Essay on The Defence of Provocation

In determining if there were reasonable grounds for defence, the jury may have regard to the deceased’s general reputation for violence. In Blyton’s case, his father was a ‘bad alcoholic with a temper’ and had a history of domestic abuse. Blyton’s defence argued that this history contributed to Blyton’s heightened awareness of danger and lead to an instinctive reaction by Blyton to stab his father when rushed.

The Act intends to answer the needs of increased severity in punishment regarding the one punch hits. In order to successfully apply this, the Act proposes amendments to the Sentencing Act that would impose mandatory minimum sentences for ‘one punch’ manslaughter cases in circumstances where an offender knew that the victim was not expecting the punch or strike, and died as a result of the blow. The bill alters the Sentencing Act to accommodate a statutory least non-parole period sentence of 10 years for homicide including horrible brutality and murder by single punch or strike where the Director of Public Prosecutions has pulled out to the court of an aim to look for the burden of the statutory least sentence if the charged is discovered liable and where extraordinary circumstances, as accommodated in the bill, don 't exist.

The recently passed ‘Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters)’ arose within a highly politicized context and has led to controversy. The amendment was introduced in response to a perceived increase need to legislate on deaths caused by king hit punches or “coward’s punch”. It amends both the Crimes Act 1958 (Vic) and the Sentencing Act 1991 (Vic), by defining a punch to head or neck as dangerous act, introducing a mandatory minimum sentence of 10 years for manslaughter by one punch, and increases the mandatory minimum sentence for manslaughter by gross violence to 10 years . However, there is likely little need for this legislation, as pre-existing law was already capable of dealing with the offence, and the implementation of this legislation will likely fail to effectively achieve its purpose. Moreover, the introduction, or increase, of a mandatory sentence will be unlikely to effectively deter individuals, and will remove the courts discretion regarding sentencing. In this essay I will argue that the legislation is unneeded to prosecute those who king hit others, and that it will likely fail to have its intended effect.

Furthermore, throughout sentencing and punishment various legal and non-legal measures have been implemented to ensure that sentences for those convicted are appropriate and effective to enable rehabilitation and reintegration into society and provide the community with a sense of justice and security. The provision of statutory and judicial guidelines means that limits are placed on a judge’s discretion when sentencing, thus ensuring sentencing consistency. These guidelines were established in relation to the case R v. Jurisic (1998). The defendant Jurisic, pleaded guilty to three charges of dangerous driving occasioning in grievous bodily harm. He was found under the influence of cocaine on one of these charges. He was sentences to 18 months home detention, lost his driver’s licence for one year and was put on a good behaviour bond for two years. This was through to be lenient and was appealed by the DPP. The appeal was upheld and the sentence was replaced by two years imprisonment and two years disqualification of his driver’s

Despite recent reforms on the law of murder and voluntary manslaughter; including the special defence of diminished responsibility and loss of control, there are still inconsistencies present making the law unsatisfactory. This area of the law is in ‘dire need of reform’; as pointed out by the Law Commission in their 2006 report; Murder, Manslaughter and infanticide. The report stated how ‘The Law governing homicide in England and Wales is a rickety structure built upon shaky foundations.’

Defences for Murder There are only three partial defences for murder; suicide pact, provocation-the loss of self control and reaction must be instantaneous and diminished responsibility. Amongst the three mentioned two are most frequently used, these are provocation and diminished responsibility, and only one full defence, self defence. These defences are used to reduce the sentence charge by the defendant to manslaughter from murder. In the following text I will be examining how men use provocation and diminished responsibility to walk free from murder.

‘R v Stone; R v Dobinson’ is significant as it addresses the point of ‘duty of care’ and the outcome was described as “highly controversial because of the low capabilities of the two accused” . Appellant Gwendoline Dobinson was treated differently to appellant John Edward Stone due to her gender. Dobinson was expected to care for Fanny due to women being the “primary care-givers in domestic relationships” , proving that “the rule on voluntary undertaking of responsibility potentially remains structurally gendered” . The case was dealt within the Criminal Division of the Court of Appeal by Geoffrey lane LJ, Neild and Croom-Johnson JJ. The appeals against conviction were dismissed although the appeal by Stone against his sentence was allowed, altering his sentence. The decision was also influenced namely “whether in a case of manslaughter it is necessary to prove that the defendant was reckless as to whether the victim would suffer death of serious bodily harm” .

The criminal justice system plays a fundamental role in achieving justice, as the system aims to protect all members of the community fairly and equally. However, in the criminal case of R v Loveridge, it is evident that the justice system fails to apply the law to equally balance the needs of the victims and the community. In this case, the offender Kieran Loveridge pleaded guilty to five counts of offences; three charges of common assault, one charge of assault occasioning actual bodily harm and one charge of manslaughter by an unlawful and dangerous act, the victim being Thomas Kelly, Loveridge received 4 years’ non-parole for manslaughter, Loveridge’s total effective sentence therefore is 7 years and 2 months with an effective

The select committee’s own proposal was for the implementation of a gross provocation model. Although there were a number of components, the most significant change is for the replacement of “loss of self-control” with a “grossly provocative” test that caused a “justifiable sense of being seriously wronged”. There are a number of issues with this proposal. Under this, words will suffice and the jury may take into account “all circumstances” of the accused. Thus, the provocation defence may once again become available in cases such as Ramage, where the deceased stated that sex with the accused repulsed her, and Kumar, where the accused was called “low caste”. In both scenarios, the defendant could claim that the deceased’s conduct was grossly

In the case of McDowall v. HM Advocate, a man was charged with culpable homicide for driving recklessly. The presiding judge stated that the man had ‘utter disregard for the victims and the fact that he drove with the bonnet in an upright position are factors that the jury were entitled to take into account’ when considering his state of mind at

In the United States the degrees by which a person can be charged with killing another person vary; the degrees of murder include first, second, and third degree murder, the definitions of which can vary in legal terms from state to state. These charges are considered to be legally separate from voluntary manslaughter, involuntary manslaughter, and justifiable homicide which each have their own definitions (Cole, Smith, & DeJong, 2014). Each type of murder, manslaughter and homicide is determined by intent and negligible behavior and each will be examined in this paper (Cole et al., 2014).

Judges and magistrates must consider a wide variety of factors when determining a sentence for an offender. Primarily, the sentence must coincide with the statutory guidelines e.g that set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), and the judicial guidelines that set precedent for all judges and magistrates in the state. Within this legislation are the purposes for which a sentence may be imposed, types of penalties, minimum/maximum sentences and mandatory sentences.

The Function of the Judiciary Within the Constitution of the United Kingdom If miscarriages of justice occur, then not only is the defendant treated very unjustly, but also society (including the victims of crime) has not been accorded the gains in terms of safety, retribution and possible rehabilitation which should flow from an accurate conviction. The question requires us to examine the possible failings, which arise from the personnel by which justice is administered. Taking the argument that case outcomes are construction of fact as mediated by social and professional perspectives, it must be worthwhile to examine some aspects of the performance of the judiciary, who are undoubtedly major

The defence of provocation in assault cases is considered a full defence by Hume and Macdonald this idea was upheld in the case of Hillian v HM Advocate but was heavily criticised by the judges in the case of Crawford v HM Advocate in which Lord Justice-General Cooper stated that provocation is not a special defence and does not allow for exoneration of the accused and said that he found himself considerably confused as to how that decision was reached in Hillian. Another case that refuted this view was the case of Drury v HM Advocate in which the court stated that Hume’s view on provocation has fallen into disfavour and now the more accepted view is that provocation will have a considerable effect on the sentence imposed at the finding of guilt. This simply means that provocation is a plea in mitigation rather than a complete defence in assault and murder cases.

The death penalty is a legal act taken to punish those whose crime is most heinous. A man, by the name of Robert Lynn Pruett, was recently sentenced to death, but the amount of evidence against him is being questioned on whether or not it was sufficient enough for him to receive the death penalty. Pruett was already in prison for being an accomplice to murder, a murder that his dad committed. He was fifteen when his father killed their neighbor, and was placed into prison with a ninety-nine year sentence, simply because he was at the scene of the crime (McCullough, 2017). Within the next five years, he was being accused of yet another murder.