DPP v QPX
[2014] VSC 189
•28 March 2014, amended 2 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0098
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| QPX | Accused |
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JUDGE: | BONGIORNO JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2014 and 25 March 2014 | |
DATE OF SENTENCE: | 28 March 2014, amended 2 April 2014 | |
CASE MAY BE CITED AS: | DPP v QPX | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 189 | |
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CRIMINAL LAW – Sentencing – Infanticide and recklessly causing serious injury – Serious psychiatric condition – Imprisonment not required – Community Corrections Order – No point of principle
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THE IDENTITIES OF THE DEFENDANT IN THIS CASE AND CERTAIN OTHER PERSONS HAVE BEEN SUPPRESSED BY A PROCEEDING SUPPRESSION ORDER PURSUANT TO THE OPEN COURTS ACT 2013
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr RA Elston QC | Office of Public Prosecutions |
| For the Accused | Mr PJ Morrissey SC with Mr C Mylonas | Slades & Parsons |
HIS HONOUR:
On 28 February 2012 QPX gave birth by caesarean section to twin girls at the Royal Women’s Hospital. They were the second and third children of her and her husband B. They already had a then two year old boy, T. The twins were named M and N. Upon discharge from hospital mother and babies returned home to her husband and the other child.
Over the coming days the twins showed signs of suffering from colic. They were difficult to feed and to settle. Their parents began a routine of caring for them in shifts, particularly at night. One parent would care for and feed the babies whilst the other would sleep — the carer sleeping on the floor of the twins’ room. The other child, T, was sheltered from the disruption caused by the new arrivals because his parents did not want to disturb his routine.
The twins were taken to the local municipal baby health centre for the normal monitoring of newborn babies. Between their birth and 26 April they were seen on three occasions. On the first visit, on 11 March, they were reported as appearing well. On 30 March the health centre nurse noted that one of the girls, M, had a small bruise, about 6mm long on her right cheek. The nurse also noted that the other baby, N, had not grown in length, that she had flexed knees that were tight and resistant to straightening and that she had four small bruises on her left cheek. In answer to a query raised by the nurse about her observations the children’s mother is reported as saying:
I don’t know what they are doing, they must be bashing each other/bashing themselves with the colic, they are like Houdini, they get out of their wraps no matter how tight I wrap them.
The nurse noted that although the children’s mother reported that she was well supported at home, at times she felt “down” because she was unable to provide comfort for the twins or ease their colic symptoms.
On 24 April both parents attended the health centre with the babies. They told the nurse that both children had been vomiting. As well, N had diarrhoea. The nurse was concerned that she had suffered a weight loss and was having extreme difficulty feeding. The nurse also saw signs of bruises on N’s head, this time on the right side and some grazing on her left cheek. The parents said that they had taken the babies to the Royal Children’s Hospital Unsettled Babies Clinic a week earlier where they had been given some advice about medication for them. They also told the nurse that neither twin was feeding normally. Both of them were consuming much less than what they, the parents, thought were normal bottle amounts. When asked about the bruising and the grazes on N, both parents said that they thought that the twins were either injuring themselves or that the other child, T, may have been involved.
On 25 April their father was the twin’s overnight carer. He fed them about 8.00 pm and placed them in their crib. His wife was in the other bedroom with T. The father fed them again about 11.00 pm. About 2.00 am he woke to the sound of M making noises. She became louder and seemed distressed. He examined her and found her limp and pale. Shortly after that she stopped breathing. Woken by her husband, QPX phoned her mother and then 000. An ambulance arrived and M was taken to the Royal Children’s Hospital. On examination there she was found to have multiple fractures of her skull with subdural haemorrhaging. She was immediately taken to surgery. Despite the best endeavours of the medical staff, M died on the operating table at 7.55 am on 26 April.
At post-mortem the full extent of M's injuries were identified. They included, as well as the fractured skull, injuries to her brain and to her ribs and bruising to her body generally. The expert opinion from the medical staff at the Royal Children’s Hospital was that the baby’s injuries were not all inflicted at the same time and that they were not accidental. Some of the injuries may even have been inflicted some weeks before the child’s death. The doctors questioned the parents who were unable to provide any explanation for the clinical findings.
Because of the nature of M’s injuries, shortly after her death, the other two children were taken to the Royal Children’s Hospital for examination. There, T was found to be in good health but N was found to have suffered similar injuries to her sister, including fractures to her skull, her collarbone, her left forearm and her left lower leg, which was in the process of healing. Like her sister, N’s injuries were not all sustained at the same time and were not, in the opinion of the doctors, accidental.
A police investigation ensued which involved the questioning of both parents over a considerable period. That involving the father of the twins resulted in no charges being laid against him. QPX was interviewed at some considerable length by a police officer. Although probing and persistent, that questioning was also gentle and empathetic. The interview produced a 1,200 question transcript in which QPX repeatedly expressed her love for the babies and her husband. She described him as “the best husband in the world”. QPX described the babies’ chronic crying and her extreme difficulty in coping with her inability to help them. She said she would get really upset and would rock the babies to try to settle them but without success. She spoke of going “into a daze”. She demonstrated to the police officer questioning her how she handled the babies when they were crying, saying that she might have shaken them too hard.
In the course of the interview QPX accused herself of being a bad mother because she could not care for her babies and said that she slapped one of the babies once but that she never dropped either of them. Eventually she accepted that she caused the injuries to both girls but was unable to articulate with any degree of detail how those injuries were inflicted. The picture which emerged from the whole interview, which ran for some 4.5 hours, was of a distraught, frightened, and possibly mentally ill woman confronted with the terrifying allegation that she had killed one of her children and seriously injured the other.
The police, in due course, laid charges of murder (in respect of M) and alternative charges of attempted murder and intentionally causing serious injury (in respect of N) against QPX. However, after committal she was indicted by the Director of Public Prosecutions on one charge of infanticide in respect of M and one charge of recklessly causing serious injury in respect of N. This course was entirely appropriate, at least with respect to the charge of infanticide. The Director had sought expert opinion from an experienced psychiatrist at the Victorian Institute of Forensic Medicine, Dr Grant Lester. After reviewing QPX’s history and examining her Dr Lester unequivocally stated that, in his opinion, her actions which led to her killing M, having regard to her mental state at the time, would sustain only a charge of infanticide. As I shall explain, this also meant that neither the charge of attempted murder nor that of intentionally causing serious injury could be sustained with respect to the surviving twin, N. Accordingly, there was no evidence sufficient to support the charges brought by the police. The mental elements of those charges could never have been legally established.
Infanticide is a statutory offence in Victoria. It is an offence of diminished responsibility. It carries a maximum penalty of five years’ imprisonment. It is established where a woman kills her child within two years of its birth in circumstances which would constitute murder but for the fact that, at the time, the balance of her mind was disturbed, either because she had not fully recovered from the effect of giving birth to the child or because of a disorder consequent upon her giving birth to that child. Dr Lester was of the opinion that QPX’s situation fell within each of the exculpatory provisions of the definition of infanticide.
Recklessly causing serious injury is established when, without intending to inflict serious injury, a person behaves recklessly, that is to say performs an act or acts which she knows will probably cause serious injury and as a result serious injury is inflicted. It carries a maximum sentence of 15 years imprisonment. On the facts of this case it must be seriously doubted as to whether this charge was, in the circumstances, supported by the evidence. However, having regard to the fact that QPX pleaded guilty to both charges on the indictment, those charges are established without the Crown being obliged to prove the facts supporting them. Those pleas of guilty are enough.
There was a significant body of psychiatric evidence before the Court concerning QPX. She was examined on 30 April 2013 by Associate Professor Ruth Vine, a former Chief Psychiatrist for Victoria, who, after examining her file from North Western Mental Health (where she is being treated), autopsy results in relation to M and the video recording of the interview with police on 26 April 2012 set out her opinion of QPX’s mental state. She said that QPX told her that:
…she had at times shaken the baby, and then immediately stopped when she realised what she was doing.
Professor Vine said QPX had no recall of inflicting any other form of trauma and was adamant that she had never intended harm, nor acted in anger. She said her only desire was to try to settle the babies. QPX felt that N and M were both affected by colic; she did not think her behaviour or level of affection was different for either twin.
Professor Vine noted that after the death of M, QPX was admitted to the Alfred Hospital Mental Health Unit and then transferred to the Broadmeadows Health Inpatient Unit. She was an inpatient for some weeks and subsequently an outpatient, which was still the situation when seen by Professor Vine in April 2013. Professor Vine found that QPX had no formal thought disorder and no evidence of delusional beliefs. However, she was preoccupied by the events which have occurred with a sense of helplessness and grief.
Professor Vine concluded that, from the material which she had examined and her examination of QPX that, at the time of the death of M and the hospitalisation of N, she was “sleep deprived, felt guilty and anxious at her inability to soothe and comfort the twins and developed a significant mood disorder”. She thought that QPX’s mental state was directly related to the impact of having two babies who required intensive input. She concluded by saying:
She has suffered considerably since the death of (M). She has suffered a great tragedy, the consequences of which will always be with her. Her mood has remained low with persistent symptoms of grief and guilt.
[....]
It is hoped that she will eventually be able to reform a relationship with her husband and surviving children and return to the workforce.
Dr Nicholas Owens, another consultant psychiatrist who has been treating QPX, provided a similar opinion to that of Professor Vine. His report is dated 21 August 2012. He said in that report that he had been treating QPX “for the acute traumatic impact of the death of her 6/52-old daughter on her own mental state, an impact characterised by intense feelings of despair, helplessness, major sleep disturbance, appetite problems, difficulties concentrating, grief and suicidal thoughts”.
Dr Owens’ diagnosis of QPX was that she is suffering “from an acute grief reaction with strong features of depression, and without significant support she remains at risk of deterioration into worsening depression and suicidality”. He considered that “all attempts should be made to ensure that she remains in the community where she can continue to access treatment and the support of her family”.
A further psychiatric report from Associate Professor Carol Harvey is similar in effect to those of Professor Vine and Dr Owens. She diagnosed QPX as having an “ongoing low to moderate risk of suicide” given her current circumstances, unresolved issues concerning this case and whether she will be able to work towards some contact with one or more of her children.
Ms Patricia Toczek, QPX’s mental health clinician at North West Area Mental Health Services, has been QPX’s case manager since May 2012. In a report dated 3 February 2014 she stated that QPX’s presentation “has remained consistently depressed with accompanying features of anxiety”.
This summary demonstrates that there is very little, if any, disagreement between the experts as to the psychiatric aspects of this case.
There have been eight victim impact statements filed pursuant to s 8K of the Sentencing Act 1991. They are all statements made by B, the father of the primary victims, M and N, and members of his extended family. To comply with the relevant statutory provisions a number of these victim impact statements required extensive editing. In their edited form they attest to the distress, grief, pain and ongoing loss suffered by their authors. Their purpose is to inform the Court of these matters. They have done so.
There are, also before the Court, a number of written references from relatives and friends supporting QPX. Each of them expresses the view, one way or another, that the behaviour of QPX which led to these tragedies was “out of character”.
QPX’s personal background is unremarkable. She is of an Italo-Australian family, was educated to Year 12 and prior to going on maternity leave before the birth of the twins, had been employed as a database manager for about 13 years. All other aspects of her life appear to have been commonplace having regard to her background, her education and her employment. She has no prior convictions.
This case of infanticide and, in this particular instance, the charge of recklessly causing serious injury must both be viewed in light of the statutory definition of infanticide set out in the Crimes Act 1958. By the Crown’s acceptance of QPX’s plea of guilty to infanticide in respect of M it has acknowledged that both offences were committed in circumstances arising from or causally connected to her recently having given birth to her twin daughters. The prosecutor in this Court correctly acknowledged this analysis. The psychiatric evidence is unanimous in describing QPX’s condition at the time she and her husband were both doing their best to care for two babies who were, on any view, extremely difficult to care for, even for parents who had successfully nurtured their older child.
Although the exact mechanism of the infliction of M’s fatal injuries and the infliction of the non-fatal but devastating injuries to N is difficult to determine, it is clear that they were inflicted by a loving mother suffering from significant emotional and psychological compromise. Her moral culpability — a concept sometimes invoked in the sentencing exercise to try to measure the blameworthiness which might be attributed to a person who has committed a particular criminal act — is either non-existent or of such a low degree as to be negligible.
In a case such as this the usual principles of sentencing have a much lesser role to play than they might in most other cases. Punishment of the offender has little or no role as a sentencing principle here. Apart from her lack of blameworthiness, no court could ever inflict a punishment on QPX more severe than that which this tragedy has itself imposed upon her and will continue to impose for many years, perhaps forever. She needs no deterrence from reoffending; nor is there much scope for the application of principles of general deterrence; that is to say, the deterrent effect of punishment on the general population. Infanticide and assaults by mothers of their babies are, fortunately, rare crimes in this community.
In this particular case the only purpose to be served by imposing a sentence is to declare publicly the sanctity of human life and the high regard in which it must be held in a civilised society. That can be achieved by as full an explanation as the evidence will allow of the crimes which have brought the perpetrator before the Court, by her conviction on the two relevant charges and by the imposition of a nominal sentence. The law precludes a court from imposing a sentence which is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Any greater sentence in this case would violate this statutory sentencing principle.
QPX will be convicted of each of the offences of infanticide and recklessly causing serious injury and, if she consents, will be released on a Community Corrections Order for one year from today, 28 March 2014, pursuant to s 37 of the Sentencing Act 1991. The Court has received a pre-sentence report confirming her suitability for such an order which will be made on the conditions prescribed by s 45 of the Act and no other conditions.
Corrigendum: 2 April 2014
Since publishing, orally, the above sentencing remarks with respect to the sentence imposed on QPX, the attention of the Court has been drawn to s 47 of the Sentencing Act 1991 which requires a Court imposing a Community Corrections Order to attach at least one condition to that order in accordance with s 47(2). That condition must be one specified under Division 4 of Part 3A of the Act or under Division 2 of Part 3BA. Accordingly, to comply with these statutory provisions it was necessary to amend the order made by the Court on 28 March 2014.
Since the tragic events of April 2012 QPX has undergone inpatient and, more recently, outpatient psychiatric care provided by North West Area Mental Health Services, after her initial treatment at the Alfred Hospital. The plea hearing in this case was conducted on a common understanding that she was still receiving and would continue to receive this treatment. It is therefore appropriate to amend QPX’s Community Corrections Order to impose a treatment and rehabilitation condition pursuant to s 48D(1) of the Act. An amended order containing the additional condition has been made by the Court.
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