Power Simon: Crimes (Provocation Repeal) Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Power Simon: Crimes (Provocation Repeal) Amendment Bill — Second Reading 
[Sitting date: 17 November 2009. Volume:659;Page:7755. Text is incorporated into the Bound Volume.] 
Hon SIMON POWER (Minister of Justice) 
: 
 I move  
That the Crimes (Provocation Repeal) Amendment Bill be now read a second time 
. The Crimes (Provocation Repeal) Amendment Bill repeals sections 169 and 170 of the Crimes Act 1961 which provide a partial defence for murder if the accused was provoked. I thank the Justice and Electoral Committee for its careful consideration of this bill within a shortened time frame. In particular I thank the chair Chester Borrows the member for Whanganui who is proving himself to be an active and crucial part of the legislative process of this Government. The committee received 11 submissions and heard from 4 of the submitters. 
The committee recommended one amendment to the bill to make it clear that the partial defence of provocation in so far as it has any effect as a rule or principle of common law in New Zealand is abolished. This amendment minimises the ability for defence counsel to argue that the common law partial defence is revived or otherwise available despite the repeal effected by this bill. The partial defence of provocation is overwhelmingly used in cases where the accused has lashed out in anger. The law does not consider anger to be an excuse for resorting to violence in other legal contexts where the consequences are less extreme such as assaults or domestic disputes. For that reason alone it is inappropriate to allow anger to be a justification for murder. It is also a particular concern that the partial defence has been disproportionately successful in so-called homosexual panic cases. The sexual orientation of the victim should not be a relevant factor. 
Historically murder was punishable only by the death penalty and more recently by a mandatory sentence of life imprisonment. The partial defence was therefore considered necessary to ensure that some discretion was available to juries to acknowledge exceptional circumstances. The Sentencing Act 2002 abolished the mandatory life sentence for murder in favour of a presumption of life imprisonment which may be departed from where such a sentence would be manifestly unjust. At the time Parliament gave examples of circumstances when a lesser sentence may be justified including mercy killings failed suicide pacts and situations in which the accused may be described as a battered defendant. In addition section 9 of the Sentencing Act provides guidance on the types of mitigating factors that a court can take into account in issuing a sentence including a sentence of life imprisonment. These factors include the defendant’s mental impairment or diminished capacity as well as any history of abuse or whether the defendant is a battered individual. Battered defendants may also be able to rely on self-defence which will result in acquittal. For these reasons battered individuals and individuals with mental impairments or a diminished capacity should not be disadvantaged by the abolition of the partial defence of provocation. 
The threshold to displace the presumption of a sentence of life imprisonment for murder is a high one likely to be met only in exceptional cases. However we can all envisage circumstances of extreme provocation in which it might be argued that a sentence of life imprisonment would be manifestly unjust. I expect the appellate courts to develop guidance on how provocation-type factors are to be treated at sentencing as appropriate cases arise. 
I take this opportunity to thank all members and parties in the House for their support for this bill and for their ongoing expectation that its passage will be swift. I commend this bill to the House.