The unintended operation of this law is clearly evident from an analysis of convictions for defensive homicide. Despite being implemented for people who kill in response to family violence, most cases since 2005 have involved a male defendant(s) who has killed a male victim outside the context of family violence. Characteristics common to these cases include one-off violent confrontations between young men, a history of drug and/or alcohol addiction and prior convictions for either drug or violent crimes. Defensive homicide cases finalised in the Victorian Supreme Court this year included one case where two male defendants took multiple guns to the site of the lethal violence and argued at trial that in taking these weapons with them they had no intention to use them until they formed the "unreasonable" belief that it was necessary to defend themselves. In another defensive homicide case finalised by way of a guilty plea, the male defendant evaded a conviction for murder after he fatally shot an unarmed male victim he knew. The defendant had been hiding in an adjacent storeroom when his victim was to meet the defendant's father about damage to the victim's car. When the victim arrived to meet the father, he was unaware that his friend was hiding in the storeroom. When he heard raised voices, the defendant said he formed the genuine belief – albeit unreasonable – that he needed to defend himself or his father. He entered the room and shot the victim at close range with a sawn-off shotgun that had been left in the storeroom.

These cases are a far cry from the context of lethal violence for which this offence was implemented. A conviction for defensive homicide in these types of cases sends a highly problematic message to the community that the "revenge"-fuelled lethal actions of these defendants have been partly legitimised by the legal system with a conviction less than murder. The law has an important role to play in terms of appropriately labelling and responding to lethal violence. Given the recognised intention to kill in defensive homicide cases and the circumstances surrounding many of the defendant's unreasonable claims to self-defence, it is difficult to understand why these cases have been dealt with as less than murder. It is to be commended that this is a pattern of mislabelling that the government's proposals for reform seek to address. By proposing its abolition, the department is rightly seeking to close off an alternate offence to murder, which has also allowed problems of victim blaming to exist beyond the operation of the partial defence of provocation. This was evident during the 2010 trial and sentencing of Luke Middendorp who became the first, and so far only, man to be convicted of defensive homicide, having killed a female partner during the period of relationship separation. The trial mirrored that of the controversial 2004 trial of James Ramage.

Throughout it was the actions of Middendorp's victim, Jade Bownds, that were put on trial and her behaviour was used to explain his use of lethal violence. The community responded with significant concern. While this is only one case, the government's report makes important proposals to ensure that homicide law will no longer blame dead victims for lethal violence perpetrated against them, The government proposes reforms to laws concerning "improper" questions and by adapting character evidence laws. This is a welcome step forward and it is hoped these proposals will be implemented before another case like the Middendorp one is able to exploit this law further. It is certainly not advocated that everyone who kills should be convicted of murder and sentenced to a maximum jail term. Recognising differences in a defendant's culpability is an essential task of the justice system that is particularly important in murder cases, given the myriad contexts in which lethal violence is perpetrated. But for homicides involving an intention to kill, differences in a defendant's culpability are best reflected in sentencing for murder. Victoria benefits from a flexible sentencing structure for murder, within which judges should be encouraged to use the full discretionary range to ensure sentences best reflect the offender's culpability. As a community we should have confidence that our Supreme Court judges are well versed for this task.

But let's call a spade a spade. Committing lethal violence with an intention to kill is murder and the operation of defensive homicide in Victoria has unjustly blurred the distinction between murder and less culpable forms of homicide. While the government is seeking consultation on the proposals, it is important that the implementation of this proposal is not delayed. This review of defensive homicide began in 2010 under the former government. Three years later, it is hoped that the government will now act quickly. The longer that the offence remains, the longer the potential for injustice. Dr Kate Fitz-Gibbon is a lecturer and researcher in criminology at the school of humanities and social sciences at Deakin University.