The manslaughter conviction of a schoolboy for the fatal stabbing of Gerard Fleming wasn’t downgraded because of a homosexual provocation defence, NSW Attorney General John Hatzistergos has said.

Acknowledging community concerns about the three-and-a-half-year non-parole sentence, Hatzistergos said it is important to note that the Court, including the jury, saw this case as a -˜tragedy arising from a failure to communicate and a misunderstanding’, rather than one involving homophobic motives.

Sydney MP Clover Moore had asked the Government for confirmation that the gay panic defence was not working its way back into the legal system through cases like this.

The teenager, referred to as CR during his trial, was 16 at the time of the 2007 beat stabbing and spoke of his remorse in the witness box.

The jury found him guilty of manslaughter rather than murder on the basis of excessive self-defence.

Hatzistergos defended the law, which was introduced in 2001 because Australia did not have separate degrees of murder as separate offences, as well as the implementation status of recommendations from the Homosexual Advance Defence working party.

Since the release of the working party’s Report in 1998, all the recommendations have been implemented, except the exclusion of a non-violent homosexual advance from forming the basis of the defence by provocation, Hatzistergos wrote to Moore.

The Sexuality-Related Hate Crime Monitoring Committee meets periodically and has observed a marked decline in the frequency of successful provocation defences involving non-violent sexual advances over recent years, as well as a reduction in the incidents of sexuality-related hate crime in general.

Moore had renewed the call for the homosexual advance defence to be removed from the statutes, but saw the positives in the decline of its use.

I hope that this reflects changing community attitudes and increasing acceptance of lesbians and gay men, she wrote to constituents.

Upper House MP Fred Nile and gay activist Gary Burns had spoken out against what they called an inadequate sentence for the Fleming manslaughter.

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