Director of Public Prosecutions v MA
[2022] VSC 170
•7 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0373
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| MA | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2022 |
DATE OF SENTENCE: | 7 April 2022 |
CASE MAY BE CITED AS: | DPP v MA |
MEDIUM NEUTRAL CITATION: | [2022] VSC 170 |
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CRIMINAL LAW – Sentence – Infanticide – Infant killed whilst offender also attempting suicide – Offender suffering severe postpartum depression at the time of the offending – Ongoing compliance with mental health treatment – No prior criminal history – Early plea of guilty – Merciful disposition justified – Conviction recorded – Released on adjourned undertaking for 3 years – Sentencing Act 1991, ss 5, 72.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Office of Public Prosecutions |
| For the Accused | Ms M Tittensor SC | Pica Criminal Lawyers |
HER HONOUR:
MA, you have pleaded guilty to the charge of infanticide. On 11 July 2021 at Upwey in Victoria you caused the death of your baby, Baby L.
The charge of infanticide[1] carries a maximum sentence of five years’ imprisonment.
[1] Infanticide is an offence contrary to s 6(1) of the Crimes Act 1958.
You were arraigned and your plea was taken on 21 December 2021. At the time of her death, Baby L was three months and seven days old. Baby L’s father, JA was your husband and you and JA had been happily married up until you became unwell following baby L’s birth.
I have read and paid regard to the following documents that were tendered at your plea hearing;
By the Crown:
(a) Prosecution Plea Opening dated 4 January 2022;[2]
(b) Victim impact statements of Baby L’s father,[3] her great aunt,[4] and the train driver, GW;[5] and
(c) Written submissions dated 30 March 2022.[6]
[2]Exhibit P1.
[3][JA].
[4][PP].
[5]Exhibit P2.
[6]Exhibit P3.
On your behalf:
(a) Written outline of submissions;[7]
[7]Exhibit D1.
(b) Health History and Chronology document;[8]
[8]Exhibit D2.
(c) Psychiatric Report of Professor Anne Buist, dated 14 January 2022;[9]
[9]Together with Professor Buist’s CV, Exhibit D3.
(d) Reports of Dr Adaobi Udechuku dated 11 March 2022[10] and 4 April 2022;[11]
[10]Exhibit D4.
[11]Exhibit D6.
(e) A number of character references;[12]
(f) Report of Dr Neerag Gupta and Simone Kendall of Latrobe Regional Hospital dated 4 April 2022;[13] and
(g) Signed Agreement under s 50A of the Veterinary Practice Act 1997 made 20 January 2022.[14]
[12]Being Exhibit D5 and comprising the following: Letter of [GT] dated 22.02.2022; Letter of Dr [EC] dated 23.02.2022; Letter of [SM] dated 17.02.2022; Letter of [SV] dated 21.02.2022; and Letter of [CD] dated 16.03.2022.
[13]Exhibit D7.
[14]Exhibit D8.
Background facts
On 11 July 2021 at approximately 5.10pm you laid yourself down on the train tracks with Baby L, your daughter, in the path of a train that was travelling towards Belgrave Railway Station. The result of the collision was that catastrophic head injuries were caused to Baby L and you were also seriously injured and hospitalised. After the collision, the train came to a stop 41 metres further down the track and witnesses who observed the collision immediately attended the scene.
You were injured but conscious and still lying on the side of the tracks when witnesses approached, but Baby L seemed to be still underneath the train. One of the witnesses rescued her from under the train and Baby L made some light cries and took a series of deep breaths before going into cardiac arrest. When first responders arrived at 5.18pm you were attempting to inflict injuries on yourself with railway ballast, hitting yourself violently on the head with it. You were restrained and detained under the Mental Health Act 2014 (‘Mental Health Act’).[15]
[15]Under a temporary treatment order.
Your daughter Baby L was airlifted from the scene and taken to the Royal Children’s Hospital at 7.17pm but attempts to resuscitate her were unsuccessful and she died at 7.40pm on 11 July 2021. Her cause of death was determined to be head injuries.[16]
[16]Dr Linda Isles, Forensic Pathologist.
It is the prosecution case that at the time of Baby L’s death you were suffering a disorder consequent on giving birth to Baby L on 4 April 2021, namely postpartum depression with psychotic features and postpartum psychosis, and in the words of s 6 of the Crimes Act the balance of your mind was disturbed.
Lead up to the offending
You and your husband, JA, met in 2015 when you were both students at University. You became engaged to marry in 2017, bought a house together in Upwey in 2018 and were married in June 2019. You are a qualified veterinarian with both yourself and your husband gaining tertiary qualifications at University. After spending some years in clinical practice as a vet you began working in pet health sales for a large Australian company. You took on an educational role in the company in 2019, deliberately choosing to move away from clinical work. During the course of the COVID-19 pandemic you and your husband decided that it was the right time for you to become pregnant. You were thrilled when you became pregnant in July 2020.
It appears that, on the whole, your pregnancy was uncomplicated. You had planned extensively for it, having left an earlier job because you were worried about potential exposure to toxic substances. You wanted your baby to have the best foundations. Whilst you regarded your pregnancy as ‘textbook’, your labour turned out to be prolonged and you ultimately gave birth by emergency caesarean. This left you disappointed and distressed.
During Baby L’s infancy, your maternal health care was being managed by the Yarra Ranges Maternal Health Service, the Upwey doctors, the Angliss Hospital (Eastern Health) and the Children’s Osteopathic Centre.
The Homicide Squad obtained a range of information and relevant records demonstrating your mental state throughout April to July 2021. There were ongoing difficulties and concerns raised by you in relation to breast-feeding and settling your baby, and you sought help from a lactation consultant. On 19 May 2021, the Maternal Health nurse noted that you reported not coping, were teary, and feeling like you were missing something.[17] On 26 May 2021, Dr Strybosch recorded you as feeling exhausted and unwell, having lost your routine and injured yourself and feeling out of control.[18] By 1 June 2021 mention was made in Maternal Health records that you had had a rough few weeks and you scored 13 and 14 on a post-natal depression screening tool.[19]
[17]History Chronology tendered as Exhibit D2.
[18]Ibid.
[19]Ibid.
You continued to raise lactation concerns through June 2021. On 9 June and 10 June 2021, the area where you lived was impacted by severe storms that cut power to your home for ten days. You went to stay with your mother in Morwell and your husband joined you on 11 June 2021. The pair of you stayed there over the long weekend until 14 June 2021, and then relocated to your husband’s aunt’s residence in a suburb of Melbourne. This caused you to feel more stressed and caused Baby L to seem more unsettled. Meanwhile, your husband returned to work.
On 19 June 2021, a birthday lunch was organised for you. You attended with Baby L and other members of your family, but you were noticed to be anxious and worried about Baby L crying and disturbing everyone. You left early.
By Saturday 26 June and Sunday 27 June you were observed to be really down and worried about having harmed Baby L by rocking her bassinet too vigorously. You were concerned that Baby L might have brain damage or that she was unwell or dehydrated.
Police accessed your mobile phone and internet history after the event, and found that on 4 July 2021 you were searching terms related to anxiety and dehydrated babies. Based on your search history, it seems that your mood became darker as the days went on.
Search terms in your mobile phone, in early July 2021, referred to post-natal anxiety nausea, signs of shaken baby syndrome, major arteries and veins in the wrist and a range of methods for committing suicide.
On 5 July 2021, you became alarmed about a rash on your daughter’s leg and about your perception of your daughter having lost condition in her leg and having a weaker cry. You and your husband took Baby L to the Angliss Hospital to be examined. You mentioned your belief that Baby L was dehydrated. You and your husband were described as appearing quite anxious, but you and Baby L were discharged with medical staff recording unremarkable findings. But you were not convinced by the medical reassurances given that day. You became increasingly convinced there was something wrong with Baby L. It is clear you had become delusional over this period.
On Wednesday 7 July 2021 your husband asked a neighbour to check on you because of his concern about your mental state. On that same date you made a list of all of the signs that you perceived in Baby L that indicated there was something wrong with her, such as weak muscle tone. You were preoccupied with a concern that you had somehow injured her.
On 10 July 2021 you told your husband that you had not been sleeping due to your concerns about what you had done to Baby L and that you were having suicidal thoughts.
You commenced a suicide note at 6.01pm on 8 July, which was completed on 11 July 2021. You had numerous social media conversations with friends expressing anxiety about medical issues relating to yourself and Baby L, lactation issues, reference to having been sick with a cold, feeling stressed without electricity at home, feeling inadequately supported and being worried about Baby L’s wellbeing.
It was in the context of this spiralling depression that you became focused on the idea that the only solution was to take your own life and that of your daughter.
On 11 July 2021 you took Baby L for a walk at around 10.30 in the morning. Family members visited the house in the course of the day and later in the afternoon your husband left to play tennis. By 4.00pm all the family visitors had departed and you left the house pushing Baby L in her pram. You sent a message to your husband at 4.18pm saying that ‘Muffin was losing it after a feed’ and you were going for a walk as your mother and sister had left.
Whilst on the walk, you searched for information about train timetables, and it is clear that by this stage you had made up your mind that you were going to put yourself and your daughter in the path of a train, despite sending messages to family members implying normality.[20] At 4.53pm you took your daughter from the pram and as a train approached you were seen by a train driver standing at the top of the Kumbada Avenue cutting, holding Baby L at chest height and using her hand to wave at the train. At 5.06pm you were seen by train driver, GW, holding Baby L about six to 10 metres from the track. The train driver activated his train whistle as a warning when he realised that your manner was suspicious and when you were about five metres from the track. He then activated the train’s full emergency braking system. You and Baby L were about 52 metres from the train at that point in time. At that stage the train was travelling at 51kph.
[20]A conversation with JA at 4.50pm lasted for three minutes with an indication you would be home soon.
You placed Baby L on one of the train tracks in the path of the train. Then, you attempted to lay down on your side on the train track. You were then both struck by the train. Baby L was struck by the train and thrown underneath. You were seriously injured and suffered multiple fractures to your shoulder, neck and other injuries to the right side of your body.
After you were taken to hospital for medical treatment, you were seen by Associate Professor Alexander Holmes of the Royal Melbourne Hospital. He informed police on 12 July 2021 of his diagnosis that you were suffering post-natal depression and possible psychosis. Associate Professor Holmes later provided an affidavit containing further information and diagnosing severe postpartum major depression with psychotic features.[21]
[21]The report of Associate Professor Holmes.
In a report prepared by Associate Professor Holmes following assessment on 13 July 2021,[22] note was made of your history that in the weeks before the incident it had got really hard and that you felt like your daughter could look through you and see that you were not right. You had talked to your husband but he had said that Baby L was fine. He was worried about you and thought you needed help. You were planning on seeing your GP and getting a mental health care plan but you could not see it making any difference. You were experiencing auditory hallucinations that you were not good enough and that you had to take your own life. The voices were there all the time and they were commanding, saying that you just had to do it. You had thoughts that Baby L was broken and that Baby L could see that you were broken, ‘She could see that mum was broken and that we will both be better off dead. We wouldn’t suffer, we would both be dead.’ You said it was all you thought about.
[22]Report dated 19 July 2021, being the exhibit marked AH-2 to an affidavit of Alexander Holmes sworn 21 July 2021 at the Depositional material at pp 92–103.
Regarding the day of the incident, you told Associate Professor Holmes that when you left home the voices were saying ‘you have to do it’, and you left home with the intention of putting yourself in front of the train expecting that you and Baby L would both die. You said that when you woke up you realised that you were not supposed to be alive and you started hitting your head in order to kill yourself.
On 13 July 2021, when in hospital after the incident, your state of mind was ‘I wish I died’ and ‘If I was an animal I would put me down to end the suffering… You should put me down.’ On that day you were also described by Associate Professor Holmes as ‘being distressed, tearful, overwhelmed and preoccupied by overwhelming guilty ruminations about the incident and the wish to die based on being a monster and being broken. You were prepared to consider that you had a mental illness, but primarily thought you were bad and should die. Your insight was described at that time as impaired.
It was found that you did not have the capacity to make decisions regarding your medical and psychiatric care and you were placed on an order under the Mental Health Act. Professor Holmes has opined that at the time of the incident you were psychotic and clearly of a disturbed mind, suffering severe postpartum major depression with psychotic features consequent to the birth of your daughter three months previously. Your postpartum depression occurred on a background of a complicated delivery and a perfectionistic and self-critical personality style. It was noted that you had begun experiencing psychotic phenomenon in the weeks leading up to the death of Baby L, including auditory hallucinations, leading you to believe that the actions you took were the only solution.
Police were informed of the postpartum depression diagnosis made by Associate Professor Holmes, and although you were formally arrested and cautioned on a charge of murder, that charge was never laid. However, following your arrest, you remained under constant visual observation in hospital, following being sectioned under s 5 of the Mental Health Act, and you also remained under police guard.
You were prescribed the anti-psychotic medication Olanzapine and the anti-depressant medication Duloxetine. You continued to demonstrate features of severe postpartum major depression with psychotic features, and to have strong negative thoughts including wanting to die. However, the auditory hallucinations receded.
Victim impact statements
I have taken into account of the victim impact statements of Baby L’s father, JA, and JA’s aunt PP and GW who was the driver of the train that struck Baby L. Baby L’s father has been profoundly affected by her death. He states that he loved Baby L more than life itself and thinks of her constantly. He struggles with his feelings towards you. Some days he finds himself unable to go to work or to carry on. He says that the worst thing that could possibly happen to him has already happened and that seeing Baby L at the hospital broke his heart.
JA’s aunt, PP, says that the aftermath of Baby L’s death was made more difficult by the strict COVID restrictions and that the weight of grief supporting her nephew felt like it was all hers to deal with.
Baby L’s father and his family have also been distressed by the extensive media coverage of Baby L’s death and the concomitant court proceedings.
GW, the driver of the train that struck Baby L, was greatly traumatised by the event. He has been receiving ongoing psychological treatment since the event, and continues to experience insomnia and bad dreams.
Apart from the above-mentioned victim impact statements I have also considered the impact of the offence on those who attended the incident and on the wider community.
Injuries sustained by you
Regarding the physical injuries you sustained in the collision, you received a large right frontal haematoma, two fractured vertebrae at C-2 and C-7, non-displaced transverse process fractures, a shattered scapula, fractured ribs with a resulting pneumothorax, a lacerated liver and an injury to your right foot.[23] Surgery was performed to fuse your spine at C-6 and C-7 and you had surgery to one of your toes. You spent some time in ICU at the Royal Melbourne Hospital. You wore a neck brace for 6 weeks and also wore a sling. You were treated with physiotherapy.
[23]Exhibit 46 of the Depositions, records from the Royal Melbourne Hospital.
By 18 July 2021 you were still suffering passive suicidal ideation, but you were developing an awareness that your beliefs about Baby L had been misplaced. This was painful for you. By 20 July 2021 your psychosis had subsided and your psychiatric insight was improving but you remained depressed. You were transferred to Maroondah Hospital psychiatric unit. All in all, you spent a month as an inpatient in hospital, and you have been followed up since then with ongoing outpatient care. For 18 days of your hospital treatment you were involuntarily detained, including periods of being handcuffed to your hospital bed. The order for involuntary treatment was discontinued on 28 July 2021, and it was around that period that you were informed that you would be charged with infanticide. In August 2021, you were granted bail with strict conditions which you have complied with fully.
Professor Anne Buist, who is a Professor of Women’s Health in psychiatry at Austin Health with a special interest in peri-natal psychiatry, also provided a report in this case. When you were first seen by Professor Buist on 2 August 2021, you were in pain and wearing a neck brace.
She diagnosed you with a postpartum psychosis and explained that this is an affective psychosis, likely a variant of bipolar disorder that occurs in one in 600 births worldwide. She stated that the risk of being admitted to a psychiatric hospital with this disorder increases thirty fold in the postpartum period. She also indicated that in DSM-5 terms you experienced a major depressive illness with psychotic features occurring in the postpartum period. She stated that from your history and the collateral information obtained from your husband, it was apparent that you were suffering anxiety, ruminations, low mood, a fixed belief that there was something wrong with Baby L with concomitant delusional perceptions and you were experiencing derogatory and negative auditory hallucinations of your own voice in your head and suicidal thinking.
Professor Buist observed that you had mentioned suicidal thoughts to your husband, but said you would not act on this idea. Nevertheless, you became increasingly certain that Baby L had become different and had lost her spark. You felt that a voice, or another you, was telling you that you were a bad mother and that Baby L would never love you. You could not shake the belief that you had done something wrong to her and that nothing could make it better. You believed that dying was the only option to save your husband and Baby L from suffering. You believed you deserved to die for harming her, although there is no evidence that Baby L was harmed by anything you did until her tragic death.
In discussions with Professor Buist, you recalled your partner querying what the paediatrician could say to convince you that Baby L was alright and how at the time you believed that nothing could convince you otherwise. You spoke of thinking that the train was the only solution to stop you and your daughter from being a burden on your partner. You had been unable to eat and were retching with anxiety.
Professor Buist observed that you have no past or family psychiatric history, no history of substance abuse and you have no previous criminal record. You had a normal childhood, but were inclined to believe that your self-esteem and self-worth were both based on achievement, which resulted in a perfectionistic personality style and a need for control in your own life to manage anxiety.
Professor Buist said:[24]
The pregnancy was planned and wanted but as often occurs in educated women with perfectionism (a risk factor for post-natal depression in a large Australian cohort), the need to be in control in circumstances that are uncontrollable resulted in increasing anxiety symptoms. In the week prior to the incident her anxiety increased, her sleep deteriorated and she became focused on a fixed delusional belief that she had harmed her child and they were both broken.
[24]Names have been changed to deidentify those involved.
Professor Buist also said:
It is my belief from this history and examination that [MA’s] state of mind was disturbed and significantly impaired within the meaning of s 6 of the Crimes Act. Altered by giving birth and lactation, both triggers for her developing obsession and psychosis; she was predisposed to mental illness perinatally because of her personality style, but giving birth destabilised her, altering the balance of her mind such that there was a resulting psychotic illness that affected her ability to make sense of her thoughts and make decisions in a rational manner; her perceptions of [Baby L] and the auditory hallucinations resulted in an altruistic murder suicide attempt to save her daughter from a life of misery and not burden her husband and as a punishment to herself. Her clear planning, as indicated by her Google searches, is indicative of her personality and coping style heightened under stress and driven by delusion. Unlike in schizophrenic type of psychosis, thought disorder and difficulties planning, is not a feature of affective psychosis (though impaired judgement is).
Current psychiatric treatment
Since your discharge from hospital, you began seeing Dr Udechuku, a peri-natal psychiatrist and you have been seeing her fortnightly. You are currently prescribed a range of medications for your mental health.[25]
[25]Including: Duloxetine 90mg (an anti-depressant) and Lurasidone ATMG (a mood stabiliser and anti-psychotic) and Seroquel 12.5mg twice a day and 50mg at night (a mood stabiliser and anti-psychotic, but at this dose an anti-anxiety agent).
Dr Udechuku provided two reports,[26] having commenced seeing you on 9 September 2021. She explained that you had separated from your husband when she began treating you and were living in your parents’ home in the Latrobe Valley. She has conducted ten sessions with you and noted that you have not cancelled or rescheduled a session and have always attended on time and shown a preparedness and commitment to work in therapy.
[26]Dated 11 March 2022 and 4 April 2022. Dr Udechuku received a referral from the Psychiatry Registrar at Eastern Health to treat your postpartum psychosis.
She noted that you are suffering grief and post-traumatic stress symptoms as well as being diagnosed with a postpartum psychosis. She stated that your medication regime was prescribed and managed by Dr Gupta of Latrobe Mental Health and that your case management was through Simone Kendall of Latrobe Mental Health.
Dr Udechuku’s role is to provide you with psycho-dynamic psychotherapy. She observed that you have progressed considerably since your first presentation to her and that you are in full remission from your postpartum psychosis. You have good insight into your illness and understand that you had falsely believed that something was wrong with Baby L. You are still grieving and exceptionally sad and continue to work through your grief. You have symptoms of post-traumatic stress. You have shown insight that you had suffered an illness that led to delusional thinking, but you nevertheless still struggle with profound guilt and have at times questioned whether you deserve to live. You have expressed remorse, profound sadness and guilt about your actions, and how they impacted Baby L, JA, their families, the train driver and other first responders.
Dr Udechuku noted that after an episode of postpartum psychosis, two thirds of women only have future episodes in the postpartum period, whereas one third go on to develop episodes outside of the postpartum period, which are typically episodes of bipolar disorder. However, you have no history of past mental illness or bipolar disorder and there is no family history of bipolar disorder. If you were to have another child your risk of postpartum psychosis is 50%, but currently your position is that you do not want to bear children in the future.
Dr Udechuku does not believe that you pose a risk to yourself or others in the community. She has indicated that you are gradually re-establishing your life after your postpartum psychosis and the death of your daughter and have returned to veterinary work. She opined that any period of imprisonment would have a significant and detrimental impact on your mental health. She continues to see you and considers that you should remain in treatment, including with management of your medications by your Area Mental Health Service for the next 24 months and ongoing management for 12 months post-cessation of medication. There should be case management by your Area Mental Health Service over that same 3 year period accompanied by psychotherapy for at least until you have ceased your medication and been discharged from care by the Area Mental Health Service and for as long as you find it helpful. If you were to decide to have children in the future, you would need to see a peri-natal psychiatrist for preconception assessment and for advice throughout any pregnancy and receive prompt treatment for any symptoms emerging during pregnancy with prophylactic mood stabilisers either in the third trimester, or immediately after delivery.
Parties’ Submissions
It was submitted on your behalf that the appropriate outcome in this case was an adjourned undertaking under s 72 of the Sentencing Act. The basis for this submission was that this is a case where justice needs to be tempered with mercy. Whilst in other cases Community Corrections Orders (‘CCOs’) have been made in respect of the charge of infanticide, infanticide is a rare event and an adjourned undertaking with conviction is also available as an appropriate disposition that would meet the purposes of sentencing in this case.
The offence of infanticide was submitted to involve implicit acknowledgement of a disturbance of the mind but Ms Tittensor SC argued that all six Verdins[27] principles would apply because of the impairment of your ability to exercise appropriate judgment and to think clearly. I accept that submission, but note that at any event, a sentencing jurisprudence relating to the offence of infanticide was already developing before the inception of the Verdins principles.
[27]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102. With respect to principle 5 I note that although you are not suffering the same degree of postnatal depression presently as you were at the time of your offending, you are still under treatment for that condition, so I consider that it is still in existence.
Ms Tittensor also submitted that you pleaded guilty at the earliest opportunity. Your plea of guilty was submitted to have important utilitarian value in facilitating the course of justice, further enhanced by Worboyes[28] factors due to the pressures on the courts caused by the COVID-19 pandemic. Again, I acknowledge the importance of these matters in mitigation.
[28]Worboyes v The Queen [2021] VSCA 169.
Also, it was submitted that you are subjectively remorseful, having expressed deep sorrow and regret for the loss of Baby L’s life, for the pain and suffering caused to Baby L’s father and others, and for the impact on the train driver.
It was emphasised that regarding rehabilitation, this is your sole appearance before a court and you do not pose a risk to the community. You are progressing very well in the treatment arranged for you and your prospects were said to be excellent. You have fully engaged with psychiatric support and re-entered part-time employment. You have also cooperated with the Veterinary Registration Board, having entered an agreement under s 50A of the Veterinary Practice Act 1997 regarding conditional registration.[29] Those around you are now aware of your vulnerabilities in a way that they were not before. I agree that you have done everything that could possibly be expected of you to attempt to expiate the offence before the Court, and to recover psychiatrically. Your bright prospects for rehabilitation were not challenged by the Crown.
[29]A copy of that agreement was tendered as Exhibit D8, being the signed Agreement under s 50A of the Veterinary Practice Act 1997 made 20 January 2022. Section 50A of the Veterinary Practice Act 1997 reads as follows: Agreements to amend, vary or revoke conditions or revoke suspensions
(1) The Board may, if the registered veterinary practitioner so agrees—
(a) amend, vary or revoke any condition imposed on the veterinary practitioner's registration by the Board without conducting an informal or formal hearing; or
(b) revoke a suspension of the veterinary practitioner's registration and impose a condition on the registration; or
(c) revoke a suspension of the veterinary practitioner's registration if the veterinary practitioner satisfies the Board that his or her ability to practise as a veterinary practitioner is no longer affected.
(2) If the Board and the registered veterinary practitioner fail to agree under subsection (1), the Board may refer the matter to a formal hearing.
It was common ground between the parties that general deterrence and specific deterrence were not relevant to your case. I agree with this approach which is consistent with sentencing jurisprudence in relation to this offence.[30]
[30]I note the cases put before me by the parties.
Regarding punishment, it was submitted on your behalf that you have experienced extra-curial punishment both through the physical injuries that were incurred during your attempted suicide, but also as a result of the psychological suffering that followed your offending. Fortunately, by early January this year you had largely recovered from your physical injuries. However, the physical and psychological pain and suffering you have endured were argued to be matters of mitigation.[31] Again, I accept that submission.
[31]The Queen v Teh [2003] VSCA 169.
It was also noted that you experienced a type of pre-sentence detention in that you spent 18 days detained under s 5 of the Mental Health Act and some of that time was spent handcuffed to your bed and subject to 24 hour watch and police guard. This was submitted to be a mitigatory factor.[32] Further, extra-curial consequences deserving of recognition in mitigation included the extensive media coverage following the event and proceedings before the lower court, leading to feelings of shame and public opprobrium. I agree that these matters are relevant in mitigation.
[32]Akoka v The Queen [2017] VSCA, 214 was cited as showing that a flexible approach can be adopted regarding recognition of restrictions on liberty that have occurred prior to sentence.
You have indicated through your counsel that you feel that you are under a life sentence of grief, although you acknowledge that the therapy that you have received has helped you to carry on living. You have accepted your husband’s decision not to remain in your life and have nonetheless expressed gratitude for his support before and after Baby L’s death. It was put that in trying to imagine any future intimate relationship you cannot countenance the thought of a further pregnancy as you would not wish to risk a repetition of post-natal depression.
Ms Tittensor reminded the Court of the obligation imposed by the principle of parsimony enshrined in s 5(3) of the Sentencing Act. I will apply that principle to my determination of this case.
In referring to comparative sentencing practice for the offence of infanticide, Ms Tittensor highlighted the unique features of your case and mentioned some contrasting features in other cases where a CCO was imposed for the offence.[33]
[33]She noted that unlike in DPP v QPX [2014] VSC 189, you were acutely psychotic at the time of this incident.
Finally, it was submitted that a s 72 undertaking is a flexible sentencing option that could be tailored to the needs of this case.
Ms Harper on behalf of the Crown, said that whilst it was hard to argue that a conditional bond under s 72 was not open in the present case, the Crown’s position was that a CCO would better reflect the sanctity of human life and the impact on others of your offence.[34] It would also be consistent with other sentences for infanticide which had resulted in the imposition of a CCO.
[34]In writing the Crown had originally submitted that a combination sentence of imprisonment combined with a CCO was also open but this combination sentence was not pressed in oral submissions.
However, the Crown conceded that you have engaged in appropriate rehabilitation since the offending and because the balance of your mind was disturbed at the time of the offending, rehabilitation must be given weight in sentencing you.[35] Ms Harper also submitted that some form of mandatory treatment regime should form part of your sentence.
[35]Citing DPP v UA [2018] VSCA 423 and R v ZZMM [2015] VSC 524.
Consideration and Determination
In sentencing you, I am acutely aware that it is beyond the power of this Court to repair the suffering and loss flowing from your actions in causing Baby L’s death. I accept your counsel’s submission that you are deeply remorseful for the suffering caused to Baby L’s father and to all who loved her. You also regret the impact on the driver of the train that struck Baby L, and you. Your life and the lives of others has been forever changed.
I also accept that you feel that, because of your own actions, you are under a life sentence. At times you have believed that you deserve any suffering you have experienced since the commission of the offence, as punishment for your actions.
As discussed by Bongiorno JA in DPP v QPX, the sanctity of human life is an important consideration in sentencing for the offence of infanticide. It was also agreed between the parties that rehabilitation deserves significant weight in sentencing for this offence. I consider it extremely unlikely that you will ever re-offend in any way, and I acknowledge that your prospects for successful rehabilitation are unimpeachable. In this regard, the supportive response from your employer is noted and commended,[36] and the ongoing warm regard and respect expressed by your friends and family have also been taken into account.[37] Your positive attitude to rehabilitation is also manifested by the voluntary agreement you entered with the Veterinary Registration Board agreeing to conditions on your practice and to the supply of treatment reports to the Board as required.[38] Your return to part-time employment in the veterinary field augurs well for your future. You have willingly embraced the ongoing help of your own family in getting back on your feet and continue to live with your mother and stepfather. You continue to accept the treatment and guidance offered to you by Dr Udechuku, Dr Gupta, Ms Kendall and your Area Mental Health Service.
[36]Letter of CD dated 16 March 2022.
[37]I have read and taken into account the Character References tendered as Exhibit D5.
[38]Exhibit D8 Signed Agreement under s 50A of the Veterinary Practice Act 1997 made 20 January 2022.
In canvassing the background facts leading up to the offending, it is apparent that no one understood, at that time, the extent to which your judgement and decision-making were impaired by delusional thinking and frank psychosis. The fact that the severity of your postpartum depression was overlooked is an unfortunate feature that this case has in common with certain other cases of infanticide.[39]
[39]See R v Pope [2002] NSWSC, 397 (James J): Three year good behaviour bond for offence of infanticide involving a 12 week old infant. His Honour said at [10] regarding the defendant’s post-natal depression: ‘It is patent from all the material that the depth and extent of her condition was not fully recognised at the time’. See also R v Azzopardi [2004]VSC 509, where Kellam J in sentencing for infanticide said at [13] ‘It is clear from the depositions that Sister Hannam ... was unable to detect, as were those close to you, such as your mother, ... that you were suffering real distress at that time’.
The expert psychiatric evidence before the Court was unified in stating that you suffered a postpartum psychosis that led to the offending. Unfortunately, that diagnosis was not made until after the tragic events of 11 July 2021. As a result of the incident you were later diagnosed with post-traumatic stress disorder (PTSD) and a grief reaction. Fortunately, with the passage of time, your postpartum depression and psychosis have subsided and your suicidal ideation has also decreased. Your mental state is much improved with appropriate psychiatric management, medication and community-based treatment. Sadly, the loss of your daughter Baby L remains ever-present for you and for Baby L’s father as each of you attempt to pick up the pieces of your lives.
Ultimately, I am persuaded that the appropriate disposition in this case is that you should enter an undertaking under s 72 of the Sentencing Act upon conviction for this offence. The facts of this case plainly reveal extenuating circumstances and your good character and sensible cooperation with treatment and supervision are already in evidence, through your compliance with bail conditions, your response to medical management and your agreement with the Veterinary Board. The flexible disposition of a s 72 undertaking will allow you to demonstrate your remorse through compliance with conditions of the undertaking. Further, the adjourned undertaking will allow for ongoing supervision by the Court, ensuring ongoing monitoring and treatment continues as required.[40] I am not persuaded that a CCO is needed to effect rehabilitation in this case. I am also cognisant of the fact that your treating team has specialist expertise in the field of peri-natal and post-natal illness. It may be counterproductive to impose another layer of supervision from Corrections in all the circumstances of this case.
[40]In R v Stone, Sharon Maree (Supreme Court of Victoria, Teague J, 4 May 1990) Teague J imposed a good behaviour bond for five years with psychiatric treatment conditions. He observed that a similar disposition was imposed in an unreported sentence by Gray J on 5 May 1996 on Ms McGrath who had pleaded guilty to two counts of infanticide. The maximum penalty for the offence at that time was 15 years’ imprisonment. Further, in R v Cupsa, Marioara, (Supreme Court of Victoria, Vincent J, 17 November 1987) Vincent J made the observation that retribution has limited, if any, relevance to sentencing for infanticide and that as far as his Honour was aware (at that time) no person had been sentenced by a Judge of this Court to imprisonment for infanticide. It should be noted that since then, DPP v Guode [2017] VSC 285 provides an example of imprisonment being imposed for the offence, although there were a number of related charges in that case. The specific infanticide sentence not disturbed on appeal, Guode v R [2020] VSCA 257. In R v Cooper [2001] NSWSC 769, Simpson J imposed a good behaviour bond for a period of four years where the charge of infanticide concerned a seven month old infant, although as with R v Pope (fn 35) conditions of the bond included reporting to the probation and parole service.
It should not be thought that this disposition is any less reflective of the sanctity of human life than supervision under a CCO. The s 72 undertaking will be for a period of 3 years[41] and will stipulate a requirement for future appearances before this Court to ensure your compliance. I have arrived at the period of three years based on the report of Dr Udechuku regarding future management of you. A s 72 undertaking is a just and proportionate response to the offence, both from a practical viewpoint because it places your mental health treatment at the centre of your justice obligations and because it is consistent with the principle of parsimony.
[41]This period is longer than the 18 month CCO imposed in R v Azzopardi [2004] VSC 509 in relation to a five week old baby or the 12 month CCO imposed in R v Nikat [2017] VSC 713 in relation to a 14 month old child, or the 12 month CCO imposed in R v ZZMM [2015] VSC 524 in relation to a newborn baby.
Sentence
MA, on the charge of infanticide, you are convicted and upon agreeing to the conditions of the adjourned undertaking that I will shortly provide to you, you are released on an adjourned undertaking to be of good behaviour for a period of three years, under s 72 of the Sentencing Act.
The conditions of your undertaking are embedded in the draft orders which I will circulate to the parties. The undertaking starts today and will remain in force until 7 April 2025. During that period you must not commit any offence and you must be of good behaviour. You must agree to the terms of the undertaking and acknowledge the obligations that it entails. This includes that, if you do not comply with the undertaking, you can be charged with a contravention offence,[42] and punished for that offence.[43] In addition, the Court could decide to re-sentence you for this offence.[44] Further, if you demonstrate an unwillingness to comply with the undertaking, you could be liable to variation or cancellation of the s 72 undertaking and re-sentenced for the offence.[45]
[42]Sentencing Act, s 83AC.
[43]The maximum penalty stipulated for an offence under s 83AC is a level 10 fine.
[44]Sentencing Act, s 83AT(1)(c).
[45]Sentencing Act s 78.
I decline to make a declaration under 6AAA of the Sentencing Act in this case as it is not mandated under s 6AAA(3).
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