Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Whether sentence for murder should have been imposed as if a case of murder reduced to manslaughter by reason of provocation - Provocation no longer a partial defence to murder.

Judgment Number: [2005] TASSC 119

1 On 4 December 2003 the appellant murdered his partner with whom he had lived since about 1994. They had three children, all of whom were under the age of 8 years at the time of their mother's death. The appellant pleaded guilty to murder, and on 7 July 2005, he was sentenced to 16 years' imprisonment with an eight-year non-parole period.

2 The deceased suffered from Munchausen's Disease by Proxy. She caused serious injury to her second eldest child and there was reason to suspect that she had harmed her elder daughter. As a result of the harm done to the second eldest child, the authorities were alerted to the risk of harm being done to the eldest child, (the youngest was not born at this time) and child protection proceedings were instituted in the Launceston Magistrates Court. In result, the two children were placed in the care of the appellant's mother. The youngest child was born in December 2001 and placed in foster care within three days of her birth. Because of her illness, the deceased was not allowed to be alone with the children. Throughout, the deceased claimed that she had done nothing to harm the children and the appellant believed and supported her. As the events progressed, the appellant came to realise that the deceased did suffer from Munchausen's Disease by Proxy, that she had harmed her children and that he had to make a choice between living with, and supporting, the deceased and having his children. Not surprisingly, their relationship deteriorated, although for a long time the appellant hoped that somehow, he could become reunited with his wife and children all of whom he loved.

3 In March 2001 the appellant and the deceased separated. However, they continued to visit one another and subsequently became reconciled. The relationship became very volatile. The deceased engaged in manipulative conduct and told lies about her suffering from cancer and other matters that caused great distress to the appellant and the members of his family. In January 2003 the deceased alleged that the appellant had raped her. He was charged and remanded in custody for six weeks. He denied the allegation. They did not resume cohabitation after that but there was intermittent contact between the two of them.

4 In the few days before her death, the deceased contacted the appellant by phone and told him that she had nowhere to live. She solicited his assistance. By arrangement, the deceased went to the appellant's home on the evening before her death. Both consumed a considerable amount of alcohol. There were arguments about the children. The appellant told police that the deceased said that he would never see the children again. It was, of course, an empty threat as she could not prevent him doing so by virtue of the court orders.

5 At midnight the deceased and the appellant went to bed in separate rooms, but after a short while, the deceased went into the appellant's room and the same argument started up again. The deceased again said that the appellant would never see the children again. In a rage, the appellant murdered the deceased. He grabbed her by the throat and forced her out of the room, up the hall and into another room. There ensued a struggle, during which the appellant punched the deceased in the face several times. He then caused her death by suffocating her. He held his hand over her nose, squeezed her throat, held a pillow over her face, and pulled tightly on a chain she was wearing around her neck. Finally, the appellant throttled the deceased until she lost consciousness and died. His plea of guilty to murder was entered on the basis he intended to kill the deceased.

6 The appellant gave evidence on the sentencing hearing. With respect to the events immediately before the murder, there were some differences between that evidence and the account the appellant gave the police in a videotaped interview. For the purpose of this appeal it is not necessary to go into that evidence or those differences. The learned sentencing judge found that the deceased did tell the appellant that he would never see his children again and that this was the last straw for him. It caused him to lose his self-control. With respect to the threat that the appellant would never see the children, the learned sentencing judge said:

"I accept that was said. I think it likely that it consisted of a threat to do what she could to hurt him and his family, perhaps by seeing that he was dealt with for the alleged rape and assault of her, and that a consequence might be that he would not be able to see the children again. However, I do not see it as a threat to actually cause harm to the children, as suggested by counsel."

8 Mr Richardson, counsel for the appellant, submitted to the learned sentencing judge that the deceased's statement that the appellant would never see his children again amounted to an insult that followed provocative conduct over the years and which led him to lose his power of self-control. The submission was that but for the amendment to the Criminal Code in May 2003, which deleted s160, this would have been a case of murder reduced to manslaughter by reason of provocation. The principal provisions of now repealed s160 are subs(1) and (2) which used to provide:

"(1) Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.

(2) Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool."

9 The submission to the learned sentencing judge was that accordingly he should have regard to the "tariff" for crimes of murder reduced to manslaughter by reason of provocation. The submission was rejected. No finding was made about whether the insult was one which would have deprived the ordinary person of the power of self-control. The submission put to the learned sentencing judge was put to this Court. Indeed, the notice of appeal alleged not error in the orders of sentence, but in rejecting that submission. However after an exchange with the Court, that ground was abandoned and three new grounds substituted:

2 The sentencing judge erred in failing to find that the provocation in this case was sufficient to deprive an ordinary person of the power of self-control.

3 The sentencing judge failed to give sufficient consideration to sentences imposed in cases where murder had been reduced to manslaughter as a result of provocation."

10 I hope that I do not do any injustice to the submissions made in support of the appeal if I summarise them as follows:

* Prior to the repeal of s160, the records of the Court, and Warner, Sentencing in Tasmania (2nd ed) 274 - 275 show that the sentences for murder reduced to manslaughter fell into a unique sentencing range, attracting sentences less than those imposed for murder, but frequently at the high end of the range for manslaughter.

* But for the repeal of the section, this case would have attracted a sentence consistent with that unique range of sentences.

* By the repeal of the Code, s160, Parliament did not intend to affect the discretion of the Court to impose a sentence consistent with that range.

* The learned trial judge erred in failing to make a finding whether the insult that he found caused the appellant to lose control was one that would have deprived the ordinary person of the power of self-control.

11 In my opinion the submission fails. I agree that by the repeal of s160, Parliament did not intend to fetter the sentencing discretion. However, that does not mean that the imposition of a proper sentence had to be consistent with a range of sentences based upon a law that no longer exists.

12 In his comments on passing sentence, the learned sentencing judge took into account the deceased's provocative conduct immediately prior to her death and all the other events that had occurred during the preceding years. It was, as counsel for the Crown agreed, a sad case. The learned sentencing judge took into account that this was so and that there were substantial mitigating factors. This is reflected in the sentence. Mr Richardson did not contend that the learned sentencing judge failed to take into account any material fact or facts. He put his case squarely upon the basis that the only factor that made the sentence manifestly excessive was that, but for the repeal of s160, the appellant would have been sentenced for manslaughter by reason of provocation, and although the section has been repealed and the appellant had to be sentenced for murder, he should have been sentenced as if provocation of the nature prescribed by s160 had reduced his crime to manslaughter.

13 Prior to the repeal of s160, the law was that if murder was committed as a result of an insult which would have deprived the ordinary person of the power of self-control and which did in fact deprive the accused of self-control and he had acted upon it before there had been time for his or her passion to cool, the crime committed was manslaughter. In the case of any other kind of provocation the crime was murder.

14 It has been said that provocation emerged as a partial defence to murder during the 17th Century as a way of avoiding mandatory capital punishment and it was developed as a concession to human frailty. See Principles of Criminal Law, Bronitt and McSherry, 257. In May 2003 the Tasmanian Parliament removed that concession to human frailty. In a most learned article, "A Brief History of Provocation in England", [1991] SydLawRw 32; (1991) 13 Sydney Law Review 570, Coss said at 601:

"Ultimately, in seeking to comprehend the numerous motions for reform, the fundamental question has to be faced: Why do we have a defence of provocation reducing the crime of murder to one of manslaughter? Without daring to enter into a complex jurisprudential debate, it is surely imperative to determine the true rationale of the defence. It will be remembered that manslaughter upon chance medley, or killing in the heat of passion, had first emerged as a category of excusable homicide. No doubt as an expression of the law's benevolence, it was introduced to mitigate the absolute severity of the death penalty. Its modern day incarnation, the defence of provocation, is no longer possessed of such a design."

15 In a discussion paper, "Fatal Offences against the Person" (1998) at 87 et seq, the Model Criminal Code Officers Committee recommended that the partial defence of provocation be abolished. The first two reasons offered for this course were:

"It engenders difficulties concerning intention. Those who rely on provocation intend to kill. Why does the fact that the accused lost self-control make any difference; and

following on from the first argument, the existence of provocation can be reflected in sentencing. There is no need for a separate defence."

16 Prior to the enactment of the Criminal Code (Life Prisoners and Dangerous Criminals) Act 1994, the Criminal Code, s158, provided that the only sentence that could be imposed in cases of murder was imprisonment for the term of the prisoner's life. Parole by judicial order was not an option. Early release was a matter for Executive discretion. After the 1994 Act came into force on 5 July 1995, the Court was empowered to impose a term of years or life imprisonment and to fix non-parole periods in cases of murder. It might be said that thereupon, any perceived need to make allowances for "human frailty" in cases of murder disappeared because provocation was just one of the many factors that would be taken into account in the exercise of an unfettered sentencing discretion. I note from the second reading speech on the Criminal Code Amendment (Abolition of the Defence of Provocation) Bill 2003 that this is the principal reason relied upon by the Attorney General for the introduction of the Bill.

17 It should not be overlooked that prior to the abolition of the mandatory life sentence for murder, persons who were provoked by an insult to the extent that they lost the power of self-control and intentionally murdered another in the heat of the moment, would be sentenced to life imprisonment unless the jury also thought that it was reasonably possible that an ordinary person also would have been deprived of the power of self-control if confronted with the same insult. This aspect of the partial defence created great uncertainty because it raised the issue of what attributes of the accused should be attributed to the ordinary person. See Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58. Thus, it might be said that before the repeal of s160, not all cases of murder committed as a result of sudden loss of the power of self-control arising from an insult resulted in a verdict of guilty of manslaughter. Before the repeal of the mandatory penalty of life imprisonment for murder, provocation could not be taken into account in the sentencing process. After that repeal, provocation could be taken into account in the sentencing process regardless of whether the verdict was guilty of manslaughter or guilty of murder. It could be said that the repeal of the Code, s160, removed an anachronism in the law and an inequality in the sentences that were imposed as a consequence of that anachronism.

18 It is difficult to put the matter more succinctly than did the learned sentencing judge when he said that provocation is no longer a defence to murder and the accused is to be sentenced for murder, not manslaughter. There is no longer any need to enquire into whether the insult would have deprived an ordinary person with the attributes of the accused (whatever that entails in each case) of the power of self-control. There is no longer any reason to impose a sentence for manslaughter instead of murder because of provocation. Provocation is taken into account in the exercise of the sentencing discretion for murder. The degree of provocation is just an aspect of the sentencing discretion. In a suitable case, no doubt it could be urged that greater mitigatory weight than usual should be given to the provocation because not only did the insult cause the accused to lose the power of self-control, but it was so grave it would also have caused a reasonable person to lose that power.

19 However, it is not contended on this appeal that the learned sentencing judge failed to give sufficient weight to the issue of provocation, nor is it contended that the sentence is manifestly excessive for any reason other than it is well outside the range of sentences imposed for the crime of murder reduced to manslaughter by reason of the partial defence of provocation.

21 I have had the benefit of reading the reasons for judgment of the learned Chief Justice and agree with both his reasoning and conclusion.

22 The reasons offered by the Model Criminal Code Officers Committee (Principles of Criminal Law, Bronitt and McSherry at 285), referred to by the learned Chief Justice at par15, namely:

"It engenders difficulties concerning intention. Those who rely on provocation intend to kill. Why does the fact that the accused lost self-control make any difference; and

following on from the first argument, the existence of provocation can be reflected in sentencing. There is no need for a separate defence."

are not completely adequate to encompass the provisions of the Criminal Code (Tas), s157(1)(c). Murder can be proven against someone who did not "intend to kill" (Boughey v R [1986] HCA 29; (1986) 161 CLR 10). In cases involving the Code, s157(1)(a) and/or (b), consideration of the requisite state of mind is made more complex by a disorder or affliction falling short of "legal insanity" (Hawkins v R [1994] HCA 28; (1994) 179 CLR 500. See Provoking Diminished Responsibility: Two Pleas Merging Into One? Mackay and Mitchell [2003] Crim LR 645). The subjective characteristics of the offender (Bedelph v R [1980] Tas R 23), and the quality of the initiating provocation (Stingel v R [1990] HCA 61; (1990) 171 CLR 312) remain significant matters in the determination of sentence. A plea of guilty to murder is not necessarily one of admission of an actual intention to bring about the death of another. Indeed, some of the complexities associated with the operation of s157(1)(c) and its interrelationship with an identified mental condition or self-induced state remain (Attorney-General's Reference No 1 of 1996 (1998) 7 Tas R 293). They, and, in particular, the matters referred to by the learned Chief Justice in his reasons at par18 are factors in the sentencing process.

23 Here the learned sentencing judge properly and adequately took into account the effect of conduct of the deceased, the interrelationship between the victim and offender, and the subjective characteristics of the appellant.

24 In my opinion, the grounds of appeal have not been made out and I would dismiss the appeal.

25 I have read the reasons for judgment of the learned Chief Justice in draft form. I agree that the appeal should be dismissed for the reasons stated by him. There are some comments that I would like to add.

26 Between the abolition of mandatory sentences of life imprisonment for murder in 1994 and the repeal of s160 in 2003, sentences for manslaughter in provocation cases were substantially less than those for murder. The only reason for the great disparity between murder sentences and manslaughter sentences in provocation cases was the existence of s160. Now that s160 has been repealed, there is no reason for such a great disparity. When a murder has been brought about or contributed to by provocation, that is now simply a mitigating factor whose weight will depend on the circumstances.

27 It is worth noting that the onus of proof in relation to provocation in murder cases shifted with the 2003 amendment. Before then, when provocation was an issue on a trial, the Crown bore the onus of proving beyond reasonable doubt that the killing was not one to which s160 applied. Since the amendment, provocation has been no more than a mitigating circumstance, as to which the offender bears the onus of proof for sentencing purposes if there is a dispute as to the facts: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

28 The circumstances that a sentencing judge should take into account in relation to provocation in a murder case include the nature of the provocation, its severity, its duration, its timing in relation to the killing, any relevant personal characteristics of the offender (eg, in cases of racial abuse), and the extent of the impact of the provocative conduct on the offender. When provocation is taken into account as a mitigating factor for sentencing purposes in relation to a crime other than murder, it is not common for anything to be put to the sentencing judge as to whether an ordinary person would have been deprived of the power of self control, nor as to whether or not there was time for the offender's passion to cool. Those matters are of course relevant, but the weight to be attached to the provocation can be readily assessed by reference to the factors I have listed. I see no reason why provocation should be dealt with as a mitigating factor any differently in murder cases from the way it is dealt with in other cases. In some murder cases, there will be relevant provocation that would not have afforded a defence under s160. In such cases, provocation may still amount to a very significant mitigating factor for sentencing purposes.