Provocation in sentencing


This paper is intended as an examination of some of the sentencing policy issues and principles raised by the abolition of the partial defence of provocation in light of the VLRC Homicide Report. Although the authors' main focus is on considering provocation in sentencing offenders convicted of murder as a result of the new law, this discussion is also relevant to provocation as a sentencing factor in relation to offenders convicted of the new offence of defensive homicide or of manslaughter, as well as those found guilty of non-fatal offences against the person. With the abolition of the partial defence, the concept of provocation will play a different role in the trial process. It will be considered along with other sentencing factors (such as remorse, youth, prospects of rehabilitation and future risk) that the court must take into account in arriving at the appropriate and proportionate sentence. However, rather than being partly justified or excused on the uncertain, outdated or unacceptable doctrinal considerations that underpinned substantive provocation, sentencing provocation will need to be justified on its own terms within the broad framework of sentencing theory. The relevant matters to be considered will be found in the Sentencing Act 1991 (Vic), rather than the Crimes Act 1958 (Vic), and in common law sentencing principles rather than the common law of crime.

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