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Neave, Marcia --- "Flomicide Sentences: Taking Culpability Into Account" [2005] ALRCRefJl 8; (2005) 86 Australian Law Reform Commission Reform Journal 33


Reform Issue 86 Winter 2005

This article appeared on pages 33 – 35 of the original journal.

Homicide sentences: Taking culpability into account

By Marcia Neave*

The Victorian Law Reform Commission’s Defences to Homicide final report was released at a time of intense public interest in the partial defence of provocation and in the sentencing of people convicted of murder or manslaughter.

One of the terms of reference for the homicide review asked the Commission to consider whether plea and sentencing practices were ‘sufficiently flexible and fair to accommodate differences in culpability between offenders who are found guilty of, or plead guilty to, murder or manslaughter’.

The final report recommended changes to homicide defences, including the abolition of provocation and introduction of a partial excuse of excessive self-defence, and proposed that the Office of the Director of Public Prosecutions develop guidelines requiring documentation of all plea negotiations in homicide cases. It also made recommendations on sentencing, including improving the collection of statistical information on sentencing, systematic provision of information on sentencing to judges and changes to the rules of evidence.

Sentencing recommendations in the final report were intended to cover cases where a person who might previously have been convicted of manslaughter on the basis of provocation is convicted of murder, and cases where a person is convicted of manslaughter because they successfully rely on excessive self-defence.

Public and judicial education on family violence and its implications for sentencing were also recommended.

Abolition of provocation

A well publicised homicide trial at the end of 2004, R v Ramage,1 triggered the community’s interest in the rights and wrongs of the partial defence of provocation and the sentences handed down in cases where it was successfully argued.

Sentencing, or rather the mandatory death sentence, played a large part in the evolution of provocation as a defence for those charged with murder. The existence of provocation as a partial justification or excuse is inextricably linked with the desire to mitigate the harshness of a mandatory sentence.

One of the reasons the report recommended abolition of provocation was that the death penalty was abolished many years ago and Victoria has not had a mandatory life sentence for murder since 1986.2 In Victoria, provocation is not available as a partial or complete defence to other crimes (such as assault) and is only relevant in sentencing for those offences.

The guiding principle in the report was that differences in degrees of culpability generally should be dealt with through the sentencing process, rather than through the existence of partial excuses. Provision for a partial excuse of excessive self-defence is an exception to this principle. Our approach required us to consider the sentencing implications of abolishing provocation and reintroducing the partial excuse of excessive self-defence.

Differences of culpability

The Sentencing Act 1991 (Vic) already provides for a broad range of factors to be taken into account at sentencing in Part 2, s 5(2). It requires the court to have regard to, among other things, the

• nature and gravity of the offence;

• offender’s culpability and degree of responsibility for the offence;

• personal circumstances of any victim of the offence;

• offender’s previous character; and

• presence of any aggravating or mitigating factor concerning the offender, or of any other relevant circumstances.

In Victoria, the prescribed maximum sentence for murder is life imprisonment. Manslaughter attracts a maximum of 20 years imprisonment and infanticide a maximum of five years.3

The most recent sentencing statistics show that most convicted murderers received a total effective sentence of imprisonment of 15–20 years, with a non-parole period of 15–20 years, and 19 per cent received a life sentence.4

The Commission’s final report recommends that judges should consider the full range of sentencing options when sentencing an offender for murder in circumstances where the accused might previously have been convicted of manslaughter on the grounds of provocation.

Family violence

Our report focuses heavily on homicides that involved intimate partners. In most of these cases men killed their partners or ex-partners. Often the offender had been violent to the deceased for many years before he killed her. In the rare cases when women killed their partners they often did so following a long history of abuse.

If the Commission’s recommendations are implemented, some victims of family violence who kill their partner may be acquitted and some may be convicted of manslaughter, because they plead guilty to manslaughter on the basis of excessive self-defence or successfully raise excessive self-defence at trial.5 Some defendants who would previously have been able to rely on provocation may be convicted of murder. While the Commission’s recommendations are intended to assist victims of prior violence to put relevant information before the judge and jury about the context of the killing, there may be cases in which the accused is unable to establish that his or her actions were carried out in self-defence.

It is rare for an accused to receive a non-custodial sentence for murder. The latest Victorian sentencing statistics (2002/03) show only three of 34 offenders were not imprisoned.6 As murder convictions normally attract longer sentences than manslaughter convictions in Victoria, changes will be necessary to ensure sentences of people who kill in response to family violence do not increase substantially simply as a result of the abolition of provocation. The Commission has recommended the tracking of sentencing information to alert the courts to this problem if it arises.

The Commission also recommends the introduction of expert evidence about the nature of family violence to help judges consider how much weight should be placed on prior violence as a mitigating or aggravating factor.

Professor Julie Stubbs and Julia Tolmie believe legal responses to family violence insufficiently recognise the social realities that may lead women to kill their abuser.

They say that the lack of understanding from courts about the dynamics of family violence includes:

• not recognising the connection between a killing and past violence;

• not recognising that a woman who uses physical force is often acting in self-defence rather than instigating violence;

• judging women who fight back more harshly than those who are passive;

• not understanding the social factors which lead some people to react violently; and

• treating women who abuse alcohol or neglect their children more harshly than women who ‘cope’ better, even though their behaviour may be linked to the abuse they have suffered.7

Expert evidence could be introduced at trial or at sentencing to explain why women may not have sought help, why they have stayed in a violent relationship and why they have not reported the violence to police. Evidence about family violence may also assist judges and juries to put the actions of abusive men who kill their partners into context—for example, as the culmination of a pattern of ongoing violence rather than a one-off loss of control.

A greater range of evidence, along with professional education, could help judges to better understand the impact of ongoing family violence. The Court of Appeal could also consider articulating sentencing principles to assist trial judges when sentencing people convicted of murder or manslaughter in situations where the killing is an escalation of earlier violence, or where the offender was the victim of family violence.

The abolition of provocation will require judges to think about the range of sentences for men who kill their partners or ex-partners. At the moment, there is significant variability in the sentences they receive, depending on whether they are convicted of murder or manslaughter (as a result of a successful provocation defence or an inability by the Crown to prove an intention to kill or cause serious injury).

Giving judges access to more up-to-date and comprehensive sentencing statistics could help to increase consistency in sentencing.

Sentencing Advisory Council

When making the final report’s recommendations, the Commission was able to refer some of the public education and statistical information recommendations to the recently established Sentencing Advisory Council, which has been set up as a statutory authority under the chairmanship of Professor Arie Freiberg.

The Council’s role is to collect and publish statistical information on sentencing, conduct research, disseminate information, gauge public opinion, consult with the public about sentencing matters and advise the Attorney-General.8 The Council received its first reference in August 2004 to report on the current use of suspended sentences and whether their operation can be improved in any way.

The Commission’s final report recommends the Council play a role in better informing the public about sentencing for murder, especially if provocation is abolished. It is important that the public understand that suspended or short sentences for murder may not be the result of a sudden softening of the justice system, but a reappraisal of how defences operate and how factors such as a history of prior violence should be taken into account. This is not to suggest that shorter sentences will be appropriate in all cases where provocation might previously have been argued, but rather that the particular circumstances of the offence and/or the offender may justify a merciful response in some cases (for example, where victims of abuse kill their partner but are unable to establish they acted in self-defence).

The Council’s role in publishing statistical information about sentencing and monitoring trends is important for the homicide recommendations as it will be a vital method of tracking the success of any changes, and ensuring judges have access to relevant information.

Package of reforms

The Commission’s report proposes a package of reforms. The recommendations concerning sentencing are a direct consequence of recommendations about which defences should apply and what evidence should be admitted. The report and its recommendations are now being considered by the Victorian government.

* Professor Marcia Neave AO is the Chairperson of the Victorian Law Reform Commission. She is currently on leave from Monash University, where she holds a personal chair in the Faculty of Law.

Endnotes

1. Ramage was convicted of manslaughter on the basis that the Crown had failed to negate provocation. He was sentenced to 11 years’ imprisonment, with a non-parole period of eight years: R v Ramage [2004] VSC 508.

2. The mandatory death sentence for murder was changed in 1975 to mandatory life imprisonment. In 1986 this was changed again to allow the judge discretion in sentencing.

3. Crimes Act 1958 (Vic) ss 3, 56.

4. Department of Justice Court Services, Victorian Higher Courts Sentencing Statistics: 2002/2003 (2004), tables 17 and 18. A total effective sentence is ‘the aggregate of all sentencing components taking into account the court’s directions about concurrent and cumulative sentences’: Department of Justice Court Services, Victorian Higher Courts Sentencing Statistic 1997/1998 to 2001/2002, 3.

5. As is currently the case, they may also be charged with manslaughter on the basis that they lacked the intention to kill or cause serious injury to the deceased, or argue lack of intention at trial.

6. Department of Justice Court Services, Victorian Higher Courts Sentencing Statistics: 2002/2003 (2004), table 14.

7. J Stubbs & J Tolmie, ‘Defending Battered Women on Charges of Homicide: The Structural and Systemic Versus the Personal and Particular’ in W Chang, D Chunn & R Menzies (eds), Women, Mental Disorder and the Law (forthcoming 2005), 12.

8. Victoria, Parliamentary Debates, Legislative Assembly, 20 March 2003, 478 (R Hulls—Attorney-General).


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