Other options for reform
Greater flexibility in murder sentencing
9.1Along with verdicts on guilt, sentencing is a part of the criminal justice process that permits assessment of a defendant’s culpability. Unlike verdicts, which are “black and white”, however, sentencing is better suited to nuanced evaluation of culpability. The Commission emphasised this in its 2007 Report when it concluded sentencing is the best forum for consideration of matters otherwise addressed by partial defences. By partial defences, it considered, “the law… treats as black and white issues that are more appropriately graded along a continuum”.
9.2Murder sentencing is more flexible now than before, due to the abolition of the mandatory sentence of life imprisonment, but there remains a strong presumption in favour of that sentence. Currently, a defendant convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, such sentence would be manifestly unjust. In R v Rapira, the Court of Appeal confirmed the threshold for rebutting the section 102 presumption is high and likely to be met only in exceptional cases. Cases involving evidence of “severe and prolonged abuse” may, however, qualify.
9.3As noted above, we have identified four cases where a victim of family violence has been convicted of murder since 2001, three of which pre-dated the repeal of provocation. In two of those cases (Wihongi (2009) and Rihia (2010)), the presumption of life imprisonment was displaced, but the finite terms imposed were substantially higher than those in earlier cases where a victim of family violence was convicted of manslaughter.
9.4Further flexibility in murder sentencing could be achieved in a number of ways. One option is to lower the section 102 threshold for imposition of a sentence of less than life imprisonment. Another is to provide guidance on the application and displacement of section 102 where family violence is at issue.
9.5A third possibility is to expand on the mitigating factors listed in section 9 and/or provide guidance on sentence tariffs for cases of this kind. Young and King have noted that, although the inclusion of aggravating and mitigating factors in the Sentencing Act largely only codified the approach already being taken by the courts, the Act’s inclusion of a list of particular factors is significant because it “demonstrates Parliament’s view that the specification of aggravating and mitigating factors is primarily a legislative rather than a judicial responsibility”. Inclusion of further legislative guidance on the potentially mitigating effect of family violence would, therefore, seem to be consistent with the principles of the Sentencing Act.
Questions for consultation
Q18 Do you think there should be any changes to sentencing law (for example, the introduction of further mitigating factors, or guidance on displacement of the threshold in section 102 of the Sentencing Act 2002) to better provide for victims of family violence who commit homicide?