Contents

Chapter 11
Sentencing for homicide

Mitigating factors under the Sentencing Act

11.14The Sentencing Act prescribes several mitigating factors to be taken into account by the sentencing judge, including the following that might be relevant where a victim of family violence kills their abuser:

11.15Depending on the circumstances, other mitigating factors such as the offender’s age may also be relevant. There may also be aggravating factors. In all cases of the type we are concerned with, however, the conduct of the deceased and diminished capacity of the offender are potentially prominent issues and worthy of particular consideration.

11.16Mitigating factors can relate to the nature of the offending or the personal circumstances of the offender, which affect assessment of their culpability relative to others convicted of similar offending.967 While the conduct of the deceased is relevant to the nature of the offending, the offender’s mental state is a personal mitigating factor. Mitigating factors can also arise in combination. This is particularly likely in cases where the offending can be attributed in part to the deceased’s conduct and in part to the offender’s psychological state. Homicides by victims of family violence of their abusers will often be cases of this sort.

11.17Unlike a defence or partial defence, which is either accepted or rejected, a mitigating factor can be given a different weighting depending on the circumstances of the case. For example, in a case where abuse was particularly severe but self-defence is not made out, the judge would still have scope to recognise that mitigating circumstance through a sentencing discount.

Conduct of the deceased

11.18In cases in which victims of family violence kill their abusers, the conduct of the deceased is likely to be the most obvious mitigating factor.

11.19The Court of Appeal has made it clear that the behaviour of the victim of the offending includes behaviour that provokes a violent reaction or that justifies a degree of force, albeit less than that used.968 Below, we consider recent statements by the Court of Appeal setting out how prior violence by the victim of the offending should be considered as a matter of law. We then discuss how this issue has been treated in the cases we have reviewed.
11.20The leading case relevant to this review is Tuau v R.969 The offender was an adult man convicted of wounding with intent to cause grievous bodily harm after he stabbed his father through the eye with a knife. He had been abused by his father as a child and was living with him temporarily following the death of his mother. On the day of the offending, the father had accused the offender of being a child molester. At issue in the appeal was the extent of sentencing discount appropriate for each of three features: the provocation on the day of the offending and in the immediate prior period, the history of abuse by the father towards his family including the offender and the way the offender’s schizophrenia and paranoia made him perceive the situation. The Court of Appeal held that the history of abuse by the father was a mitigating factor that should be taken into account when considering the offender’s response to the provocation that precipitated the offending. The Court said:970

[The pattern of prior violence] explains how [the offender] decided he had no alternative but to attack his father to avoid being attacked; and no alternative but to render his father unconscious and stab him out of fear that, unless he went that distance, his father would retaliate with even greater force.

11.21While noting the three factors identified converged and it was important not to over-count, the Court of Appeal considered the trial Judge “should have allowed Mr Tuau a significantly greater discount than he did to recognise why it was that he offended and as seriously as he did”.971 This is a clear statement that the historical conduct of the victim of the offending is relevant to how the immediate conduct is viewed. It strongly supports an approach of considering the immediately threatening conduct in the wider context of family violence. In Tuau, the offender’s sentence was reduced by a year to four and a half years.
11.22As for sentencing methodology, the standard approach, as explained by the Court of Appeal in R v Taueki, is to fix a starting point by reference to the aggravating and mitigagting features of the offending, of which “conduct of the victim” may be one.972 This may, however, be done in different ways. For example, in R v Paton,973 the Judge fixed the starting point by reference to previous manslaughter cases where victims of family violence had killed their abusers.974 In another manslaughter case, R v Rakete,975 the Judge explained that, but for any mitigating factors, he would set a starting point of between three years six months and four years. He then adverted expressly to the conduct of the deceased as a mitigating factor, saying:976

The victim was the primary aggressor, a much larger person than you, intoxicated and threatening toward you. In reaching this view I have had regard to evidence of his aggression earlier in the day and at the time of the incident (though as I have said I do not accept that there was a verbal threat to kill), and I have had regard to the evidence of his prior acts of violence towards you in a domestic context and when he was jealous of another man.

11.23Given the prior acts of violence by the deceased, as well two other mitigating factors relevant to the circumstances of the offending (that Ms Rakete was fearful of an assault and that the use of weapon was largely impulsive and motivated primarily by fear), the Judge adopted a starting point of three years.977
11.24Adoption of a starting point based on analogous cases, as in Paton, may promote sentencing consistency, a goal affirmed by section 8(e) of the Sentencing Act. However, this way of achieving sentencing consistency may tend to reinforce the approach of previous cases, which will not always be helpful.978 Where a victim of family violence is convicted of killing an abuser, a focus on previous cases might, for example, inhibit consideration of offending in light of up-to-date research about family violence – notwithstanding the useful precedent set in Tuau. We expect our recommendations for continued education will, to some extent, address this concern.

Diminished capacityTop

11.25When a victim of family violence kills their abuser, the conduct of the deceased will often be the most relevant mitigating factor. It enables the sentencing judge to understand, consistent with contemporary social science, family violence as a pattern of harmful behaviour that belongs to the abuser, rather than the relationship or the family violence victim.979 However, consideration of that factor alone may not always be sufficient to capture the full range of mitigating features in the present case. As discussed in Chapter 2, the cumulative and compounding effect of family violence can result in a raft of secondary issues such as mental health issues. For example, in many of the cases we reviewed the offender was said to be suffering from post-traumatic stress disorder at the time of the offending.980 Further, many offenders have a long history of being abused not just by the deceased but by others. These matters can be taken into account in sentencing under the mitigating factor of diminished capacity or understanding.

11.26In Chapter 10, we considered the possibility of a partial defence based in diminished responsibility. A persuasive argument against such a partial defence is that the offender’s psychological characteristics are better considered in sentencing, where a more flexible approach is available. In sentencing, the offender does not need to demonstrate that their mental functioning falls below a prescribed level of criminal responsibility. Instead, any level of impaired decision making is potentially relevant if it contributes to the offending, and the weight given to this factor can be tailored to the degree of impairment.

11.27The Court of Appeal case of R v Whiu981 is significant for the category of offenders within the scope of this review. In Whiu, the offender drove dangerously while intoxicated and caused the death of another driver. She was charged with manslaughter. She had earlier been driving the car with her abusive partner who had ordered her to drive him, punched through the glass of one of the windows and continued punching her while she drove. After he instructed her to drop him off, she drove back towards their home and crashed into another car on her street. The other driver later died, and the passenger’s injuries were serious.
11.28The Court of Appeal considered the extent to which psychological effects resulting from a history of intimate partner violence were mitigating. As the deceased in this case was an innocent bystander, there was no question of the contribution of the deceased’s conduct to the offending. The Court noted that “the appellant’s characteristics or symptoms must be related to what occurred if they are to have any significance in terms of her sentencing”,982 and made the following observations:983

… we agree that it is not necessary for there to be a formal diagnosis of battered women’s syndrome before prolonged abuse suffered by a woman at the hands of a partner or family member can be taken into account on sentencing. The critical point is that, whatever label is used, there must be evidence which supports the view that prolonged abuse suffered by an offender materially contributed to her offending. Typically a psychiatrist or psychologist would give such evidence, and where it exists, it should be taken into account like any other relevant factor.

If an offender wishes to argue that she has suffered prolonged abuse at the hands of a partner or family member and that this has contributed materially to her offending and so is relevant to sentence, she will have to point to an evidential basis for the submission. The evidence will need to address the underlying facts of the abuse, its impact on the offender and the way in which it is said to have made a material contribution to the offending.

11.29The Court accepted that the psychological effects of sustained abuse were relevant as a mitigating factor and justified a discount in the order of 20–25 per cent from the starting point.984
11.30The cases in our review demonstrate a mixed approach to the offender’s psychological state as a mitigating factor. Some include extensive discussion, while others touch on the issue briefly or not at all.985 This factor is sometimes identified to explain a verdict of manslaughter rather than murder – for example, that the offender’s prolonged history as a victim of extreme violence means they cannot be taken to have appreciated, in the same way as a person not exposed to high levels of violence, that the wound they inflicted was likely to cause death.986
11.31In some cases, the cumulative effect of abuse from different people including the deceased will be relevant to the offender’s psychological state. In R v Fairburn, the Judge took account of the offender’s history as a victim of family violence and sexual abuse, including the way that history informed the offender’s belief that the deceased was a threat to both the offender and her daughter.987

Evidence of diminished capacity

11.32While the judgment in Whiu expressly provided that psychological effects are relevant, it imposed an evidential requirement. It is not enough for the defendant to assert they have suffered abuse that has caused psychological disturbance relevant to the offending. There must be an evidential basis for that claim.

11.33A defendant’s lawyer may seek to present relevant evidence, and under the Criminal Procedure (Mentally Impaired Persons) Act 2003, in some circumstances, a court may on its own initiative order a health assessor such as a psychologist or psychiatrist to prepare a report even if counsel does not. Section 38(1) provides that such a report may be ordered to assist the court to determine whether a person is unfit to stand trial or is insane, the type and length of sentence that might be imposed and the nature of a requirement the court may impose as part of, or a condition of, a sentence or order. A report might also be ordered by the court even if another report has been separately arranged by counsel for the defendant.988 Section 48, however, is not a general power to require relevant expert evidence for proceedings beyond the purposes specified in section 38(1). It does not provide for the provision of expert evidence at trial generally, for example, to explain the dynamics of family violence relevant to a claim of self-defence. Such expert evidence was discussed in Chapter 7 above.
11.34Therefore, at least in cases where the court has sufficient information to identify a need for evidence from a health assessor for sentencing purposes and section 38 applies,989 this provision could avoid prejudice if evidence about an offender’s psychological state is not sought or made available for sentencing by counsel. There may, however, still be variation in access to expert evidence and depending on whether the court invokes section 38 in a given case, the costs of a defendant obtaining it independently may be a barrier, especially for offenders whose legal representation is being paid for through legal aid.990
11.35If psychological reports (whether court-ordered or otherwise) are prepared and taken into account, this can lead to a significantly reduced sentence. In Rakete, for example, the Judge, Whata J, recorded:991

While your PTSD does not excuse what you have done; your action, or more correctly, your over reaction, occurred against a backdrop of [...] emotional fragility and dysfunction caused by it. Indeed I am satisfied, applying the various clinical factors also identified by Dr Evans, that all of this affected your capacity to act in a proportionate way when confronting Mr Simeon. Secondly, a lengthy term of imprisonment is likely to have a disproportionate effect on you given your history of social phobia, agoraphobia and the panic attacks. I refer also to the report by the Ashburn Clinic which raises concerns about your ability to cope if imprisoned. Third, the likelihood of reoffending is low as your current offending is very context specific.

These factors taken together support a discount of 20%. I note for completeness that I did not include your psychiatric condition [...] in formulating the starting point for the offending – so there is no double counting. Rather, I preferred to apply a discount after fixing the starting point for offending, in a transparent way, to acknowledge the impact of your emotional and mental health on your offending and for the purpose of understanding the full impact of a sentence of imprisonment on you.

11.36Within our sample, there are also cases in which psychological effects of intimate partner violence are not explicitly considered as a mitigating factor, despite there being sufficient comment about the offender’s history that this would seem to be relevant. In Rakete, quoted above, Whata J went on to say “while your condition does not form part of the observable facts of the offending, I consider that it is a relevant factor when assessing your overall culpability but only with the benefit of expert evidence”.992 Given the extent of the sentencing discount that may be provided, there is a risk of injustice if potentially relevant evidence is not before the court, although, as we have noted, section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 provides some guard against this.

Reform to mitigating factors under section 9 of the Sentencing ActTop

Nature of the problem

11.37We have considered whether some reform is required to ensure that family violence is properly considered as a mitigating factor in cases where victims of family violence kill their abusers. Our review suggests that while the reduced culpability of family violence victims can be taken into account in sentencing, there may be inconsistencies in approach. Whether and to what extent that is so is difficult to be sure of given, as we have noted, that a key mitigating factor – the conduct of the victim – may routinely be factored into the sentence starting point.

11.38In these circumstances, arguments for and against reform are finely balanced. We are mindful of the need to avoid unintended consequences and to ensure that the reform is targeted to the identified problems. In our view, the most significant problems are as follows:

Suggested reform

11.39We consider any risk of inconsistency could be addressed through:

11.40This would help ensure that family violence is brought to the attention of judges and would prompt defence lawyers to consider the need for submissions targeted at these areas and supported by expert evidence. Inclusion of these factors in the statute may also make it more straightforward for lawyers to apply for legal aid funding for expert evidence in the event evidence is not otherwise before the Court.

11.41We recognise that, in some cases, relevant “conduct of the victim” (that is, the deceased, in homicide cases) may include prior family violence against people other than the offender (for example, a child or a parent, as in R v Raivaru). Despite this, our recommended amendment to section 9(2)(c) is limited to violence against the offender. There are two reasons for this:

11.42These recommendations complement our approach to self-defence. Even with an expanded definition of self-defence, there will be cases of homicide against an abuser that fail the test because the force used is not a reasonable response to the threat. There will also be cases, like Rihia, in which the fatal attack occurred in the extenuating context of prior violence but was not primarily related to the perception of a future threat. In such cases, there is a need for a flexible approach to recognise both the harm caused by the offending and the mitigating factors.

11.43As with self-defence, we do not suggest restricting the reforms to homicide. Similar issues will arise for other offences by a primary victim against a predominant aggressor, such as assault, and it is important that these too can be recognised.

Analysis of reform

11.44The list of factors in the Sentencing Act “demonstrates Parliament’s view that the specification [of factors] is primarily a legislative rather than a judicial responsibility”.998 While judges can take account of any relevant factor, it is open to Parliament to guide the courts to take particular account of certain features relevant to the offending. If there is a case that judges may give too little or inconsistent weight to family violence, this suggests there is an argument for reform.

11.45The counter argument is that reform is not needed because the experience of family violence victims can be considered within the ambit of existing mitigating factors. The law already allows judges to impose reduced sentences for offenders who kill primary abusers.

11.46Fair sentencing practice can, however, be promoted and ensured only if those involved in sentencing – the lawyers for both sides, experts preparing reports and the judge – are aware of the nature of family violence and able to consider the offender’s circumstances based on evidence rather than misconceptions. We are not satisfied this is currently achieved in all cases. We have considered whether the problems identified can be adequately addressed through education and have reached the view that education is likely to be helpful but not sufficient. Education does not carry the force of legislation.

11.47Our assessment is that there is a case for a declaratory provision in the statute to draw attention to family violence as a feature within the scope of existing mitigating factors. In the absence of a facility such as sentencing guidelines (which we understand are unlikely to be introduced in the near future), greater detail in the statute is warranted.999  In particular, we are concerned that the highly relevant feature of historical conduct of the deceased may not always be given sufficient weight and that it is possible evidence on psychological effects of sustained family violence may not always be sought or available. Statutory recognition of family violence – as it relates to existing grounds of mitigation – would help in this regard.

11.48At the same time, we acknowledge that judicial flexibility needs to be protected. It is generally accepted that the question of relative weighting of mitigating and aggravating factors should be left to the sentencing judge, who is best placed to consider all relevant features of the offending. For this reason, we do not suggest anything more prescriptive than the amendments outlined above. As these amendments are consistent with statements in recent Court of Appeal cases, we perceive a minimal risk of unintentional consequences.

Alternative option considered and not preferred

11.49We have considered the alternative of adding a new mitigating factor, such as “the offender’s actions are the direct result of being a victim of family violence”. An option along these lines was suggested in the Issues Paper. We have reached the view that this raises several complicated issues of application, but for completeness, we set out the arguments for and against this option.

11.50The chief argument in favour of this approach, as compared with the more conservative option above, is that it would provide a stronger signal on how a history of family violence should be considered in sentencing. However, as a more significant reform, we are concerned with how it might be applied.

11.51We are mindful that violent offenders – both men and women – are overwhelmingly more likely than the general population to have themselves been victims of violence, including sustained violence throughout childhood.1000 Whether such previous abuse is directly causative of offending will be difficult to assess, and judges may interpret a new mitigating factor based on experiences of family violence more broadly than we anticipate. This would raise policy issues that are well outside the scope of this project and that we do not have time to consider. On one view, a history of family violence can be seen as mitigating moral culpability because the offender’s background is one in which violence is normalised. Conversely, from the perspective of community protection, this group of offenders may have complex rehabilitative requirements and pose a higher risk of reoffending – therefore potentially justifying longer sentences. These are fairly significant issues of policy that affect a wide range of offending types and offenders. They would require an examination of rehabilitation services as well as sentencing law. Such matters are not within our terms of reference.

Recommendation

965Sentencing Act 2002, s 9(2)(c).
966Sentencing Act 2002, s 9(2)(e).
967See R v Taueki [2005] 3 NZLR 372 (CA), where the Court of Appeal cited R v Mako [2000] 2 NZLR 170 (CA), noting: 
The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding aggravating and mitigating features relating to the offender. Put another way, a starting point “is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.”
968R v Taueki, above n 967, at [32].
969Tuau v R [2012] NZCA 146.
970Tuau v R, above n 969.
971At [47].
972R v Taueke, above n 967, at [8].
973R v Paton [2013] NZHC 21.
974At [14].
975R v Rakete [2013] NZHC 1230.
976At [34].
977R v Rakete, above n 975, at [36]. The ultimate sentence, with discounts for mitigating factors to the defendant personally, was two years’ imprisonment. At [40]–[48].
978Julia Tolmie has suggested that Paton demonstrates deficiencies in the “standardised” approach to sentencing that requires determination of a starting point, by reference to certain aggravating features of the offending, and then adjustment to take account of the offender’s personal circumstances. Tolmie considers it is arguable this process “supports and replicates many of the misconceptions about family violence … It places primary focus on one incident of violence, decontextualized from the history of violence, the larger architecture of coercive control in the relationship and the entrapment of the victim.” The author acknowledges that a history of family violence victimisation is sometimes factored into the sentence starting point in these cases, but that is “not a given”: Julia Tolmie “Defending Battered Defendants on Homicide Charges in New Zealand: The Impact of Abolishing the Partial Defences to Murder” [2015] NZ L Rev 649 at 675–677.
979Family Violence Death Review Committee Fifth Report: January 2014 to December 2015 (Health Quality & Safety Commission, February 2016) at 36.
980For example, Rakete, above n 975, at [40]; Wihongi, above n 963, at [34]; Rihia, above n 964, at [20]; R v Reti [2009] NZCA 271 at [5]; and R v King CA71/06, 11 August 2006 at [22].
981R v Whiu [2007] NZCA 591.
982At [30].
983At [32] and [37].
984The Court rejected the submission that, in order to properly reflect the experiences of offenders who have suffered abuse, this mitigating factor should be taken into account in fixing the starting point and concluded there was “no reason of principle to treat post-traumatic stress disorder arising from battered women’s syndrome differently” to other psychological and behavioural conditions relevant to sentencing (at [33]). See Tolmie, above n 978, at n 152.
985Cases in which no reference is made to psychological reports include R v Paton, above n 973; R v Neale HC Auckland CRI-2007-004-3059, 12 June 2009; R v Tamati HC Tauranga CRI-2009-087-0868, 27 October 2009; and Wharerau (HC), above n 960.
986R v Paton, above n 973, at [11].
987R v Fairburn [2012] NZHC 28 at [37].
988Togia v Police [2012] NZCA 544, [2013] 2 NZLR 478 at [28].
989As to which, see Togia v Police, above n 988, in which the Court of Appeal held that s 38 may apply to persons on bail if they appear in and are therefore under the supervision of the court at the time the report is ordered (at [31]).
990See also the discussion of expert evidence in connection with self-defence, in Chapter 7.
991R v Rakete, above n 975, at [41]–[42] (ellipses in square brackets from original).
992At [43].
993Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (Health Quality & Safety Commission, June 2014) at 76.
994At 13. See also Domestic Violence Act 1995, s 3. In Queensland, this was part of the rationale for recommending that any new partial defence for victims of serious abuse not extend to victims who act to protect third parties, such as children: “The conduct of the abuser towards the third party could be encompassed within our definition of violence towards the victim of abuse, specifically as psychological abuse. It would form part of the history of serious violence in the relationship”: Geraldine Mackenzie and Eric Colvin Homicide in Abusive Relationships: A Report on Defences (2009) at 46.
995See, for example, M v M (2005) 7 HRNZ 971 (HC) per Miller J; and AB v ST [2011] NZFLR 669 (HC) per Priestley J.
996Family Violence Death Review Committee, above n 993, at 13, citing the Domestic Violence Act 1995, s 3.
997Again, Queensland’s experience of enacting a defendant-specific partial defence is helpful. Mackenzie and Colvin, above n 994, observed, at 45, that “[a]ny broadening of the defence for victims of abuse is fraught with risks” and, despite recommending that any new partial defence extend to “family members” who act to protect victims of serious abuse, even that limited extension to third parties was not taken up.  See also Michelle Edgely and Elena Marchetti “Women Who Kill Their Abusers: How Queensland’s New Abusive Domestic Relationships Defence Continues to Ignore Reality” (2011) 13 Flinders LJ 125 at 152.
998Warren Young and Andrea King “Sentencing Practice and Guidance in New Zealand” (2010) 22 Fed Sentencing Rep 254 at 255.
999The Commission’s earlier report, Sentencing Guidelines and Parole Reform, above n 956, recommended establishment of a Sentencing Council which would have the role of preparing sentencing guidelines. This was recommended because guidelines can promote consistency while protecting a judge’s ability to respond to particular facts. Without a mechanism of this sort, there is a potentially wide gap between the abstract principles and factors expressed in the Sentencing Act and the facts presented by a particular case, leaving a lot of room for judicial discretion. This can be partially addressed by guideline judgments of the higher courts. However, the Court of Appeal has declined to issue guideline judgments for murder and manslaughter on the basis that there is too much variation in offending. The gap therefore remains and is a potential issue for this category of cases.
1000Family Violence Death Review Committee, above n 979, at 105.