explainer

Sandra was brutally killed by her husband in their home. Last week he successfully argued he was ‘provoked.’

WARNING: This post deal with graphic details of murder and domestic violence, and could be triggering for some readers.

Sandra Peniamina died on March 31, 2016, in one of the most violent cases of domestic violence-related death Australia has seen in recent years.

She was stabbed 29 times with two different kitchen knives, before having a concrete bollard thrown at her head from the garden of her home.

But despite the horrific way she died at the hands of her husband, last month in Queensland a court effectively ruled that she was at least partly at fault for her own death. 

Watch: Murder was downgraded to manslaughter in a retrial. Post continues after video.


Video via 7NEWS, https://www.youtube.com/watch?v=8MGAzpTmstA

The attack started when Arona Peniamina accused her of being unfaithful. A punch to the face gradually escalated, and it was all witnessed by the couple's then 10-year-old son.

But after that first punch, Sandra picked up a knife. And it's that act of defence that's allowed her husband to slash his prison sentence to just 16 years on retrial.

Initially convicted in 2018 of murder and ordered to serve the rest of his life behind bars, the 41-year-old had his murder conviction tossed out on appeal. 

In a 2021 retrial, he was able to prove that he was 'provoked.' 

You see, Peniamina has always admitted to killing the mother of his four children, but he says he "lost control" the night he killed her. 

In Queensland's Supreme Court in September, a judge ultimately agreed with him. A reduced sentence found the killing was a "spontaneous reaction" with a partial defence of provocation. 

Listen to The Quicky for more of a deep dive into the law. Post continues after podcast.

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As the ABC reports, Peniamina's lawyers said their client claimed there were several "provocative acts" by Sandra during their confrontation that caused his murderous reaction. 

She swore at him.

She refused to speak about the alleged affair she'd been having.

He was left with a cut on his hand while trying to disarm her of the knife she'd picked up to defend herself. 

That last example was described as the thing that caused Peniamina to lose control. 

He proceeded to carry out a sustained attack of violence. Sandra was wounded at least 29 times before she finally died, and that was even after she had a knife tip lodged in her skull from one of his swipes.

When he finally crushed her skull with a concrete bollard, she was cowering behind a car outside their home just north of Brisbane.

The controversial 'provocation' defence.

According to a court of law, Peniamina is guilty of manslaughter not murder all because of an ancient defence that many other states in Australia have abolished. 

"Provocation [was] developed in the 17th century in circumstances where men fought each other to protect their honour," Professor Heather Douglas, an expert in legal responses to domestic and family violence, told Mamamia.

"It operated in circumstances where there was a murder but where the killing occurred suddenly and in ‘hot blood’ and was done to protect one’s honour. In such cases provocation could ensure that the defendant avoided the death penalty," she explained. 

Professor Douglas is of the opinion that provocation is an outdated defence that doesn't fit with our modern life, primarily because it blames the victim in part.

"The defendant is effectively saying he killed because of something the victim did. We already have self-defence and while using violence in self-defence may be justified in some situations, using it in response to loss of honour or anger is not," she said.

As far as Founder of Beyond DV Carolyn Robinson is concerned, she thinks this case will set a dangerous precedent.

"Are there going to be other perpetrators of this violence thinking that they can get away with it by using this defence? That's a really big concern, because a lot of these men who commit these crimes do lack accountability," she told Mamamia.

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"They don't see themselves as being the problem, and they're constantly trying to minimise their behaviour."

Domestic Violence Prevention Centre didn't hold back on their view, posting on social media, "As the VICTIM of a brutal murder Sandra is STILL CONSIDERED RESPONSIBLE FOR HER OWN DEATH because she wounded the murderer while trying to defend herself from being murdered, thereby causing Mr Peniamina to lose his self-control? In what other realm of the Criminal Code would this be accepted?"

As Professor Douglas explains, the defence still exists in Queensland because of an unwillingness by the Queensland parliament to remove the mandatory penalty of life in prison for murder. Due to the constraints of that mandatory sentence, it was decided that the defence was needed for those who genuinely deserve relief from mandatory life imprisonment. 

An example she gives, is "the battered woman who loses control after discovering that her abuser has been raping their infant child."

States like WA, Victoria and Tasmania have abolished it completely. There, life is a maximum sentence but not mandatory in the case of murder. 

"Queensland should consider following Western Australia’s lead – WA abolished provocation and also abolished the mandatory penalty and replaced the penalty with a presumption of life in prison for murder. This would allow a person to be convicted of murder but provocation could be taken into account in exceptional circumstances to reduce a sentence," Professor Douglas told Mamamia.

If allowed to continue on un-amended, she points out that in situations like the Peniaminas' where the woman is being attacked and she does something to defend herself and is then killed, the perpetrator can claim her self-defensive act is a ‘provocation’ and the perpetrator will not have to demonstrate exceptional circumstances to use the defence of provocation.

The flow on effect to victims.

One of the hardest things for a victim of domestic violence to reconcile with, is the feeling that they are at fault, says Beyond DV's Carolyn Robinson.

"If you look at the power and control wheel, minimising and denying and blaming is one of those elements. And so a lot of women, through coercive control and that pattern of behaviour over weeks and months and years, have been led to believe by their partners that it's because of their actions that their partner reacted in such an abusive way."

This defence only cements that feeling.

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Explaining archaic elements of our legal system is something Robinson finds she's asked about by victims often. 

"Unfortunately, the laws as they stand now may not necessarily reflect the attitudes and the beliefs of society now. But being the law, we have to work within the law. It is hard to reconcile with an outcome like that, which seem so unjust. But at the end of the day, sometimes there is no closure for these types of decisions when they're made," she told Mamamia.

Robinson says it's a "lottery" as to whether you get a police officer or a magistrate who actually understands the complexity of domestic violence. 

It's for that reason that Beyond DV is of the opinion that "consistency" is the most important step our legal and policing systems can make moving forward in this space.

A wide-ranging review into the state’s justice system will include another review of this defence and its use in Queensland, with The Women’s Safety and Justice taskforce hoping to understand the experience of women across the state. 

The fact that there is an appetite to talk, to question and to change has Robinson hopeful for the future. 

"15 years from now, who knows where we might be. Wouldn't it be fantastic if domestic violence was considered not not the 'norm' anymore. A bit like not wearing seatbelts, or drink driving. People just don't do it anymore," she said. 

It's an alluring dream. 

But first we've got to undo not just the behaviours of perpetrators and the societal tropes they are brought up amongst, but the archaic and outdated loopholes, legalities and police practices that continue to undermine women and their experiences. 

If this post brings up any issues for you, or if you just feel like you need to speak to someone, please call 1800 RESPECT (1800 737 732) – the national sexual assault, domestic and family violence counselling service. It doesn’t matter where you live, they will take your call and, if need be, refer you to a service closer to home.

You can also call safe steps 24/7 Family Violence Response Line on 1800 015 188 or visit www.safesteps.org.au for further information.

You can keep up to date with Gemma Bath's articles here, or follow her on Instagram,  @gembath.

Feature image: Facebook/Sandra Peniamina/Pokerleague.