Monday, 25 February 2013

Law must be upheld - but mercy should temper justice

A report in The Australian today about an elderly Victorian man's guilty plea for the attempted murder of his disabled wife will no doubt put the spotlight on the law itself.

Victorian man Heinz Karl Klinkermann, 73, has pleaded guilty to the attempted murder of his 84-year-old wife Beryl Klinkermann. He had drugged both himself and his wife and then attempted to kill himself and Mrs Klinkermann by carbon monoxide poisoning in their Yandoit home.

Mrs Klinkermann was suffering from Parkinsons disease and had ''severe dementia". 

Barrister, Mr Marsh said Mr Klinkermann had been unable to relinquish the care of his wife to a nursing home.
“The idea of Beryl being in a nursing home and he not being able to look after her was incomprehensible to him,” the lawyer said.
“He was motivated by his overwhelming love for his wife and despair at the thought of life without her.” 

Mr Klinkermann told police the couple had decided “we were going together”. Both recovered in Ballarat hospital and Mr Klinkermann is restrained by court order from contact with his wife.

The police prosecutor agreed with the defence barrister that a non-custodial sentence should be applied in this instance. An appropriate decision in the circumstances it would seem.

Is this a cause to seek for the law to change? No. This is a case of attempted murder - an acknowledged fact. As such, the law must always be applied lest we find that any discretion given to prosecutors in respect to motive, for example, becomes an excuse for not prosecuting at all. 
CareNotKilling's Peter Saunders

If this were to be the case, would the public remain confident that the law will always be upheld? Or would we slide inexorably into a situation where (wink-wink, nudge-nudge) crimes of this nature may well be committed in the knowledge that, if done a certain way, no charges were likely to be laid.

Following the Debbie Purdy case in the UK, the British Supreme Court gave directions in mid- 2009 that the Director of Public Prosecutions (DPP) should produce guidelines on circumstances in which the DPP is likely NOT to prosecute a person for assisting a loved one to die at the Dignitas facility in Zurich.


This guidance is expected to make it less likely that assisters who are ‘motivated wholly by compassion’ or are ‘loved ones’ will be prosecuted. In addition it is less likely that cases involving ‘victims’ who are terminally or chronically ill or disabled will end up in court.

UK colleague, Peter Saunders, commented: If so the result will be that some of Britain's most vulnerable people will have less legal protection than others and that it will be easier for family members and 'friends' with an interest in a person's death to get away with subtle coercion to assisted suicide on the basis that they were acting compassionately. 

In spite of assertions to the contrary the UK DPP remains firm in its belief that the guidelines can and do work. This is in spite of there being numerous cases where observers believe a prosecution should have been directed.

Again, Saunders sums it up with a warning:

Assisted suicide remains illegal in Britain and still carries a custodial sentence of up to 14 years for convicted offenders. But of over 130 British citizens who have so far travelled to Switzerland to be helped to kill themselves, none have even been tried, let alone convicted.
And the three most recent cases (Downes, Bateman and Rees) have all been let off on the grounds that they were ‘wholly motivated by compassion’ – a mitigating factor seemingly open to liberal interpretation and not easily testable in court (especially given that the key witness in all cases is dead and unable to give evidence).
It appears a pattern is emerging. The police seem reluctant to investigate. The DPP looks to be unwilling to prosecute. Juries are reticent to convict and judges, for those very few cases that do reach this stage, are giving light sentences. 
This sort of ‘legal sanction’ is exactly what first happened in the Netherlands and led eventually to an eventual change in the law in that country - legalisation by stealth. 
Every reason to insist that the law be upheld. It is because it is upheld that mercy can be shown. Without the law there is no real protection.



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