Posts by ScottY
Last ←Newer Page 1 2 3 4 5 Older→ First
-
The Sentencing Act has only been around since 2002, and as far as I know the NZ courts have not had to deal with provocation as a matter reducing a sentence from life, because the provocation partial defene has been available during trial.
The UK has a mandatory life sentence for murder, and I think Canada does too, whereas NZ does not. The UK and Canadian experiences have arguably limited relevance, because their sentencing laws are different.
I think it likely that if the partial defence is aboilished the NZ courts will take that as a signal from Parliament that provocation is a matter to be addressed at sentencing, and will entitle a sentence other than life in the right circumstances.
Incidentially the UK's law commission has recommended its provocation laws should be repealed, provided the mandatory life sentence for murder is also repealed.
Canada's commission made recommendations similar to our own Commission's 25 years ago. They're yet to be implemented.
-
Justin H, murder no longer has a mandatory life sentence. If the scenario outlined by you had occurred I think it highly likely the judge would have given the mother a lighter sentence, or none at all.
Remember also that a judge can impose life for manslaughter. So the label we put on the offence does not have to reflect the length of the sentence.
That's why there's no reason to retain provocation. The current law allows for mitigating circumstances to be taken into account.
-
D'oh!
Not it doesn't = No it doesn't
edit button now!
-
Murder carries a mandatory life sentence
Not it doesn't.
Section 102 of the Sentencing Act 2002:
An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
It used to be mandatory, but now there's a presumption in favour of life.
Which is why we can get rid of provocation - judges don't have to give life in all cases.
-
The reputations of lawyers like Ablett-Kerr notwithstanding, there is no good reason to remove a right to this defence
You mean apart from the fact that the law as it stands is a confusing mess (read the Law Commission report on s169's interpretation over the years - it's quite damning) and that there are other ways of addressing reduced responsibility? (e.g. at sentencing time)
From the report:
Provocation is widely recognised as a troublesome and difficult area of the criminal law. Dissatisfaction with it has been extensively and repeatedly expressed, in all manner of forums. It is evident in judicial dicta at the highest levels.
Submissions to similar effect were received by the Law Commission
in consultation on Some Criminal Defences with Particular Reference to Battered Defendants: the District Court judges’ jury trial committee said provocation was “an all but impenetrable and incomprehensible mess” and the High Court judges described it as “a blot on the criminal law”. There is a vast and complicated literature, addressing and critiquing every possible aspect of the defence, and a similarly vast and complicated body of case law. We have been able to address only a very small portion of that material in this report. Finally, New Zealand law reformers have been consistently recommending abolition for over three decades.The time, in our view, has come to act on such recommendations.
And:
In our view, appellate courts and juries have struggled (and continue to struggle) to come to grips with the provocation defence for one very simple reason: the defence is irretrievably flawed
And the recommendation:
We recommend that the partial defence of provocation should be abolished in New Zealand by repealing section 169 of the Crimes Act 1961; the defendants who would otherwise have relied upon that partial defence should be convicted of murder; and evidence of alleged provocation in the circumstances of their particular case should be weighed with other aggravating and mitigating factors as part of the sentencing exercise.
-
Anyone looking at the case could see he was doomed.
Putting him on the stand was a gamble for a defence team that had nothing to lose.
Even if he'd "got off" I suspect the judge would have flayed him at sentencing time. He may have still got life.
-
The key thing is to change the law and remove provocation as a partial defence, so no other lawyer or defendant can put a victim's family through what the Elliotts have endured.
Any provocation can be a matter for the Judge at sentencing, but should not be a way to escape a murder conviction.
DPF, I agree that the partial defence needs to go.
The Law Commission recommended in 2007 just what DPF has suggested. Let it be a matter for mitigation when it comes time to sentence.
The law as it stands is farcical and confusing for judges and lawyers. (I challenge anyone to read section 169(2) and know exactly what it means). Nobody understand it, so how can a jury be expected to get it right?
I don't see a need for degrees of murder. Let's just call it murder and take any provocation into account at the time of sentencing.
-
It's too simplistic to say that Australians are wealthier because they have more natural resources.
They have always had ample mineral resources, but only in the last couple of decades have they pulled away from us in terms of per capita income.
We also have many resources. One of our problems is there aren't the capital markets or levels of investment in innovation we need to enable efficient exploitation of them.
And many weatlhier countries than us have fewer natural resources.
-
On the productivity matter, the taskforce will fail for a number of reasons:
- nobody has the political courage in this country to wean the masses from their love of real estate investment and consumer credit. We'll never have strong investment in plant and technology until that happens. In the unlikely event it recommends sensible action be taken, the government will probably ignore it.
- Our R&D sector is underfunded. The Nats' scrapping of the R&D tax credit was a step backwards.
-
Most lawyers appear to be quite comfortable with the CJ's comments. This includes the President of the Law Society.
Garrett may be a former lawyer, but he was an employment lawyer. He clearly knows little about constitutional law matters. There has never been a perfect separation between the branches of government. Garrett also flouts the convention he claims exists on a regular basis, whevever he feels like attacking judges over their sentences.
As for Farrar, clearly anyone who attacks his beloved Nats must be shot down. I'd have expected nothing less.
Despite the efforts of these people, and of McVicar, the CJs speech has got a lot of people talking about criminal justice matters. PAS readers should definitely read the speech transcript if they haven't aready. It pulls together a lot of strands into a pretty compelling argument.