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.
5.32Our 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.
5.34The 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.
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.
|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|
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.
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)?