows:


A conviction of manslaughter based on a finding of excessive self-defence carries with it the implication that the offender perceived they were in a position where it was necessary they act in order to defend themself: Smith v R at [44]; Patel v R [2019] NSWCCA 170 at [14];


Central to the sentencing exercise is the identification of:


the circumstances as the offender (rightly or wrongly) perceived them to be; and


the precise conduct the offender believed was necessary in order to defend themself: Smith at [44]–[45]; Patel at [14];


The offender’s perception of the circumstances is relevant to the determination of what they believed it was necessary to do in order to defend themself: s 421(1)(c); Smith at [45];


An offender’s perception is also integral to the issue of the reasonableness of their conduct in responding to those circumstances: s 421(1)(b); Smith at [45], [56], [58];


Both questions are to be assessed by reference to the offender’s subjective perception regardless of whether that was objectively reasonable, taking into account any intoxication: Smith at [45]; and


The anterior conduct of the offender, including the reasons for their attendance at the scene of the crime and for deciding to confront the deceased, forms no part of the actual offence and is not directly relevant to assessing its objective seriousness: Patel at [14].

Events leading to a confrontation are relevant only insofar as they provide context to the actual offence: Newburn v R at [41].

Manslaughter by excessive self-defence is a crime “committed under conditions of fear of varying degrees of extremity”: R v Trevenna [2004] NSWCCA 43 at [46], applied in Ward v R [2006] NSWCCA 321 at [59], [70]–[72].

As in other categories of manslaughter, the relevant circumstances vary over a wide range: R v Forbes [2005] NSWCCA 377 at [135]. In Vuni v R [2006] NSWCCA 171 the court said that the statistical sample for cases involving excessive self-defence (approximately 10 cases by the time the appeal was heard) was too small to be of any real practical value: at [31]. James J said in R v Williamson [2008] NSWSC 686 at [40] that, although there have been many cases of excessive self-defence manslaughter, these cases do not establish a tariff. The cases “exhibit a wide degree of variation in their facts, which is typical of cases within any category of manslaughter” but nevertheless, provide some limited guidance.

Multiple partial defences

In cases where more than one partial defence is established, a more lenient sentence is likely to be warranted than would be the case if only one partial defence applied: R v Low (unrep, 13/8/91, NSWCCA). In R v Ko [2000] NSWSC 1130, Kirby J found that both the provocation by the deceased and the offender’s substantial impairment constituted “significant extenuating circumstances”: R v Ko at [41]. See, for a historical summary, the Judicial Commission monograph Partial Defences to Murder in New South Wales 1990–2004 which identifies 10 cases where offenders were sentenced upon the basis of two partial defences between 1990 and 2004, including R v Anthony (unrep, 23/09/94, NSWSC); R v Chaouk (unrep, 17/8/93, NSWSC); R v Diamond (unrep, 15/4/94, NSWSC); R v Gardner (unrep, 27/3/92, NSWSC); R v Kali (unrep, 27/5/91, NSWSC); R v K [1999] NSWSC 933; and R v Spencer (unrep, 18/12/92, NSWSC).

[40-020] Killing of children by parents or carers

The protection of children is of fundamental importance to society: R v Howard [2001] NSWCCA 309 at [19]. However, “[t]here is no rule that the intentional killing of a child must always attract a custodial sentence. Each case must be judged on its peculiar facts”: R v Dawes [2004] NSWCCA 363 at [70].

In R v Hoerler [2004] NSWCCA 184, the Crown appealed against the sentence imposed on the respondent, who had pleaded guilty to the manslaughter by unlawful and dangerous act of his girlfriend’s seven-month-old son. Spigelman CJ rejected the proposition that there is an identifiable range of sentences for child killing on a charge of manslaughter by unlawful and dangerous act: R v Hoerler at [36]. Nor is there a distinct subcategory of manslaughter committed by parents or carers: R v Hoerler at [45], [47]. His Honour said at [41]:

It may be possible to identify a distinct category of manslaughter for which variations on a basically similar factual situation can be identified … However, this can only be done if there is a significant number of cases which share the common characteristic and which represent a very broad range of differing circumstances. Child killing by a parent or carer does not occur so frequently to make it possible to deduce a sentencing pattern from past cases.

The killing of children cannot be excused by the existence of stress factors which often confront parents raising young children: R v Vaughan (unrep, 7/5/91, NSWCCA). In that case Lee CJ at CL said that “Courts have always regarded assault by parents upon little children resulting in death, as grave and serious cases of manslaughter”: at 359.

See the earlier discussion of Criminal negligence at [40-010].

[40-030] Motor vehicle manslaughter

Motor vehicle manslaughter would generally fall under the category of criminal negligence or unlawful and dangerous act. In cases of manslaughter involving motor vehicles, it is “unproductive” to consider what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death: R v Cameron [2005] NSWCCA 359. It was recognised in R v Cramp [1999] NSWCCA 324 at [108] that manslaughter is “a much more serious offence than aggravated dangerous driving occasioning death”, which carries a maximum penalty of 14 years imprisonment as opposed to 25 years for manslaughter: R v Cramp at [108].

In R v McKenna (1992) 7 WAR 455, Ipp J (then of the Western Australian Court of Criminal Appeal) stated that “criminality is not reduced simply because the crime can be categorised as ‘motor vehicle manslaughter’”: at 469. This approach has since been adopted in New South Wales. In R v Lawler [2007] NSWCCA 85, the applicant appealed against his sentence of 10 years and 8 months, with a non-parole period of 8 years for manslaughter caused when his prime mover collided with the victim’s vehicle. The applicant was aware that the braking system of his prime mover and trailer was defective, but continued to drive for commercial gain. In dismissing the appeal, the Court of Criminal Appeal emphasised the importance of general deterrence in such cases (at [42]) and held that the applicant’s conduct involved a high degree of criminality, adding, “It is to be clearly understood that manslaughter is no less serious a crime because it is committed by the use of a motor vehicle”: at [41].

The judge in Lees v R [2019] NSWCCA 65 was entitled to find the objective seriousness of the offence to be “of a very high order”, and the dangerousness of the unlawful act “extreme” in circumstances where the applicant conceded she intended to drive into the deceased (her husband), which was very close to the intention required for murder (that is, an intention to inflict grievous bodily harm): at [56]–[57]. Had her actions not been spontaneous, the offence would likely have been one of murder rather than manslaughter: at [65].

See also the discussion of Motor vehicle manslaughter at [18-350].

[40-040] Discount for rejected offer to plead guilty to manslaughter

An offender convicted of manslaughter by a jury may receive a discount for offering to plead guilty to manslaughter when that offer was rejected by the Crown in preference to proceeding on a trial for murder: Ahmad v R [2006] NSWCCA 177 at [20]; R v Nguyen [2005] NSWSC 600 at [52]. As stated by Spigelman CJ in R v Forbes [2005] NSWCCA 377 at [121], “it is relevant to take into account an offer of a plea of guilty for the crime for which a person is ultimately convicted.” Statements to similar effect can be found in R v Cardoso [2003] NSWCCA 15 at [19]–[21]; and R v Oinonen [1999] NSWCCA 310 at [15]–[18]. However, the discount is only available if the offer is made on terms which fully disclosed the circumstances and degree of culpability intended to be acknowledged by the plea. This facilitates comparison with the outcome of the trial: Merrick v R [2017] NSWCCA 264 at [117], [121]–[122]. In Merrick v R, the offender was denied a discount after being convicted of an alternative charge of manslaughter because his initial plea offer was conditional on an undefined statement of facts, which was not capable of acceptance by the Crown and did not demonstrate a willingness to admit the facts eventually found by the jury: at [109]–[110], [120].

[40-050] Joint criminal enterprise

An offender’s liability for manslaughter may arise from a joint criminal enterprise or an extended joint criminal enterprise. Although not directly responsible for inflicting fatal injuries, an offender whose liability arises from an extended joint criminal enterprise may receive a significant sentence: see for example, R v Diab [2005] NSWCCA 64 (non-parole period of 6 years, balance of 3 years); R v Taufahema [2007] NSWSC 959 (non-parole period of 7 years, balance of 4 years). An aider and abetter is not necessarily less culpable than a principal: GAS v The Queen (2004) 217 CLR 198 at [23].

[40-060] Accessories after the fact to manslaughter

Accessories after the fact to manslaughter are liable to a statutory maximum of 5 years: s 350, Crimes Act 1900.

In the remarks on sentence in R v Walsh [2004] NSWSC 111 at [3]–[4], Howie J observed:

The maximum penalty for manslaughter is imprisonment for 25 years and that for being an accessory after the fact to manslaughter imprisonment for 5 years. This maximum penalty for the latter offence is in my view completely inadequate to deal with the criminality that such an offence might involve. In my view it says nothing about the very grave seriousness of assisting a person who the offender knows has unlawfully taken the life of another human being.

In many cases, the criminality of an accessory after the fact to manslaughter will be the same as that of a person convicted of being an accessory after the fact to murder.

The discrepancy between the maximum penalties has also been observed by Studdert J in R v Abdulrahman [2007] NSWSC 578 at [9].

[40-070] Infanticide

Section 22A(1) of the Crimes Act 1900 provides:


A woman is guilty of infanticide and not of murder if —


the woman by an act or omission causes the death of a child, in circumstances that would constitute murder, within 12 months of giving birth to the child, and


at the time of the act or omission, the woman had a mental health impairment that was consequent on or exacerbated by giving birth to the child.

Section 22A(3) provides that a woman found guilty of infanticide is to be sentenced as though she had been found guilty of manslaughter. Accordingly, the maximum penalty for infanticide is therefore 25 years imprisonment.

In R v Cooper [2001] NSWSC 769, the offender received a four-year good behaviour bond for the infanticide of her seven-month-old daughter. Simpson J emphasised that imposing a non-custodial sentence was an unusual course: at [5]–[6]:

Where the court takes an unusual course such as imposing a non-custodial sentence where the death of a human being has been caused the community is entitled to a full explanation. What must never be lost sight of is that, at the heart of this case, is the loss of life of a seven month old child. The loss of human life is something to be treated with utmost gravity. Where the life lost is that of a baby, completely defenceless, and at the hand of her mother, from whom she could ordinarily expect nurture and care, the obligation on the courts to signify its respect for the sanctity of life and to punish those who wrongfully take it is so much greater. I am fully conscious of previous statements of this court and other courts emphasising the importance of the recognition of the gravity of offences of homicide.

Equally, of course, I am conscious that s 22A was inserted into the Act as long ago as 1951 in order to recognise a perceived phenomenon relating to the effects, in some instances, of childbirth. The legislature then identified infanticide as a form of homicide having particular characteristics and a particular genesis which therefore justifies, in an appropriate case, a different approach to sentencing. This is an appropriate case. That the maximum penalty applicable is the maximum penalty applicable to an offence of manslaughter in no way negates the recognition given to the particular circumstances that go to make up the offence of infanticide.

Section 22A is rarely utilised. According to the statistics recorded in the Judicial Information Research System, there has only been one case of infanticide between January 2006 and September 2018. The offender received a suspended sentence. In an earlier case, R v Pope [2002] NSWSC 397, the offender, who suffered from post-natal psychotic episodes and drowned her 12-week-old daughter in a baby bath, received a three-year good behaviour bond.

[40-075] Cause of loss of foetus (death of pregnant woman)

Section 54B(1) of the Crimes Act 1900 provides that a person commits the offence of causing the loss of a foetus (death of pregnant woman) if:


the person’s act or omission constitutes an offence under a homicide provision (the “relevant homicide provision”), and


the victim of the offence is a pregnant woman, and


the act or omission includes causing the loss of the pregnant woman’s foetus.

The maximum penalty is 3 years’ imprisonment: s 54B(3).

To be charged with an offence against s 54B(1), the person must also be charged with a relevant homicide provision in relation to the same act or omission: s 54B(2). “Homicide provision” is defined to include manslaughter: s 54B(6). These provisions apply to offences committed on/after 29 March 2022: Crimes Legislation Amendment (Loss of Foetus) Act 2021: Sch 1[2].

For the offence of causing the loss of a foetus where the pregnant woman is injured, see Assault, wounding and related offences at [50-070] Cause loss of a foetus. See also [18-310] The statutory scheme for dangerous driving offences.