Provocation

Provocation Defence

The principle that provocation reduces murder to manslaughter is a partial defence to offences alleged to have occurred before 23 November 2005 (Crimes Act 1958 s3B, s603). For offences committed from this date, alternative defences such as defensive homicide (repealed 1 November 2014) and self-defence may apply.

The defence of provocation is considered a partial defence to murder because a defendant charged with murder is not absolved of responsibility for the killing, but the severity of the offence is reduced to manslaughter.

The defence is not applicable unless all the elements of murder are established. It operates by balancing the protection of life with compassion for human frailty and is founded on a principle of ‘a sudden loss of control‘.

Once the defence of provocation is raised as an issue, the onus is on the prosecution to disprove at least one of the elements beyond reasonable doubt.

If the accused raises the defence of provocation, the onus is on the prosecution to disprove the defence beyond reasonable doubt. This can disprove the defence in one of the following three ways:

• The deceased person did not act provocatively. If it is reasonably possible that the conduct that was capable of provoking the accused occurred, the prosecution will have failed to disprove this aspect of provocation (R v Thorpe (No 2) [1999] 2 VR 719).
• The accused did not kill the deceased while deprived of self-control by the deceased’s provocative conduct. This is a subjective test with two parts:
  • The accused killed the deceased while deprived of self-control; and
  • The accused’s loss of self-control was caused by the deceased’s provocative conduct.
• The deceased’s conduct was not capable of causing an ordinary person to lose self-control and act in the way the accused did (an objective test). This is an objective test that requires the jury to determine:
  • The gravity of the provocation; and
  • Whether the provocation was of such gravity that it would cause an ordinary person to lose self-control and act like the accused.

If the prosecution can prove that the accused committed all the elements of murder but cannot refute the reasonable possibility that the accused acted because they were provoked and lost control, the accused will be acquitted of murder and convicted of manslaughter (Johnson v R (1976) 136 CLR 619; Moffa v R (1977) 138 CLR 601).

What is provocative conduct?

The legal definition of provocative is defined by reference to the possible impact on the accused. Therefore, conduct is only provocative if it is capable of causing the accused to lose control and form an intention to kill or seriously injure the deceased (Masciantonio v R (1994) 183 CLR 58).

Factors that can be used as evidence include:

• Mere words: words alone can amount to sufficiently provocative conduct, particularly when the words are considered “violently provocative” (Holmes v DPP [1946] AC 588; Moffa v R (1977) 138 CLR 601).
• Historic conduct: previous provocative behaviour of the deceased is not reason alone for provocation but is relevant to the assessment of a “triggering event” (Masciantonio v R (1994) 183 CLR 58;  R v Osland [1998] 2 VR 636)
• Triggering event: the incident that caused the sudden and temporary loss of control may be relatively minor but cannot be trivial.
• Loss of self-control/heat of passion: the provocative conduct of the deceased created in the accused intense anger, panic or fear that in turn caused the murderous behaviour (Johnson V R (1976) 136 CLR 619).
• Delayed response: it must be shown that the act occurred because of a loss of control, not due to revenge or a ‘”slow-burning” desire for retribution. However, this does not stop an accused person (such as an abused partner) from using the defence because the accused’s reaction was delayed (R v Osland [1998] 2 VR 636; R v Thorton (No. 2) [1996] 1 WLR 1174). The law does not specify any particular period within which the response must occur (Parker v R (1962) 111 CLR 610. See also Pollock v R (2010) 242 CLR 233).
• The response of the “ordinary person”: in the circumstance, could an ordinary person have suddenly lost control to such an extent as to react the same way the accused did (Masciantonio v R (1994) 183 CLR 58)
• Proportionality: there must be a high degree of provocation.

Provocation will not be available as a partial defence if:

• The deceased’s provocative conduct was provoked by the accused’s words or conduct and the deceased’s provocative conduct did not exceed what would be the reasonably predictable response of a person in their position (R v Hartwick & Ors (2005) 14 VR 125; R v Allwood (1975) 18 A Crim R 120; R v Borthwick CCA Vic 18/3/1991).
• The accused deliberately incites the provocation as the accused cannot be said to lost self-control. In such cases, the accused had the necessary pre-existing mental state for murder before the victim’s allegedly provocative actions occurred (R v Yasso (No.2) (2004) 10 VR 466).
• While purely historic provocation cannot be relied upon for the defence, it is relevant to the assessment of the “triggering event” and the subjective and objective tests.

Loss of self-control

The key concept of the law of provocation is that a sudden and temporary loss of self-control results from the provocative conduct of the deceased (Masciantonio v R (1994) 183 CLR 58.

If the loss of self-control was so extreme as to cause the accused to act involuntarily or be incapable of forming the required intention to kill or seriously injure the victim, the accused would be entitled to an acquittal rather than manslaughter by provocation (Parker v R (1962) 111 CLR 610; Masciantonio v R (1994) 183 CLR 58). This is known as the defence of automatism.

For the provocation defence, the loss of control must have been over the accused’s desire for retribution against the deceased person (Masciantonio v R (1994) 183 CLR 58), such as their “reason” was negated or suspended (Parker v R (1962) 111 CLR 610).

The following case demonstrates an example of the circumstances in which a partial defence of provocation was available.

R v Stavreski [2004] VSC 16

Case Summary:

• Mr S pleaded guilty to killing his daughter, D, on 5 August 2002 at their family home in Foxglove Place, Epping.
• The incident occurred when D launched a violent and sustained attack on her mother, causing severe injuries. 
• Upon hearing his wife’s screams for help, Mr S came to her aid, armed with a screwdriver. 
• D then attacked her father, who in response, stabbed her multiple times until she ceased struggling. 
• D later died from multiple stab wounds to the neck and chest.

Procedural History:

• Mr S was initially charged with murder. However, the DPP filed a presentment of manslaughter in anticipation of a plea of guilty on the basis of the application of the principles relevant to provocation.

Decision:

• The court accepted that Mr S acted in immediate defence of himself and his wife under extreme provocation and used excessive force.
• The court also acknowledged that Mr S did not have the intent necessary for the offence of murder.
• The court found that the circumstances of the case were exceptional and tragic, warranting a lenient sentence.
• The court sentenced Mr S to three years of imprisonment but suspended the whole of that sentence for a period of thirty-six months. This means that Mr S was not required to spend any time in custody unless he committed any further offence punishable by imprisonment within the suspension period.

Provocation and Sentencing

Despite the abolition of the partial defence, provocation remains relevant as a sentencing consideration, as provocation may reduce an offender’s moral culpability as a mitigating factor.

Courts strive to balance the need for general deterrence, denunciation, and just punishment with compassion for human frailty and recognition of the unique circumstances of each case.

The accused’s moral culpability may be reduced if provocation was an element in the offending (e.g. if the accused was not the one who started the fight); however, it does not lessen the significance of harm to the victim (Va v The Queen (2011) 37 VR 452).

Alleged provocation or emotional stress in the context of a family relationship is considered secondary to sentencing considerations of general deterrence, denunciation and just punishment unless the offending stems from fear rather than anger (Va v The Queen (2011) 37 VR 452, 460 [36]).

Where an offender’s moral culpability is reduced on account of a history of domestic violence, sentencing considerations of general deterrence, just punishment and denunciation are still important. Therefore, despite provocation in circumstances of family violence, conduct that results in the death of another is still denounced by the courts and usually results in imprisonment (see R v Donker).

The relevance of provocation as a sentencing consideration depends on:

• Degree of provocation: Higher levels of provocation reduce the gravity and culpability of the offence
• Timing: The time between the provocative act and the loss of self-control is relevant to sentencing, such that a shorter period may reduce gravity and culpability.

Raising provocation as a sentencing submission must be done with care, as the accused should not be seen as ‘blaming’ the victim for the offending conduct, especially if the accused pleads guilty to the offence.

Nevertheless, the submission has some validity when made by an experienced criminal solicitor. For more information, contact our office today.

The following cases provide some examples of where provocation was considered to reduce the offender’s moral culpability.

In the following cases, the court considered provocation in the form of domestic violence perpetrated by the victim to mitigate sentencing for manslaughter.

Case Summary:

• Ms Donker (the defendant) was in a long-term relationship with RP, characterised by domestic violence and controlling behaviour, primarily perpetrated by RP.
• On 8 January 2017, following a series of violent incidents, Ms Donker drove her car at RP multiple times in a kindergarten carpark, intending to frighten him.
• On the final occasion, Ms Donker’s car struck a pole holding a parking sign, which bent and caused the edge of the sign to strike RP on the head, killing him instantly.
• Ms Donker immediately called emergency services and later turned herself in to the police.
• Ms Donker was charged with murder but offered to plead guilty to the lesser charge of manslaughter, which was accepted by the prosecution.
• An autopsy confirmed that RP’s fatal injuries were consistent with being struck by an edged object, such as the edge of the parking sign.
• Toxicological analysis revealed the presence of methamphetamine and cannabis in RP’s system and no alcohol or drugs in Ms Donker’s system.
• Ms Donker’s plea of guilty was significant as she had a sound basis to argue for an outright acquittal on several grounds, including that the act causing death was not “dangerous” in the sense required by law, that she acted in self-defence, or that her actions did not cause death.
• Ms Donker’s time in custody has been more onerous than usual due to several factors, including not being allowed to see her children for the first three months of her incarceration, anxiety about her children’s well-being, and her own emotional and psychological fragility.

Decision:

• Judge Croucher J found Ms. Donker guilty of manslaughter by unlawful and dangerous act. 
• The judge acknowledged the long history of domestic violence and controlling behaviour in the relationship and the significant provocation that led to the incident.
• The judge noted Ms. Donker’s early plea of guilty, remorse, hardship of imprisonment, and very good prospects of rehabilitation.
• The judge considered the case of R v McLaughlin and other cases of manslaughter but ultimately relied on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Ms Donker’s particular offence of manslaughter.
• The judge gave substantial weight in mitigation to the provocation under which Ms Donker laboured and the relationship of domestic violence to which she was subjected.
• The judge did not think that this was an appropriate case for a combination of a CCO and a prison sentence. Instead, the judge determined that it was necessary to fix a head sentence of imprisonment with a non-parole period.
• Balancing all factors, Ms Donker was convicted and sentenced to five years’ imprisonment with a non-parole period of two years.
• The judge considered Ms Donker’s prospects of rehabilitation to be strong and her claim for mercy to be compelling, which justified a relatively short non-parole period.
• The judge declared that 489 days of pre-sentence detention be reckoned as served under this sentence.
• The judge stated that if Ms Donker had been found guilty of manslaughter after pleading not guilty and running a trial, the sentence would have been seven-and-a-half years’ imprisonment with a non-parole period of four years.
• The court ordered that Ms Donker’s driver license be cancelled and she be disqualified from obtaining a further license for a period of 24 months, starting from 8 January 2017.

R v McLaughlin [2016] VSC 189

Case Summary:

• On 21 September 2014, Ms LM stabbed Mr GS once in the back with a sharp piece of broken glass, causing a fatal injury.
• The incident occurred during a volatile argument between the two, who were in a complex relationship characterised by a large age difference, drug use, physical and emotional violence, and deep affection.
• LM was interviewed by police several hours after the incident and gave an account of the events, which was supported by the findings of a doctor who examined her at Frankston Police Station.
• LM admitted that her actions were unlawful and dangerous and that she was not acting in self-defence. She had no intention to kill or cause really serious injury.

Decision:

• Judge T Forrest J considered that LM’s actions were the product of anger in the face of considerable emotional and physical abuse, and that these factors operated substantially to reduce her moral culpability and blameworthiness for this offending.
• The judge noted that LM had spent 537 days in custody and concluded that no further immediate custody was called for, provided she agreed to enter into a 2-year Community Corrections Order (CCO).
• The CCO included standard terms and additional conditions such as 100 hours of unpaid community work, mental health assessment and treatment, drug and alcohol rehabilitation and treatment, supervision, offending behaviour programs, and abstaining from the use of illicit substances.
• LM was sentenced to 537 days’ imprisonment, which was considered time served, combined with a two-year Community Corrections Order. There was no parole period.
• The judge declared that but for her plea of guilty, he would have sentenced her to four years’ imprisonment with a minimum term before parole eligibility of two years, six months.

Conclusion

If you are facing a criminal charge and believe provocation or related mitigating factors may be relevant, it is crucial to seek legal advice from an experienced criminal lawyer. Understanding how the broader concept of provocation may impact sentencing is important. Contact our office for legal advice and the very best defence.