Colombian student Hector Enrique Valencia was charged with manslaughter last month for the death of Sydney sex worker Kimberly McRae in Coogee in 2020. After initially being charged with murder, the matter progressed to a judge-only trial before justice Dina Yehia who determined Mr Valencia was not guilty of murder and instead was found guilty of manslaughter. The court heard that whilst the judge was satisfied beyond a reasonable doubt that Mr Valencia caused Mcrae’s death, she could not be satisfied the accused had the necessary intent to be charged with murder. 

This ruling has sparked much outrage and discussion on social media, raising questions for many regarding what constitutes murder and what differentiates a murder and a manslaughter charge in New South Wales.

What is the difference between manslaughter and murder in NSW? 1

Voluntary and Involuntary Manslaughter

Involuntary Manslaughter occurs when there is no intention to cause death to the victim, but the accused’s conduct is responsible for their death. 

Voluntary Manslaughter occurs as unintentional homicide where the accused causes the death of the deceased by a voluntary or intentional act, that was unlawful and dangerous

Voluntary manslaughter differs from a charge of murder with ‘reckless indifference for human life’ as voluntary manslaughter involves an unlawful act that does not occur with the foresight of the probability of death. 

Key Differences between Murder and Manslaughter

As outlined by section 18 of the Crimes Act 1900, individuals may only be found guilty of murder if it can be proven that: 

  1. The accused intended to kill
    1. Their actions or failure to act deliberately caused another person’s death
  2. Intent to inflict grievous bodily harm
    1. The accused deliberately caused ‘grievous bodily harm, which resulted in the other person’s death
  3. Reckless indifference to human life
    1. It encompasses situations where the accused knew or should have known that their actions would likely result in a person’s death
  4. Commission of a crime punishable by life imprisonment or imprisonment for 25 years
    1. An individual can be found guilty of murder if they caused another person’s death whilst committing another serious criminal offence 

Manslaughter charges are treated with a lesser severity within the NSW court system as they differ from murder charges in failing to fulfil the qualifying circumstances of legal murder. 


Whether or not the accused intended to cause another person’s death is the foundational differentiating factor between a murder and a manslaughter charge. For an accused to be found guilty of murder, it must be established that they either had: 

  • An intent to inflict grievous bodily harm 
  • An intent to kill 
  • Reckless indifference to human life 

In Mr Valencia’s case, the ‘mental element’ or intent of the accused was determined by the judge not to have been proven beyond a reasonable doubt, and as such, he was found not guilty of murder. The lack of intent in causing the death of another person amounts to ‘involuntary manslaughter’ with which Mr Valencia was found guilty.

The court heard from justice Dina Yehia that Mr Valencia was convicted on the basis of unlawful and dangerous act manslaughter as he engaged in an unlawful and violent physical altercation with Mcrae, resulting in her death from asphyxiation. However, it was due to the lack of proven intent that resulted in the final charge of manslaughter over a murder charge.

Defences for Murder

Within NSW, there are various legal defences to murder, which, if successful, can act as a complete defence resulting in an acquittal or a partial defence resulting in a lesser sentence or a lesser charge for the accused.

Full defences to murder are those which will result in an acquittal for the accused and include but are not limited to: 

  • Self Defence 
  • Mental Impairment 
  • Duress

Partial Defences: Reduced murder charges to manslaughter

Partial defences to murder diminish the criminal culpability of the accused from murder to the lesser charge of manslaughter. However, if you have successfully proven a partial defence, the accused will still be liable for a criminal charge of manslaughter which is a highly serious offence and often results in a custodial sentence.

These include, but are not limited to: 

Extreme Provocation: The accused’s actions were in response to another person’s conduct that caused an ordinary person to lose self-control to the extent of intending to kill or cause grievous bodily harm. 

  • As of 2012, the actions of the deceased must constitute a serious indictable offence to amount to provocation

Excessive Self Defence:
The accused actions involved force that resulted in the death of the accused however did so to protect themselves, another, or their property. Self-defence can result in a mitigated charge of manslaughter if it is proven that, while the accused acted in self-defence, their actions did not constitute what would be deemed a reasonable response to an ordinary person.

What is the difference between manslaughter and murder in NSW? 2

Pleading Guilty

If you choose to plead guilty to a murder or manslaughter charge in NSW, this means you agree with the charges made against you and take responsibility for the offence. 

As murder is liable to life imprisonment, entry of a guilty plea is not eligible for a discounted sentence. However, entering a guilty plea early may be considered a mitigating factor during sentencing.

If an individual chooses to plead guilty to a manslaughter charge, doing so at the earliest opportunity will usually result in the best possible outcome in sentencing. This will mean your case progresses straight to sentencing, with a maximum 25% sentencing discount for an early plea. 

Case Conferencing

Often (pursuant to legislative requirements) the defence and prosecution enter plea bargaining negotiations to reduce the number of cases going to trial. This may enable the accused to enter a guilty plea for a lesser charge, such as manslaughter, which carries a lower maximum penalty of 25 years imprisonment. 

However, entering a guilty plea to a lesser offence may not always be accepted by the prosecution. This was true for Mr Valencia’s case, as he entered a guilty plea for manslaughter prior to the trial; however, the prosecution rejected that offer and progressed to Trial with the matter. 

Pleading Not-Guilty

If you disagree with the charges made against you, you can enter a plea of not guilty, and your case will progress to trial. As a serious indictable offence, your matter will be finalised in the supreme court and generally by a judge and jury. 

In these circumstances, the prosecution and defence can present their case to the jury, who will determine the guilt of the accused. Due to the burden of proof in the NSW legal system, if you plead not guilty, you will not be found guilty unless the prosecution can prove beyond a reasonable doubt that you have committed all the elements of the offence. 

What do I do if I am charged with murder or manslaughter?

If you find yourself charged with murder or manslaughter in NSW, you must seek the advice and guidance of an experienced criminal lawyer such as the team at Hamilton Janke Lawyers. Our team can provide expert advice and assistance from one of our criminal defence attorneys entering a plea and advising you of possible defences to reduce your charge and ensure you receive the best possible outcome.

For more details on Mr Valencia’s case, see the following article

Written By
Drew Hamilton
Drew Hamilton

Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.