Voluntary Requests or Vulnerable Adults? A Critique of Criminal Sentencing in Assisted Suicide and ‘Mercy Killing’ Cases

This article explores the criminal law’s response to cases of ‘mercy killing’ or assisting suicide, in which relatives or friends act outside the law to end the suffering of a loved one with a terminal or chronic illness. It examines the sentencing remarks in all the publicly reported Australian cases on assisted suicide and mercy killing since 1980. Pronounced leniency in sentencing is observed, across the spectrum of cases, which demonstrates a gap between the law on the books and the sentences imposed in practice. Judicial reasons for sentencing are analysed to elucidate themes, which confirm that many of the traditional aims of sentencing – such as specific deterrence, retribution or rehabilitation – are inapposite in cases involving compassion for the suffering of a loved one. The review also identifies inconsistent outcomes, both in charges laid and sentences imposed, which have the potential to undermine public confidence in the rule of law. The article concludes that criminal law simultaneously provides both too much protection and not enough protection for members of the community, and recommends law reform to enable judges to make a greater distinction between voluntary and non-voluntary assisted suicides and mercy killings