Sentencing in baby's death: what the charges mean

By CATRIONA MacLENNAN

Juries faced with murder charges are dealing with one of the most serious charges provided for by our criminal law system.

The circumstances may be tragic or horrific, and any jury will feel a heavy burden of responsibility in its deliberations.

Where the death of a child is involved, these feelings are likely to be magnified.

A person who has brought about the death of another may face a charge either of murder or manslaughter.

To be found guilty of murder, however, the law requires that the accused do more than bring about the victim's death.

There must also be proof that the accused had the mental element required by law.

Section 167 of the Crimes Act defines this mental element in four ways.

A person will be guilty of murder if that person intends to cause death, or means to cause injury and is reckless as to whether death results.

It will also be murder if an offender intends to kill one person and accidentally kills another, or kills someone while taking part in a crime.

Where one person kills another but lacks the intent required by law, a manslaughter charge may be laid.

This typically happens in cases of accidental killings.

The police in the case of the Nelson father had few options in relation to the charge to be laid.

Murder or manslaughter were the only appropriate charges.

Where a mother kills a child, a charge of infanticide may be laid, but that was not possible here as the father carried out the act.

In different circumstances a lesser charge such as failing to provide the necessaries of life might have been appropriate, but that was plainly not the case here.

Juries deliberating on murder charges are aware of the seriousness of the offence, and conscious that long prison sentences are the normal penalty.

In particularly tragic cases, they may consider that the accused has already suffered enough.

The Sentencing Act 2002 removed the mandatory life sentence for murder in cases where it would be manifestly unjust.

Such cases are intended to be rare, but the law change does give judges greater discretion than in the past when dealing with exceptional circumstances.

Barrister Marie Dyhrberg said it appeared the jury had decided the father was so overwrought and distressed that he had not formed the required intent to kill or cause serious harm.

The case was a rare one, unlikely to recur.

Barrister Gary Gotlieb said the jury had reached its verdict on a humanitarian basis.

It had been out for a very short time of 47 minutes, had been able to transport itself into the father's situation and had decided that he had suffered enough.


* Catriona MacLennan is a South Auckland barrister.