THE PRESS SATURDAY, DECEMBER 18, 1976. The penalty for murder

Press, 18 December 1976, Page 14

THE PRESS SATURDAY, DECEMBER 18, 1976. The penalty for murder

Most people rightly feel that anyone who deliberately kills another person should suffer the most severe penalty the law provides. The first reaction to the proposal made bv the Criminal Law Reform Committee that life imprisonment should be the maximum — but not the mandatory — sentence for killing another person is therefore likely to be unfavourable. But m its report on culpable homicide, the committee has made a corn incing case m favour of this change The recommendation is in accord with another proposition with which most people are likely to agree — that not all people who have killed another are equally blameworthy and that they should not therefore all suffer the same punishment. Under the law as it stands an unprovoked killing is murder and a provoked killing manslaughter, the two crimes carrying different punishments and different social stigmas. To make this distinction is not always as simple as it appears, but the courts must endeavour to make it whenever provocation is pleaded as a defence against a charge of murder. The plea has customarily been accepted when there is evidence that an ordinary or a reasonable man would have lost his selfcontrol In the practical application of this rule anomalies and even injustices have arisen People of different backgrounds (the committee does not shrink from saying that in New Zealand this means generally Polynesian and European) lose their self-control in different ways and in different circumstances. Temperamental differences between individuals means that what seems like a deliberate, calculated killing could be a delayed or suppressed reaction to a genuine provocation. These difficulties about giving “ provocation ” a sufficiently precise legal definition prompted the committee to recommend that a single offence of

“unlawful killing” be substituted for the two present offences of murder and manslaughter. In establishing whether a person is guilty of unlawful killing, the question of provocation will not be relevant. The question will be relevant only when the courts are deciding what penalty to impose on a person convicted of the crime. This is what already applies in all criminal cases except those involving killing another person. Consistency is not always admirable, but in this case it appears it will make the administration of the law' both clearer and fairer.

Juries have often been confused about when a defence of provocation was valid, and it makes a great difference to a person whether he is convicted of murder or manslaughter. Even where there was clearly no provocation, differences of culpability among people convicted of murder may make mandatory life imprisonment an inappropriate punishment in some cases. The courts can be expected to impose a lighter sentence for unlawful killing only when there has been clear provocation, or when other extenuating circumstances have been proved in court. The recommendation that a life sentence not be mandatory for all crimes that would today be classed as murders is not a recommendation that the courts be soft on deliberate killers but that uncertainties about provocation no longer play so crucial a role in the branding of a person as a murderer. The crime of unlawful killing will embrace both deliberate, reckless killing and killing under provocation, but will not mean that the two sorts of acts are regarded as identical by the courts or the public. The courts will be able to make a very clear distinction between the more detestable and the more excusable acts when individuals convicted of the new crime are sentenced.