Fitz-Gibbon, Kate --- "Homicide Law Reform in New South Wales: Examining the Merits of the Partial Defence of 'Extreme' Provocation" [2017] MelbULawRw 10; (2017) 40(3) Melbourne University Law Review 769

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The partial defence of provocation has long attracted controversy and animated law reform across Australian state and territory jurisdictions.^[1] In June 2012, debate surrounding the provocation defence reignited in New South Wales (‘NSW’) following the case of Singh v The Queen (‘Singh’).^[2] Singh was convicted of the manslaughter (by reason of provocation) of his wife, Manpreet Kaur, in circumstances where the alleged provocative conduct was all too familiar to critics of the defence. In the wake of Singh, and in response to mounting community concern surrounding the inadequacy of legal responses to men who kill their female intimate partners, the NSW Legislative Council established a Select Committee to undertake a review of the partial defence of provocation and provide recommendations for its reform.^[3] The subsequent Parliamentary Inquiry resulted, two years later, in the NSW government’s repeal of the provocation defence and the introduction of a new partial defence of extreme provocation.^[4]

The 2014 reforms mark NSW as the latest jurisdiction to tackle reform of the law of provocation. Over the past 15 years, review and reform of the provocation defence across Australia has led to its abolition in three jurisdictions^[5] and its restriction in all other state and territory jurisdictions bar South Australia, which now stands as the only Australian jurisdiction to retain common law provocation.^[6] As a result of this flurry of national law reform activity, each jurisdiction has introduced reforms that differ from one another, despite these jurisdictions being confronted with similar concerns surrounding the gendered operation of the defence.^[7]

This article examines the merits of the newly formulated partial defence of ‘extreme’ provocation and, in doing so, argues that NSW would be better placed to repeal provocation as a partial defence and transfer its consideration to sentencing. In order to make this argument, this article is structured in five parts. Part II examines the 2012–13 Parliamentary Inquiry, its recommendations for reform and the government’s 2014 introduction of a partial defence of extreme provocation. Part III undertakes a critical analysis of the merits of the partial defence of extreme provocation and advances the argument that the defence has been restricted to the point of redundancy. In the second half of the article, an alternative model of reform is proposed: the abolition of provocation as a partial defence to murder and the introduction of six guideline judgments to facilitate the transfer of provocation to sentencing.

To frame this alternative approach, Part IV traces debates surrounding guideline judgments in NSW, proposes six scenarios in which provocation is successfully raised and for which guideline judgments should be formulated, and details why this approach to reform would allow the law to more adequately respond to allegations of provocation in cases of gender-based lethal violence. This proposal for the transfer of provocation to sentencing is supported with reference to the need for wider law reform, including evidentiary and jury directions reform, to counter problems extensively documented in the operation of the partial defence of provocation.

II PROVOCATION LAW REFORM IN NSW

In December 2009, Chamanjot Singh slit his wife’s throat with a box cutter in their shared home following a verbal argument during which, he alleged, his wife slapped him several times.^[8] At trial, Singh’s defence argued that he had been provoked to kill because of his suspicions of infidelity on the part of his wife, disparaging comments made by her and her sister’s husband about his mother, and his own belief that the marriage was ending.^[9] The defence argued that his belief that the relationship was ending was compounded by the fact that Singh had moved to Australia on a spousal visa and would likely be deported if he and his wife separated.^[10] Singh was convicted by jury of manslaughter on the basis of provocation and subsequently sentenced to a non-parole period of six years.^[11]

The Singh case reignited concerns surrounding the use of the defence in cases of male-perpetrated intimate homicide and its role in partially legitimating lethal domestic violence. In doing so, the case encouraged a state-wide discussion of the continued viability of provocation as a partial defence to murder. In the week immediately following the sentence in Singh, the Hon Helen Westwood raised concerns in the NSW Parliament and called on the Legislative Council to respond to community concerns about the inadequacy of the law’s response to the killing of Manpreet Kaur.^[12]

In response to the advocacy of parliamentarians and media outrage over the verdict and sentencing in Singh,^[13] on 14 June 2012 the Legislative Council established a Select Committee to undertake an inquiry into the operation of the partial defence of provocation.^[14] The terms of reference for the Inquiry provided that the Select Committee examine:

In explaining the motivation for these terms of reference, the Committee’s chair, Fred Nile, explained:

A recent NSW case has highlighted concerns about the use of the provocation [defence] to reduce a charge of murder to the lesser charge of

manslaughter, and in particular, its use in matters where there is a history of domestic violence.

The Committee will inquire into and report on the partial defence of provocation and will consider whether it should be retained, or whether the elements of the partial defence should be amended in light of reforms to the law of provocation in other jurisdictions.^[16]

Following its formulation, over the course of eight months (from June 2012 to February 2013) the Select Committee took submissions from a range of relevant stakeholders on the operation of provocation in NSW and possibilities for its reform. To supplement these written submissions, the Committee held three days of public hearings where it heard evidence from 36 stakeholders and requested additional submissions from stakeholders in response to its Consultation on Reform Options paper.^[17]

The Inquiry’s final report briefly canvassed all contexts within which the partial defence was successfully raised in NSW since 1990,^[18] including noting the frequency within which provocation was raised for killings occurring in response to a violent physical confrontation between two males. However, and perhaps unsurprising given the Inquiry’s establishment was so heavily influenced by the Singh case, one of the key issues raised throughout the stakeholder submissions concerned the successful use of the defence in male-perpetrated intimate homicides motivated by an alleged act of sexual infidelity or threat of relationship separation.^[19] Advocating for the abolition of the partial defence, these submissions reinvoked the long-held concerns of socio-legal, law and feminist scholars surrounding the legal legitimisation of lethal domestic violence and the role that the defence plays in providing a legal avenue through which the female victim can be put on trial.^[20] The consequence of the successful use of the provocation defence in this context is previously well captured by Bradfield, who argues that, in practice:

Building on this, Crofts and Loughnan have noted the policy implications of the use of provocation in male-perpetrated intimate homicides and the key role that ‘[t]he tragedy and apparent injustice of such cases’ have played in animating advocacy towards abolition of the defence.^[22] This trend is not unique to NSW, with high profile intimate homicides, including the 2004 case of R v Ramage^[23] in Victoria and the 2007 case of R v Sebo; Ex parte Attorney-General (Qld)^[24] in Queensland, also propelling debate surrounding the justice of provocation as a partial defence to murder.^[25] Beyond Australia, movements towards reforming provocation in comparable Western jurisdictions such as England and Wales have also been driven by concerns as to the unjust use of the partial defence in cases involving men who kill a female partner in response to sexual infidelity or relationship separation.^[26]

In contrast to calls for the abolition of provocation in light of its abuse in male-perpetrated intimate homicides, the second key issue that emerged throughout the Inquiry concerned the use of provocation by battered women.^[27] Advocates for retention of the partial defence argued that there was a need to retain the defence as a halfway house between murder and self-defence to protect such defendants. Scholars have long recognised the difficulties that women who kill in response to prolonged family violence encounter in a male-centric criminal justice system.^[28] For this reason, it has been argued that the defence of provocation is an important alternative to murder for battered defendants who are unable to meet the stringent requirements of the complete defence of self-defence. Some domestic violence advocates and legal scholars argue that, without the defence of provocation, there is an unjustifiable risk that battered women will be convicted of murder and subjected to significantly harsher sentences.^[29] Reflecting this view, Stubbs argued during the Inquiry’s public hearings that if provocation were to be abolished there would be a real risk that:

This view was echoed by a NSW defence practitioner who warned of the potential negative consequences of abolition for this vulnerable category

Beyond these two contexts of lethal violence, historically debate surrounding the provocation defence has also focused on its use by male defendants who kill in response to a non-violent homosexual advance.^[32] While no homosexual advance defence (‘HAD’) cases have resulted in a conviction for manslaughter by reason of provocation in the past 10 years in NSW (see below Table 1), the case of Green v The Queen (‘Green’)^[33] is frequently referred to as a warning of the unjust use of the partial defence in this context. At trial, Malcolm Green was convicted of the 1993 murder of a male friend who got into bed with him and made a sexual advance.^[34] However, ultimately, on appeal to the High Court the original conviction was overturned (in a 3:2 majority decision)^[35] and on retrial Green was convicted of manslaughter on the grounds of provocation.^[36] The case prompted significant outcry in NSW in relation to the applicability of provocation in this context, and motivated the establishment of a working party by the government to examine the use of provocation in homosexual advance cases.

The working party noted that many people found the provocation verdicts in HAD cases ‘profoundly troubling’,^[37] and recommended that legislative reform be introduced to exclude the availability of provocation as a partial defence to murder where persons have killed in response to a non-violent homosexual advance.^[38] This recommendation was, however, never implemented; and consequently the use of provocation in cases involving a non-violent homosexual advance arose as an issue for consideration again in

2012–13. Over the course of the Inquiry, several stakeholders argued that, if retained, the provocation defence should be reformed to expressly exclude cases like Green from giving rise to a partial defence.^[39]

When considered together, these three contexts of homicide gave rise to the difficult question of how NSW could best reform provocation to exclude unmeritorious cases of male lethal violence while still providing an avenue less than murder for persons who kill an abuser. In attempting to achieve this balance, a range of possible approaches to reform were canvassed in the Inquiry’s Consultation on Reforms Options paper, which provided three overarching options: (1) to abolish provocation; (2) to retain provocation without amendment; and (3) to retain provocation with amendments.^[40] Within the last of these options, four potential models for reform were proposed: two based on a conduct-based reform model; one on a test-based reform model; and the final a combination of the conduct and test-based reform models.^[41]

On 23 April 2013, the Select Committee released its final report, which made 11 recommendations for legislative and policy reform,^[42] including recommendation 4, which proposed that the government amend s 23 of the Crimes Act 1990 (NSW) to introduce a new ‘partial defence of gross provocation’.^[43] In response, in October 2013 the O’Farrell Government released a draft exposure Bill for consultation; and on 20 May 2014 that Bill — the Crimes Amendment (Provocation) Bill 2014 (NSW) — gained Royal Assent.^[44] The Act repealed the partial defence of provocation and introduced a new partial defence of ‘extreme’ provocation.

Like its predecessor the new partial defence acts to reduce what would otherwise be murder to manslaughter, a reduction that has a significant impact on sentencing. In NSW, the offence of murder carries a maximum sentence of life imprisonment and a standard non-parole period of 20 years.^[45] In contrast, for the offence of manslaughter there is no standard non-parole period applied and the maximum sentence available is 25 years’ imprisonment.^[46] While the impact of standard non-parole periods are outlined in more detail in the second half of this article, it is important to note here the significant advantage at sentencing, both in terms of the maximum penalty and the non-parole period, of a conviction of manslaughter by reason of extreme provocation as opposed to murder.

The new partial defence of extreme provocation retains several features of the repealed law, including the concept of loss of control and the ordinary person test. However, it also includes provisions that significantly restrict its application. According to s 23(2) of the Crimes Act 1900 (NSW),^[47] an act is committed in response to extreme provocation if and only if:

That the new partial defence retains the requirement of a ‘loss of self-control’ is somewhat curious given the considerable criticism that the concept of loss of control has attracted among criminal law and socio-legal scholars. In particular, scholars have highlighted gender bias in the operation of the ‘loss of control’ test and the consequential difficulty that women defendants face in meeting the requirements of the test, particularly where they have killed in the context of family violence.^[48] Interestingly, the word ‘extreme’ is only referred to in the body of the new provisions as a descriptor of the ‘provocation’ (ie, ‘extreme provocation’). The term ‘extreme’ is not defined in the legislation nor does it carry any specific test or requirements.

In addition to the four criteria outlined above, the conduct of the deceased cannot constitute extreme provocation if it was a non-violent homosexual advance or if the accused is found to have incited the conduct in order ‘to provide an excuse to use violence against the deceased’.^[49]

When introducing this new partial defence, then NSW Attorney-General Greg Smith presented it as striking a balance between restricting the defence while ensuring it was still available in cases of prolonged domestic abuse:

However, by restricting the provocation defence to ensure that it is not applicable to unmeritorious contexts of lethal violence, a concern has emerged that the 2014 reforms restrict the partial defence of provocation to the point of redundancy. Specifically, the heavy restriction of the partial defence to apply solely in cases where the provocative conduct was a serious indictable offence, as defined in s 4 of the Crimes Act 1990 (NSW), ensures that only behaviour amounting to an indictable offence punishable by imprisonment for at least five years will give rise to the partial defence. This approach has been met with concerns from domestic violence advocates and legal professionals that women who kill in response to prolonged family violence will not be able to meet the requirements of extreme provocation. For example, the Women’s Legal Services (‘WLS’) NSW noted:

Building on this, the NSW Bar Association raised a concern that, under the new law, threats to commit a very serious indictable offence would not be characterised as ‘extreme provocation’^[52] while Crofts and Loughnan have questioned the extent to which an exclusionary model like this will recognise patterns of coercive control, including stalking and intimidating behaviour.^[53] In response to the latter, it can be anticipated that in its most extreme form, and where proven to the requisite level, stalking and intimidating behaviour could constitute extreme provocative behaviour given that the offence carries a maximum term of five years’ imprisonment.^[54] However, given that the maximum term of imprisonment for stalking and harassment is five years it is unlikely that such behaviour or, perhaps, any of the threatening behaviour (as raised by the Bar Association), will often rise to the requisite standards of the heavily restricted partial defence.

In response to these concerns, former chair of the Inquiry, Fred Nile commented at the time of its introduction that the reforms strike ‘a careful and appropriate balance between restricting the defence and leaving it available for victims of extreme provocation, including victims of long term abuse’.^[55] While this may have been the intended purpose of the reforms, these concerns raised by key stakeholders and experts highlight uncertainties in the new partial defence’s drafting. Equally so, it is unclear from the legislation to what extent defendants in cases which involve a long history of violent acts, each of which may constitute a serious indictable offence, but where the ultimate provoking act did not, will be able to access the new partial defence. This issue of timing raises further questions about the extent to which this approach to reform will offer an effective partial defence for persons who kill following prolonged family violence.

III RESTRICTED TO THE POINT OF REDUNDANCY?

This argument — that the reforms restrict provocation to the point of redundancy — is explored here with reference to NSW provocation case law from the 10 years prior to the reforms. As shown below in Table 1, in the

10-year period immediately prior to the reforms there were 20 convictions finalised in the NSW Supreme Court for manslaughter by reason of provocation.^[56] The following section analyses the contexts within which these homicides occurred and considers which of these cases, post-reform, would likely succeed in raising a partial defence of extreme provocation.

Defendant name	Year	Verdict /plea	Sex of defendant /victim	Relationship between victim and defendant	Nature of provocative conduct
Armstrong^[57]	2014	Plea	Male/ male	Met and engaged in a sexual encounter on night of death	Non-violent confrontation
Hassan^[58]	2014	Verdict	Male/ female	Married	Non-violent confrontation
Butler^[59]	2012	Plea	Female/ male	Victim was a prostitution client of the offender	Non-violent confrontation
Won^[60]	2012	Verdict	Male/ male	Victim was in a sexual relationship with the offender’s estranged wife	Non-violent confrontation
Singh^[61]	2012	Verdict	Male/ female	Married	Non-violent confrontation
Goundar^[62]	2010	Verdict	Male/ male	Victim was in a sexual relationship with the offender’s estranged wife	Planned confrontation^[63]
Lynch^[64]	2010	Plea	Male/ male	Acquaintances	Violent confrontation
Gabriel^[65]	2010	Verdict	Male/ female	Married	Violent confrontation
Lovett^[66]	2009	Verdict	Male/ male	Victim was in a sexual relationship with the offender’s estranged wife	Non-violent confrontation
Chant^[67]	2009	Plea	Female/ male	Married	Violent confrontation
Stevens^[68]	2008	Plea	Male/ female	De facto relationship	Non-violent confrontation
Mitchell^[69]	2008	Plea	Male/ male	Acquaintances	Violent confrontation
Forrest^[70]	2008	Plea	Male/ male	Acquaintances	Violent confrontation
Frost^[71]	2008	Plea	Male/ female	Divorced	Non-violent confrontation
Berrier^[72]	2006	Verdict	Male/ male	Acquaintances	Violent confrontation
Russell^[73]	2006	Plea	Female/ male	De facto relationship	Violent confrontation
Bullock^[74]	2005	Verdict	Male/ male	Acquaintances	Violent confrontation
Dunn^[75]	2005	Verdict	Male/ female	Close acquaintances	Non-violent confrontation
Mohamad Ali^[76]	2005	Verdict	Male/ male	Acquaintances	Violent confrontation
Hamoui^[77]	2005	Verdict	Male/ female	Estranged girlfriend	Non-violent confrontation

A Words Alone

Of the 20 convictions for provocation manslaughter between 2005 and 2014, half resulted from a non-violent confrontation between the defendant and victim. A male offender perpetrated all bar one of these cases and in six of the 10 cases the victim was female. Following the reforms, cases where the provocative conduct comprised words alone would be at face value highly unlikely to raise a partial defence of extreme provocation given the requirement that the provocative conduct of the victim be a serious indictable offence.^[78] A provision to disallow words alone from giving rise to a partial defence represents a significant restriction of the partial defence and recognises the difficulty of disputing claims of verbal provocative conduct in cases where only the victim and offender were present at the time of the

There were, however, two cases within the period studied involving a non-violent confrontation that present ambiguity and raise the question of how the new partial defence will apply to cases that do not fall neatly into stereotypical scenarios of provoked lethal violence: Armstrong^[80] and Butler.^[81] In May 2014, Paul Armstrong was sentenced for the manslaughter by reason of provocation of Felipe Flores in September 1991.^[82] Armstrong met the victim earlier that night at a licensed venue, following which they ‘agreed to have a sexual liaison’ and drove to a nearby ‘secluded’ area to do so.^[83] At sentencing, Adamson J described the circumstances surrounding the offender’s use of lethal violence:

Post-reform, a man in the same circumstances as the offender in Armstrong would only be able to raise a partial defence of extreme provocation if it were accepted that the victim’s failure to disclose his HIV status constituted reckless grievous bodily harm or wounding.^[85] Without such a ruling, the victim’s words alone would not meet the requirements of the heavily restricted partial defence and it would be unlikely that a threat to commit reckless grievous bodily harm or wounding could be borne out of the facts of the case.

In the second example, Butler,^[86] similar ambiguities arise in how a case of like-circumstances would be resolved post-reform. Patricia Butler was sentenced for the manslaughter by reason of provocation of Brendon Potter. Butler was a street prostitute and met the victim on the day of the homicide. During their subsequent sexual encounter the victim was alleged to have made several comments about the ‘sexual assault of children’, and showed Butler a video depicting a young girl performing sexual acts.^[87] Unbeknown to the victim, the offender had been sexually assaulted by her stepfather for several years as a child. She lost self-control and killed Potter following his enunciation of sexual fantasies involving her as a child and her younger sister. Also unbeknown to the victim, the offender had a younger sister of whom she felt very protective. Button J ruled the offender had a ‘special sensitivity’ to the comments made by the victim immediately prior to his death, making her loss of self-control ‘very profound’.^[88]

Post-reform, it is unlikely that a person in the same circumstances as Butler would be able to raise a partial defence of extreme provocation. Even though the revised defence provides that the provocative conduct does not need to have occurred ‘immediately before the act causing death’,^[89] the legislation establishes that the victim must have committed a serious indictable offence.^[90] The Law Society of NSW, in its November 2013 submission, forecast the difficulties that may arise in circumstances where the deceased is not the person who committed the provocative conduct:

On a face-value reading, it appears unlikely that a partial defence of extreme provocation could be successfully raised post-2014 in circumstances mirroring Butler and possibly Armstrong. While the reforms sought to limit the defence’s applicability in cases where the provocative conduct was words alone, these cases highlight potential ambiguities in how the courts will discern whether a serious indictable offence has been committed (as in Armstrong) and whether that offence needs to have been committed by the eventual victim or can extend to third-party actions (as in Butler). For this reason there will be a definite need, post-reform, to monitor emerging case law to evaluate how the extreme provocation defence is interpreted in practice and what cases of ‘words alone’ provocation are excluded from its remit.

B Male-Perpetrated Intimate Partner Homicide

Given that the establishment of the Inquiry was heavily motivated by perceived injustice in the law’s response in Singh,^[92] it is unsurprising that one of the main aims of restricting the provocation defence was to exclude the successful use of the partial defence in cases of intimate partner homicide motivated by relationship separation or infidelity. However, despite this guiding motivation and the fact that these cases make up the majority of those where provocation has in the past succeeded in reducing murder to manslaughter (as shown above in Table 1), homicides provoked by a person’s desire to change the nature of a relationship (through separation or infidelity) were not included in the list of specific exclusions under s 23 of the new extreme provocation defence.^[93] It can only be inferred that to do so was deemed unnecessary given the requirement that the provocative conduct be a serious indictable offence.

That such cases would now fail to raise a partial defence of extreme provocation appears likely when the circumstances common to such cases are considered against the requirements of the new defence. An examination of the last male-perpetrated intimate homicide to raise a partial defence of provocation in NSW pre-reform, the 2014 Hassan case, demonstrates this point.^[94] Hassan, aged 56 years at the time of sentencing, killed his 24-year-old wife in a ‘frenzied’ knife attack following over two years of ‘marital disharmony’.^[95] While the specific cause of the marriage deterioration was ‘not entirely clear’ and only the victim and offender were present at the time of the homicide, at sentencing Garling J identified multiple contributing factors including their significant age difference, cultural differences and disagreements over parental discipline style.^[96] Garling J accepted that the offender stabbed his wife at least 14 times in a ‘brutal and vicious assault’^[97] following a series of verbal disagreements in which she questioned his masculinity:

It was this verbal confrontation that the jury accepted caused the offender to lose his self-control and form the intention to kill. Hassan was subsequently sentenced to a term of 12 years’ imprisonment, with a non-parole period of nine years.^[99]

This case shares many of the features common to scenarios of ‘jealous man’ provocation — namely, that the provocative conduct of the victim was words alone and reflected a desire to change the nature of the relationship, as opposed to any physically threatening behaviour. And given that Garling J at sentencing stated that the degree of provocation enacted by the victim was at the lower end of the scale and that the provocative conduct was words alone, it seems highly unlikely that a man in Hassan’s position could now raise the partial defence of extreme provocation. This is a welcomed exclusion in a law that for too long has privileged the use of lethal male violence against women in response to threats to male honour and masculinity.^[100]

C Persons Who Kill in Response to Prolonged Family Violence

The need to demonstrate that the provocative conduct amounted to a serious indictable offence may exclude the very category of defendant — namely, battered women unable to raise a complete defence — for whom the Select Committee had recommended retaining provocation. Two cases within the 10-year period under study involved a female defendant who killed an abusive male partner.^[101] In both cases the female offender used lethal violence following an allegedly violent confrontation with her male partner during which she was subjected to verbal abuse and threats to kill. In both Chant and Russell there was a witnessed history of violence in the relationship. Specifically, in Russell, the offender killed her de facto husband in response to years of ‘alcohol abuse and violence’.^[102] While at home drinking, the victim and offender became involved in an argument during which the victim ‘swore at and struck the offender’, following which she stabbed him once fatally in

the chest.^[103] In Chant, Howie J described the events surrounding the use of lethal violence:

Two questions arise when these cases are considered with reference to the new partial defence of extreme provocation. First, what additional barriers will women face in proving that the precipitating incidents and threats of violence made by the deceased constituted a serious indictable offence. It is unclear to what extent prior incidents of assault, not associated with the circumstances surrounding the use of lethal violence, will be relevant to determining whether the defendant was responding to conduct that amounted to a serious indictable offence. While the Act provides that the conduct of the deceased does not have to occur ‘immediately before’ the use of lethal violence,^[105] this is unlikely to be of solace to battered defendants unless they can substantiate their claim that the victim committed a serious indictable offence in the period leading up to and/or prior to their loss of control. If they are able to do this, the second question then arises, relating to why women in the position of Chant and Russell — who were responding to an immediately harmful situation against a backdrop of a violent relationship — are not better catered for under the complete defence of self-defence. Both questions highlight that the government’s reforms do little to improve the law’s ability to respond to the contexts within which women kill in response to prolonged family violence. Indeed, the reforms are likely to increase the difficulty that such women will face in accessing a partial defence of provocation, while simultaneously failing to address previously recognised limitations in the law

Furthermore, in both Chant and Russell, the female offenders pleaded guilty to manslaughter on the basis of provocation prior to trial. Post-reform, in NSW, there is a concern that battered women will continue to display an unwillingness to test their cases of self-defence at trial by offering to plead to manslaughter on the basis of extreme provocation. The desire to do so may be particularly heightened now that the law requires defendants to prove that the provocative conduct they were responding to was a serious indictable offence. As Tolmie has previously argued in her analysis of battered women and provocation in New Zealand, in cases involving a battered woman a conviction for provocation manslaughter may be more representative of ‘an instance where the defence of provocation did some of the work that should have been accomplished by the complete defence of self-defence’.^[106] The same is likely to be true of extreme provocation in NSW.

When these concerns are considered together, it is arguable that the reformed partial defence of extreme provocation, while claiming to cater for women who kill in response to prolonged family violence, further reduces women’s access to the defence, an outcome that risks amplifying the difficulties that such defendants face in their interactions with the criminal justice system. Several of the concerns raised here mirror those advanced recently in the Victorian context, where the 2005 abolition of the partial defence of provocation was accompanied by the introduction of an alternate offence of defensive homicide.^[107] Designed largely to provide a ‘half-way’ alternative offence for persons who kill in the context of family violence, the offence was heavily criticised throughout its nine-year operation and was abolished in November 2014.^[108]

IV AN ALTERNATIVE MODEL OF REFORM: TRANSFERRING PROVOCATION TO SENTENCING

In light of the difficulties that are likely to arise from the operation of the partial defence of extreme provocation, it is this article’s contention that, while not without its risks, transferring provocation to sentencing would have been a preferable model of reform to the now implemented partial defence of extreme provocation. The possibility of abolishing provocation altogether was considered as part of the Select Committee’s inquiry, which included consideration of how provocation could be transferred to sentencing if it were abolished as a partial defence to murder.^[109] Building on that work, the remainder of this article outlines how the proposed transfer of provocation to sentencing for murder could be achieved through the development of a series of guideline judgments for what have historically been the common scenarios of provoked lethal violence in NSW. In the period post-abolition, members of the NSW Supreme Court judiciary would be able to rely on these judgments for standard guidance on how the issue of provocation and claims of provocative conduct should be accounted for in sentencing for murder.

Provocation has been transferred to sentencing in three Australian jurisdictions: Tasmania, Victoria and Western Australia (‘WA’).^[110] Internationally, provocation is also considered at sentencing in New Zealand and France.^[111] Given the recency of reforms to abolish provocation as a partial defence, the intended and unintended effects of its transfer to sentencing are still emerging through initial evaluations of the reforms. Yet concerns have emerged relating to the lack of a theory of gendered sentencing for provoked lethal violence or a workable framework that can be applied in practice.^[112] Indeed, with the exception of the extensive work undertaken by Stewart and Freiberg in Victoria,^[113] in the jurisdictions that have abolished provocation there has been an absence of consideration of how provocative conduct should be considered in sentencing in favour of a general assumption that, given that judges have previously considered it in sentencing for murder (in cases where the partial defence was not successful), they are well-equipped to continue to do so. Building on the work of Stewart and Freiberg, this article recognises that if the gendered aims of reform are to be achieved, a clear framework for the consideration of provocation at sentencing for murder must accompany its abolition as a partial defence. It is argued that a series of guideline judgments could provide that model for NSW.

A Guideline Judgments in NSW

In NSW, guideline judgments are legislated under ss 36–42A of the Crimes (Sentencing Procedure) Act 1999 (NSW). A guideline judgment can be produced under two circumstances: (1) if the Attorney-General applies for one; or (2) if the NSW Court of Criminal Appeal issues one on its own motion.^[114] Section 36 of the Crimes (Sentencing Procedure) Act 1999 (NSW) defines a guideline judgment as ‘a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders’. The legislation sets out that guideline judgments can be applied to a particular court, offence or class of offender.^[115] Former NSW Director of Public Prosecutions Nicholas Cowdery sets out three main types of guideline judgments: (1) those that suggest an appropriate sentencing range for the offence; (2) those that set an appropriate starting point; and (3) those that do not set out an appropriate sentence but rather list the relevant sentencing factors for the offence while providing an indication of what weight should be attached to each.^[116] Sentencing guidelines for the six key scenarios of provoked murder would follow the last of these approaches, referred to as the ‘sentencing considerations approach’.^[117]

The first guideline judgment in any Australian jurisdiction was delivered in R v Jurisic (‘Jurisic’) in October 1998.^[118] It followed the second of the

‘main types’ set out by Cowdery by providing guidance on the appropriate sentence starting point for the offence of dangerous driving causing death or grievous bodily harm. In Jurisic, Spigelman CJ set out the scope and purpose of such judgments:

The broad purpose of guideline judgments was further clarified by Gleeson CJ, who in Wong v The Queen (‘Wong’)^[120] stated that:

Under this model, in cases where the court does not sentence in line with the guideline, there is an expectation that a reason be provided in the resulting judgment.^[122] To date, there are six applicable guideline judgments in NSW including for armed robbery;^[123] dangerous driving;^[124] and break, enter and steal.^[125] The low number of guideline judgments issued to date has been linked in research to the High Court’s undermining of the use of guideline judgments for federal offences in Wong,^[126] and to the introduction in 2003 of standard non-parole periods.^[127] Neither of these reasons however closes off the possibility of a guideline judgment approach to the sentencing of manslaughter cases where provocation is raised.

Guideline judgments aim to ensure consistency in sentencing while still allowing justice to be attained on a case-by-case basis. Consistency is achieved in terms of both the outcome of the sentencing process, and perhaps more importantly, the approach taken to reaching that outcome.^[128] Guideline judgments are not intended to ‘straightjacket’ or ‘control judicial discretion’; rather, they are considered a form of judicial assistance and ‘structuring’.^[129] As emphasised by Spigelman CJ in R v Whyte,^[130] guidelines should be taken into account as a ‘check’ or ‘sounding board’, and not read by the courts as a ‘rule’ or ‘presumption’.^[131] In an area of the law as controversial as provocation, this model would be utilised to ensure consistency in the approach taken to the sentencing of provoked murders following the abolition of the partial defence. It would also play an important role in reducing the likelihood that outdated concepts from the partial defence will re-emerge at the sentencing stage

By enhancing consistency in sentencing, proponents of guideline judgments propose that they serve to maintain, and in some cases increase, public confidence in the justice system.^[132] Enhancing public confidence in sentencing through transparency and consistency of approach is an important outcome in this context given that debate surrounding the provocation defence has been heavily driven by community concerns and media campaigns over perceived inadequacies in the law’s response to homicides where the partial defence is successfully raised. In this respect, guideline judgments can also serve a political ‘law and order’ purpose in that they can be viewed as a response to community concerns surrounding lenient sentencing. However, in allowing for instinctive synthesis they do not go as far as mandatory sentencing schemes in restricting judicial discretion and undermining the importance of individualised justice.^[133] Indeed, at the time of their introduction in NSW, guideline judgments were viewed as a preferable alternative to mandatory minimum or grid sentencing schemes.^[134]

In highlighting the potential benefits of guideline judgments for both the prosecution and the defence, Cowdery argues:

Alongside these recognised benefits, some criticisms have also been made of guideline judgments — particularly by members of the Australian High Court, and based on the experiences of other Australian jurisdictions, such as WA.^[136] In particular, the High Court in Wong criticised the use of numerical guidelines ‘as being incompatible with the proper application of sentencing principles’.^[137] While the proposed guideline framework for considering provocation in sentencing does not take a quantitative approach, the view of the High Court illustrates why adopting a qualitative approach to guidelines allows the model to align with existing sentencing principles. Beyond the High Court’s comments, scholarly concerns have focused on the potentially prescriptive nature of guideline judgments as well as the practical risk that they serve to unduly increase the length of sentences imposed for targeted offences.^[138] Crilly argues that the latter is particularly the case in NSW, ‘where guidelines are heavily prison oriented and sentences have risen’ for the relevant offences.^[139] As the proposed guideline judgment framework does not follow a numerical approach, the latter of these concerns is unlikely to be as relevant in this context.

B Guideline Judgments for Scenarios of Provoked Lethal Violence

In proposing a guideline judgment model for the transfer of provocation to sentencing for murder, this article recognises the value of the framework for considering provocation in sentencing proposed by Stewart and Freiberg in the wake of the Victorian reforms.^[140] Stewart and Freiberg pose that provocation should only be considered at sentencing where ‘serious provocation should be found to have given the offender a justifiable sense of having been wronged’ and where the degree of provocation is proportionate to the severity of the offender’s response.^[141] Specifically, they assert that:

Importantly, Stewart and Freiberg argue that this judgment should be made with consideration to society’s common understandings and expectations of human behaviour and personal autonomy.^[143] Specific features of this framework are further drawn on below to inform the development of guideline judgments for considering provocation in sentencing for murder.

In examining the extent to which provocation should influence the length of sentence imposed, Stewart and Freiberg identified two potential impacts of transferring provocation to sentencing for murder: that abolishing the defence of provocation may ‘result in a significant (upward) departure from previous sentencing practices for provoked killers’; or, conversely, that the prior average sentencing range for the offence of murder ‘may experience a downward departure to reflect the incorporation of “provoked murderers”’.^[144] The Law Reform Commission of WA similarly predicted that transferring consideration of provocation to sentencing would have disparate effects on the lengths of murder sentences:

The lack of clear understanding on how provocation’s transfer to sentencing should impact the length of sentences imposed reinforces the need for a guideline judgments model in NSW, which will assist members of the judiciary to consistently differentiate between the cases that do and do not warrant a degree of mitigation in sentencing for murder. This is particularly important given that since 2003 NSW has legislated a standard non-parole period (‘SNPP’) of 20 years for the offence of murder.^[146] The SNPP applies to the sentencing of all offenders over the age of 18 who are convicted following trial of an offence committed since 1 February 2003,^[147] and must be implemented, except in circumstances where the judge can justify setting a minimum term above or below the SNPP by reference to the established mitigating and aggravating factors included in the Act.^[148] In cases where an offender has pleaded guilty prior to trial, it has been accepted that the SNPP should still be used as a ‘guidepost’.^[149] The SNPP scheme seeks to promote consistency in the sentencing of div 1A offences.^[150] As there is no SNPP prescribed for the offence of manslaughter this scheme does not at present apply to sentencing practices for the new partial defence of extreme provocation.

In the context of proposing a guideline judgment approach to the consideration of provocation in sentencing for murder it is useful to note that while initially research suggested that guidelines were unlikely to be applied to SNPP offences and would likely assume a ‘minor or subsidiary’ role post-SNPP legislation,^[151] the 2004 guideline judgment for high-range prescribed concentration of alcohol can be seen as an ‘indication’ that guidelines do still play a role in NSW sentencing.^[152] Furthermore, the 2011 decision of the High Court in Muldrock v The Queen (‘Muldrock’)^[153] reduced the significance of SNPPs and the legislation now requires that SNPPs be ‘taken into account ... without limiting the matters that are otherwise required or permitted to be taken into account’.^[154] Following the view established in Muldrock, this article seeks to provide a workable approach that would protect against the potentially unjust impact of a 20-year non-parole period in some cases of provoked lethal violence.

Drawing on the previously discussed 10-year case analysis of NSW provocation cases from the period immediately prior to the introduction of extreme provocation (as detailed above in Table 1), it is proposed that there are six key scenarios in which provocation has been successfully raised in NSW, and for which guideline judgments would need to be formulated. These scenarios are listed below in Table 2, which includes footnote references to the cases that would have been likely to fall into each of the scenarios for the period studied. Importantly, of the 20 successful defences of provocation raised in the 10 years prior to the NSW reforms, all are accounted for within these six scenarios of provoked lethal violence.

Scenario	Guideline judgment should be formulated on the directive that —
Scenario One Intimate partner homicide perpetrated in response to actual (or alleged) sexual infidelity, relationship separation, threat of a change in the nature of the relationship, or verbal taunt.^[155]	The provocative conduct should not be considered mitigating at sentencing for murder.
Scenario Two Lethal violence committed in response to the victim’s sexual involvement with the offender’s intimate partner (current or estranged).^[156]	The provocative conduct should not be considered mitigating at sentencing for murder.
Scenario Three Lethal violence committed in response to prolonged family violence or to an act constituting serious criminal conduct.^[157]	The provocative conduct does not need to have occurred in the period immediately prior to the lethal violence for the judge to consider it at sentencing, but in some cases it may have. In cases where the provocative family violence or criminal conduct is particularly grave and/or prolonged, the judge should depart significantly from the SNPP for murder and impose an exceptionally mitigated sentence that falls outside the usual range of sentences for murder, and more closely aligns with the lower range of sentences imposed for manslaughter.
Scenario Four Lethal violence committed in response to an alcohol-fuelled confrontation between the deceased and the offender.^[158]	The degree to which provocation should be considered mitigating should be taken into account in determining the appropriate sentence as outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(c). This scenario should include a directive that, where a person is intoxicated at the time of the act or omission causing death, and the intoxication is self-induced, loss of control caused by that intoxication or resulting from a mistaken belief occasioned by that intoxication is to be disregarded.
Scenario Five Lethal violence committed in response to a non-violent confrontation between the victim and the offender.^[159]	The provocative conduct should not be considered mitigating at sentencing for murder. This includes provocation that amounts to words alone and non-violent sexual advances.
Scenario Six Lethal violence committed in response to a violent confrontation between the victim and the offender.^[160]	Consideration in sentencing should be given to whether the offender intended to kill the deceased or to cause the deceased grievous bodily harm. The degree to which provocation should be considered mitigating should be taken into account in determining the appropriate sentence, as outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(c).

Scenarios One and Two, as presented in Table 2, most closely capture the cases of intimate partner homicide (typically but not exclusively male-perpetrated) that have incited calls for the abolition of the partial defence of provocation. The guideline judgments in these two scenarios would establish that provocative conduct that relates to a person exercising their right to end a relationship or to engage in sexual conduct with another person should not be perceived as mitigating factors in sentencing for murder. This would ensure that the law of homicide in NSW can distance itself from the ‘jealous man’ and ‘heat of passion’ narratives that have been heavily criticised in the operation of the defence across Australia and have given rise to significant concern surrounding the law’s production of victim-blaming discourses at trial and sentencing.

The directive proposed in Scenarios One and Two also aligns with the ‘equality framework’ advanced by Stewart and Freiberg, who argue that provocation relating to a victim exercising their equality rights should not serve to reduce an offender’s culpability at sentencing.^[161] As argued by Freiberg and Stewart:

In Scenario Two, this equality framework is extended beyond the context of intimate relationships to cover lethal violence perpetrated upon a third party that has or is engaged in a relationship with the offender’s intimate partner (current or estranged). While such heat of passion homicides could reasonably be perceived as belonging to earlier centuries when the law provided that women were the property of their husbands,^[163] in the 10 years prior to the 2014 reforms there were three cases where a male perpetrator was convicted of manslaughter by reason of provocation, having killed a male ‘sexual rival’.^[164] The directive in Scenario Two would provide a much-needed update to ensure that such killings no longer receive mitigation, bringing the law into line with current community expectations.

Scenario Three adopts a markedly different approach from that of Scenarios One and Two. It provides that provocative conduct be taken into consideration to the extent that it may reduce a sentence imposed for murder, to what would be imposed at the lower end of the sentencing range for manslaughter, in cases where lethal violence is committed in response to prolonged family violence or serious criminal conduct. This is intended to provide an unequivocal message to members of the judiciary that, where a person who kills in response to prolonged family violence is unable to alleviate themselves of a murder conviction through the various avenues of manslaughter or the complete defence of self-defence, their actions should be significantly mitigated at sentencing for murder. This directive would allow members of the NSW judiciary to move well below the prescribed SNPP of 20 years for murder. By taking this focus, Scenario Three addresses concerns that the transfer of provocation may result in the imposition of substantially longer sentences on women who kill a prolonged abuser and are unable to raise a complete defence of self-defence.^[165]

Moving away from intimate homicides specifically, Scenario Four draws from the provision included in the partial defence of extreme provocation as well as the model of reform proposed by the Hon James Wood during the NSW Parliamentary Inquiry.^[166] Under the new provisions, s 23(5) of the Crimes Act 1900 (NSW) states:

The extent to which intoxication, and in particular self-induced intoxication, should mitigate culpability has been the centre point in recent policy debates surrounding the perpetration of lethal violence in and around Sydney’s night-time economy,^[167] and was also considered to a lesser extent during the NSW Provocation Inquiry.^[168] During the 10-year period prior to the reforms, there were two homicides categorised as provocation manslaughter where the lethal violence occurred in the context of an alcohol-fuelled confrontation between the offender and victim.^[169] Post-2014, it is unlikely that such defendants would be able to raise a partial defence of extreme provocation and Scenario Four upholds this view.

Scenario Five excludes non-violent provocative conduct from receiving mitigation in sentencing. This includes conduct that amounts to words alone and non-violent sexual advances. The directive to exclude provocative conduct that is a non-violent homosexual advance from operating as a mitigating factor at sentencing aligns with the requirements of the extreme provocation defence.^[170] While there were no NSW cases in the 10 years prior to the reforms mirroring this context, recent debate following the 2015 High Court decision in Lindsay v The Queen^[171] highlights why the law in NSW must affirm that lethal violence committed in response to a non-violent homosexual advance cannot be mitigated on the basis of provocation. This would ensure that discourses of victim-blaming and the legal legitimisation of homophobia are not transferred to the sentencing process for murder.

Finally, Scenario Six provides perhaps the most open direction on the extent to which provocative conduct should be considered relevant to culpability in sentencing. This recognises that it is not possible to predict and provide for all scenarios of provoked lethal violence. In establishing this new guideline judgment approach, reconsideration should be given to whether the three relevant factors established by Hunt CJ at CL in R v Alexander (‘Alexander’)^[172] should continue to be relied upon at sentencing. In Alexander, the court established that in determining an offender’s level of culpability in provocation cases, the following is relevant:

These factors have been widely cited throughout NSW provocation case law and used to assist sentencing judges in determining the extent to which the sentence imposed for murder should be mitigated below the SNPP.^[174] While often referred to in case law, criticisms of the provocation defence have equally been focused on several of the elements affirmed in Alexander, such as the notion of a loss of self-control. For this reason the reform exercise provides an opportunity to rethink the philosophical framework that should justify a reduction in culpability, including the extent to which the elements set out in Alexander should continue to be relied upon in sentencing

C Accounting for Gender-Based Violence in Sentencing

The proposed framework arguably provides an approach through which gender-based violence can be more adequately accounted for in sentencing without reproducing the victim-blaming narratives that have traditionally been associated with the law of provocation. Given that the use of provocation as a partial defence to murder has been most controversial in intimate partner homicide trials, this section considers the viability of the proposed guideline sentencing framework in light of the work of Thérèse McCarthy in examining the need for sentencing to adequately reflect the seriousness of gender-based violence.^[175] McCarthy’s research considers ‘that potential gains are possible through open engagement between gender-based violence advocates, the judiciary and the community ... [and] the potential role of sentencing policy in the prevention of gender-based violence’.^[176] The application of McCarthy’s work is particularly relevant here given that a key goal of the 2014 NSW reforms was to implement laws that would overcome gender bias in the operation of the law of homicide.

McCarthy argues that providing ‘clear and unequivocal messages at the point of sentencing’ is equally as important as the numerical length of sentence imposed,^[177] and that it is imperative that sentencing remarks ‘reflect an intolerance of [gender-based] violence’.^[178] In reflecting McCarthy’s argument in the proposed framework, it is essential that, post-abolition, members of the NSW judiciary be proactive in ensuring that provoked lethal violence that occurs in unmeritorious cases (such as those detailed in Scenarios One, Two and Five in Table 2) receive a clear condemnatory response from the legal system and are framed at sentencing in a way that adequately reflects the nature and aetiology of gender-based violence. The proposed model of guideline judgments provides a framework for this to be achieved in cases of provoked lethal violence while also ensuring consistency in judicial responses to such cases.

Beyond sentencing remarks, by recognising the intent present in the offence committed with a murder rather than manslaughter conviction, the proposed framework allows for a more accurate retelling of the event which places responsibility for the lethal violence perpetrated in the first instance with the offender, rather than the victim. Law reform commissions have previously noted the presence of an intention to kill in provocation killings.^[179] For example, in 2002 the Victorian Law Reform Commission (‘VLRC’) questioned why provocation killings should be mitigated to manslaughter given the presence of an intention to kill:

The proposed guideline judgment framework provides a direct response to such arguments by offering a model through which the intent to kill in a provocation killing will be recognised with a conviction for murder while also providing a legitimate framework for the consistent application of mitigation at sentencing in cases of genuine provoked violence (such as those listed in Scenarios Two, Four and Six in Table 2).

Recognising the intent present in cases where provocation is raised also represents an important step away from the victim-blaming and gender-biased narratives that have been problematically associated with successful provocation defences in NSW, as well as in other Australian and international jurisdictions. Writing in relation to rape trials, McCarthy suggests ways in which the eradication of gender bias in the law can be achieved, noting that

These approaches can and should be adopted within the proposed model for sentencing provocation cases as murder rather than manslaughter. The adoption of the proposed model would be preferable when dealing with scenarios of male-perpetrated intimate partner homicide (as covered in Scenario One in Table 2), as it would provide a clear structure for responsibility to be located with the offender and a model through which the harms inflicted upon the victim can be more fully recognised.

D Broader Reform to Support the Sentencing Process

In implementing the proposed framework of guideline judgments, NSW would be wise to also consider broader reforms implemented in Victoria, which go beyond reforming legal categories to ensure a wider framework is in place to support the eradication of problems previously associated with the operation of the provocation defence.^[182] Here, three additional reforms are canvassed: reform to restrict evidence which demeans the victim; reform to introduce social framework evidence; and enhancements to jury directions given in homicide cases occurring in the context of family violence. It is argued that these reforms, implemented alongside the transfer of provocation to sentencing, would further enhance the law’s ability to respond to the often-gendered nature of homicide and would enable the law to better accommodate the contexts within which both men and women commit lethal violence.

While reforms to evidentiary provisions to counter victim-blaming were considered outside the scope of the NSW report,^[183] this is an unattended concern in the law’s operation that could be better addressed through a combination of the proposed sentencing reform alongside reform of evidence law. Victims being ‘put on trial’ is a key problem with the foundations of the defence, which arguably cannot be overcome through reform that retains and restricts the defence. In raising provocation, the offender seeks to put the words or actions of the victim on trial in order to illustrate how their use of lethal violence was provoked. In the majority of cases, this occurs in situations where no third party is able to contest the defendant’s version of what occurred in the period immediately prior to the homicide. Consequently, the acts and conduct of the victim become a central focus in trials where provocation is raised. The 2014 NSW reforms fail to address this problem in the law’s operation, raising a key concern post-reform that, where the partial defence of extreme provocation is raised at trial — whether successfully or unsuccessfully — it is likely to act as a vehicle for the continued mobilisation of victim-blaming narratives. Under this proposed model, however, by transferring provocation to sentencing, ‘provocative conduct’ on the part of victim would no longer be a key consideration in determining culpability in contested trials. This would arguably substantially decrease the incentive for the victim’s conduct to be a defence focus. Furthermore, a guided approach such as that provided in Table 2, would ensure that such narratives are not merely transferred to the sentencing stage of the justice process.

To date, Victoria is the only Australian jurisdiction that has introduced evidentiary law reform that addresses victim-blaming in homicide cases. The Victorian reform, introduced in 2014 as part of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic):

Introduced as part of a wider package of reforms to the law of homicide and jury directions, the Victorian evidence reforms responded to over 10 years of concerns that emerged following the trial of James Ramage surrounding the proliferation of victim- blaming narratives in the Victorian criminal courts.^[185] In commending this aspect of the reforms to Parliament in 2014, then Attorney-General Robert Clark explained:

Such reform rightly recognises that reforming legal categories alone is not sufficient to overcome entrenched victim-blaming narratives. While monitoring and evaluating the Victorian reforms will be important in terms of understanding their effect in practice, in the meantime the viability of introducing such reform in NSW should be considered to ensure that victim-blaming does not continue to plague the law’s response to lethal violence.

In addition to evidence reform to counter victim-blaming discourses in law, the transfer of provocation to sentencing would be greatly supported if accompanied by the introduction of a ‘social framework evidence’ provision. Social framework evidence was introduced in 2005 in Victoria through the Crimes (Homicide) Act 2005 (Vic),^[187] which established the relevance of family violence evidence in cases where a person committed homicide after experiencing abuse by the deceased. The VLRC explained that such evidence

The introduction of these provisions in Victoria was intended to ensure that persons who kill in response to family violence are able to introduce evidence related to the history of violence and their prior circumstances. As stated by the Victorian Department of Justice, this evidence framework helps to ‘ensure that during homicide proceedings, the jury hears evidence of family violence and the impact of that violence.’^[189] While research conducted in 2013 found that the provisions were not being used widely by those within the legal profession,^[190] the potential benefits of such provisions have been captured by Douglas, who notes that they ‘help to ensure that the contexts of the lives of abused women who kill are better understood and heard throughout the criminal justice process’.^[191]

In its final report, the Select Committee recognised the need for social framework evidence provisions as a ‘major issue’,^[192] and recommended ‘[t]hat the NSW Government introduce an amendment similar to section 9AH of the Victorian Crimes Act 1958, to explicitly provide that evidence of family violence may be adduced in homicide matters.’^[193] This recommendation reflected the views of several submissions provided to the Inquiry, which highlighted the importance of such evidence and supported its introduction. Despite this, the 2014 reforms did not introduce this provision, noting that it was not necessary given existing evidence laws under the Evidence Act 2008 (NSW). While family violence evidence is relevant to trials beyond those that raise the partial defence of extreme provocation, the need for a family violence evidence provision in NSW will be particularly important if provocation is abolished. Such reform would ensure that evidence pertaining to family violence is accessible in the trials of persons who kill in response to prolonged abuse and will no longer have the halfway partial defence to rely upon and where self-defence proves too restrictive.

If the current approach to extreme provocation is maintained, there is arguably an equal need for NSW to consider the introduction of social framework evidence reform given that the law requires that persons who kill in response to prolonged family violence show that the conduct of the deceased amounted to a serious indictable offence. Without bolstering evidence laws, defendants who kill in response to prolonged abuse will undoubtedly face significant barriers in conveying their experiences of family violence to the courts so that their use of lethal violence may be understood within the bounds of the heavily restricted defence.

Related to the need to introduce social framework evidence reforms to ensure that a clearer picture of the nature of family violence can emerge in the criminal court setting is the equal need to consider how jury directions on family violence could be enhanced in NSW to allow the nature and dynamics of family violence to be contextualised for lay members of the jury. Research has consistently observed the spread of myths and misconceptions surrounding the nature of family violence and the behaviour of family violence victims in the Australian community.^[194] Carline and Easteal refer to these as ‘invisible biases’,^[195] which become particularly problematic in the realm of law, where the actions of persons who kill in response to prolonged family violence often fail to fall neatly within legal defences, such as provocation and self-defence, or to be adequately understood by lay members of the jury. As recognised by Carline and Easteal:

A contested homicide trial involving a person who kills in response to prolonged family violence requires jurors to evaluate the offender’s actions to determine reasonableness and intent among other factors. For this reason, it is essential that the system actively ensures that an accurate depiction of family violence is conveyed to lay members of the jury.

NSW could look to recent reforms introduced in Victoria in 2014 in considering how jury directions could be enhanced to ensure that victim responses to family violence are better understood and represented in the legal process.^[197] Reform of the Jury Directions Act 2015 (Vic) requires trial judges in self-defence and duress cases to provide directions to the jury on family violence. The amendment also provides that a trial judge must, if requested, provide a direction:

These reformed directions are intended to contextualise family violence and overcome long-held misconceptions about the nature of family violence and assumptions about how a person should react to family violence.^[199]

Given that the NSW reforms increase the requirements to raise a partial defence of provocation, and do not reform self-defence, ensuring that jurors adequately understand the actions of persons who kill in the context of family violence will be paramount in the operation of the law post-reform if injustices are to be avoided. Combined with the aforementioned social framework evidence reforms, reform of jury directions is intended to open up the complete defence of self-defence to those who have previously struggled to access it while also ensuring that accurate understandings of family violence permeate all trials involving a homicide offence. When considered either separately or together, these proposed reforms would assist in ensuring that in the event of the abolition of provocation, and its transfer to sentencing, persons who kill in response to prolonged family violence are better supported throughout the trial process.

V CONCLUSION

These comments made by former NSW Director of Public Prosecutions Nicholas Cowdery are particularly relevant to the arguments advanced in this article. While the abolition of provocation as a partial defence to murder and its transfer to sentencing through a guideline judgment model may be perceived as ‘risky’ reform, it is necessary to adapt the criminal law to better reflect current community values and expectations of justice. It is only through a wholesale approach to reform — one that reconsiders offence categorisation, sentencing practice, evidence laws and the understanding of the jury — that can effectively address long-held concerns surrounding the law’s inability to adequately reflect the gendered nature of lethal violence. It is argued that the 2014 NSW reforms, while heavily restricting the provocation defence, do not go far enough in countering concerns surrounding the operation of the provocation defence specifically and the failure of the law to adequately understand and respond to lethal violence committed in response to family violence more broadly.

As the case analysis contained in this article demonstrates, the new partial defence of extreme provocation is unlikely to apply to the majority of cases that gave rise to a conviction for provocation in the 10 years prior to the reforms. While in many cases this is a welcomed development, it does raise the question of why the government did not go one step further and abolish the partial defence of provocation altogether. It is argued that, by abolishing provocation and introducing a sentencing guideline framework to support its consideration at sentencing, the NSW courts could better attend to the myriad of contexts within which provoked lethal violence occurs. This approach to reform would also establish NSW as the first Australian jurisdiction in which the abolition of provocation were accompanied by a guiding framework for how provocative conduct should be treated in sentencing

There will be a definite need, post-reform, to monitor and evaluate whether the proposed sentencing guideline framework is applied in practice as intended, and if so, to what effect. As Bradfield noted in response to the 2003 abolition of provocation in Tasmania, caution and evaluation are important to ensure that no undue sympathy is illegitimately afforded to male intimate partner homicide offenders during the sentencing stage of the court process and that a clear rejection of their claim of provocation is given by members of the judiciary.^[201] Post-reform evaluation is also important, given concerns raised in Victoria that the production of problematic narratives continued into the sentencing stage of the court process following the abolition of provocation, most notably through the operation of the former offence of defensive homicide, rather than in sentencing for murder.^[202]

If NSW is to effectively adopt a model that relocates provocation to sentencing and overcomes the gender bias historically associated with this partial defence, members of the judiciary will be required to take an active role in ensuring that the victim-blaming and gendered narratives associated with the operation of provocation are not merely reproduced in sentencing. As McCarthy argues, it is important that members of the justice system involved in sentencing are proactive in ‘challeng[ing] attitudes that trivialise violence and its impacts’.^[203] However, beyond sentencing, it is argued that the accompanying reforms recommended in this article — namely, enhanced jury directions and evidence reforms — will equip the criminal justice system to ensure that the transfer of provocation to sentencing for murder in NSW is a step forward in the law’s response to the gendered nature of homicide.

^[*]BA (Hons), PhD (Monash); Senior Lecturer, School of Social Sciences, Faculty of Arts, Monash University; Honorary Research Fellow, School of Law and Social Justice, University of Liverpool.

^[1] This includes a body of research and government reports that have been focused on the operation of the partial defence of provocation in New South Wales (‘NSW’): see, eg, Kate

Fitz-Gibbon, ‘Provocation in New South Wales: The Need for Abolition’ (2012) 45 Australian and New Zealand Journal of Criminology 194; Sam Indyk, Hugh Donnelly and Jason Keane, ‘Partial Defences to Murder in New South Wales 1990–2004’ (Report, Judicial Commission of New South Wales, 2006); NSW Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide, Report No 83 (1997); Lenny Roth, Provocation and Self-Defence in Intimate Partner and Homophobic Homicides (NSW Parliamentary Library Research Service, 2007); Stephen Tomsen, ‘Hatred, Murder and Male Honour: Anti-Homosexual Homicides in New South Wales, 1980–2000’ (Report No 43, Australian Institute of Criminology, 2002); Attorney-General’s Department (NSW), Homosexual Advance Defence: Final Report of the Working Party (1998).

^[3] Legislative Council Select Committee on the Partial Defence of Provocation, Parliament of NSW, Inquiry into the Partial Defence of Provocation: Terms of Reference (2012).

^[5] Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas); Crimes (Homicide) Act 2005 (Vic) s 3; Criminal Law Amendment (Homicide) Act 2008 (WA) s 8.

^[8] Singh [2012] NSWSC 637 (7 June 2012) [26]–[27], [30] (McClellan CJ at CL).

^[12] New South Wales, Parliamentary Debates, Legislative Council, 14 June 2012, 12 790.

^[13] For media coverage of the Singh case see, eg, Paul Bibby and Josephine Tovey, ‘Six Years for Killing Sparks Call for Law Review’, The Sydney Morning Herald (Sydney), 8 June 2012, 3; Josephine Tovey, ‘Dead Woman’s Sister Pleads for a Change in Provocation Law’, The Sydney Morning Herald (Sydney), 27 August 2012, 5; Josephine Tovey, ‘Finding Reason for Taking a Life’, News Review, The Sydney Morning Herald (Sydney), 1–2 September 2012, 2; Dylan Welch, ‘Fugitive Husband of Throat-Slashed Wife Arrested in Victoria’, The Sydney Morning Herald (Sydney), 31 December 2009, 4.

^[14] Legislative Council (NSW), ‘Parliamentary Inquiry to Examine Partial Defence of Provocation’ (Media Release, 21 June 2012).

^[15] Legislative Council Select Committee on the Partial Defence of Provocation, Inquiry into the Partial Defence of Provocation, above n 3.

^[17] Legislative Council Select Committee on the Partial Defence of Provocation, Parliament of NSW, Consultation on Reform Options (2012) 1.

^[18] Legislative Council Select Committee on the Partial Defence of Provocation, Parliament of NSW, The Partial Defence of Provocation (2013) 17–19. In considering the contexts within which the defence was successfully raised, the Inquiry drew heavily on two studies: Indyk, Donnelly and Keane, above n 1; Fitz-Gibbon, ‘Provocation in New South Wales’, above n 1.

^[20] See, eg, Fitz-Gibbon, ‘Provocation in New South Wales’, above n 1; Adrian Howe, ‘Reforming Provocation (More or Less)’ (1999) 12 Australian Feminist Law Journal 127; Adrian Howe, ‘Provocation in Crisis — Law’s Passion at the Crossroads? New Directions for Feminist Strategists’ (2004) 21 Australian Feminist Law Journal 53; Adrian Howe, ‘Provoking Comment: The Question of Gender Bias in the Provocation Defence — A Victorian Case Study’ in Norma Grieve and Ailsa Burns (eds), Australian Women: Contemporary Feminist Thought (Oxford University Press, 1997) 225; Danielle Tyson, Sex, Culpability and the Defence of Provocation (Routledge, 2013); Jenny Morgan, ‘Provocation Law and Facts: Dead Women Tell No Tales, Tales Are Told about Them’ [1997] MelbULawRw 6; (1997) 21 Melbourne University Law Review 237.

^[25] Debates surrounding the operation of provocation in Australia stem back far further than Ramage to at least 1990, when Murphy J of the Victorian Court of Appeal suggested abolition of the partial defence: R v Voukelatos [1990] VicRp 1; [1990] VR 1, 6.

^[26] Adrian Howe, ‘“Red Mist” Homicide: Sexual Infidelity and the English Law of Murder (Glossing Titus Andronicus)’ (2013) 33 Legal Studies 407, 410–13; Kate Fitz-Gibbon, ‘Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control’ (2013) 40 Journal of Law and Society 280, 285; Jeremy Horder and Kate Fitz-Gibbon, ‘When Sexual Infidelity Triggers Murder: Examining the Impact of Homicide Law Reform on Judicial Attitudes in Sentencing’ (2015) 74 Cambridge Law Journal 307, 307, 310.

^[27] Partial Defence of Provocation Report, above n 18, 74–88 [5.33]–[5.103].

^[30] Evidence to Legislative Council Select Committee on the Partial Defence of Provocation, Parliament of NSW, Sydney, 28 August 2012, 52 (Julie Stubbs).

^[31] Evidence to Legislative Council Select Committee on the Partial Defence of Provocation, Parliament of NSW, Sydney, 29 August 2012, 37 (Chrissa Loukas).

^[34] R v Green (Unreported, Supreme Court of New South Wales, Abadee J, 7 June 1994).

^[35] Green (1997) 191 CLR 334, 335, revd R v Green (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Priestley JA, Smart and Ireland JJ, 8 November 1995).

^[39] See, eg, Anti-Discrimination Board of NSW, Submission No 6 to Legislative Council Select Committee on the Partial Defence of Provocation, Inquiry into the Partial Defence of Provocation, 31 July 2012; Mr Alastair Lawrie, Submission No 21 to Legislative Council Select Committee on the Partial Defence of Provocation, Inquiry into the Partial Defence of Provocation, 10 August 2012, 2; NSW Gay and Lesbian Rights Lobby, Submission No 22 to Legislative Council Select Committee on the Partial Defence of Provocation, Inquiry into the Partial Defence of Provocation, 10 August 2012, 4.

^[44] The reforms apply to all homicides committed on or after 13 June 2014: New South Wales, Commencement Proclamation under the Crimes Amendment (Provocation) Act 2014, No 354, 11 June 2014.

^[48] See, eg, Kate Fitz-Gibbon, Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective (Palgrave Macmillan, 2014) ch 3; Jeremy Horder, Provocation and Responsibility (Clarendon Press, 1992) ch 9; Partial Defences to Murder Report, above n 1, 78 [2.145]; Felicity Stewart and Arie Freiberg, Provocation in Sentencing: Research Report (Sentencing Advisory Council, 2^nd ed, 2009) 43–4 [8.5.3]–[8.5.8].

^[50] Greg Smith, ‘New Bill Raises the Bar on Provocation’ (Media Release, 5 March 2014).

^[52] New South Wales, Parliamentary Debates, Legislative Assembly, 14 May 2014, 28 773–4 (Paul Lynch).

^[56] This analysis does not include cases where provocation was raised at trial but not accepted by the jury. It is plausible that similar trial narratives of victim-blaming and perpetrator excusing would be present in the trials where provocation is raised but does not succeed.

^[77] R v Hamoui [No 4] [2005] NSWSC 279 (15 April 2005) (‘Hamoui’).

^[78] Crimes Act 1900 (NSW) s 23(2)(b).

^[79] For further explanation on problems arising from claims of verbal provocative conduct see Morgan, ‘Dead Women Tell No Tales’, above n 20, 246–7.

^[80] [2014] NSWSC 700 (30 May 2014).

^[81] [2012] NSWSC 1227 (11 October 2012).

^[82] Armstrong [2014] NSWSC 700 (30 May 2014).

^[83] Ibid [8], [10] (Adamson J).

^[84] Ibid [10], [12].

^[85] See especially Crimes Act 1900 (NSW) s 35: reckless grievous bodily harm or wounding is punishable by up to 14 years’ imprisonment, making it a serious indictable offence. There is precedent in NSW for transmitting HIV infection to be treated as such: Kanengele-Yondjo v The Queen [2006] NSWCCA 354 (16 November 2006).

^[86] [2012] NSWSC 1227 (11 October 2012).

^[87] Ibid [4]–[5] (Button J).

^[88] Ibid [11]–[12].

^[89] Crimes Act 1900 (NSW) s 23(4).

^[90] Ibid s 23(2)(b).

^[91] Letter from the Law Society of NSW to the Department of Attorney-General and Justice (NSW), 18 November 2013, 2.

^[92] [2012] NSWSC 637 (7 June 2012).

^[93] Crimes Act 1900 (NSW) s 23.

^[94] [2014] NSWSC 280 (21 March 2014).

^[95] Ibid [50]–[52] (Garling J).

^[96] Ibid [27].

^[97] Ibid [47], [49].

^[98] Ibid [45].

^[99] Ibid [95].

^[100] See Horder, above n 48, 192–3.

^[101] Chant [2009] NSWSC 593 (26 June 2009); Russell [2006] NSWSC 722 (21 July 2006).

^[102] [2006] NSWSC 722 (21 July 2006) [5] (Newman AJ).

^[103] Ibid.

^[104] [2009] NSWSC 593 (26 June 2009) [12]–[15]. It is worth noting that, while tendered as agreed facts between the Crown and defence, the offender’s version of events was queried by the sentencing judge, who stated, ‘I would not have been prepared to act upon anything that the offender said about the circumstances surrounding the killing’: at [20].

^[105] Crimes Act 1900 (NSW) s 23(4).

^[106] Julia Tolmie, ‘Is the Partial Defence an Endangered Defence? Recent Proposal to Abolish Provocation’ [2005] New Zealand Law Review 25, 38.

^[107] Crimes (Homicide) Act 2005 (Vic) s 6, inserting Crimes Act 1958 (Vic) s 9AD.

^[108] Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) s 3; Victoria, Victorian Government Gazette, No S 350, 7 October 2014, 1. For further discussion of the offence of defensive homicide and its abolition, see Kate Fitz-Gibbon, ‘The Offence of Defensive Homicide: Lessons Learnt from Failed Law Reform’ in Kate Fitz-Gibbon and Arie Freiberg (eds), Homicide Law Reform in Victoria: Retrospect and Prospects (Federation Press, 2015) 128; Kellie Toole, ‘Defensive Homicide on Trial in Victoria’ [2013] MonashULawRw 17; (2013) 39 Monash University Law Review 473.

^[109] Partial Defence of Provocation Report, above n 18, 67–73 [5.3]–[5.32].

^[110] Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas); Crimes (Homicide) Act 2005 (Vic) s 3; Criminal Law Amendment (Homicide) Act 2008 (WA) s 8.

^[111] For recent research on the impact of provocation in sentencing in New Zealand and France see Julia Tolmie, ‘Defending Battered Defendants on Homicide Charges in New Zealand: The Impact of Abolishing the Partial Defences to Murder’ [2015] New Zealand Law Review 649; New Zealand Law Commission, Understanding Family Violence: Reforming the Criminal Law Relating to Homicide, Report No 139 (2016); J R Spencer, ‘Intentional Killings in French Law’ in Jeremy Horder (ed), Homicide Law in Comparative Perspective (Hart Publishing, 2007) 39.

^[112] For recent discussion of this in the United Kingdom context, see Horder and Fitz-Gibbon, above n 26.

^[113] Felicity Stewart and Arie Freiberg, ‘Provocation in Sentencing: A Culpability-Based Framework’ (2008) 19 Current Issues in Criminal Justice 283; Stewart and Freiberg, Provocation in Sentencing: Research Report, above n 48.

^[114] The NSW Sentencing Council is not permitted to issue guideline judgments: see John Anderson, ‘Standard Minimum Sentencing and Guideline Judgments: An Uneasy Alliance in the Way of the Future’ (2006) 30 Criminal Law Journal 203, 221.

^[115] Crimes (Sentencing Procedure) Act 1999 (NSW) s 36 (definition of ‘guideline judgment’ para (b)).

^[116] Nicholas Cowdery, ‘Guideline Sentencing: A Prosecution Perspective’ (1999) 11 Judicial Officers’ Bulletin 57, 58, 60; Nicholas Cowdery, ‘Guideline Judgments: It Seemed Like a Good Idea at the Time’ (Paper presented at the 20^th International Conference for the International Society for the Reform of Criminal Law, Brisbane, 2–6 July 2006) 1, 16.

^[117] Cowdery, ‘Guideline Judgments’, above n 116. This approach was adopted in Re A-G’s (NSW) Application [No 1]; R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 (‘Ponfield’).

^[118] [1998] NSWSC 423; (1998) 45 NSWLR 209.

^[119] Ibid 220.

^[120] [2001] HCA 64; (2001) 207 CLR 584.

^[121] Ibid 590–1 [5].

^[122] R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 269 [114] (Spigelman CJ) (‘Whyte’).

^[123] R v Henry (1999) 46 NSWLR 346.

^[124] Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.

^[125] Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327.

^[126] [2001] HCA 64; (2001) 207 CLR 584.

^[127] Sarah Krasnostein and Arie Freiberg, ‘Sentencing Guideline Schemes across the United States and Beyond’ (2014) Oxford Handbooks Online, 18–19 <http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199935383.001.0001/oxfordhb-9780199935383-e-001?rskey=vbFyma & result=1> .

^[128] John Anderson, ‘“Leading Steps Aright”: Judicial Guideline Judgments in New South Wales’ (2004) 16 Current Issues in Criminal Justice 140, 142.

^[129] Anderson, ‘Standard Minimum Sentencing’, above n 114; Cowdery, ‘Guideline Judgments’, above n 116.

^[130] [2002] NSWCCA 343; (2002) 55 NSWLR 252.

^[131] Ibid 269 [113].

^[132] Cowdery, ‘Guideline Judgments’, above n 116; Beth Crilly, ‘Guideline Judgments in Victoria: An Examination of the Issues’ [2005] MonashULawRw 3; (2005) 31 Monash University Law Review 37, 48–50; Chief Justice J J Spigelman, ‘Sentencing Guideline Judgments’ (1999) 11 Current Issues in Criminal Justice 5, 8, 10; Kate Warner, ‘The Role of Guideline Judgments in the Law and Order Debate in Australia’ (2003) 27 Criminal Law Journal 8, 22. For an overview of evaluations of guideline judgments see Sarah Krasnostein and Arie Freiberg, ‘Pursuing Consistency in an Individualistic Sentencing Framework: If You Know Where You’re Going, How Do You Know When You’ve Got There?’ (2013) 76(1) Law and Contemporary Problems 265, 284–6.

^[133] Crilly, above n 132, 54–6; Warner, above n 132, 22.

^[134] Cowdery, ‘Guideline Judgments’, above n 116; Spigelman, above n 132, 6.

^[135] Cowdery, ‘Guideline Judgments’, above n 116, 14.

^[136] Austin Lovegrove, ‘Intuition, Structure and Sentencing: An Evaluation of Guideline Judgments’ (2002) 14 Current Issues in Criminal Justice 182, 183–6; Arie Freiberg, ‘Australia: Exercising Discretion in Sentencing Policy and Practice’ (2010) 22 Federal Sentencing Reporter 204, 206–7.

^[137] Anderson, ‘Leading Steps Aright’, above n 128, 144, citing Wong [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ).

^[138] See, eg, Crilly, above n 132; Lovegrove, above n 136.

^[139] Crilly, above n 132, 58.

^[140] See Stewart and Freiberg, Provocation in Sentencing: Research Report, above n 48, ch 8; Stewart and Freiberg, ‘A Culpability-Based Framework’, above n 113.

^[141] Stewart and Freiberg, Provocation in Sentencing: Research Report, above n 48, 4 [1.1.10].

^[142] Stewart and Freiberg, ‘A Culpability-Based Framework’, above n 113, 294.

^[143] Ibid.

^[144] Ibid 286.

^[145] Law Reform Commission of WA, Review of the Law of Homicide: Final Report, Project No 97 (2007) 221.

^[146] Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A.

^[147] NSW Sentencing Council, Standard Non-Parole Periods: A Background Report by the NSW Sentencing Council (2011) 10 [2.14]–[2.15] (‘Sentencing Council Report’).

^[148] See Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.

^[149] Sentencing Council Report, above n 147, 10 [2.16].

^[150] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132 [30]. For further information on SNPPs see generally NSW Law Reform Commission, Sentencing: Interim Report on Standard Minimum Non-Parole Periods, Report No 134 (2012); Sentencing Council Report, above n 147.

^[151] Anderson, ‘Leading Steps Aright’, above n 128, 150. See also Anderson, ‘Standard Minimum Sentencing’, above n 114, 205.

^[152] Anderson, ‘Leading Steps Aright’, above n 128, 157.

^[153] [2011] HCA 39; (2011) 244 CLR 120.

^[154] Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B(2).

^[160] In the period studied, the cases of Forrest [2008] NSWSC 301 (4 April 2008); Berrier [2006] NSWSC 1421 (21 December 2006); Bullock [2005] NSWSC 1071 (21 October 2005) would likely fall into this category, as well as several of the cases listed under the second scenario.

^[161] Stewart and Freiberg, ‘A Culpability-Based Framework’, above n 113, 295.

^[162] Ibid 296.

^[163] See, eg, R v Mawgridge (1707) Kel J 119, 137; [1708] EngR 24; 84 ER 1107, 1115 (Lord Holt CJ).

^[164] Won [2012] NSWSC 855 (3 August 2012); Goundar [2010] NSWSC 1170 (5 November 2010); Lovett [2009] NSWSC 1427 (18 December 2009).

^[165] See Crofts and Tyson, above n 53, 874.

^[166] This model is detailed in Appendix B of the Consultation on Reform Options, above n 17,

5–6.

^[167] Julia Quilter, ‘One-Punch Laws, Mandatory Minimums and “Alcohol Fuelled” as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81, 97.

^[168] Partial Defence of Provocation Report, above n 18, 119–20 [6.146]–[6.147].

^[169] Lynch [2010] NSWSC 952 (15 September 2010); Dunn [2005] NSWSC 1231 (13 September 2005).

^[170] Crimes Act 1900 (NSW) s 23(3)(a).

^[171] (2015) 255 CLR 272.

^[172] (1994) 78 A Crim R 141, 144.

^[173] Ibid.

^[174] See, eg, Goundar [2010] NSWSC 1170 (5 November 2010) [58] (Kirby J); Won [2012] NSWSC 855 (3 August 2012) [11] (Fullerton J); Lynch [2010] NSWSC 952 (15 September 2010) [9] (Studdert AJ); Chant [2009] NSWSC 593 (26 June 2009) [21] (Howie J).

^[175] Thérèse McCarthy, ‘A Perspective on the Work of the Victorian Sentencing Advisory Council and Its Potential to Promote Respect and Equality for Women’ in Arie Freiberg and Karen Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (Federation Press, 2008) 165, 171. While McCarthy’s research focused on the role of the Victorian Sentencing Advisory Council, this article extends that work to consider how gender-based violence can be adequately accounted for at sentencing for murder in cases where claims of provocation are raised.

^[176] Ibid 166.

^[177] Ibid 172.

^[178] Ibid 170.

^[179] See, eg, New Zealand Law Commission, The Partial Defence of Provocation, Report No 98 (2007) 6–7; Victorian Law Reform Commission, Defences to Homicide, Issues Paper (2002) 67 [6.17]–[6.18].

^[180] VLRC, Defences to Homicide, Issues Paper (2002) 67 [6.17]. See also Tasmania, Parliamentary Debates, House of Assembly, 20 March 2003, 59–60 (Judy Jackson).

^[181] McCarthy, above n 175, 171.

^[182] See Jenny Morgan, Who Kills Whom and Why: Looking Beyond Legal Categories (VLRC, 2002).

^[183] Partial Defence of Provocation Report, above n 18, 188–9 [8.147]–[8.148].

^[184] Paige Darby, Alice Jonas and Catriona Ross, ‘Crimes Amendment (Abolition of Defensive Homicide) Bill 2014’ (Research Brief No 8, Parliamentary Library, Parliament of Victoria, 2014) 7.

^[185] Ramage [2004] VSC 508 (9 December 2004). For research that has critiqued victim-blaming in the Ramage case, see generally Graeme Coss, ‘Provocation’s Victorian Nadir: The Obscenity of Ramage’ (2005) 29 Criminal Law Journal 133; Fitz-Gibbon, Gender and the Provocation Defence, above n 48, 1–6; Howe, ‘Provocation in Crisis’, above n 20; JaneMaree Maher et al, ‘Honouring White Masculinity: Culture, Terror, Provocation and the Law’ (2005) 23 Australian Feminist Law Journal 147.

^[186] Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2014, 2836.

^[187] Crimes (Homicide) Act 2005 (Vic) s 6, inserting Crimes Act 1958 (Vic) s 9AH. Following the introduction of further reforms to the Victorian law of homicide in 2014, this aspect of the 2005 reform is now reflected in s 322J of the Crimes Act 1958 (Vic), as inserted by Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) s 4.

^[188] VLRC, Defences to Homicide, Options Paper (2003) xix–xx.

^[189] Criminal Law — Justice Statement, Department of Justice (Vic), ‘Defensive Homicide: Review of the Offence of Defensive Homicide’ (Discussion Paper, Department of Justice (Vic), August 2010) 27 [81].

^[190] Debbie Kirkwood, Mandy McKenzie and Danielle Tyson, ‘Justice or Judgment? The Impact of Victorian Homicide Law Reforms on Responses to Women Who Kill Intimate Partners’ (Discussion Paper No 9, Domestic Violence Resource Centre Victoria, 2013) 51.

^[191] Douglas, above n 28, 378.

^[192] Partial Defence of Provocation, above n 18, 178 [8.102].

^[193] Ibid 186 (recommendation 2).

^[194] Silke Meyer, ‘Why Women Stay: A Theoretical Examination of Rational Choice and Moral Reasoning in the Context of Intimate Partner Violence’ (2012) 45 Australian and New Zealand Journal of Criminology 179, 180; Natalie Taylor and Jenny Mouzos, ‘Community Attitudes to Violence against Women Survey 2006: A Full Technical Report’ (Report, Australian Institute of Criminology, November 2006) xi; VicHealth, ‘Australians’ Attitudes to Violence against Women: Findings from the 2013 National Community Attitudes towards Violence against Women Survey’ (Report, Victorian Health Promotion Foundation, 2014).

^[195] Carline and Easteal, above n 28, 6.

^[196] Ibid 8.

^[197] These reforms were introduced alongside the aforementioned reforms to evidence laws: see above n 187 and accompanying text.

^[198] Jury Directions Act 2015 (Vic) s 60.

^[199] Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2014, 2835–6 (Robert Clark, Attorney-General).

^[200] Nicholas Cowdery, ‘The Times They Are A-Changing: Where to for the Criminal Law in NSW?’ (Speech delivered at the John Marsden Memorial Lecture 2012, Sydney, 15 November 2012).

^[201] Rebecca Bradfield, ‘The Demise of Provocation in Tasmania’ (2003) 27 Criminal Law Journal 322, 324.

^[202] Sarah Capper and Mary Crooks, ‘New Homicide Laws Have Proved Indefensible’, The Sunday Age (Melbourne), 23 May 2010, 21; Fitz-Gibbon, Gender and the Provocation Defence, above n 48, 181–8; Kate Fitz-Gibbon, ‘The Victorian Operation of Defensive Homicide: Examining the Delegitimisation of Victims in the Criminal Court System’ (2012) 21 Griffith Law Review 555, 563–71.

^[203] McCarthy, above n 175, 171.

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