Director of Public Prosecutions v Nguyen
[2023] VSC 325
•9 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0333
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BAO TRAM AHN NGUYEN | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2023 |
DATE OF SENTENCE: | 9 June 2023 |
DATE OF REVISED REASONS: | 14 June 2023 |
CASE MAY BE CITED AS: | DPP v Nguyen |
MEDIUM NEUTRAL CITATION: | [2023] VSC 325 |
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CRIMINAL LAW – Sentence – Infanticide – Infant killed whilst offender also attempted suicide – Offender suffering severe postnatal depression at the time of the offending – No prior criminal history – Early plea of guilty – Remorse – Merciful disposition justified – Conviction recorded – Released on adjourned undertaking for three years – Sentencing Act 1991 ss 5, 72.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Clancy | Office of Public Prosecutions |
| For the Accused | Ms A. Beech Mr D. Brown | Galbally Parker Criminal Lawyers |
HIS HONOUR:
Bao Tram Anh Nguyen, on 23 January 2023 in this court, you were arraigned and pleaded guilty to the offence of infanticide contrary to s 6(1)(b) of the Crimes Act 1958 (‘the Act’) in relation to the death of your six month old son, Spencer Recto, which occurred on 20 May 2022.
Today, on 9 June 2023, I heard a prosecution opening from Ms Clancy of counsel, and submissions from your counsel, Ms Amelia Beech, who appeared with Mr David Brown, as to the sentence that should be imposed on you.
No one suggests that I should impose a custodial sentence on you and I have no intention of doing so. I note, however, that the maximum penalty that can be imposed pursuant to s 6(1) of the Act is five years’ imprisonment.
It is now my responsibility to impose a sentence on you.
Circumstances of the Offending
There is no argument about the circumstances of your offending and the period leading up to it. It is set out in detail in the prosecution opening, which has been presented to the Court, and responded to also in detail by your counsel in her very eloquent plea.
The circumstances were tragic and it is unnecessary for me to do otherwise than set them out briefly. Against a background of treatment for mental health conditions since 2010 and to which I will refer again shortly, on Friday, 20 May 2022 you were home alone with your six month old son, who had been born on 4 November 2021 at the Joan Kirner Women’s and Children’s Hospital in Sunshine.
He was the only child of you and your partner, Mr Benigno Recto. Other than requiring corrective surgery for tongue-tie, he was a healthy baby boy. Some time between 1.28pm and 9.00pm, you cut open a teething toy and removed a number of beads from the toy. You inserted two of those beads into the child's throat, obstructing his airways. Spencer subsequently died by asphyxiation. You then inflicted a number of life-threatening injuries on yourself, using kitchen knives with the intention of ending your life.
You left a note for your partner, which has been already referred to by your counsel and which I am not going to quote in any further detail. It is sufficient to say that in the note you apologise for what you did and expressed the hope that your partner will forgive you. You also described the debilitating effect postnatal depression has had on you and expressed your love for your child and partner. It is desperately sad.
At about 9.00pm, your partner and the father of your child returned home and found you and the child in the bedroom. He immediately called emergency services and commenced CPR on his son. Spencer was unable to be revived and he was declared deceased by attending paramedics.
At the time that you caused Spencer’s death, you were suffering from postnatal depression and postnatal anxiety. When the emergency services arrived at your premises, you were seriously injured. You were suffering from the effects of a penetrating chest wound and you had lacerations on your forearms. You were admitted to intensive care at The Alfred Hospital, where you remained for some two weeks before being admitted to the psychiatric ward as a voluntary patient. You were not discharged until 13 June 2022.
Section 6 of the Act provides as follows:
Infanticide
(1)If a woman carries out conduct that causes the death of her child in circumstances that would constitute murder and, at the time of carrying out the conduct the balance of her mind was disturbed because of –
(a)her not having fully recovered from the effect of giving birth to that child within the preceding two years; or
(b)a disorder, consequent upon her giving birth to that child within the preceding 2 years –
she is guilty of infanticide and not murder and liable to level 6 imprisonment.
In a report dated 18 March 2023, Professor Anne Buist, Professor of Women's Mental Health at the University of Melbourne, expressed the following conclusion:
It is my considered view from this history and examination that Ms Nguyen'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 depressive and obsessional thinking that ultimately became psychotic. She clearly intended to die (repeated stabbings, serious injury) and still expresses this desire though more passively now. She was predisposed to mental illness perinatally because of her genetics and 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 need to be perfect for her son and fears for him resulted in an altruistic murder-suicide attempt to save her son from psychological scarring (from losing her) and because she felt no one else would look after him well enough, as well as wanting to remain together with him. Her religious beliefs in part played into this, with a belief in heaven being a better place for them both.
The prosecution has made clear in their written submissions that Professor Buist’s opinion about your state of mind is accepted. In addition to that, in an undated report, Dr Adaobi Udechuku, who is your treating psychiatrist, diagnosed you with a major depressive illness with psychotic features, occurring in the postpartum period together with grief and perfectionist personality traits. It is, therefore, clear that you fall within the terms of s 6(1) of the Act, and the indictment filed in this Court is appropriate.
As I have already indicated, I would not be inclined to impose a custodial sentence on you. On the basis of the submissions from your counsel and from the prosecutor, the choice to be made is between your release on an adjournment for a period of up to five years on the one hand and the imposition of a Community Correction Order on the other.
Victim Impact Statement
Your partner, Mr Benigno Recto, has provided a victim impact statement.[1] He expresses the hope that as a result of what occurs, there will be more awareness in the community of postnatal depression and its effects. He described the effect of the loss of his son and the near loss of his partner on his life, which has been devastating. He also expressed a desire to help you and to help change the system for people who he describes as being in a similar situation as you and he are in. It is a heartfelt statement, and I have taken it into account in finalising this matter. I hope notice is taken of his sentiments.
[1]Marked as Exhibit A in this hearing.
Personal Circumstances
You were born on 31 July 1985. You are now 37 years of age. You and your family immigrated to Australia from the Philippines in 1986, when you were one year of age. Your father was a pilot, and your mother studied medicine, and she had postnatal depression, as did another member of the family. You have a younger sister who was born in 1994. Your childhood was family-orientated, and whilst not without difficulty, it was functional. You were originally close to your mother, but there are now issues in that relationship.
You completed secondary education at Loyola College in Watsonia from years 7 to 9, and the Reservoir District Secondary College, from years 10 to 12. You studied nursing at RMIT University, and you completed a Bachelor of Midwifery at Victoria University in 2008. You were on maternity leave as a midwife at the time this incident occurred.
You worked in that area for 14 years and at present, you work in an administrative position at a medical clinic, as well as working as a hotel receptionist. In part, that is because of your financial circumstances and the reliance of your partner on you. I am informed that your career as a midwife is lost to you. At the time of the offence, you were on maternity leave from your position as a midwife at the Joan Kirner Women’s and Children’s Hospital.
You had previously been married in 2017 but were divorced, and in 2018, you met your current partner and commenced living with him in Noble Park in mid-2020.
You moved to the Mill Park area in February 2021 and shortly afterwards discovered that you were pregnant. It was a planned pregnancy. You and your partner purchased a home in Mernda in May 2021, and on 4 July 2021, you committed to each other during a formal commitment ceremony. You remained in the Mill Park area until taking up residency at the Mernda address in September 2021, shortly before Spencer was born on 4 November 2021.
You are a person of good character. You are without any criminal history. A number of people who wrote in support of your good character and who have supported you personally are present in court and have been identified during the course of the plea by Ms Beech.
Mental Health History
Your mental health history has been described in detail both in the prosecution opening and by your counsel in her submissions. Your clinical mental health history began, as I said earlier, in December 2010 when you suffered from post-traumatic stress disorder and anxiety disorder in relation to recent deaths in your family. Anxiety was a significant feature of your life. As part of that history, there were significant relationship difficulties which caused anxiety and which do not now need to be recited by me in detail. However, it seems clear to me at least that these difficulties form the basis for the later condition of postpartum depression.
Not long after your child’s birth in November 2021, you began to feel emotional and were crying regularly. You reported increased anxiety. You were referred to a psychologist. There were signs of anxiety and depression. By December 2021, you were reporting significant stress and difficulties about breastfeeding. You were concerned about feeling overwhelmed. You were tearful and generally worried about your new role as a mother. By the end of January 2022, you were in need of treatment for anxiety again. In early February 2022, you were assessed on the postnatal depression scale, and the result was that you were in the ‘high-risk category’ for postnatal depression and anxiety. On 11 March 2022, in a telehealth appointment, you presented as feeling overwhelmed and helpless. By 8 April 2022, you were anxious and not trusting of your own capacities to perform the role as a parent. Those observing you thought you were suffering from postnatal anxiety and adjustment disorder with a differential diagnosis of generalised anxiety disorder. In early May 2022, it became apparent that those treating you were concerned as to whether you had any intentions to harm yourself or your child and were asking you about it. You were indicating that you would not do anything to hurt your child, and although you had some suicidal thoughts, they were ‘fleeting’. Your assessment of yourself should not have been relied upon, as there were other clinical signs that made it clear that you were at significant risk. Your anxiety was in the severe range and you were moderately depressed. As a result of a session with Dr Anderson on 13 May 2022, you were diagnosed with a major depressive disorder with anxious distress. That was your last contact or medical consultation before 20 May 2022.
Guilty Plea and Remorse
You have done all that you can do to atone for what has occurred. You were frank with those who treated you after this offence occurred. Whilst still in the psychiatric ward, your expressions of remorse were recorded in a number of clinical notes including the following:[2]
Remorseful for her actions, wishing she could take everything back, misses her son, struggling to comprehend how she has ended up in this situation.
I asked everyone for help, I did everything I could.
Is grateful for ongoing support from her husband and friends, her remorse, profound sadness and guilt about the effect of her actions is clear.
[2]See Defence Plea Submissions filed 30 May 2023, 9.
You indicated an intention to plead guilty to this charge at the earliest stage and that willingness combines remorse with a willingness to take responsibility for what you did. Your plea has had the effect of facilitating the course of justice and there is the utilitarian benefit in avoiding the need for a trial, however, the most prominent feature of your plea of guilty is to underline the very high level of remorse that you feel for what has occurred.
Mental Health Treatment since May 2022
You have been treated fortnightly by Dr Udechuku since the end of July 2022, as well as regular sessions with your general practitioner. Dr Udechuku reports that you have continuing grief and remorse for what has happened and difficulty understanding why it occurred. Your prognosis is uncertain and you are at some risk to yourself still. You will require long-term psychotherapy and other supports, particularly if there is any prospect of there being another child.
I am informed by Ms Beech that as part of your rehabilitation, you formed a friendship with the person known as MA in the authorities, similarly involved in an offence of infanticide.[3] Apparently, according to what I am told, you developed a close friendship with her and were, it appears, devastated when in January of this year that person took her own life. You have done everything you can to deal with your circumstances.
[3]DPP v MA [2022] VSC 170 (‘MA’).
Submissions
The prosecution accepts that in a case such as this punishment, denunciation and deterrence have little role to play. I accept that the matters I have listed and on which your counsel has relied can be called in aid of your case, and ultimately it was submitted by the prosecutor in their written submissions that a Community Correction Order with appropriate conditions would be open for me to impose on you.
Your counsel has submitted on the other hand that I should proceed under s 72 of the Sentencing Act 1991, essentially for the same reasons that Jane Dixon J did in MA.
In the course of her reasons for sentence her Honour said:[4]
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 (which related to her occupation). The flexible disposition of a s 72 undertaking will allow you to demonstrate your remorse through compliance with conditions on the undertaking. Further, the adjourned undertaking will allow for ongoing supervision by the Court, ensuring ongoing monitoring and treatment continues as required. I am not persuaded that a CCO is needed to effect rehabilitation in this case. I am also cognisant of the fact that your treatment has specialists expertise in the field of peri-natal and post-natal illness, it may be counter-productive to impose another layer of supervision from Corrections in all the circumstances of this case.
[4]Ibid [74].
Your counsel submitted that by reason of your diagnosis of severe postpartum major depression with psychotic features, grief and post-traumatic stress symptoms, each of the principles which have been developed from the judgment of the Court of Appeal in Verdins is enlivened.[5] Ms Clancy on behalf of the prosecution conceded in effect that to be so.
[5]R v Verdins [2007] VSCA 102.
Consideration
In my opinion, the risk factors for postnatal depression were present for some time in your adult life leading to the birth of your child. There was anxiety and stressful life events, as I have already described. My perception of your case is that after the birth of your child, your depression caused you significant suffering at a time when your life was meant to be positive and fulfilling because of the birth of your child. Society virtually requires us to treat child birth as a happy and joyous event and usually it is, but in many cases, it is not so for various reasons. Yours was such a case.
You found yourself invested with requirements and obligations to care for a completely helpless infant and you lost confidence in your capacity to do that, which exacerbated your mental health challenges. The condition also caused you to feel a sense of isolation and guilt, with your concerns that you were unable to be the parent you thought you should be. Your state became one of hopelessness.
As Jane Dixon J said again in MA:[6]
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 judgment 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 of this case that has in common with certain other cases of infanticide.
[6]DPP v MA [2022] VSC 170, [72].
Both this logic of Jane Dixon J in this quote and the earlier quote seem to be completely applicable in your case.
I am not sure that there was enough awareness about the possible consequences of postnatal depression if it is not effectively dealt with. Your partner seems to think there is a need to improve, and in his victim impact statement he says:
I don't want Spencer’s passing not to have a key learning, let it be a lesson for families and the system. We have experienced the loss of our first child and I really want to build awareness so that there is more support for families and new mums.
As the prosecution have described in their submissions, and as I have earlier referred to, the weight normally afforded to punishment, denunciation and deterrence in other homicide cases is significantly tempered to reflect the distinct nature of infanticide.
The prosecution has accepted, very fairly, virtually all of the matters that your counsel has relied upon and has submitted that a Community Correction Order can meet all of the sentencing purposes relevant in your case, particularly where the disturbance of your mind is as severe as it is. I respect that submission, but the logic applied by Jane Dixon J in MA is applicable and totally appropriate in your case.
You are a person of good character and the prospect of you ever offending again is remote, to say the least. You have a life ahead of you. In addition, you have suffered a number of extra-curial consequences from your offending. You have suffered the effect of your self-inflicted wounds, and of course, the anguish and grief of having lost your child. In addition, you have been subjected to significant publicity and images of you and your child have been exposed in the public media.
In my opinion, this is obviously a case where mercy is appropriate and the sanctity of life is not in any way compromised by the kinds of possible outcomes that I have described.
Sentence
On the charge of infanticide, you are convicted, and upon agreeing to the conditions of the adjourned undertaking, you will be released on an adjourned undertaking to be of good behaviour for a period of three years pursuant to s 72 of the Sentencing Act 1991.
The undertaking will commence today and remain in force until 9 June 2026. During that period, you must not commit any offence and you must be of good behaviour. You must also agree to the terms of the undertaking and acknowledge the obligations that it imposes on you. It is important that you understand that if you do not comply with this undertaking you may be charged with a contravention offence and be punished for that offence.[7] Additionally, you may also be liable to a variation or cancellation of this undertaking and be re-sentenced for the offence.[8]
[7]Sentencing Act 1991 (Vic) s 83AC.
[8]Ibid s 78.
I decline to make any declaration under s 6AAA of the Sentencing Act 1991, as it is not mandated by s 6AAA(3).
Ms Beech, there is a document available which I think is appropriate be shown to your client and I will ask her to sign it. You can do that, we will wait while you do that if you wish to approach her.
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