Chapter 8
The conceptual framework for reduced culpability


8.31Historically, a conviction for murder resulted in a mandatory sentence: first, the death penalty and, later, life imprisonment. This limited judges’ capacity to recognise and reflect mitigating circumstances in sentencing. It was in this context that partial defences, which reduce murder to manslaughter in certain circumstances, developed. Outside of the three strikes regime, New Zealand no longer has mandatory murder sentencing, and at present, New Zealand law includes no general partial defences.

8.32The question in this part of the Report is whether New Zealand’s current approach to the recognition of reduced culpability is sufficiently flexible to accommodate cases in which victims of family violence kill their abusers.

8.33In this chapter, we have discussed means by which reduced culpability may be recognised in the course of a homicide prosecution. These include degrees of murder, tailored homicide offences, partial defences and sentencing rules. They also include “softer” mechanisms not governed by statute, namely charging practices and jury decision making.

8.34We discuss the “softer” mechanisms in our case review in Chapter 9, where we recommend that the Solicitor-General consider whether the Solicitor General’s Prosecution Guidelines should refer to the potentially mitigating effect of a defendant’s history as a victim of family violence. However, while prosecutorial discretion and jury decision making may sometimes be favourable to defendants, due to the way the law is currently structured they lack transparency, cannot be consistently relied on and are not as readily amenable to reform.706 Thus, our first line of focus in this part is the suite of statutory mechanisms for recognising reduced culpability for homicide.

8.35More specifically, we are focused on statutory mechanisms that could be introduced or reformed with some degree of specificity to improve the legal response to victims of family violence who kill their abusers. We have not substantively considered options that are inherently wider than our terms of reference, like degrees of murder. Reform options that would necessarily affect the whole of the law of homicide would need to form part of a broader review.

706Prosecutorial discretion is largely outside the control of defendants (even plea discussions are negotiations and not overseen by the courts) and jury deliberations are secret in all but exceptional circumstances which promotes “the finality of verdicts and uninhibited discussion during jury deliberations”. See Evidence Act 2006, s 76; and Neale v R [2010] NZCA 167 at [9]–[13].