Understanding family violence
Homicides by primary victims of family violence
2.62To support our understanding of the context in which victims of family violence kill their abuser, and how the law responds in these circumstances, we have reviewed relevant homicide cases decided since 2001. While this exercise has methodological challenges and the sample size is too small to draw firm conclusions, it provides some insight and context for our terms of reference.
2.63We identified 23 homicides that are within our terms of reference. This accounts for approximately six per cent of all family violence-related homicides per year or two per cent of all homicides in New Zealand. This is broadly consistent with the FVDRC’s findings and those in an earlier study by the Ministry of Social Development. A table summarising the 23 cases is in Appendix B. The following features emerge:
(a) The defendants were mainly, but not always, the female partner of the deceased, and in all cases, the deceased was male.
(b) The extent of violence in the relationship and how it is described by both the defendant and the sentencing judge varies significantly – from a clear description of the deceased as the “primary aggressor” and recognition of the defendant as a “battered defendant” to a description of the relationship as “physically volatile” or a “violent relationship where both parties would instigate violence”.
(c) In the vast majority of cases, the act that caused death occurred during a confrontation between the defendant and the deceased, and in over half of those cases, the confrontation allegedly included physical violence or threats of violence by the deceased against the defendant.
(d) The defendant almost always used a weapon (typically, but not always, a kitchen knife) in circumstances where the deceased was unarmed.
2.64Data for the 23 cases is set out in the tables below:
|DISPOSAL OF CHARGES |
|Original charge ||Guilty plea to murder ||Guilty plea to manslaughter ||Charges defended at trial |
|Murder (n=17) ||1 ||2 ||14 |
|Manslaughter (n=6) ||- ||4 ||2 |
|TOTAL (n=23) ||1 ||6 ||16 |
|TRIAL RESULTS |
|Original charge ||Acquittal ||Convicted of murder ||Convicted of manslaughter |
|Murder (n=14) ||3 ||3 ||8 |
|Manslaughter (n=2) ||1 ||- ||1 |
|TOTAL (n=16) ||4 ||3 ||9 |
2.65The defendant relied on self-defence in the majority of cases going to trial, with increased reliance on self-defence following the repeal of the partial defence of provocation in 2009. In the eight cases where self-defence was put to the jury, three cases resulted in an acquittal, and five cases resulted in a conviction for manslaughter.
2.66In most cases where the defendant relied on self-defence, the deceased was killed in a confrontation during which the defendant alleged the deceased was physically violent or threatening. There was an independent witness in each of the cases where the defendant was acquitted.
2.67Provocation was relied on in half of the cases that went to trial before its repeal in 2009. In all cases tried before 2009, the accused was charged with murder. In three of the five cases where provocation was relied on the defendant was convicted of manslaughter. In two of the four cases where the accused pleaded guilty to manslaughter before 2009, it was either accepted or intimated during sentencing that provocation would have been engaged had the case gone to trial.
2.68The sentences for manslaughter included one of 12 months’ home detention, one suspended sentence of two years’ imprisonment with supervision and sentences of imprisonment ranging from two years to five years six months. The one defendant who pleaded guilty to murder was sentenced to 10 years’ imprisonment, and the sentences imposed following convictions for murder at trial were, in two cases, life imprisonment with a minimum non-parole period of 10 years, and in the other, eight years’ imprisonment, increased on appeal to 12 years’ imprisonment.
2.69We discuss characteristics of homicides by primary victims of family violence in other parts of this Issues Paper, where we analyse the problems in this area of the law and the options for reform.
Questions for consultation
Q2 We welcome feedback on our discussion of family violence and the circumstances of primary victims who kill their abusers.