Chapter 5
Problems with the current law – is there a need for reform?

Recognising reduced culpability when self-defence does not apply

5.30This section considers the situation where a victim of family violence commits homicide but their circumstances do not fit within the full defence of self-defence.

5.31As the FVDRC notes, not every victim of family violence who kills their abuser will be using physical violence from a position of self-protection as opposed to reacting with anger to the abuse they have suffered.261 Accordingly, even if the complete defence of self-defence is reformed to address the potential problems identified above, it will not necessarily always be available on the facts.

5.32Our terms of reference require us to consider whether a partial defence for victims of family violence is justified. Partial defences (that reduce murder to manslaughter) are only one way in which the law might recognise the reduced culpability of such defendants. Reduced culpability can also be reflected in a lower sentence for murder (where the court has sentencing discretion) or through separate homicide offences with lower penalties.

5.33Since the repeal of the partial defence of provocation in 2009, culpability for murder in all cases (except suicide pacts and infanticide)262 is assessed during sentencing.

What is the perceived problem?

5.34The issue is whether the current law appropriately recognises the culpability of victims of family violence who kill their abuser other than in self-defence.

5.35As we apprehend it, there are two parts to this issue. First, the way New Zealand law has evolved since 2007 may mean that, following repeal of the partial defence of provocation, sentencing outcomes have been harsher than was intended for victims of family violence who kill their abusers. Despite its flaws, provocation was often claimed by victims of family violence, given the absence of any other relevant partial defence. Although New Zealand has abolished the mandatory life sentence for murder, there is a strong presumption in favour of that sentence, and sentencing guidelines, which may have softened the presumption or mandated lower finite terms of imprisonment, have not been pursued. The Commission’s previous recommendations around the repeal of provocation and sentencing guidelines for murder are discussed in Chapter 4 above.

5.36Second, even if the repeal of provocation has not resulted in harsher sentences in individual cases, there may nonetheless be a legitimate need for greater recognition of reduced culpability in these circumstances.

5.37We also note that, since the previous Law Commission Reports, there has been a great deal of overseas law reform in this area. While that work discloses no best practice for partial defences, specific offences or sentencing, it demonstrates there is a range of avenues of reform and offers lessons on which may be most workable. The different approaches adopted in other countries are discussed in Chapter 6 below. We then go on to discuss the different options for reform in Chapters 8 and 9.

Are case outcomes harsher since the repeal of provocation?Top

5.38We have considered convictions and sentences for homicides committed by primary victims of family violence to understand whether outcomes for these defendants are harsher than intended since the repeal of provocation. However, the small number of cases in New Zealand, particularly cases resulting in a murder conviction, makes it difficult to draw meaningful conclusions. Sheehy, Stubbs and Tolmie acknowledged this in their comparative review of Canadian, Australian and New Zealand cases.263
5.39We have identified four relevant murder convictions out of 23 cases decided since 2001. In two of those cases, R v Wihongi264 and R v Rihia,265 the sentencing judge found the test for displacement of the presumption in favour of life imprisonment was met. That was upheld on a Solicitor-General’s appeal in Wihongi, although the Court of Appeal increased the finite term of imprisonment from eight to 12 years.266 In the other two cases, R v Neale267 and R v Reti,268 the defendant was convicted of murder and sentenced to life with a minimum term of 10 years.269 In Neale and Reti, the defendants raised provocation but were unsuccessful. It does not appear that provocation was raised in Wihongi, notwithstanding that the offending took place before repeal of the defence. However the conduct of the deceased was considered and found to be relevant at sentencing.270
5.40It seems Rihia is the only case where a victim of family violence has been convicted of murder since the repeal of provocation in 2009. The sentencing Judge found the defendant, who pleaded guilty to murdering her husband, “just snapp[ed]” when her daughter was removed by Child, Youth and Family staff, responsibility for which she attributed to the deceased.271 The sentencing Judge also considered her “extreme” reaction was “rooted firmly in the abuse [she] had suffered at the hands of Mr Rihia and others throughout [her] life, resulting in the psychological consequences which have been described”.272 A finite sentence of 10 years’ imprisonment was imposed.

5.41Based on the facts in Rihia, it is conceivable that, had provocation been available, the defendant could have been convicted of manslaughter rather than murder. However, that is not a certainty – and we note that provocation was available and relied on in the cases of Reti and Neale, but the jury rejected provocation and convicted the defendants of murder. Rihia is also of limited assistance given the defendant pleaded guilty to murder. Had the defendant gone to trial, she might have been convicted of manslaughter – albeit not by virtue of provocation.

5.42The FVDRC suggests the sentence in Wihongi was out of step with comparable pre-2009 cases in which defendants were convicted of manslaughter, having contended at trial they were provoked.273 However, given the offending in Wihongi (as well as in Reti and Neale) took place before provocation was repealed, we are wary of drawing a link between the abolition of the provocation defence and the sentences imposed.
5.43What may be inferred is that the conduct of the deceased has less effect on the length of sentence now that there is no defence of provocation, compared to when provocation was available and successfully run. This is because, even if life imprisonment is no longer mandatory, a conviction for murder will still carry higher sentencing tariff than for manslaughter. That is not unexpected or objectionable per se.274 However, it might be troubling if repeal of provocation has led to harsher sentences for defendants with “morally significant claims” in mitigation.275
5.44We have also considered the outcomes in cases where the defendant was convicted of manslaughter. Our case review suggests that, in practice, a victim of family violence who commits homicide is likely to be convicted of manslaughter, even if they are charged with murder. This has remained the case following the repeal of provocation. Sentences for manslaughter convictions since 2009 varied from two years’ imprisonment to five years’ three months’ imprisonment.276
5.45We have compared case outcomes since the repeal of provocation with trends in other jurisdictions. The table below compares the trends identified in cases post-2009 in New Zealand with results of similar studies undertaken in Canada from 1990 to 2005 by Sheehy277 and with the Australian results from research conducted by Sheehy, Stubbs and Tolmie referred to at paragraph 3.26 above.278
Outcomes for victims of family violence defending homicide charges in New Zealand (since 2009), Australia (2000–2010) and Canada (1990–2005)
  Murder Manslaughter Acquittal or other disposal
New Zealand 11% 56% 33%
Australia 3% 75% 22%279
Canada 4% 64% 32%280

5.46However given the small number of cases in New Zealand, the statistics are skewed quite heavily by the presence of one murder conviction. Accordingly, this comparison is of little assistance other than indicating, in a very general way, that case outcomes in New Zealand are not grossly out of proportion with comparable jurisdictions. This does not, however, mean that there is no problem with the way in which the law operates, and we discuss in Chapter 3 the phenomenon of “jury nullification”, which may explain manslaughter verdicts in some cases.

5.47While our review of the cases demonstrates that the sentences imposed for murder convictions are, on the whole, significantly higher than the sentences imposed following a manslaughter verdict, it is not clear that the repeal of provocation has caused or is aggravating this differentiation. Three of the murder convictions identified occurred before provocation was repealed. The fourth murder conviction, Rihia, followed a guilty plea. In eight of the other nine cases since repeal of provocation, defendants have either pleaded guilty to manslaughter or, at trial, been convicted of manslaughter or acquitted altogether. In Wihongi, provocation was, as noted above, apparently available but not run.

Is there a need for reform?Top

5.48The FVDRC considers that most victims of family violence who kill their abusers will have a case for self-defence.281 This was also the view of the Justice and Electoral Committee that reviewed the Crimes (Provocation Repeal) Bill,282 and in the 2007 Report, the Commission expressed its view that “[f]or the majority of battered defendants, self-defence will tactically offer a preferable alternative to provocation, because it results in an acquittal”.283 This appears to be borne out by the cases: in six of the eight trials we identified since the abolition of provocation, the defendant relied on self-defence.

5.49However, as noted above, not every victim of family violence who kills their abuser will be acting in self-defence. Some will be acting out of anger in response to a long history of ongoing abuse. Other than the general guidance on mitigating factors in the Sentencing Act 2002 (discussed in Chapter 3), there is no explicit mechanism for recognising a defendant’s culpability may be mitigated or reduced in such circumstances.

5.50Thus, case outcomes aside, there may be a legitimate need for the law to provide for greater recognition of reduced culpability of defendants in these circumstances. That may be because New Zealand’s case sample is too small to offer reassurance that the repeal of provocation has not had unintended consequences or because, the repeal of provocation aside, victims of family violence may be convicted of murder for killing their abuser and receive a significantly longer sentence than victims of family violence convicted of manslaughter.

5.51There are different ways the law can recognise reduced culpability. Our provisional view is that the Commission was on firm ground in concluding that appropriate sentencing reform reduced the case for partial defences. However, that reform has not occurred, and so the merits of partial defences and/or a specific homicide offence warrant review, especially given developments in other jurisdictions. We set out those developments in Chapter 6 below.


Q5 Do you consider there is a case for reform to recognise reduced culpability of victims of family violence who commit homicide (where self-defence does not apply)?

261Family Violence Death Review Committee, above n 2, at 119.
262Infanticide and killing pursuant to a suicide pact are subject to partial defences, in sections 187 and 180 of the Crimes Act 1961.
263Sheehy, Stubbs and Tolmie, above n 163, at 385.
264R v Wihongi HC Napier CRI 2009–041–002096, 30 August 2010.
265R v Rihia, above n 126.
266R v Wihongi, above n 84. R v Wihongi (2012) 12 NZSC.
267R v Neale [2008] BCL 939.
268R v Reti, above n 127.
269The sentencing notes in Neale are spare, running to less than a page. It is apparent the Crown accepted the Court should not impose a minimum term of more than 10 years’ imprisonment, but there is no discussion of the s 102 presumption in the sentencing notes; its application appears not to have been contested.
270R v Wihongi, above n 84, at [88].
271R v Rihia, above n 126, at [28].
272At [30]. Although the Judge did not conclude that abuse was the only relevant factor, noting in addition the defendant’s “years of alcohol abuse”; At [28].
273The Committee contrasts the outcomes in R v Wihongi, above n 33, and R v Rihia, above n 45, with those in R v Suluape, above n 83, and R v King, above n 38 (Family Violence Death Review Committee, above n 2, at 121.).
274The Commission considered this very issue in its 2007 Report, noting the Australian case of Tyne v Tasmania [2005] TASSC 119 at [18], in which the Court noted the sentencing Judge had properly opined that, given provocation had been repealed in Tasmania, “the accused [was] to be sentenced for murder, not manslaughter”. The Commission considered “the Tyne approach is exactly what should occur. That is, if provocation is repealed on the policy basis that the defendants who rely on it are not inherently more deserving of favourable treatment than many others who are presently convicted of murder, then it would make no sense to endorse and take steps to ensure an ongoing lower tariff simply for provocation”. Importantly, however, the Commission went on to observe that “[i]t may be that a more flexible approach to sentencing for murder ought to be taken to allow better recognition of the wide range of mitigating factors (including provocation) that can be present in cases of intentional killing, but that is a different issue” (Law Commission, above n 8, at [196].)
275Horder, above n 130, at 214; The Law Commission acknowledged, in 2007, that, in some cases in which provocation is claimed, “the mitigating nature of the motive may be unalloyed”, citing “battered defendants and the mentally ill or impaired” as paradigm examples. See: Law Commission, above n 8, at [107].
276See paragraph 2.68 above.
277Elizabeth Sheehy Defending Battered Women on Trial : Lessons from the Transcripts (University of British Columbia Press, Vancouver, 2014).
278Sheehy, Stubbs and Tolmie, above n 163.
279Including three per cent of cases resulting in a less serious offence.
280Including one per cent of cases stayed.
281Family Violence Death Review Committee, above n 2, at 119.
282Noting the Law Commission’s 2007 recommendation for repeal of provocation, the Committee stated: “We agree that such defendants [victims of family violence who kill their abusers] would not be unduly disadvantaged by the abolition of the defence. We consider that for the majority of such defendants it would be more appropriate for them to rely on self-defence, which would result in an acquittal rather than a manslaughter conviction” (Crimes (Provocation Repeal) Amendment Bill 2009 (64-2) (select committee report) at 3).
283Law Commission, above n 8, at [121].