What do Degrees of Murder Mean?

What do degrees of murder mean? First, second and third-degree murders are familiar and widely used law terms or concepts, especially in American television programmes. What are these degrees of murder charges, and do they apply in Australian courts?

Degrees of Murder in the United States of America

First, second and third-degree murder are legal terms used in the United States of America. The severity of the crime and the punishment thereof are the main differences between these murders. Second, American law categorises the different degrees of murder, and the main classifications for the degrees of murder are:

First-Degree Murder

First-degree murder is intentional or premeditated murder. First-degree murder is seen as the highest level of crime or can be seen as a very serious crime, and it is punished accordingly and with the greatest sentences, usually life imprisonment. 

Second-Degree Murder

Second-degree murder is an unplanned murder. However, the offender intended to cause the victim harm and committed an impulsive murder. The sentence for second-degree murder is ten years without parole to life imprisonment.

Third Degree Murder

Third-degree murder only exists in three USA states. It is carried out with no premeditation and with no intent to kill. The murder is unplanned, and this is the least severe form of murder. Some murders fall under third-degree murder when they do not fit the definition of first-or second-degree murder. Third-degree murder still carries serious penalties. The sentence for third-degree murder is four years minimum if a firearm is involved. 

Does Degrees of Murder Apply in Australia?

First-degree, second-degree and third-degree murder is not a legal concept or term in Australia. The Australian criminal system differs from the criminal system in America. Homicide in Australia is divided into two different categories, namely murder and manslaughter. It is important to classify homicide as either murder or manslaughter, as this will determine the court proceedings and sentencing.


In the definition of murder in both the United States and in Australia, the intent appears to be a key element of the homicide offence. However, in NSW in, Australia intent does not always have to be an element to prosecute homicide. The reckless indifference for a human’s life is also enough for a homicide to be considered murder.


The Charges of Homicide in Australia

What is homicide? Homicide crimes are when one person is responsible for another person’s death. Sentences for homicide are punitive, and it may include a life sentence in jail. Homicide laws are state-based in Australia. However, the rules for these offences in the different Australian Territories and States are mostly similar. Murder and manslaughter offences are the most serious indictable crimes in Australia. The charge will remain on the offender’s criminal history check for life.

Homicide Classified as Murder

Murder is a severe kind of assault with a harsh sentence. The court also has the option to enforce a non-parole period at the court’s discretion. The Crimes Act 1900 governs murder crimes. Section 18 in the Crimes Act 1900 describes murder as any illegal act or omission that results in another person’s death. 

A person murders another person:

  • Recklessly and with an indifference to human life
  • with the intention to kill another person or to inflict grievous bodily harm
  • in an attempt to commit a serious offence such as rape or robbery

The offender has a disregard for the lives of other people. The offender acted with the goal of either murder or the intent to inflict serious physical injury on another person. It is important to note that for most murder charges, the intent to kill is an important element. The prosecution has to prove the offender intended to kill the victim. 

A person murders if they, under Section 279 of the Criminal Code Compilation Act:

  • Intend to cause the death of a person (regardless of whether or not they intended to kill the person who was killed); or
  • Intend to cause any injury that will likely endanger the life of another person; or
  • Cause death by an act that is done with an unlawful purpose and the action is likely to endanger human life (regardless of whether or not they intend to hurt anyone).

The defendant will be guilty of murder when the following is proved beyond a reasonable doubt:

  • The defendant voluntarily did something resulting in the death of another person
  • The defendant intended to cause serious injury or permanent or serious disfigurement to the other person at the time of the crime
  • The defendant intended for the other person to die
  • The defendant realised the probability that his/her actions would cause death but committed the murder anyway

In some cases, a murder charge can still be applicable without the element of intent. This can apply when grievous bodily harm was done to a victim and the victim subsequently dies or when the defendant endangers human life and cause death due to their actions. Attempted murder is an offence where a person commits any act in preparation for murder. This act transcends beyond ordinary planning and it can inherently be seen as murder. 

Felony or Constructive Murder occurs when a person commits a separate criminal offence while at the same time or afterward commits murder or kills another person.    For example, an offender kills a person before, during, or after an armed robbery with a weapon. The sentence for separate felony murder or constructive murder is at least 25 years imprisonment. 

The Penalties for Committing Murder

The sentence for an adult found guilty of murder is life imprisonment with a longer or shorter non-parole sentence. The court might also introduce a non-parole sentence when the circumstances are severe. Life imprisonment with or without parole is the maximum sentence for murder.

A reduced sentence might be applicable if a life sentence is unjust in the circumstances or if the person is not a threat to the safety of the community when the person is released. A person will then be imprisoned for a minimum of 20 years. The sentence for murder during an aggravated home burglary is a minimum of 15 years, with the maximum sentence of life imprisonment. 

When a juvenile is found guilty of murder, the maximum penalty is life imprisonment or detention until released by order. The sentence for a juvenile committing murder during an aggravated home burglary is imprisonment for a minimum of three years to life in prison. The court cannot suspend any part of the imposed imprisonment, and the conviction has to be recorded.  

Section 30 of the Crimes Act 1900 stipulates the offence of Attempted Murder carries a maximum penalty of 25 years in prison. 

The most common defences against a murder charge are self-defence, extreme provocation, duress, legal justification, and misfortune. 

Homicide Classified as Manslaughter

Homicide is classified as manslaughter when a person unintentionally and unlawfully kills another person or their negligent or careless conduct results in the death of another person. Manslaughter is also governed by the Crimes Act 1900 and common law doctrines. Section 18 of the Crimes Act states all homicides that are not considered murder has to be considered as manslaughter. 

A person will not be held responsible for another person’s death under Section 18 if the death was caused by misfortune or an accident. It also applies when any act or omission wasn’t malicious or if the individual had a legitimate reason or justification. The term “attempted manslaughter” is not a recognised legal term in Australian law. 

The prosecution doesn’t need to prove that the accused had a reckless disregard for life or a purpose to murder or inflict severe bodily damage to be convicted of the crime.

Manslaughter can be defined in three categories: 

  • A person kills someone by doing an illegal or risky act
  • A person’s negligence leads to someone’s death
  • A person killing another person with extreme self-defence

Manslaughter can either be voluntary or involuntary. 

Voluntary Manslaughter

The components of the murder were demonstrated and this resulted in a conviction for the crime. However, the dead person’s provocation, actions, or omissions lead the accused to lose control. The actions of the victim resulted in death as the defendant could not comprehend the consequences of their actions due to a deviation of the defendant’s thinking. 

Involuntary Manslaughter

Involuntary manslaughter is the deliberate unlawful, and dangerous conduct by the accused. It needs a substantial risk of significant injury, which ultimately results in the death of another person. The defendant does not need to be aware that the conduct or act was dangerous. Provided a person would have known that the conduct or act in the circumstances exposed other people to the risk of serious injury or death. 

The accused will be found guilty of involuntary manslaughter if:

  • The accused conduct caused the death of another person
  • The conduct was deliberate
  • The conduct was unlawful and dangerous

Involuntary manslaughter can also be imposed when the offender’s actions or omissions resulted, or contributed to the other person’s death due to criminal carelessness or gross negligence. 

The court will find the accused guilty of manslaughter by gross negligence when:

  • The accused had a duty to care for the victim
  • The conduct of the accused was in breach of the duty of care
  • The conduct of the accused caused the death of another person

The conduct merits a sentence because a reasonable standard of care was not exercised. The conduct of the accused was high risk, and this led to the death of the other person. The degree of negligence was very serious and should be treated as criminal conduct. 

The Penalties for Manslaughter

Manslaughter holds a maximum penalty of 25 years imprisonment. However, a judge may consider mitigating factors regarding the offence, and this may result in a reduced sentence. The judge has the discretion to decide what sentence to impose based on the circumstances of the manslaughter. 

The penalties for manslaughter for murder during an aggravated home burglary are 15 years in prison for an adult and three years in prison for a juvenile. The maximum penalty under Section 281 for unlawful assault causing death is 20 years in prison. A person could be found guilty under this provision even if the other person’s death was not foreseeable.  

It is a criminal crime under Section 25A of the Crimes Act if a perpetrator assaults another person by punching them to death. This is known as “one-punch” manslaughter. A person will be held accountable even if the death was unforeseeable. The sentence for this crime can be up to twenty years in prison.

A person can be found guilty under Section 59 of the Road Traffic Act 1974 if they cause the death of another person by causing an accident while driving under the influence of alcohol or drugs or due to dangerous driving. The maximum penalty for dangerous driving causing death is 20 years in prison. If a person causes another person’s death by driving without due care and attention, a person can be found guilty under Section 59BA of the Road Traffic Act. The maximum penalty for this is three years in prison or a fine of 720 penalty units. 

The defendant can use the following possible defences for manslaughter: necessity, duress, self-defence, extreme provocation, or an accident. 

The Australian justice system and the American justice system impose severe penalties for homicide. It doesn’t matter if it is charged as degrees of murder or murder and manslaughter in each country; homicide is a serious crime with serious life in prison sentences.

Murder or manslaughter charges are very serious, and it is important to get professional representation from a reputable law firm.

Contact an expert criminal defence lawyer if you or your family need assistance with any murder or manslaughter charges.