The conceptual framework for reduced culpability
8.1In Chapter 3, we introduced some aspects of the law of homicide and the key features of the 24 New Zealand cases we have identified in which victims of family violence have been prosecuted for killing their abusers since 2001. In Part 2 we examined how the law of self-defence applies to these defendants. Self-defence is a complete defence to a charge of murder or manslaughter. A person who successfully defends a homicide charge on grounds of self-defence will be acquitted.
8.2In this part, we put self-defence to one side and turn to consider cases where a homicide cannot be justified but the defendant can point to circumstances that reduce their culpability. Building on our introductory discussion of homicide law in Chapter 3, we consider how the law deals with people who commit homicide in extenuating or mitigating circumstances:
- In this chapter, we consider the range of ways the law can provide for recognition of reduced culpability for homicide.
- In Chapter 9, we build on the summary of our case review in Chapter 3 and look in more depth at recent New Zealand cases of homicide by victims of family violence. We consider whether the cases reveal any problems or gaps in this area of the law.
- In Chapters 10 and 11, we explore whether a partial defence for victims of family violence is justified and whether New Zealand’s sentencing law is fit for purpose for these defendants.
The main mechanisms: charge and sentence
8.3There are two principal means by which reduced culpability may be recognised in homicide cases:
- The charge: instead of a charge of murder, a person may be charged with a lesser offence such as manslaughter or infanticide. These are less serious types of homicide. Even if a person is charged with and tried for murder, a jury may find them guilty of manslaughter or, in appropriate cases, infanticide. This could be the outcome for a number of reasons, as we discuss in Chapter 9.
- The sentence: in some countries, murder attracts a mandatory life sentence. In others, a person convicted of an unlawful killing, including murder, may be sentenced in a way that reflects their individual level of culpability within the offence category, whether murder, manslaughter or some lesser offence. New Zealand’s murder sentencing rules fall somewhere between mandatory and discretionary. The mandatory life sentence was abolished in 2002, but there remains a strong presumption in favour of life imprisonment and prescriptive rules for minimum periods of imprisonment where a life sentence is imposed. Furthermore, in 2010, the so-called three strikes legislation introduced outright mandatory sentencing for certain repeat violent offenders, including murder and manslaughter.
8.4As we noted in the Issues Paper, over the past 15 years there has been significant law reform activity in New Zealand and overseas that has addressed victims of family violence who commit homicide and the role of charging, partial defences and sentencing in recognising reduced culpability. It is apparent from this body of work that there is a range of ways reduced culpability can be taken into account. A great deal turns on the circumstances of and prevailing attitudes in individual jurisdictions and their wider homicide law.