DEFENSIVE HOMICIDE ON TRIAL IN VICTORIA

Defensive homicide was introduced in Victoria in 2005. It was enacted to provide a safety net conviction for women who kill an abusive partner and cannot satisfy the test for self-defence, but who should not be considered a murderer. However, 21 of the 24 people so far convicted of defensive homicide are men, and all but one of the victims is another man. The academic attention on defensive homicide has focused on women as offenders and victims, leaving the bulk of the cases unexamined. Given that the offence is currently under review, it is important that the cases are analysed in the context of male violence. This article considers whether the cases resulting in convictions for defensive homicide are within the intended scope of the offence and are compatible with the elements of the offence.


I INTRODUCTION
In late 2005, the then Victorian Labor Government announced that it would accept recommendations from the Victorian Law Reform Commission (VLRC) and amend the Crimes Act 1958 (Vic) to introduce 'groundbreaking' and 'great' reforms to defences to homicide 1 that would address 'women's experience of violence'. 2Perhaps the most signifi cant reform was the abolition of the partial defence of provocation. 3This measure was to respect women who were killed by their abusive partners, by abolishing the possibility of the offender avoiding a conviction for murder on the grounds that the woman had provoked the partner to lethal violence. 4A second signifi cant reform was the recognition of excessive selfdefence to murder through the enactment of the substantive offence/alternative verdict of defensive homicide. 5This measure was intended to benefi t women who kill, rather than are killed by, an abusive partner by providing them with an offence that sits 'half-way' between conviction for murder and complete acquittal on the basis of self-defence.
Twenty-four convictions for defensive homicide have been recorded since the offence was introduced in 2005. 6Three of the offenders are women who killed abusive male partners. 7The remaining 21 offenders are men, and all but one of them killed another man.A number of the cases involving male offenders have attracted public and political criticism because defensive homicide convictions were recorded in cases where the perception was that murder convictions were appropriate.The former Liberal Opposition called defensive homicide a 'huge legal loophole' and 'another soft-on-crime debacle'. 8Victim advocates say it is a 'farce', 9 'a national outrage, a national scandal' and a 'disgrace [that] must go'. 10 In 2010, the Victorian Department of Justice, under the former Labor Government, conducted a review of defensive homicide. 11The Liberal Attorney-General announced in June 2012 that the offence would be amended, but it currently remains as it was originally enacted and there is no indication of the direction of further reforms. 12spite the predominance of male violence, the commentary on defensive homicide to date has centred on women as either victims or offenders.These works seek to determine, largely, whether defensive homicide has improved the legal position of women who kill abusive male partners, or whether defensive homicide provides men who kill female partners with an alternative to the abolished provocation defence. 13This academic focus has left the majority of cases unexamined, 14 and this article seeks to address this gap in the scholarship by analysing the defensive homicide cases involving male offenders.It considers whether the defensive homicide offending is within the intended scope of the offence and compatible with its elements, and whether there have been any unintended consequences of the extension of defensive homicide to this kind of offending.This is an important inquiry given that the offence is currently under review and the bulk of the convictions for the offence have received little attention.
The article proceeds in the following way.Part II details the abolition of provocation and the introduction of defensive homicide.The abolition of provocation has already been considered elsewhere, 15 and is covered here in only enough detail to provide the context for the introduction of defensive homicide.Defensive homicide addressed the situation of women who kill abusive partners, because the existing defences to homicide did not adequately accommodate the circumstances of their offending.The offence was framed to encompass vulnerable victims of family and other violence, and was intended to apply, sparingly, to a narrow class of disadvantaged offenders.
Part III analyses the 21 reported defensive homicide cases involving male offenders, and divides them into three categories: family situations (4 cases), mental health situations (2 cases), and fi ghts between male friends or acquaintances (15 cases).
It concludes that only one of the convictions of the 21 male offenders is fi rmly within the scope and compatible with the elements of defensive homicide.
Part IV concludes that the convictions of male offenders for defensive homicide actually undermine the purpose of the new offence.By routinely applying defensive homicide to occasions of commonplace violence, the offence is benefi tting the offender group whose prominence among self-defence cases prompted the need for law reform.

II BACKGROUND TO DEFENSIVE HOMICIDE A Partial Defence of Provocation A
Provocation is a partial defence to murder.It is based on the proposition that someone who kills in response to provocative conduct by the victim is less culpable than someone who kills deliberately in cold blood, but still deserves to face a serious penalty. 16A person charged with murder, who successfully raises the defence of provocation, will be convicted of manslaughter rather than murder.
14 The exception is Asher Flynn and Kate Fitz-Gibbon, 'Bargaining with Defensive Homicide: Examining Victoria's Secretive Plea Bargaining System Post-Law Reform' (2011) 35 Melbourne University Law Review 905, which considers the convictions of male offenders, but from the perspective of plea bargaining and sentencing discretion.Tyson, above n 13, 221 noted that men who kill other men represent the majority of convictions for defensive homicide, but these offenders were outside the scope of her inquiry.15 See further above n 13. 16 Parker v The Queen (1963) 111 CLR 610, 651.
The defence originated in Anglo-Saxon times, when lethal violence resulting from drunken brawls and duelling between men was common.Over the following centuries the defence was also applied where men reacted with sudden lethal violence on discovering their wives being unfaithful or men making improper advances towards their wives or daughters. 17The defence was framed according to one-off encounters between male strangers or acquaintances of equal strength.The rationale today is that it 'amounts to a concession to human frailty'. 18South Australia is now the only state in which provocation exists at common law.It has been abolished in Victoria,19 Western Australia, 20 and Tasmania, 21 and modifi ed by statute in the other jurisdictions. 22However, the elements of the defence remain relatively uniform. 23The general test is that there must have been provocative conduct by the victim, 24 the defendant must have lost self-control as a result of the provocation, 25 and the provocation must have been capable of causing an 'ordinary person' to lose self-control and form an intention to infl ict death or grievous bodily harm. 26Auley states that the 'essence of provocation is that the defendant lost control in circumstances in which it was diffi cult but not impossible to retain it'. 27The 'loss of self-control' is not literal because if a person literally lost self-control then their actions would not be voluntary and they would not have had the mental state required for the imposition of criminal liability. 28Provocation is a muchcriticised defence on the basis that it justifi es male aggression, and the VLRC and the Victorian Parliament found that it refl ected outdated notions of male behaviour that no longer have community acceptance. 29Upon its abolition, the Attorney-General announced that the 'defence of provocation promotes a culture of blaming the victim and has no place in modern society'.

B Self-Defence to Murder
Self-defence is a complete defence, including to a charge of murder.Victoria retained the common law of self-defence until 2005, 31 which the High Court had articulated in Zecevic v DPP (Vic) ('Zecevic') as requiring that the accused believed upon reasonable grounds that it was necessary in selfdefence to do what he did.If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. 32is states a two limb test requiring, fi rst, that the defendant subjectively believed their lethal action was necessary, and second, that their belief was objectively reasonable in the circumstances, as the defendant perceived those circumstances.Zecevic recognised that a threat would 'not ordinarily' call for a lethal response unless it 'causes a reasonable apprehension … of death or serious bodily harm', 33 but the case did not require that the threat be of this nature.This formulation widened the scope of common law self-defence to murder because the previous authority, Viro v The Queen ('Viro'), did require that a defendant be facing death or serious bodily harm. 34e 2005 Victorian reforms enacted the statutory defence of self-defence to murder in s 9AC. 35This section provides that: A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infl iction of death or really serious injury. 36e section makes two signifi cant changes to the common law of self-defence.First, it narrows the Zecevic test by requiring that the threat faced by the accused be of death or really serious injury.Secondly, and more importantly for the purposes of this paper, it removes the requirement of reasonable grounds for the belief in the need for lethal violence.It does not, however, entitle a defendant to  (8 February 2010).The Court of Appeal resolved the issue in Babic (2010) 28 VR 297, fi nding that common law self-defence no longer applied.The decision of Parliament to specify the requirement that threats be of death or really serious injury was contrary to the recommendation of the VLRC.See s 322I of the VLRC's Draft Proposals for a Crimes (Defences to Homicide) Bill in Homicide Defences Final Report, above n 1, 318. a complete acquittal where there are no such reasonable grounds, because in that situation, s 9AD qualifi es s 9AC in the manner discussed below.37

C Excessive Self-Defence
The partial defence of excessive self-defence recognises a difference between the moral culpability of someone who commits murder, and someone who kills for a defensive purpose, but misjudges the level of force necessary in the circumstances. 38It applies when 'an error of judgment on the part of the accused … deprives him of the absolute shield of self-defence' 39 and generally results in a conviction for manslaughter. 40The principle that defendants are entitled to a conviction indicating reduced moral culpability where they have 'misjudged' or 'made an error' in relation to danger is critical to the justifi cation for excessive self-defence, and so it is critical to this article's analysis of whether the defensive homicide convictions are compatible with the elements of the offence.
Excessive self-defence has two possible formulations.The fi rst is that the defendant believed their actions were necessary in self-defence, but lethal force was disproportionate to the threat they believed they faced.The second is that the defendant believed their actions were necessary in self-defence, but the belief in the need for the lethal force was not reasonable. 41cessive self-defence has also been described as 'imperfect', 42 'unreasonable', 43 or 'mistaken' self-defence, 44 and has been in and out of favour in Australian law for over half of a century.It was fi rst recognised in Australia in the Victorian Supreme Court in 1957. 45It was adopted by the High Court the following year in

D Introduction of Defensive Homicide
The VLRC recommended that excessive self-defence operate in the conventional way, as a partial defence, and result in a conviction for manslaughter. 53However, the Parliament opted instead to introduce the new offence of defensive homicide.This parliamentary innovation was introduced so that the basis for reduced culpability would be clear where a jury returned a verdict to a lesser offence on a trial for murder.It was not intended to modify the interpretation of excessive self-defence. 54Victoria enacted a formulation of excessive self-defence -that a defendant believed their actions were necessary in self-defence -but qualifi ed it by requiring that the defendant's belief in the need for the lethal force be reasonable.Accordingly, s 9AD provides that A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section. 55

E Evidence of Family Violence
At the same time that Parliament abolished provocation and introduced defensive homicide, it also enacted s 9AH to provide for the admission of evidence of family violence where the defendant in a family homicide matter alleged previous violence by the person they killed.The section defi nes family violence broadly, to include actual physical, sexual and psychological abuse, and threats of any of those forms of abuse. 56The scope of the evidence that can be admitted is equally broad, and may relate to the dynamics and effects of family violence generally, or details specifi c to the violent relationship in question, such as the history of the violence and the particular effects on the members of the relationship or family. 57The evidence is admitted to assist the court to understand the context of the offending, and so assess whether the circumstances justifi ed lethal violence in a situation where the jury might otherwise decide that the lethal response constituted murder.Sub-section (1) makes clear that where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary … even if -(c) he or she is responding to a harm that is not immediate; or (d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm. 58e provision is framed in gender-neutral terms, but is of critical importance for abused women who kill abusive partners.The section directly and intentionally confronts the problem women have faced in having their belief in lethal conduct considered genuine and reasonable as it provides women with the opportunity to explain the fear, desperation and lack of options that can lead them to resort to lethal violence instead of simply leaving a violent relationship.In certain cases, this provision will provide a basis for such women to have the full protection of self-defence, and mean they do not require the intermediate offence of defensive homicide.In other cases, the provision will provide a context to their actions that will result in a conviction for defensive homicide where a conviction for murder would otherwise have resulted.

F Rationale for the Law Reform
The poor fi t between the law of self-defence and the experiences of women who kill abusive partners has been thoroughly documented elsewhere. 59The VLRC summarised the diffi culty as arising from '[t]he traditional association of selfdefence with a one-off spontaneous encounter, such as a pub brawl scenario between two people (usually men) of relatively equal strength'. 60Where men kill in self-defence, they generally respond to a threat immediately and in a proportionate manner.While neither immediacy nor proportionality is required for self-defence to be established, the association between these characteristics and the defence is very strong.When women kill to prevent further violence from their abusive intimate partners, they often need to use a weapon, have assistance from another person, or strike while the abuser is asleep. 61The lack of immediacy and proportionality in these responses can cause juries to doubt that defendants believed their actions were necessary, or to fi nd that their belief was unreasonable, and consequently deem their actions to be premeditated killings. 62or this reason, the VLRC concluded that '[a]lthough self-defence is technically equally available to both men and women … in practice the defence is usually only useful to men'. 63ainst this backdrop, the VLRC identifi ed early in its review of defences to homicide that its major focus would be the question of 'how the law should deal with women who kill in response to domestic violence'. 64Part of its answer was the codifi cation of self-defence in s 9AC, which made clear that neither immediacy nor proportionality were required for self-defence.The reintroduction of excessive self-defence was another signifi cant part of its answer.The VLRC concluded that excessive self-defence would provide a necessary 'halfway house' or 'safety net' for women who kill abusive partners in circumstances where their actions are accepted as genuinely defensive, but not reasonable. 65The Victorian Parliament also focused on women who kill in these circumstances.During the debates of the Crimes (Homicide) Bill 2005 (Vic), the Labor Member for Footscray described the new provisions as 'bold and committed legislation, the effect of which will be to protect and provide greater justice for women who are subjected to domestic violence'. 66ile the VLRC and the Victorian Parliament were focused on abused women, the excessive self-defence/defensive homicide provision was never intended to be limited to them.The VLRC argued that '[f]amily violence … can occur in the context of any close personal relationship'. 67It was equally clear that excessive self-defence could have application beyond family violence situations, and the VLRC illustrated the broader application through the example of a young man killing a physically stronger person, where he genuinely defended himself but used an excessive level of force. 68e VLRC presented four New South Wales case studies in support of its recommendation to reintroduce excessive self-defence. 69In each of the cases, the defendant's vulnerability contributed to the occurrence of the homicide.The fi rst defendant, Leeanne Trevenna, shot a man with whom she shared a house. 70The deceased was 'a large and intimidating man with … convictions for assault [and]  … a history of infl icting violence upon women'. 71Trevenna had a long history of heroin use and sexual abuse, little schooling, no work experience and nowhere to live but with the deceased. 72The Crown accepted her account of the events preceding the shooting: He said 'You're a fucking bitch, I'm going to kill you'.Terry grabbed me and threw me, I landed on the carpet near the bed.We struggled.I tried to hit him, but he grabbed me by the throat … I knew he had a shot gun … I reached in and got it.… I saw him facing away from me with the cricket bat raised in his hand.… I thought he'd bash me really badly or probably kill me.I moved a pace or so forward and shot him … 73 In the second case study, Cheryl Scott killed her de facto partner with fi ve blows to the head with an iron. 74The sentencing judge did not accept the evidence of two experts that she was suffering from 'battered woman syndrome', 75 but did accept that she suffered chronic alcoholism, post-natal depression from eight unsuccessful pregnancies, and trauma resulting from her children being removed from her care. 76He also accepted that she experienced periodic violence from the deceased, who, just before the attack, was intoxicated, verbally abusive, chased her with a butcher's knife, and choked her. 77e third case study involved a fi ght at a hotel that resulted in Gheorghe Cioban fatally shooting a man. 78Before the shooting, Cioban was punched and kicked by a group of men, including the deceased, who were all younger and taller than himself, and were intoxicated and behaving aggressively.Cioban tried to retreat from the fi ght, but was pursued and cornered by the deceased.Cioban fi red a 'warning shot' and gave verbal warnings, but the deceased continued punching him and so Cioban fi red the fatal shot. 79In the fi nal case study, Minh Hau Nguyen, who had a violent, gang-related criminal history, was playing computer games at the house of a friend. 80Eight men armed with weapons forced entry into the house to steal drugs and money they believed were inside.Nguyen fi red two shots from his handgun, killing one man instantly. 81e cases chosen by the VLRC in support of the reintroduction of excessive selfdefence are instructive.In the fi rst two case studies, the women were vulnerable through personal circumstances, and the earlier violence infl icted by their victims.The two male victims were far from vulnerable fi gures generally, but in the circumstances preceding the homicides, were confronted by groups of angry, abusive men while they were unprepared for a violent encounter.The choice of cases that involve such vulnerability underlines the priorities of the VLRC in promoting the reintroduction of excessive self-defence.These characteristics are critical.They clearly defi ne the scope of defensive homicide, and distinguish it from the dynamic of fi ghts between people of equal strength and mutual willingness to participate in violence that infl uenced the defence of self-defence.
The intention that an excessive self-defence provision would have a narrow scope was evident in the comments of the VLRC on the limited application of the proposed defence.The VLRC argued that the reintroduction of excessive selfdefence was an important innovation, '[n]o matter how remote the possibility' 82 that it would ever actually apply in practice.Even though the Parliament introduced a provision that was not limited to either family violence situations or female offenders, and was an offence in itself as well as a partial defence, the Attorney-General supported the position of the VLRC that defensive homicide would have limited application.He stated that 'in practice most cases are likely to continue to result in either a conviction for murder or a complete acquittal.Relatively few cases are likely to fall into the new defensive homicide category'. 83e Victorian law reforms thus recognised that abused women are subject to a power imbalance in their relationships.In extreme circumstances, a lethal response to a threat from an abusive partner can be reasonable, and a woman will be protected by self-defence, and completely acquitted. 84In other circumstances, a violent relationship can skew a woman's assessment of a violent situation.She might genuinely believe she needs to use lethal force to prevent death or really serious injury, but her belief is not reasonable, even in the context of the violent relationship.In such a situation, she is convicted of defensive homicide rather than murder.Less frequently, other family relationships, or even nonfamily relationships, entail power dynamics extreme enough to impair a person's assessment of danger.Defendants who kill in the context of these relationships are also within the scope of s 9AD, because a power imbalance leads to an error of judgment that reduces their culpability from that required for a conviction for murder, but not to the level that justifi es a complete acquittal.

III THE CASES
The 21 cases involving male offenders can be categorised as family violence or non-family violence, and the non-family violence cases can be further broken down into mental health cases and fi ghts.The relatively small body of case material affords the opportunity to be comprehensive in discussing the cases.The detailed discussion is necessary to show the type of offending that is resulting in defensive homicide convictions, which is necessary to underpin the argument that the cases are routine examples of mundane violence, outside the intended scope of the offence, and incompatible with its express provisions.The detailed discussion is particularly important because of the lack of appellate cases considering defensive homicide and articulating relevant guiding principles. 85

A Family Relationships A
There was a family relationship between the offender and the victim in four of the 21 defensive homicide cases involving male offenders.In each family violence case, the offender admitted causing the death of the victim, but successfully denied culpability for murder.Only one of these cases aligns neatly with the intentions of the Victorian Parliament or with the actual defensive homicide provisions.

Monks
The case of R v Monks f ('Monks') 86 is the sole illustration of the defensive homicide provisions applying as they were intended.It vindicates the VLRC position that the offence could appropriately apply in family situations other than where a woman killed an abusive male partner.Milner Monks pleaded guilty to the defensive homicide of his uncle, Ian Monks.Milner had burglary and theft charges pending, and had been granted bail on the condition that he reside with his uncle, Graeme Monks.Graeme lived with his brother, Ian. 87The relationship between Ian and Milner Monks had been violent since Milner was three years old. 88The violence peaked when Milner was a teenager, when Ian twice faced criminal charges for intentionally causing injury and threatening to kill him.On 14 July 2009, the three men were drinking together amicably at home when the police arrived to speak to Ian about an unrelated road rage incident.Having earlier observed his careless driving, the police breathalysed him and found that he had just driven to buy more alcohol while already intoxicated. 89 house, and repeatedly punched him.Milner swung a hammer at Ian, then left the room, returned with a tomahawk, and twice hit him over the head with it, causing fatal injuries. 90nks' mother was frequently imprisoned during Monks' childhood, and so he lived with his grandmother.He was the subject of repeat child protection notifi cations and 'constant family violence'.91 After his arrest, Monks reported to a psychologist 'a deep sense of distress and abiding powerlessness in the face of the abuse and … mounting fear that [Ian] would cause … serious harm or perhaps kill [him]'.92 These feelings were 'rekindled' by the bail agreement requiring him to live with his uncle.93 The psychologist found that at the time of the offending, Monks was affected by severe psychological problems 'characterised by elevated generalised anxiety in the context of residual traumatic symptoms'.94 He further found that Monks' conduct conformed to a well recognised pattern, that of passive acceptance of brutality directed at the subject, a failure to escape the situation for enduring periods and ultimately the eruption of explosive violence in response to yet another episode of the person being attacked.95 Monks' behaviour conformed to the pattern identifi ed as 'battered woman syndrome'.96 The judge remarked to Monks in sentencing that 'when faced with your uncle in a rage and punching you, the violence you suffered over the years and its sequelae affected your ability to exercise appropriate judgment or to make calm and rational choices'. 97The clear connection between Monks' offending and the previous family violence places him fi rmly within the category of offender that the VLRC and the Victorian Parliament intended to benefi t from defensive homicide.In addition to being within the intended scope of the offence, his conduct is also compatible with the provisions enacted, as the earlier family violence explains why he misjudged the danger presented by the punching and verbal abuse from his uncle to the extent that he genuinely, but not reasonably, concluded that lethal violence was necessary.
The three remaining family violence cases stand in contrast to Monks.They represent signifi cantly differing factual situations, but none of them approximate the circumstances contemplated by the VLRC in proposing the reintroduction of excessive self-defence, or of the Parliament in introducing the new provisions.They are discussed below in the order in which they were sentenced.

Middendorp
Luke Middendorp and Jade Bownds had recently ended a short de facto relationship, but they still lived together in a house in Brunswick.Just before midnight on 1 September 2008, Bownds and a male friend arrived at the Brunswick house.Middendorp was drunk and told Bownds he would stab her if she went inside the house.While Middendorp chased the man away with a knife, Bownds entered the house.Middendorp returned home and stabbed her four times in the back with a fi shing knife.She ran out of the house and, as she lay dying in the street, witnesses heard him shout 'words to the effect that she got what she deserved and that she was a fi lthy slut'. 98He defended a charge of murder by arguing self-defence at trial.Neighbours and family members agreed that Bownds and Middendorp had a tempestuous relationship, marked by alcohol and drug abuse and violence between them.Middendorp testifi ed that he did not ever initiate the violence in the relationship. 99Bownds' mother, however, told the court that in the months before her death, Middendorp had cut Bownds' throat with a box-cutter, hit her with a frying pan and a vacuum cleaner pole, twice strangled and threatened to kill her, and kicked her with a steel-capped boot. 100The mother's credibility was impugned at trial, and the judge remarked that the jury might have rejected her testimony, 101 even though Middendorp was subject to a Family Violence Intervention Order and a bail agreement for alleged offences against Bownds at the time he stabbed her. 102ddendorp testifi ed that before her death, Bownds raised a knife at him in a threatening manner, and because of her previous violence, he believed that he had to stab her to prevent himself from being stabbed. 103The jury found that he believed his actions were necessary, but that there were no reasonable grounds for that belief. 104Whether defensive homicide saved Middendorp from a conviction for murder or denied him a complete acquittal is impossible to tell.However, an acquittal at common law would have required a jury to accept that it was reasonable for a six foot tall, 90kg man armed with a knife to believe he had to use lethal violence against a woman weighing 50kg. 105Middendorp's conviction for defensive homicide is controversial because of the reversal of the expected gender roles, the superior size of the offender, the evidence of previous violence by him, and his verbal abuse of the dying Bownds.This case accounts for much of the public criticism of defensive homicide. 106However, his claim of self-defence within a violent intimate relationship places his case fi rmly within the intended scope of the defensive homicide provisions, and the jury clearly accepted that he had a genuine belief in the need for lethal violence.

Spark
Spark's is not the kind of family violence situation contemplated by the VLRC or the Parliament, either. 107In fact, the former Liberal Opposition cited this conviction as evidence that defensive homicide was 'soft on crime'. 108Gordon Spark pleaded guilty to defensive homicide for bashing to death his 60 year-old uncle, George Spark.The Crown initially rejected his offer to plead guilty to manslaughter, but accepted the plea to defensive homicide during his murder trial.
In November 2007, Gordon and his two sons moved in with George. 109George was 'far from happy about the arrangement', 110 and the two men frequently fought over routine domestic issues. 111During such an argument on 22 December 2007, George told Gordon that he would 'treat [Gordon's] children in the same way as [Gordon] had treated [George] in the past'. 112He was referring to having sexually abused Gordon over a period of years in his nephew's childhood. 113As a result of the comment Gordon 'became enraged and [he] punched George, who fell onto d the sofa, where he continued to make derogatory comments'. 114Gordon then left the room, returned with a baseball bat, and repeatedly hit his uncle over the head with it until he died.That night Gordon drove George's body to a campsite, and dismembered and buried it. 115ark's lethal violence was clearly not reasonable in the circumstances, and so the issue for the court was whether George's statement, in the context of the prior abuse, made Spark genuinely, but unreasonably, believe that he had to kill George to protect his children.The Crown ultimately accepted that the belief was genuine, but its initial reluctance is understandable.Given the manifest improbability of George alerting Spark to any intention to sexually abuse the children, his comment was more in the nature of a taunt than a threat.These  [8].Spark was raised by his grandparents and was told k his mother was his sister.Some of the abuse occurred before Spark knew George was his uncle not his brother.110 Ibid [7].111 Ibid [8].112 Ibid [10].113 Ibid.Testimony from George Spark's sister was capable of substantiating the allegations of child sexual abuse, and prompted the Crown to accept the plea to defensive homicide: at [15].114 Ibid [10] (emphasis added).115 Ibid [11].factors might, arguably, only go to the reasonableness of Spark's belief, rather than its genuineness, and so be compatible with a defensive homicide conviction.However, his admitted 'rage' at the time of the beating, his post-offence conduct, and the fact that the children were 200 km away with their grandmother at the time of the precipitating comment, all call into question the genuineness of his belief.The Crown likely concluded that Spark's circumstances were sympathetic enough that a jury would return a conviction to a lesser homicide offence irrespective of the strict requirements of either defensive homicide or manslaughter.
Spark himself seemed similarly concerned only with a generic lesser homicide offence.Manslaughter, rather than defensive homicide, was his fi rst plea offer.If the killing had occurred two years earlier, a provocation defence would have been available to him.A jury or the Crown would have been favourably disposed to the argument that George's comments, given his previous abuse of Spark, were provocative. 116They could have understood that Spark lost self-control as a result of the provocation, and in that state formed the intent to kill or cause grievous bodily harm. 117The provocation would likely have been considered suffi ciently grave to be capable of causing an ordinary person to lose self-control and form an intention to infl ict death or grievous bodily harm. 118However, that partial defence had been abolished by the time that Spark killed his uncle, 119 and an alternative basis for a lesser homicide offence had to be found.Defensive homicide certainly fi lled that practical role, but not in a manner consistent with the purpose of excessive self-defence articulated by the VLRC, or with the rationale for defensive homicide provided by Parliament, or with the actual elements enacted in the offence.

Svetina
The factual situation of the fi nal family violence case, R v Svetina ('Svetina'), 120 was different again to the other family violence cases.A jury found Zlatko Svetina guilty of the defensive homicide of his elderly father, Tomislav, after the Crown had rejected Svetina's overtures regarding a plea to the same offence. 121Prior to the stabbing death of Tomislav, Svetina and his parents had complex fi nancial dealings that fuelled tensions within their personal relationships to the point that, in 2009, Tomislav stabbed his wife.He served several months in prison for that offence, during which time his marriage ended. 122According to the remarks that the sentencing judge addressed to Svetina: your father detested you.He blamed you for the breakdown of his marriage and for having been sent to gaol.… [H]e intended to ensure you received Svetina tried, unsuccessfully, a number of times, to re-establish communication with his father.His evidence was that on 8 July 2010, he 'sought to resolve the impasse' 124 by surreptitiously entering Tomislav's house and turning off the power to 'fl ush him out'. 125Tomislav was in bed at the time, but went downstairs with his tomahawk to investigate the power blackout. 126Svetina's accounts differ as to what happened next, and all the judge could conclude was that whoever surprised whom, you managed to prize the tomahawk away from your father, thereby infl icting injuries to his fi ngers; and, having so prized it away from him, struck him with it at least 10 times to the head and face … 127 The Crown's argument that familial and fi nancial tensions motivated Svetina to murder his father was compatible with Svetina's post-offence conduct of leaving his father injured, but alive, and spending the subsequent days drinking and playing online poker rather than checking on his welfare. 128However, the jury found that while Svetina intentionally killed his father, he did so believing genuinely, although not reasonably, that his actions were necessary to protect himself from death or really serious injury. 129The judge's sentencing remarks suggest sympathy with the Crown case.He said: you created circumstances propitious for the commission of the offence by unlawfully invading your aged father's home at night in the dark after turning off the electric power … Secondly, although it is possible that your father came at you with the tomahawk … any injury as you may have sustained was certainly minor and did not prevent you from taking the tomahawk away from him.Thirdly, once you had got the tomahawk from him, there was nothing to prevent you from taking it and going home.… Fourthly … you struck him at least 10 times, three of which when he was crouching or lying on the fl oor … [even though he was] 74 years of age, of limited strength and restricted physical capacity … 130 According to a forensic psychologist, Svetina's judgment was likely compromised at the time of the killing, on account of severe depression. 131This depression, combined with Tomislav's previous violence and immediate possession of a tomahawk, could have provided a basis for a defensive homicide conviction.However, the judge noted that '[t]he most that can be said in your favour, as your counsel put it on the plea, is that, as a result of all the pressures to which you were subjected in the months leading up to the killing, you snapped and lost control'. 132This reference was accepted without comment by the judge, but it was an extraordinary submission in a defensive homicide matter.A defendant 'snapping' or 'losing control' was compatible with the abolished provocation defence, but should preclude a defensive homicide argument, because it confl icts with the process of reasoning inherent in the requirements of the offence.

Conclusion on the Family Violence Cases
Monks is an uncontroversial application of the principle that family violence and a resulting power imbalance can exist across a variety of family relationships, and the vulnerability of the victim of such violence can create a genuine, but not reasonable, belief in the need for lethal violence against an abuser. 133The facts of the case justify the proposition that the effects of such relationships can be suffi ciently disempowering to the victim to justify a conviction for an offence less than murder.However, in the remaining three family violence cases, the power dynamic contemplated by the VLRC and the Parliament, and evidenced in Monks, was not simply absent, but inverted.In each case the person convicted of defensive homicide had the superior position in the power dynamic within the pre-existing relationship.The victim of the lethal violence was vulnerable in relation to the homicide offender through age and ill health in Svetina and Spark, and size, sex and previous violence in Middendorp, and yet the offender received the benefi t of the legislation intended to protect vulnerable defendants.
However, the cases are of the type contemplated by the defensive homicide provision, which does not, after all, circumscribe the circumstances or relationships in which violence must occur for the offence to be made out.Looking beyond the wording of the statute, to the intentions of the VLRC and the rationale for defensive homicide presented by the Attorney-General, the cases are still within the scope of the provision because they involve family relationships where the homicide victim was alleged to have perpetrated violence, either earlier in the relationship or just preceding the homicide incident.It is signifi cant that the two cases that most appear to be compatible with murder convictions, Middendorp and Svetina, were both decided at trial by a jury.In these cases, the factual issues were fully explored against the legal provisions, rather than just resulting from a practical negotiation between the defence and the prosecution.A real challenge in evaluating the effect of the introduction of defensive homicide is that in two of the four cases, the reasoning underpinning the abolished provocation defence was raised, even though the actual defence was abolished.The re-emergence of the 'victim-blaming' arguments associated with provocation is the subject of a different inquiry. 134However, it is relevant to note here that where the 'loss of 132 Ibid [42] (emphasis added).133 Monks' plea, conviction and sentence did not attract any public comment.134 See, eg, Tyson, above n 13, 203, 205.control' essential to provocation reasoning re-emerges in defensive homicide cases, it is not only importing a characteristic that was intended to be abolished from the law, but also negates the existence of the exercise of an error of judgment that should be the key characteristic of defensive homicide offences.

B Non-Family Violence Cases
Deviation from the intended scope of the defensive homicide provisions becomes more pronounced when moving out of the sphere of family violence and into violence between male friends and acquaintances.The non-family violence cases can be divided into the categories of 'mental health' and 'fi ghting'.By defi nition, they are outside the main intended scope of the legislation, and it is clear that nothing on the facts brings them into the intended narrow band of non-family violence that were contemplated as sharing the type of power dynamic that characterises family violence relationships.issue that remains, therefore, is the compatibility of the convictions with the elements of the defensive homicide offence.This does require the specifi c inquiry that follows to determine that the cases in both of these categories are more diffi cult than the family violence cases to conceptualise as within even the widest interpretation of the actual provisions.

Mental Impairment
Given that defensive homicide was framed as a concession to the making of an error of judgment, not to the failure to exercise judgment or the inability to exercise judgment, it was intended to apply where a defendant employed a rational decision-making process.In some cases, mental health conditions are relevant to offending and sentencing, but insuffi cient to undermine the application of defensive homicide. 135However, in Callum Smith 136 and Ghazlan d , 137 while the defendants pleaded guilty to defensive homicide, their mental states were incompatible with the elements of the offence.

(a) Smith
On 14 June 2006, Callum Smith visited his friend, Christopher Leone.That night police responded to a 000 call and found Leone dying from 62 stab wounds distributed over his head and body. 138Smith gave various accounts to police and psychiatrists about the stabbing, all of which described a fi ght breaking out, Leone making threats, and Smith stabbing him in self-defence.Smith had previously displayed 'unpredictable and at times aggressive behaviour'. 139He had spent time as an involuntary patient in psychiatric wards, including after threatening his brother with a knife.He was under a community treatment order, 140 which was extended just the day before he stabbed Leone. 141e had self-infl icted injuries on occasion, and exhibited 'irrational and fantastic behaviour such as claiming that [he] had been raped by a fi ctional television character, Tony Soprano'. 142A psychiatrist who saw him after his arrest diagnosed Smith's condition as schizophrenia aggravated by drug abuse.In his opinion, Smith was 'mentally ill at the time of the offence' and his psychotic condition contributed to the violent behaviour. 143The sentencing judge accepted the psychiatric opinion and made frequent references to the nexus between the offending and the mental health issues.Her Honour found that aside from his mental illness, the offence was 'totally inexplicable'. 144

(b) Ghazlan
Joseph Ghazlan also had a history of mental illness.On 22 December 2009, John Wyatt attempted to trip Ghazlan as he exited an elevator in the seniors' public housing estate where they both lived.Ghazlan stumbled and produced a knife with which he fatally stabbed Wyatt in the head and abdomen. 145Ghazlan perceived that Wyatt had been 'hassling' him for months, and on the evening of the stabbing he thought he heard Wyatt, four fl oors above, whistle at him as though he 'were a woman'. 146er 'many years', Ghazlan had been diagnosed with paranoid schizophrenia, endogenous depression, cannabis-induced psychotic disorder, and chronic delusional disorder. 147He had experienced 'unequivocal deluded thinking' and auditory hallucinations, been prescribed anti-psychotic medication, and admitted to psychiatric hospitals. 148His illness had frequently manifested itself in persecutory beliefs that caused him to use or threaten violence. 149He had served prison sentences for serious acts of violence, including another repeat stabbing and a beating with a steel bar, 150 and was under a community treatment order, imposed for violence offences, when he killed Wyatt. 151The judge found it was 'abundantly clear that [Ghazlan's] predisposition to persecutory thoughts carried

Conclusion on Mental Impairment Cases
The physical element of defensive homicide was clearly satisfi ed in Callum Smith, leaving Curtain J to remark in sentencing that '[t]he only issue to be tried was either … mental capacity or the issue of self-defence'. 154Her comment regarding capacity is equally applicable to Ghazlan, where the physical element was not in doubt and self-defence was not raised.However, in both cases, guilty pleas were accepted in substitution for the trial of the mental health issues.The acceptance of pleas was a practical compromise that had benefi ts for both the defendants and the Crown.However, it resulted in convictions that stretched the defi nition of defensive homicide.The mental health issues and substance abuse of the defendants interacted to destroy their impulse control and cause them to react violently to real or imagined insults.The convictions thus applied to situations that went beyond where a rational decision-making process resulted in an error of judgment, into cases where the defendants were unable to engage in rational decision-making.
Neither Ghazlan nor Callum Smith needed a new offence to deal with their offending.Their circumstances were covered by the Crimes (Mental Impairment and Unfi tness to be Tried) Act 1997 (Vic), which signifi cantly predated the 7 enactment of defensive homicide.The acceptance of pleas to defensive homicide signifi cantly disadvantaged the defendants by denying them the opportunity to seek to avoid criminal liability under the mental impairment legislation.It also disadvantaged the community by not ensuring that penalties appropriate to their serious mental health issues were imposed to minimise future offending and optimise the chances of rehabilitation.

Fighting
The fi nal category of defensive homicide cases involving male offenders includes over half of all convictions for the offence.It is comprised of 15 cases of men fi ghting with other men, where the violence escalated and resulted in the unexpected death of one of the participants.It is necessary to establish the type of fi ghting situations that have resulted in defensive homicide convictions, given the high proportion of all offences they represent and that the argument of this paper is that mundane violence is being inappropriately subsumed under the defensive homicide label.To this end, each of the fi ghting cases is grouped according to the circumstances leading to the homicide incident and discussed in some detail below.The discussion describes the relationship between the offender and the victim, the role of alcohol and illicit drugs, and any incidents that precipitated the 152 Ibid [10].153  lethal encounter, and compares those characteristics to the profi le of general male homicide offending in Australia.

(a) Recent Acquaintances
The defensive homicides in the cases of R v Smith ('Michael Smith'), 155 R v Wilson ('Wilson'), 156 R v Croxford ('Doubleday ' '), 157 R v Jewell ('Jewell ' ') 158 and DPP v McEwan ('Dambitis ' ') 159 were committed by men who met their victims just before the fatal The offenders met their victims in social situations, except Dambitis, who intervened to defend a group of teenagers from assault by a group of older men.On 25 May 2006, Arthur Karatasios and Michael Smith met at a boarding house in St Kilda. 160They had both been drinking alcohol, 161 and Smith had also been smoking cannabis, using heroin and taking benzodiazepines.An argument broke out during which both men were stabbed with the same knife.Karatasios received fi ve stab wounds, including one to the chest that proved fatal. 162Smith had experienced 'signifi cant problems with alcohol and drugs over many years', 163 and had prior convictions for violent offences. 164 22 July 2007, Benjamin Wilson visited a different boarding house in St Kilda.He became 'aggressive', 'drunk and argumentative', and accused another resident, Setla Hang, of being a thief. 165Hang retaliated with a punch, and Wilson left the premises but returned several hours later, heavily intoxicated, and confronted Hang, who produced a pocket knife, which Wilson used to fatally stab him in the head and lungs. 166Wilson had several convictions for fi rearm and violence offences, and his family reported similar uncharged acts. 167cky Doubleday and his friend, Ronald Croxford, went to a tavern in West Wodonga on 26 July 2008.An altercation broke out, and another patron, William Winter, produced a knife, which led to physical fi ghting.While Winter backed off at some point, Croxford and Doubleday followed him with garden stakes with which they struck and killed him. 168Doubleday went to trial arguing self-defence.He had no prior convictions for violence offences. 169n 24 January 2010, Scott Jewell fought with Dylan Casey over damage to Jewell's parents' fence after a birthday party. 170Jewell had consumed 'at least 10 beers' and admitted he was 'probably drunk'. 171He mistakenly thought that Casey had hit his father, and responded by stabbing Casey in the chest and abdomen, causing his death. 172There is some possibility that Jewell forgot that he was holding the knife and only intended to punch Casey. 173Jewell had no criminal history. 174 the night of 12 September 2009, Normunds Dambitis was driving from a party to a hotel with two friends when they saw three male teenagers being accosted by two older men, including Scott Shaw, who was affected by alcohol and marijuana and brandishing a machete.Dambitis and his friends intervened to protect the teenagers, resulting in a fi ght between the fi ve men.Shaw and his friend departed the scene, but Dambitis and his friends pursued and beat Shaw with fi sts, feet, a tree branch, and a fi shing rod, leaving him unconscious and with fatal brain injuries. 175

(b) Criminal Associations
In the cases of R v Giammona ('Giammona'), 176 R v Taiba ('Taiba') 177 and R v Evans ('Evans ' '), 178 the offender and the victim were associated through criminal activity.They each pleaded guilty to defensive homicide.Rosario Giammona stabbed Darren Parkes in the Port Phillip Prison on 23 March 2006.Parkes was on remand for multiple offences, including attempted murder, and had a reputation in prison for being violent. 179Giammona testifi ed that Parkes lunged at him with a knife, which he took and used in self-defence. 180Parkes sustained 16 wounds to most of his body.Giammona 'sustained no injuries of any signifi cance', which tended 'to count against [him] being the victim of a surprise attack'. 181Giammona had 113 convictions at the time of this offending, mostly for dishonesty offences relating to drug use, and only one involved violence. 182 6 February 2007, Mahmoud Taiba stabbed Haysan Zayat three times in the chest while Zayat was lying in bed. 183Taiba regularly bought crystal methamphetamine from Zayat. 184Taiba attempted to steal drugs from a sleeping Zayat, and when Zayat woke, Taiba thought he was reaching for a gun, and so stabbed him with a knife he had taken to the property. 185Taiba had 91 prior convictions at the time of this offending, including for serious violence offences. 186 12 July 2007, John Patton provided stolen T-shirts to a fellow boarding house resident, James Evans, to sell. 187A week later, the T-shirts were missing, which provoked a fi ght during which Evans fatally stabbed Patton. 188The judge sentenced Evans on the basis that while Patton was the initial aggressor, Evans 'brought the weapon to the room … [and] produced the weapon, in response to a blow, with no other weapon being produced at that time'. 189Evans had over a dozen prior convictions for violent offences at the time of this offending. 190

(c) Accommodation
The violence in R v Parr ('Parr ' ') 191 and R v Baxter ('Baxter ' ') 192 was precipitated by tension over accommodation.Vevil Aruma and Robert Parr shared a fl at in Frankston. 193Aruma had a 'violent disposition' and 'had served a prison sentence for an armed robbery'. 194On 3 September 2007, the men fought, and struggled on the balcony where Parr stabbed Aruma 17 times. 195A toxicology report disclosed Aruma's 'regular use of methamphetamine, recent use of heroin, and use of methadone'. 196Parr used cannabis, heroin and was on a methadone program. 197He had multiple prior convictions for violence offences, including a stabbing in the course of a robbery, and was on parole at the time of this offending. 198He argued self-defence at trial, after the Crown rejected offers to plead guilty to defensive homicide. 199son Baxter was staying at a friend's house in Bendigo on 18 December 2007, when a previous resident, Graeme Falzon, arrived to collect some personal belongings. 200A fi ght involving fi sts and knives broke out over the right to be on the premises, and Falzon sustained 11 stab wounds to his body. 201Baxter pleaded guilty to defensive homicide.The judge found that although Falzon was the aggressor, he was unarmed, and Baxter's reaction was 'grossly disproportionate' due to illicit drug use. 202He had prior convictions for violence offences, including intentionally causing injury and threatening to kill. 203

(d) Friends
In the cases of R v Trezise ('Trezise'), 204 R v Talatonu ('Talatonu') 205 and R v d Martin ('Martin'), 206 socialising between friends turned homicidal.All three defendants pleaded guilty to defensive homicide.Daniel Trezise killed Alexander Dacre on 1 March 2008, by infl icting 36 stab wounds across almost all parts of his body. 207When police arrived at Trezise's house, they found blood and knives strewn inside and outside. 208Dacre's blood alcohol content was 0.190 per cent and Trezise claimed to have consumed three bottles of Jack Daniels whiskey. 209rezise had an underlying intellectual disability. 210He presented various selfdefence scenarios to explain the stabbing, all of which, according to the Crown, were 'patently false.As well as inconsistencies between different versions, no single version proffered … [could have accounted] for the extent or seriousness of Alexander Dacre's injuries'. 211Despite these reservations, the Crown accepted Tresize's plea to defensive homicide.The sentencing remarks did not refer to any prior convictions.
On 28 January 2011, Iafeta Talatonu and Amuia Taoai drank at the Shepparton Club and then at Talatonu's home. 212Taoai taunted Talatonu about being illegally in Australia, having overstayed a visitor's visa from Samoa in 2006. 213Taoai then smashed beer bottles on Talatonu's car, and punched and threatened him with a broken bottle. 214Some minutes later, Talatonu stabbed Taoai in the chest, shoulder and face.A witness described Talatonu as 'angry' and repeatedly yelling 'what did you say to me?' 215 Talatonu's angry comments, and the delay between Taoai's attack and his retaliation, raise questions about his belief in the need for defensive action.He also pleaded guilty to defensive homicide.Justin Martin's case is quite different to the other fi ghting cases.Martin was 29 years old and socially marginalised. 216He became friends with Alan Baker, who was 79.Martin told police that, on 27 January 2010, Baker was fl ashing himself, rubbing himself against me.… [H]e followed me and … [touched me] between the legs and I said not to and he kept on doing it and I didn't want it.He sat on top of me and I got sick of it and I told him not to and the more he done it the angrier I got.… Then I was on the bed and he tried and that's when I lost it. 217rtin repeatedly pushed and kicked Baker, then stabbed him seven times. 218hen the police asked if Baker raped him, Martin replied, 'he would've if I didn't do what I done'. 219Forensic evidence supported Martin's account, and an independent witness came forward reporting that Baker had sexually abused him in the past. 220Martin had 'extremely low range' intellectual functioning that was further impaired by alcohol abuse. 221He had a number of previous convictions violence offences. 222An offer to plead guilty to manslaughter was rejected by the Crown before it accepted a plea to defensive homicide.
It is uncertain whether Martin's credible allegation of attempted rape provides a basis for a defensive homicide plea.Babic determined nine months before Martin's sentencing hearing that common law self-defence did not survive the enactment of s 9AC. 223This decision means that only threats of death or really serious injury now justify a claim of self-defence to murder, and, therefore, a fi nding of defensive homicide.The courts have not yet considered whether the threat of rape will satisfy ss 9AC and 9AD.In any event, Martin's claim to defensive homicide is critically undermined by his admission of being angry and having 'lost it'.Like Spark and Svetina, this provided a basis for an obsolete provocation defence, but is at odds with defensive homicide.

(e) Pre-Existing Tensions
In the cases of R v Edwards ('Edwards ' ') 224 R v Vazquez ('Vasquez'), 225 ongoing tensions between the victim and the offender erupted into lethal violence.Barry O'Neill formed a relationship with Kevin Edwards' partner while Edwards was in prison, resulting in animosity between them. 226On 4 June 2006, Edwards and O'Neill had been drinking together for two full days, when O'Neill threatened Edwards with the leg of a coffee table. 227Edwards retaliated with the table leg and three bottles, and by kicking him in the face and genitals until he fell unconscious. 228Edwards had a 'shocking criminal record'. 229He had spent 23 of his 28 adult years in custody, 230 and was on parole for armed robbery when he killed O'Neill. 231The Crown rejected an offer of a plea to manslaughter before accepting the plea to defensive homicide. 232chard Vazquez and Steven Tosevski were involved in an ongoing dispute regarding a drug debt, and damage that was infl icted on Tosevski's car consequent to that debt. 233On 13 September 2010, Tosevski attended Vazquez's father's offi ce to discuss compensation for the damage to the car.Vazquez hid in the storeroom with a sawn-off, double-barrel shotgun.When a verbal argument broke out between Tosevski and Vazquez Snr, Vazquez shot Tosevski in the head at close range, killing him instantly. 234The father or son planted unfi red shotgun cartridges in Tosevski's clothing and claimed that the gun had accidentally discharged as Vazquez acted in defence of his father. 235The case was reported as resulting from rivalry between Lebanese clans, 236 and parents of the victim and the offender gave evidence at Vazquez's committal hearing of prior violence between them. 237azquez's actions were infl uenced by post-traumatic shock disorder from being 'kidnapped and tortured by a group of young men' who stabbed him and beat him with hammers the previous year. 238

Conclusion on Fighting Cases
Even more than the mental health cases, the fi ghting cases are between men of similar age and circumstances with an equal tendency toward engaging in violence.The power dynamic and vulnerability that were intended to characterise the offence of defensive homicide were not present.The defensive homicide fi ghting cases arise from spontaneous encounters between male acquaintances.The cases are archetypal examples of the male 'confrontational homicides' that have been the dominant scenario in homicidal violence across jurisdictions for centuries, 239 and continue to dominate offending in contemporary Australia.The most recent Australian statistics report that male acquaintance/friendship is the most common relationship between offender and victim in homicide encounters, 240 and accounts for 86 per cent of male victims of homicide. 241All of the key characteristics of male confrontational homicides were evident in the defensive homicide fi ghting cases.The median age of the offenders was 30, compared with 29 for all male homicide offenders, 242 and the average age of the defensive homicide victims was 35.4, 243compared to the average age for all male homicide victims of 38.2. 244Knives were the lethal weapon in 73 per cent of the defensive homicides, and while they accounted for only 38 per cent of deaths by homicides overall, they were the highest single cause of such deaths. 245e only fi ghting scenario where intoxication or drug use was not a direct issue for either the defendant or victim was in Giammona, when both men were in prison.In Evans, Taiba Vazquez, the fi ghts were over possession and debts for illicit drugs.In Wilson and Baxter, the defendant was intoxicated, but it is unclear r r whether the was also intoxicated.In the victim had consumed and cannabis.Although the offender was an alcoholic, it is not stated that he was intoxicated at the time the incident occurred between his attendance at a party and at a hotel.He had a history of violent offending after excessive alcohol consumption.In the remaining cases of Trezise, Parr, r r Edwards, Michael Smith, Jewell, Martin, Talatonu and Doubleday, both defendant and victim were heavily intoxicated on various combinations of alcohol and illicit drugs at the time of the offending. 246This profi le of intoxication is indicative of general homicide offences, as currently in Australia, '[i]n the majority of incidents, both the victim and the offender were known to have been drinking', and illicit drug use is known to have preceded one in fi ve homicides. 247th the exception of women who kill abusive partners, there is limited research on offenders who kill in self-defence.There is an underlying assumption that these offenders are 'blameless and passive targets', 248  homicide offenders.. 249 If the image of an innocent and victimised defensive killer is accepted, they should have little in common with other killers.However, this was not the case.Of the defensive killers, 70 per cent had a criminal record (10 per cent greater than typical homicide offenders), and were more likely to have prior convictions for violence offences than other homicide offenders. 250On this basis, the authors concluded that 'individuals who fi ght back against predatory attack are not necessarily the law-abiding citizens or innocent victims that we often believe them to be'. 251The defensive homicide cases in Victoria are consistent with the fi ndings for Chicago.Jewell, Tresize, Vazquez and Talatonu did not have any prior convictions for any offences, although Talatonu had only been in Australia for four years at the time of his offending.Doubleday did not have any convictions for violence, but did have multiple convictions for other offences.The other 10 defendants, who represented 66 per cent of those convicted of defensive homicide fi ghting offences, had prior convictions for violence offences.This is almost double the rate of 34 per cent of male homicide offenders overall who have prior convictions for violence. 252This comparison indicates that the defensive homicide offenders are at least as intoxicated and violent as other male homicide offenders, and are often even more so.They are not the vulnerable victims of violence that the VLRC and the Parliament reformed the law to assist.
Like the mental health cases, the fi ghting cases are also a poor fi t to the actual defensive homicide provisions.The mental health cases were incompatible because the characteristics of the defendant meant they were unable to satisfy the elements of the offence.With the fi ghting cases, the defendants did not have any constitutional impairment, but rather their conduct on the occasion in question was not compatible with the elements.The sentencing remarks in Trezise are applicable across this type of offending, and highlight the disconnect between these cases and the elements of the offence.In sentencing Trezise, Coghlan J remarked that without independent evidence, he could only determine that 'Dacre did not do anything of substance which merited your attack on him', 253 but that 'in your alcohol-fuelled state you somehow reasoned that he was a threat to you'.d 254 As the Crown had accepted the plea to defensive homicide, the judge had to sentence on the basis his Honour outlined.His reference to Trezise 'reasoning' that Dacre posed a threat brings the factual situation within the scope of defensive homicide by fi nding that a rational, but erroneous, decision-making process preceded the stabbing.However, 'reasoning' is clearly incompatible with Trezise's frenzied behaviour and intoxicated state.Trezise's situation is not unique in this regard because all of the fi ghting cases were characterised by unconstrained drunken impulse, rather than fl awed reasoning.
Far from representing offending that has historically been excluded from the scope of self-defence, the defensive homicide fi ghting cases are archetypal examples of the offending that defi ned and dominated it in the past.The remarks of the sentencing judge in Talatonu expose the nature of these cases generally, as his Honour demystifi es the offending by describing it as nothing more than mundane violence.He concluded that Talatonu was 'inclined to use knives to settle alcohol-fuelled disputes', 255 and that 'anger arising from being abused and assaulted, together with intoxication, provide an uncomplicated explanation' for the offending. 256These remarks clearly differentiate this type of commonplace offending from the narrow category of offending that Parliament and the VLRC intended to result in defensive homicide convictions for certain vulnerable defendants in abusive relationships.Whereas in sentencing Trezise the judge adapted his remarks to make the plea satisfy the elements of the offence, the judge in Talatonu described the offending without seeking to reconcile the plea with the offence.In so doing, he highlighted the distance between the circumstances of Talatonu's offending and the intended nature of the offence.His remarks have signifi cance beyond the immediate case, because the other fi ghting offences so closely resemble the circumstances in Talatonu.While the defensive homicide convictions have been criticised in the context of the plea bargaining process, 257 the circumstances of cases leading to convictions on the basis of guilty pleas differ little in context from the cases of Parr, r r Doubleday and Dambitis, where the convictions resulted from jury verdicts.

IV CONCLUSION
The offences across all the categories of male offending are striking in their similarity both to each other and in their conformity to the general profi le of homicide offending.They have different factual contexts, but the encounters are all sudden and frantic due to disinhibition through intoxication and habitual reliance on violence as a confl ict-resolution strategy.The situations quickly, unexpectedly and unintentionally escalated from routine violence to homicide after some minor insult, offence or tension. 258256 Ibid [12].257 Flynn and Fitz-Gibbon, above n 14, 922-8.258 See Polk, above n 239, 88-92 for how apparently minor or trivial insults may take on an increased importance for socially marginalised men for whom the response to threats of violence or general aggression is integral to their social and personal identity.
Defensive homicide has inadvertently brought ordinary violence within a special offence framed to assist a narrow group of disadvantaged defendants.In so doing, it has expanded the range of legal options available to violent men, despite being part of a reform package designed to narrow those options through the abolition of the partial defence of provocation.In 2010, the Department of Justice reviewed the offence. 259The review was, in part, a response to opinions expressed by the public and the Opposition that convictions for defensive homicide would have resulted in convictions for murder at common law.In reality, it is uncertain whether the introduction of defensive homicide has affected convictions for murder at all.While it intended as an alternative verdict to murder, it is being utilised as a generic intermediate offence, and likely serving as an alternative verdict to manslaughter.Edwards, Spark and Martin all initially offered to plead to manslaughter, which suggests that their admission was to guilt of an offence less than murder, rather than to guilt according to the actual provisions of defensive homicide.The convictions of the other defendants are comprehensible only as homicides less serious than murder, rather than as actual defensive homicides.
However, defensive homicide having a neutral impact on the number of murder convictions does not mean that its effect overall is neutral.The limits of defensive homicide are being critically blurred through its operation as a generic intermediate offence.Like manslaughter, defensive homicide is at risk of becoming 'broad and uncertain in scope' and a 'residual, amorphous "catch-all" homicide offence'. 260s always with homicide offences, the number of male offenders eclipses the number of female offenders and the uncertainty over its scope is being resolved by using the offence as a general concession to male violent tendencies.It seems likely that the offence will be increasingly understood according to patterns of violent male behaviour.The danger is, therefore, that defensive homicide will evolve in the same way as self-defence and, over time, abused women could have diffi culty persuading a court to understand their conduct according to the provisions of the offence.In this way, defensive homicide will become part of the problem for which it was intended to serve as a solution, and women will still not have an effective defence where they kill abusive partners.The partial defence of provocation assisted some women who killed abusive partners to avoid a murder conviction, and so its abolition caused some concerns about further disadvantage to women in that position. 261However, the Parliament pursued the abolition on the basis that the full defence of self-defence, properly framed and supported by s 9AE, would provide better protection for abused women than the partial defence of provocation.It is, perhaps, an irony now worth seriously considering that the introduction of excessive self-defence, concurrent with the abolition of provocation and the codifi cation of self-defence, undermined the intention that courts should properly consider the experiences of abused women in the context of the complete defence of self-defence.
1958, 46 abolished by the Privy Council in 1971, 47 recognised by the High Court again in 1978, 48 questioned by it in 1987, 49 and later reintroduced by statute in South Australia, 50 New South Wales, 51 and Western Australia. 52 Ian became angry, and blamed his nephew for the resulting drink driving charge, as Milner had requested that more alcohol be obtained.Ian ordered Milner to leave the 85 The exception is Babic (2010) 28 VR 297 in relation to common law self-defence.See above n 36.
engaged in one-off retaliation against another person's wrongdoing.A Chicago study compared the characteristics of people who killed defensively with the characteristics of other 242 Ibid 26.243 This average is based on the 9 cases where the exact age of the victim is included in the sentencing remarks.244 Chan and Payne, above n 240, 18. 245 Ibid 11. 246 The Victorian laws regarding intoxication relate to the 'reasonableness' elements of offences and so have little effect on defensive homicide, which concedes the lack of reasonableness and focuses on the subjective mental state.See Crimes Act 1958 (Vic) s 9AJ.247 Chan and Payne, above n 240, 17. 248 Gary Kleck and Marc Gertz, 'Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun' (1995) 86 Journal of Criminal Law & Criminology 150, 150.This view has been subject to criticism.See David Hemenway, 'Survey Research and Self-Defense Gun Use: An Explanation of Extreme Overestimates' (1997) 87 Journal of Criminal Law & Criminology 1430.Kleck and Gertz, above n 248, acknowledge the broad range of scholarship which takes the opposite view but go on to refute the opposition which is ongoing and is closely associated with the politics of gun control: at 151-7.See, eg, Deborah Azrael and David Hemenway, '"In the Safety of Your Own Home": Results from a National Survey on Gun Use at Home' (2000) 50 Social Science and Medicine 285; J F Denton and W V Fabricius, 'Reality Check: Using Newspapers, Police Reports, and Court Records to Assess Defensive Gun Use' (2004) 10 Injury Prevention 96; Timothy C Hart and Terance D Miethe, 'Self-Defensive Gun Use by Crime Victims: A Conjunctive Analysis of its Situational Contexts' (2009) 25 Journal of Contemporary Criminal Justice 6.

IN VICTORIA, 2005-13 262 Case Type Offender Age Victim Age Victim/Offender Relationship Weapon Circumstances Offender History Plea or Verdict Date of Offence
Victim and offender stabbed with the same knife Long term substance abuse problems, affected by alcohol and illicit drugs.Prior convictions for violence.Prior jail time of two months.Aboriginal Revised and updated version of appendix B in Department of Justice (Vic), above n 11, 73-7.