Changes to sentencing for homicide
43A key policy aim in sentencing law, reflected in the Sentencing Act, is to ensure that sentences respond to the particular facts of the offending and the offender’s personal circumstances, while also promoting consistency with other cases of a similar nature. To that end, the Act sets out principles and purposes of sentencing, and a list of aggravating and mitigating factors that must be taken into account in determining a sentence.
44Two mitigating factors are particularly relevant in the present context. The first is “the conduct of the victim” (who, in homicide cases, will be the deceased). The second is the offender’s “diminished intellectual capacity or understanding”. The conduct of the deceased will be the most obvious mitigating factor where a victim of family violence kills their abuser. Where relevant, however, the offender’s diminished intellectual capacity or understanding of the situation will also be taken into account and the Court of Appeal has accepted that the psychological effects of sustained abuse may justify a sentencing discount.
45Our case review suggested there is some variation in the courts’ approaches to sentencing in this area. In connection with mitigating factors on which evidence may be required, such as psychological disturbances suffered by defendants, issues around awareness of, access to and the cost of relevant expert evidence may also arise.
46To ensure consistency across cases, we recommend some amendment to section 9 of Sentencing Act regarding the mitigating factors of the conduct of the victim and the diminished intellectual capacity or understanding of the defendant.
47Our recommended sentencing reforms complement our approach to self-defence. We envisage they will contribute to ensuring that the experiences of victims of family violence are brought to the attention of judges. They will also prompt defence lawyers to consider the need for submissions, supported by expect witnesses and evidence, targeted at these issues. Due to the pervasive nature of family violence, we do not suggest restricting these reforms to homicide.
48There are three other aspects of our analysis of the Sentencing Act which require particular mention. These are, first, the presumption in favour of life imprisonment for murder (section 102); second, finite sentences for murder; and third, the so-called three strikes regime (provided for in sections 86A–86I).
49Section 102 of the Sentencing Act provides for a presumption of life imprisonment for murder, and section 103 prescribes a minimum period of imprisonment of 10 years. The presumption of life imprisonment for murder can only be departed from when that sentence would be “manifestly unjust”.
50Case law demonstrates that the “manifestly unjust” threshold will be met only in special circumstances. It is notable that in the two murder cases we reviewed in which the presumption of life imprisonment was considered – Wihongi and Rihia – the “manifestly unjust” threshold was found to be met due to the family violence circumstances.
51The sentences imposed in Wihongi and Rihia are among the lowest sentences ever imposed for murder in New Zealand, and no minimum period of imprisonment was imposed in either case. Although the lengths of the sentences in these cases were highlighted by the FVDRC, we have not been persuaded they are problematic. In both cases the relevant family violence context, and its effect on the defendant, was taken into account at sentencing. Following Wihongi, there appears to be an emerging trend in the case law for a finding that a life sentence will be “manifestly unjust” for victims of family violence convicted of murdering their abusers after severe and prolonged abuse.
52The last issue we consider in connection with sentencing is the three strikes regime. Both Wihongi and Rihia were decided before the three strikes regime was introduced, in 2010, and the three strikes provisions have significantly fettered sentencing discretion for violent offences, including the homicide cases covered by this review. The range of offences which qualify as strike offences include sexual offences, most violent offences and offences against property where a weapon is used. These offences range in seriousness.
53Under the three strikes provisions a court is required to impose a life sentence if a person is convicted of murder as a second or third strike offence, or if a person is convicted of manslaughter as a third strike offence. In all cases, the most lenient result possible is a life sentence with a minimum period of 10 years’ imprisonment, provided the threshold of manifest injustice is met. If imposed on a victim of family violence who had killed their abuser, such a sentence would sit at the very highest end of the range of sentences imposed in the cases we reviewed. We identified three cases which, if they had been caught by the three strikes provisions, would have resulted in very different, and more punitive, sentencing outcomes under those provisions.
54We consider the three strikes provisions may disproportionately disadvantage victims of family violence who kill their abusers. It is outside of the scope of our review to consider the position of other offenders who may also be disproportionately affected by the three strikes law.
55In these circumstances, and noting that two cases decided under the three strikes provisions are currently awaiting hearing at the Court of Appeal, we recommend that the Ministry of Justice undertake further policy work to address the effect of the three strikes provisions as they apply to homicide offenders in exceptional circumstances.
- R10 The Sentencing Act 2002 should be amended as follows:
- amending section 9(2)(c) to clarify that “conduct of the victim” includes prior family violence against the offender; and
- amending section 9(2)(e) to clarify that “diminished intellectual capacity or understanding” includes any impairment resulting from being subject to family violence.
- R11 The Ministry of Justice should undertake further policy work to address the issues noted in this Report in relation to sections 86D(4) and 86E of the Sentencing Act 2002 as they apply to homicide offenders in exceptional circumstances and specifically:
- consider the position of victims of family violence who kill their abusers in situations where the three strikes regime would mandate a life sentence; and
- consider how to amend the legislation to allow judges to impose a finite sentence in deserving cases.