The current law
Partial defences and sentencing
3.15Partial defences are only available in homicide cases. They recognise situations where lethal force is used in circumstances that mitigate the defendant’s culpability or blameworthiness for using violence. Unlike self-defence, which is a complete defence, partial defences operate only to reduce murder to manslaughter. Their historic rationale was to circumvent the mandatory sentence for murder (whether capital punishment or, more recently, life imprisonment) in cases with mitigating features.
3.16The mandatory life sentence for murder was abolished in New Zealand with the passage of the Sentencing Act 2002, and the partial defence of provocation was abolished in 2009. The history behind the repeal of provocation is discussed in Chapter 4 of this Issues Paper.
3.17The only remaining partial defences under New Zealand law are infanticide and killing pursuant to a suicide pact, both of which are not relevant to victims of family violence who kill their abusers. Unlike a number of other jurisdictions, New Zealand law does not recognise excessive self-defence as a partial defence. Where the defendant uses more force than the law allows, he or she is liable for the full consequences of the offence – there is no “intermediate category of exculpation”. Nor does New Zealand law recognise a general partial defence of “diminished responsibility”, although infanticide is a limited form of that defence. These partial defences are discussed in Chapters 6 and 8 of this Issues Paper.
Assessing defendant culpability at sentencing
3.18Under the Sentencing Act, life imprisonment is the presumptive sentence for murder, but a court may impose a lesser sentence if “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”. In R v Rapira, the Court of Appeal held manifest injustice in terms of section 102 would be established only in exceptional cases but noted Parliament’s apparent intention that cases with evidence of prolonged and severe abuse might qualify.
3.19The Sentencing Act lists a number of mitigating factors the court must take into account in sentencing and provides that the court can take into account any other mitigating factor it thinks fit. Relevant mitigating factors that must be taken into account include:
(a) the conduct of the victim (in homicide cases, the deceased);
(b) that the defendant has, or had at the time the offence was committed, diminished intellectual capacity or understanding;
(c) any remorse shown by the defendant; and
(d) any evidence of the defendant’s previous good character.
3.20Sentencing decisions in respect of victims of family violence who killed their abuser are discussed in Chapter 5.