Ardern Jacinda: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Ardern Jacinda: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8260. Text is incorporated into the Bound Volume.] 
JACINDA ARDERN (Labour) 
: 
 I want to go back to the hypothetical situation that was set out by the Hon Rodney Hide then followed up by my colleague Lianne Dalziel. I feel that Rodney Hide gave a disingenuous presentation of the way that a situation like that would currently be dealt with in our criminal justice system. I would be loath to leave the public or anyone else believing that when the Justice and Electoral Committee reviewed this repeal we felt that it would in any circumstances give rise to situations such as the scenario painted by Rodney Hide where a family member who retaliated on seeing a family member murdered would be landed with a 17-year prison sentence. That is not the kind of scenario we would see given the way that the Sentencing Act 2002 is currently drafted. 
The reason I find his presentation disingenuous is that l would be very surprised—I do not know for sure; I would like some clarity from Rodney Hide as to the way ACT voted on the Sentencing Act 2002—if in fact ACT supported the level of flexibility that was purposely drafted into the law to allow for the very scenarios that he is painting. I would be very pleased to hear Rodney Hide speak again during the Committee stage to clarify his party’s position on the Sentencing Act 2002 which I think deals with the very issue and the very concerns that he has raised as a consequence of the repeal of the partial defence of provocation. 
I will go over the parts of the Sentencing Act that would deal with this situation. Section 102 sits under Subpart 4 of Part 2. I referred to it in my previous speech. It sets out that although there is a presumption in favour of life imprisonment for murder “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.” I think the situation and the circumstance that Rodney Hide set out would by any layperson’s reading fit the criterion of being “manifestly unjust”. Indeed further on in the Sentencing Act a number of explicit criteria are set out; when the imposition of a minimum period of imprisonment of 17 years or more would be required there are a series of mitigating factors that again explicitly exclude the kind of scenario that Rodney Hide has set out for the Committee. So I think it is misleading to claim that this repeal could give rise to that kind of scenario. Chester Borrows the chair of the committee set out the case of someone involved in a suicide pact. At the time of the Sentencing Act discussion and debate examples were frequently used of elderly couples and euthanasia. Again those are situations where that threshold of “manifestly unjust” is very likely to be reached. I invite Mr Hide to explain to the Committee whether ACT supported the Sentencing Act 2002 and if it did not to explain how he reconciles his two differing positions on those provisions. 
I will also dwell briefly on another point which also was touched on by my colleague and it is around the idea of battered defendants who are mentally ill or impaired. Some submitters presented to the committee in defence of use of the partial defence of provocation by defendants who are considered to be battered. The phrase “battered wife syndrome” was raised a lot in the select committee. My colleague has already pointed out that in cases where this partial defence has been used it has been highly unsuccessful. So the argument could be raised that even if a defence is necessary for those particular circumstances this defence is not it because it has not worked for those groups of defendants. 
The majority of the select committee concluded that it would be more appropriate for most of those defendants to rely on the defence of self-defence. I would add one qualification to that. There was quite considerable discussion in the select committee as to whether self-defence was a useful or successful defence for those particular defendants. A lot of people working in that particular sector—domestic violence in particular—pointed to a number of scenarios and examples of battered women for whom we might consider it would be appropriate to argue self-defence but the minds of a jury may perceive self-defence as the kind of defence that would be used if a woman retaliated after an immediate act of violence or felt herself under an immediate threat. They made the point to the committee that that does not fit with the psychology of battered women and that there perhaps is a disconnect between what we see as the characteristics and behaviour of battered women and a jury’s perception of what constitutes self-defence. We did not reach a conclusion as a committee as to how we would appropriately deal with that particular problem and that disconnect. The only conclusion that we came to—on Labour’s side of the table in particular—was that it was the exact kind of situation where we would be inclined to ask a Sentencing Council to consider where it would be most appropriate for these kinds of women to look in terms of their defence given their situation. That is another reason why it is disappointing that the Government has removed the idea of a Sentencing Council and has used all of the funding for it for the administration of a costly and potentially unsatisfactory offender levy. 
I am pleased though that we are finally repealing the defence of provocation. The scenarios that have been painted by other members of the Committee are adequately covered I think by existing law. Again I invite Mr Hide to explain to the Committee his position on the Sentencing Act 2002.