Goff On Law Commission Report On Battered Defendants

Justice Minister, Phil Goff, has welcomed a report and recommendations of the Law Commission tabled in the House today.

The Report examines criminal defences available for murder and other offences with a particular focus on battered defendants.

“The key challenge in reforming the law is how to ensure that mitigating circumstances can properly be taken into account when a defendant such as a battered person faces serious criminal charges.

“Clearly while the law cannot condone or excuse the actions of a person who has killed another individual, the effect of circumstances such as having suffered years of violence from the deceased must be able to be taken fully into consideration by the Court in determining how the offender is to be dealt with.

“The strongest theme emerging from the Law Commission’s recommendations, and the submissions made to it, is the need for change to the mandatory life sentence for murder.

“At present anyone convicted of murder, even in circumstances such as a mercy killing or retaliation for years of consistent and brutal violence, faces a mandatory life sentence and imprisonment for a minimum of ten years.

“The potential injustice from such situations has largely been avoided only by juries who chose to acquit or find a verdict of manslaughter out of sympathy for the defendant even when it is clear that he or she has intentionally killed.

“The Law Commission strongly recommends that there should be flexibility by the Judge to take mitigating factors into account when sentencing for murder in these cases.

“The Commission supports the limited discretion announced by the Government in its Sentencing and Parole Review that “the sentence for murder should be life imprisonment unless the circumstances of the offending or offender would make such a sentence clearly unjust”.

“This allows for an honest verdict by a jury that while the killing was intentional, the factors which make the killing less culpable can and will be taken into account in diminishing the severity of the sentence.

“The Commission report also argues for reform of self-defence laws so that the inevitability of violence and not just the imminence of violence by the deceased can be taken into account in allowing the defendant to claim self-defence.

“It also recommends the removal of provocation as a partial defence and any new defence of diminished responsibility. These factors are complex and difficult defences to explain to juries and are inconsistently applied. They are better dealt with not as partial defences but as mitigating factors to take into account in sentencing.

“I am generally supportive of the Law Commission’s recommendations. A limited discretion for imposing sentences of less than life for murder where there are strongly mitigating circumstances will be introduced as part of the Sentencing Bill which comes before Parliament next month. The other recommendations will be referred to the Ministry of Justice for further work and are likely to be incorporated into future criminal law reform legislation,” Mr Goff said.

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