Provocation was abolished as a partial defence to murder in Victoria in 2005. Prior to that year, provocation could be used to reduce a conviction of murder to one of manslaughter. Provocation in Victoria no longer amounts to a partial defence. However, any provocative conduct by a victim is considered in determining the appropriate sentence to impose for a crime of murder and for non-fatal assaults.
How did the partial defence work?
Provocation in Victoria could formerly be used as a partial defence to a murder charge if:
- There was evidence of provocative conduct by the victim;
- The defendant lost self-control as a result of provocation;
- The provocation was such that an ordinary person would have lost self-control and formed an intention to cause serious bodily harm or death;
- The defendant acted while deprived of self-control and before his or her passion had cooled.
If the above was accepted by the court, the defendant accused of murder would be found guilty of the lesser crime of manslaughter.
Why was the defence of provocation in Victoria abolished?
The defence of provocation in Victoria was introduced to provide for the situation where a victim of domestic violence kills her abuser after persistent and long-term abuse, in a situation where the defence of self-defence may not succeed. In practice, the defence was commonly used by men who killed their female partners in circumstances of infidelity or where the victim was seeking to end the relationship. This was perceived as a misuse of the defence of provocation.
Consideration of provocation at sentencing
When reviewing the defences to murder, the Victorian Law Reform Commission recommended that rather than constituting a partial defence, provocation should simply be taken into account at sentencing along with all the other relevant circumstances of the offence.
Provocation in Victoria can now be used only as a mitigating factor when a person has been found guilty of a violent offence. The Sentencing Act 1991 does not specifically mention provocation so it must be taken into account at sentencing by reference to general sentencing factors. The Sentencing Act’s purposes are stated at Section 1 as including ensuring that offenders are punished to the extent justified by the nature and gravity of their offences, their degree of culpability and the presence of any aggravating or mitigating factors. The Victorian Sentencing Council has argued that the correct application of the Sentencing Act to the issue of provocation is for provocation to be seen as directly relevant to assessing an offender’s culpability for an offence.
In some cases the presence of provocation as an explanation for offending can render some of the relevant sentencing principles either more or less relevant. For example, the principle of general deterrence, ie. the application of a criminal sanction in order to discourage other persons from committing similar crimes in similar circumstances, has been held to be less relevant in cases where the defendant acted ‘in the heat of the moment’ in response to provocation. However, in other provocation cases, general deterrence has been given great weight. This is particularly the case in a situation where the defendant overreacted in response to provocation in a domestic violence situation, where there are strong public policy reasons to discourage others from behaving similarly.
The sentencing principle of specific deterrence, ie. the application of a criminal sanction to discourage the same offender from repeating the offence, may also be affected by provocation. Where the court considers the defendant is unlikely to re-offend, specific deterrence maybe found to be of little relevance. However, where the offence was an unreasonable response to minor provocation, the court may consider that specific deterrence needs to be emphasised.
The principle of denunciation, where the court sends a message to the community that the conduct the offender has engaged in is unacceptable, may sometimes be less relevant where the offence was provoked. However, even with the presence of provocation, denunciation may remain highly relevant in respect to the degree of harm caused by the offender and where the harm caused was disproportionate to the level of provocation.
How has the situation changed?
Provocation in Victoria is now taken into account at sentencing rather than in deciding what crime the accused is guilty of. Where the existence of provocation reduces an offender’s culpability, this may affect the weight given to various sentencing purposes. It may reduce the importance of deterrence and denunciation and increase the emphasis to be placed on the offender’s rehabilitation. However, in cases of serious violence, deterrence and denunciation usually remain significant even where the court accepts that the offending was provoked.
Under the old system, provocation was used to reduce the offender’s culpability. Since the law changed, provocative conduct has been taken into account with consideration of the context in which it occurred and whether the offender’s response was disproportionate. This means that the existence of provocation does not necessarily reduce the offender’s culpability.
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