Provocation in Sentencing: A Culpability-Based Framework

Abstract

In a number of jurisdictions, including Victoria, the partial defence of provocation has been abolished. Provocation will now be considered in the sentencing process, alongside other sentencing factors that the court must take into account to arrive at an appropriate and proportionate sentence. We argue that, rather than being one of the many general mitigating factors that a court must consider, provocation is relevant to the degree of the offender's culpability and that an understanding of the theoretical foundation for assessing culpability should inform a new normative framework for assessing whether and how provocation warrants a reduction in an offender's sentence.This article argues that the crucial questions for a court are whether the victim's actions gave the offender a justifiable sense of being wronged and the relationship, or proportionality, between the offence and the provocation. Adopting an approach canvassed by the Victorian Law Reform Commission, we propose that conduct that arises out of the victim exercising his or her right to equality should not provide justification for an offender's sense of having been wronged. Under this approach, the personal circumstances of an offender may be relevant to assessing the gravity of provocation. However, the question of whether an offender has a justifiable sense of being wronged by the provocation should be evaluated consistently with contemporary societal notions of equality.