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Does Clayton Weatherston deserve a lower sentence than a robber or a sex offender?

Clayton Weatherston took a knife to his girlfriend’s place and stabbed her 216 times in the face, eyes, neck and heart. He has been charged with murder but is pleading a defence of provocation. This has led to repeated calls for the repeal of at least section 169 of the Crimes Act, which allows a provocation defence for murder. Labour's Charles Chauvel has a bill [PDF]to do just that – although he is probably more concerned about the gay panic defence, rather than consistent sentencing.

Provocation operates as a partial defence. If Weatherston is successful he'd have a considerably reduced sentence. How much? Less than he’d get for sexual offences or kidnapping, at least. That’s because the sentence is purely up to the sentencing judge, not the legislation and sentences for manslaughter have been minimal because judges no longer apply the law to provide for tougher sentencing for the worst crimes.

The maximum sentence for rape is 20 years, and for manslaughter it is life. Life is the minimum for murder unless the judge gives written reasons for an alternate sentence.But many sex offenders (like Graham Capill) get higher sentences than those found guilty of killing a cop with a stolen car. Judges use previous cases to determine sentencing for manslaughter, none of which have been more than 16 years, most are far less. Here's some comparisons.

This guy got six years for aggravated robbery, but this woman would have got just five years for manslaughter had the crown not appealed the sentence.This rapist got 10 years, but last month this killer got sentenced to just over four years, but could be out of prison next month. He spent time in custody before sentencing. This sentence is just over half the seven year maximum sentence for wounding with intent to injure. This guy got nine years for kidnapping – but Rachael Namana got six years for killing Lillybing. A guy I used to know got six and a half years for unlawful sexual connection, but had he slaughtered one of the kids with a baseball bat he may have got a shorter sentence. Had the kidnapper or Capill been convicted for manslaughter they’d have probably got shorter sentences too.

So in effect what Weatherston is trying to do is get a shorter sentence than many sex offenders get – but he killed a woman by stabbing her 216 times. If he is successful, and gets, say, the three years that this killer got after successfully using the provocation defence , that’s just five days for every stab. That is assuming he completes the full sentence.

The provocation defence may be the topic of the moment, but there is also something wrong with our sentencing system if politicians and judges think that those who kill people deserve lower sentences than do robbers and sexual offenders.

clarification Despite the title, this post is not to be seen as taking any normative position on Clayton Weatherston's case, nor does it do so.