Should Parents Who Unintentionally Leave Children to Die in Hot Cars Be Charged with Involuntary Manslaughter?

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Child trapped in car

A Sydney man won’t be charged over the death of his 3-year old son who he left in a hot, closed car all day. 

While social media has gone into overdrive with its typical judgemental comments, some might argue that it’s a sign of compassion criminal charges won’t be laid against the man. Many would argue that living with the anguish of knowing you killed your own child must certainly be more of a punishment than a prison sentence would ever be. 

The toddler’s father, Newaz Hasan, was reportedly dropping his eldest son off at school when he decided to fill his car with petrol before taking his younger son to childcare. 

However, Mr Hasan appeared to have forgotten his sleeping child in the back of the car and continued straight home. He then went to his home office and worked all day before finding his toddler’s dead body in the car about 3pm, as he was collecting his eldest child from school. 

The obvious question is – how can you forget a child? Many parents are sleep-deprived, or overwhelmed by the relentlessness of parenting when they’re also juggling work commitments as well as other stresses and strains. 

Experts who’ve weighed in on the debate say that ‘Forgotten Baby Syndrome’, sometimes also called ‘Fatal Distraction’ – the term used to define a situation where a parent or guardian of a child experiences a short-term lapse of memory that causes them to unknowingly leave a child in a car – could happen to anyone. 

Estimates suggest that there are about 5,000 “near misses” each year in Australia, where children are saved from a hot car. Parents are being encouraged to put their own ‘essential belongings’– wallet, phone, handbag etc, in the back seat, near the child/children.

What about involuntary manslaughter?

On occasion, these types of incidents have attracted charges of manslaughter, which is an offence contained in section 18(1)(b) of the Crimes Act 1900 (NSW) that carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that the accused person committed a punishable homicide other than murder.

Punishable homicides other than murder fall into two broad categories:

  • Voluntary manslaughter, and,
  • Involuntary manslaughter.

Voluntary manslaughter

Voluntary manslaughter includes situations where the essential elements of murder were present but your culpability was reduced due to:

  • Provocation, or,
  • Substantial impairment by abnormality of mind.

It also includes situations of ‘excessive self-defence’

Involuntary manslaughter 

Involuntary manslaughter is considered to fall into either one of two categories, resulting in the 

death of another person. 

  1. Manslaughter by unlawful and dangerous act, where the accused person’s conduct: 
  • Was intentional,
  • Was unlawful, and,
  • Was dangerous, but,
  • Was not intended to kill or inflict grievous bodily harm to another person and was not recklessly indifferent to human life.

Conduct was ‘dangerous’ if a reasonable person in your situation would have appreciated that it would expose another person to a risk of serious injury.

  1. Manslaughter by criminal negligence is where the accused person’s conduct:
  • Was done consciously and voluntarily, and,
  • Was criminally negligent, but,
  • Was not intended to kill or inflict grievous bodily harm to another person and was not recklessly indifferent to human life.

‘Criminally negligent’ conduct is defined as falling short of the standard of care that a reasonable person would have exercised in the circumstances and which involved such a high risk of death or grievous bodily harm to another person that it merits criminal punishment.

Mother charged with manslaughter after leaving kids in a hot car 

A Queensland woman who left two toddlers to die in a hot car in Queensland in 2019 and pleaded guilty to manslaughter charges, as well as other associated drugs charges, was sentenced earlier this month to 9 years in prison – with time served she will be eligible for parole next year. 

Many might say it’s impossible to compare the cases, particularly because in the woman’s case, drugs were involved. As Justice Applegarth said at the time of sentencing, the woman’s “meth use was ultimately the cause of her daughters’ deaths and she had failed to learn of its effects on her parenting from previous drug convictions and had left her children in the car on previous occasions.” 

Who decides to press charges? 

Of course, each case is different and after investigations are undertaken by police, evidence and a full assessment is presented to the Office of the Department of Public Prosecutions (ODPP) which will ultimately decide whether or not to press charges against an individual based on three factors which are outlined in the Prosecution Guidelines. 

These are: 

  • Whether the admissible evidence available is capable of establishing each element of the offence;
  • Whether there is a reasonable prospect of a conviction, and if not
  • Whether discretionary factors nevertheless dictate that the matter should not proceed in the public interest.

These factors may be reviewed at any time during the proceedings and charges can be downgrade, upgraded or withdrawn prior to the case proceeding to court.  

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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