Manslaughter is a common law offence. One of its forms is manslaughter by an unlawful and dangerous act causing death. This form of manslaughter has the following four elements, each of which the prosecution must prove beyond reasonable doubt:
1. That the accused committed an act that caused the death of another person;
2. That the relevant act was committed consciously, voluntarily and deliberately;
3. That the relevant act was "unlawful"; and
4. That the relevant act was "dangerous".
Another form of manslaughter is by criminal negligence. This form of manslaughter has the following four elements, each of which the prosecution must prove beyond reasonable doubt:
1. The accused owed the victim a duty of care;
2. The accused breached that duty by criminal negligence;
3. The act which breached the duty of care was committed consciously and voluntarily;
4. The accused’s breach of the duty caused the victim’s death
The maximum penalty for manslaughter is 25 years imprisonment (Section 5 Crimes Act 1958 Vic)
Mandatory sentencing also applies. Manslaughter is a Category 2 offence, which means that a term of imprisonment must be imposed, (Section 5(2H) Sentencing Act 1991 Vic) unless exceptions apply (s5(2H)(a)-(e).
Some forms of manslaughter (circumstances of gross violence and single punch) have minimum non parole periods (10 years – ss9B and 9C). Both require notice and set out requirements to be proved beyond reasonable doubt in order to be applicable.
If arising out of the driving of a motor vehicle, the offence will count as a “serious motor vehicle offence” and will carry a mandatory driver’s licence cancellation.
The Sentencing Act 1991 (Vic) states that the purposes of sentencing are to:
1. Punish the offender in a manner which is just in all the circumstances;
2. Deter the offender and others from committing the same or a similar offence;
3. Facilitate an offender’s rehabilitation;
4. Denounce the offending conduct; and
5. Protect the community.
The purposes were developed by the courts out of the need to promote consistency in sentencing, however sentencing remains a difficult exercise because of the need to give appropriate weight to each of the purposes, which overlap and cannot be considered in isolation.
More than one purpose may be (and often is) furthered by a given sentence, and determining which purpose, if any, is paramount depends on all circumstances and is a discretionary matter for the sentencing court.
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