Chapter 2
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 2001.107 While this exercise has methodological challenges108 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.109 This is broadly consistent with the FVDRC’s findings110 and those in an earlier study by the Ministry of Social Development.111 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,112 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”113 and recognition of the defendant as a “battered defendant”114 to a description of the relationship as “physically volatile”115 or a “violent relationship where both parties would instigate violence”.116
(c) In the vast majority of cases, the act that caused death occurred during a confrontation between the defendant and the deceased,117 and in over half of those cases, the confrontation allegedly included physical violence or threats of violence by the deceased against the defendant.118
(d) The defendant almost always used a weapon (typically, but not always, a kitchen knife) in circumstances where the deceased was unarmed.119

Legal outcomes

2.64Data for the 23 cases is set out in the tables below:

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
Original charge Acquittal Convicted of murder Convicted of manslaughter
Murder (n=14) 3 3 8120
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 2009.121 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.122 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,123 one suspended sentence of two years’ imprisonment with supervision124 and sentences of imprisonment ranging from two years to five years six months.125 The one defendant who pleaded guilty to murder was sentenced to 10 years’ imprisonment,126 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,127 and in the other, eight years’ imprisonment, increased on appeal to 12 years’ imprisonment.128

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.

107Being when the Law Commission published its Report Some Criminal Defences with Particular Reference to Battered Defendants.
108Methodological challenges are inevitable as neither jury verdicts, nor their reasons for reaching a verdict, are reported. This means we are limited in the conclusions we can draw from jury verdicts. Additionally, because we can only identify cases indirectly through searches of news databases and of legal databases for reported sentencing notes or related interlocutory or appeal decisions, we cannot guarantee that we have identified all relevant homicides (for example, unreported decisions or homicides that did not result in charges being laid on the basis that the victim of family violence was clearly acting in self-defence). Due to the time constraints on this project, we have not undertaken a full audit of all relevant homicides in New Zealand.
109The FVDRC identified 312 family violence deaths in New Zealand from 2002–2012 out of a total of 776 homicides. See Family Violence Death Review Committee, above n 2 at 34. We identified 18 cases in the same timeframe (and an additional six cases outside this timeframe).
110For the period 2009–2012, the FVDRC identified nine cases where a female primary victim killed a male predominant aggressor and one further suspected case. See: Family Violence Death Review Committee, above n 2 at 75.
111The Ministry of Social Development identified two cases in the five years from 2002 to 2006 of a female against male homicide where there was documented evidence of the male’s violence towards the female in the past and in the context of the event. This accounted for 1.5 per cent of family violence deaths and 0.7 per cent of total homicides for that same period. See: Jennifer Martin and Rhonda Pritchard Learning from Tragedy: Homicide within Families in New Zealand 2002-2006 (Ministry of Social Development, Wellington, 2000) at 38.
112In R v Erstich, the accused was the son of the victim, and in R v Raivaru, the accused was the step-son of the victim.
113R v Rakete [2013] NZHC 1230 at [34].
114R v Wihongi, above n 84, at 776.
115R v Tamati HC Tauranga CRI-2009–087–1868, 27 October 2009 at [4].
116R v Mahari HC Rotorua CRI-2006–070–8179, 14 November 2007 at [24].
117In all but one case (R v Erstich), the fatal act occurred during or immediately following the course of a confrontation with the deceased.
11813 of the 23 cases identified. Those 13 cases (full citations for which are in Appendix B) are Stephens, Raivaru, Stone, Mahari, Reti, Tamati, Wickham, Ford, Woods, Paton, Gerbes, Keefe and Wharerau.
119The only cases where a weapon was not used are R v King, where the defendant crushed 30+ sleeping pills into the defendant’s food, and R v Fairburn, where the defendant drove her car 13 kilometres with her former partner on the car bonnet before crashing and killing him (although arguably the car was the weapon in this case).
120In R v Fairburn, the defendant was initially convicted of murder, but on appeal, the conviction was quashed and a new trial ordered. After the second trial, the defendant was convicted of manslaughter. For the purposes of this analysis, we treat this case as a manslaughter conviction.
121Ten out of the 16 cases that went to trial involved a claim of self-defence. This accounted for five out of ten homicides occurring before provocation was repealed and five out of six homicides occurring after provocation was repealed. In one case (R v Fairburn), self-defence was withheld from the jury, and that was upheld on appeal.
122We have insufficient information to know whether the deceased was violent towards the defendant during the confrontation in R v Neale. In all other cases where the defendant relied on self-defence, it is clear from the sentencing decision or other reports that a violent or threatening confrontation preceded the defendant’s use of force.
123Where the defendant suffered from multiple sclerosis (R v Wickham).
124Where the defendant (the deceased’s son) was 14 at the time of the homicide. This sentence was imposed following appeal of the original sentence of two years’ supervision (R v Erstich). Under the Criminal Justice Act 1985, where an offender was sentenced to a term of imprisonment of between six months and two years, the court was able to make an order suspending the sentence for a period of up to two years (Criminal Justice Act 1985, s 21A). The Sentencing Act 2002 abolished that provision, and so the sentence imposed in Erstich would no longer be an option.
125Taking into account final sentences on appeal.
126R v Rihia [2012] NZHC 2720.
127R v Reti HC Whangarei CRI 2007–027–002103, 9 December 2008; R v Neale HC Auckland CRI-2007–004–3059, 12 June 2009.
128R v Wihongi, above n 84.