Provocation

In November 2004, the Victorian Law Reform Commission (VLRC) released the Defences to Homicide final report. Among other things, the VLRC recommended that the partial defence of provocation be abolished, with provocation to be considered in sentencing alongside other sentencing factors.

The Crimes (Homicide) Act 2005 abolished the partial defence of provocation for homicides committed after 22 November 2005.

Defendants charged with a murder committed after that date lost the right to raise the partial defence of provocation, which previously would have reduced a conviction of murder to manslaughter. Judges have to consider the relevance of any provocative conduct on the part of the deceased in determining an appropriate sentence for the crime of murder, which is a more serious offence.

The Council's Provocation in Sentencing Research Paper, now in its second edition, examines how provocation has featured in sentencing decisions for non-fatal offences in Victoria, and also looks to interstate and international authorities to extract sentencing principles. The paper suggests an approach to considering provocation in sentencing that seeks to avoid the problems and flaws of the pre-existing law.