The conceptual framework for reduced culpability
Setting the scene: Two illustrative cases
8.5To illustrate how charging and sentencing decisions may enable recognition of reduced culpability for homicide, it is useful to consider two New Zealand cases – those of Tikiahi Erstich and Jacqueline Wihongi.
8.6Erstich and Wihongi are not the only cases we could have selected to contrast the different means by which the law may recognise reduced culpability for homicide, but they stand out. Having committed homicide when he was just 14 years old, Tikiahi Erstich is the youngest defendant in our case review. Ms Wihongi’s case, as noted in Chapter 3 and discussed in the following chapters, is significant in large part because the Court of Appeal considered the circumstances in which the presumption of life imprisonment for murder may be displaced for offenders who kill after severe and prolonged abuse.
8.7We noted the case of 14 year old Tikiahi Erstich in Chapter 2. In 2001, after he had been subjected by his father to a 10-year “reign of terror” that included beatings with pipes and sticks, having his head battered against hard surfaces and being thrown against walls, Tikiahi Erstich shot and killed his tormentor at point-blank range. He was charged with murder and, at trial, relied on the partial defence of provocation, which the jury apparently accepted because it returned a verdict of manslaughter. He was ultimately sentenced to a two-year suspended term of imprisonment, imposed by the Court of Appeal following a Crown appeal against sentence.
8.8We summarised the facts and disposition of R v Wihongi in Chapter 3, and so we reiterate only immediately salient points here.
8.9In 2009, Jacqueline Wihongi fatally stabbed her partner. She was in her early 30s and had suffered years of sexual and physical violence, including gang rape, at the hands of the deceased and others. She was charged with murder and pleaded not guilty. She did not rely on self-defence or the partial defence of provocation, and the jury convicted her of murder. She was ultimately sentenced by the Court of Appeal to a 12-year term of imprisonment. She was spared life imprisonment because the Court of Appeal found that sentence would be manifestly unjust in the circumstances.
8.10These cases share two important features. The first is that it is probable both defendants were found to have killed with murderous intent. The second is that, in both cases, it was recognised that the defendants’ culpability was, in differing ways, reduced because of the violence they had suffered before the killings.
8.11The outcomes in these cases demonstrate how partial defences and sentencing can reflect reduced culpability for homicide. In Erstich, the partial defence of provocation likely meant the defendant was convicted of manslaughter, rather than murder, and sentenced on that basis, while Ms Wihongi, who did not rely on a partial defence, was convicted of murder. Despite this difference, both offenders received sentences that took account of their personal circumstances. Tikiahi Erstich’s sentence reflected the violence he had suffered, his youth and rehabilitative prospects and his low risk of future offending. Ms Wihongi was sentenced as a murderer but also in recognition of her personal circumstances. In combination with her cognitive deficits, Ms Wihongi’s history of abuse justified displacement of the presumption of life imprisonment, although her level of risk together with the need to deter and denounce the taking of a life were found to require a 12-year finite term.
8.12New Zealand law no longer includes the partial defence of provocation or any other relevant partial defence, and so if Tikiahi Erstich was tried today, he could not defend the murder charge on that basis. A key question in this part is whether there is a need for a partial defence for cases of this kind or whether reduced culpability can – and should – be recognised principally through sentencing, as it was in Ms Wihongi’s case.