R v Azzopardi
[2004] VSC 509
•6 December 2004
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1466 of 2003
| THE QUEEN | Plaintiff |
| v | |
| LEANNE MICHELLE AZZOPARDI | Defendant |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 December 2004 | |
DATE OF SENTENCE: | 6 December 2004 | |
CASE MAY BE CITED AS: | R v Azzopardi | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 509 | |
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CRIMINAL LAW – Sentencing – Infanticide – Plea of guilty – Remorse – Previous good character – Sentence – Community Based Order for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms Gabriel Cannon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. Allen, S.C. | Balmer & Associates |
HIS HONOUR:
You, Leanne Azzopardi, have pleaded guilty before me to the charge of infanticide, that being an offence under s.6 of the Crimes Act 1958 and punishable by a maximum penalty of imprisonment for a period of 60 months.
Section 6 of the Crimes Act provides that where a woman by any wilful act or omission causes the death of her child, being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child, then notwithstanding that the circumstances were such that but for that section the offence would have amounted to murder, she should be guilty of the offence of infanticide.
Thus the prosecution, and properly so, as is apparent from the evidence before me, has accepted your plea on the basis that at the time of the commission of your offence you were suffering from a postnatal condition caused by the birth of your child. That condition affected the balance of your mind to the extent that you could not in justice be convicted of the crime of murder. The background circumstances in which this offence occurred are as follows.
You were born on 10 November 1972. In October 2000 you and your then husband, Ray, were married in Sunshine. You lived together in Caroline Springs. In approximately September of 2002 you fell pregnant. This event was something that caused you, your husband and your respective families great joy. Indeed, your mother described it as a miracle.
Your daughter Hayley was born to you at the Freemasons Hospital on 11 June 2003. Because of gynaecological and obstetric matters the birth of Hayley was by Caesarean section. You stayed in hospital for five days following the birth of Hayley. At first you breast-fed your baby but you experienced difficulties with that which caused you some considerable frustration and unhappiness. Hayley was placed on to bottle feeding after three days. There is no doubt that this was a matter of considerable disappointment to you.
Soon after your arrival home with your baby and on 18 June 2003 a maternal and child health care nurse for the Shire of Melton, Caroline Mary Hannam, attended at your home and introduced herself to you. You told her that you were recovering from the Caesarean section and that your emotional feelings were “variable”. In response to this Ms Hannam had a discussion with you about what she called the “baby blues”. She provided literature to you and provided you with information about where you could seek help if you began to feel increasingly emotionally unwell. In particular she gave you the telephone number of the 24 hour government maternal and child health line.
The evidence put before me establishes clearly that you telephoned that line on at least four occasions. You rang on 21st, 23rd and 26th June and 3 July 2003. You told police that you rang on six or eight occasions. There is before me evidence which demonstrates that regrettably the help line is under considerable stress in terms of resources and is often engaged. Indeed, the evidence is that on average there is a waiting time of eight minutes. If this is the average then obviously in some cases the waiting time is considerably longer, although no doubt shorter in other cases.
I accept that what you told the police was truthful. At the time that you told police about this there is no doubt that you were being entirely truthful about all matters.
On 23 June 2003, some five days after you came home from hospital, you attended at the Melton Shire Maternal and Child Health Centre. Your baby was examined by a nursing sister, Ruth Wheeldon, and found to be progressing well. At that time you told Sister Wheeldon that you were feeling tired and she discussed this with you, as well as discussing other parenting skills appropriate for a child of the age of your baby.
On 3 July 2003, having, as I have said previously, telephoned on a number of occasions, you again used the telephone number which had been provided to you by Nurse Caroline Hannam for the maternal and child health line. You there spoke to a well qualified registered nurse, Rosemary Brewin. You told her that the baby slept all day but cried most of the night. You told her that you were exhausted, having had two to three hours sleep overnight and that you were losing weight. You told her that you could identify with indicators of depression which were set out in the leaflet, ”Feeling Depressed after Having a Baby”, which leaflet had been provided to you by Sister Hannam. You told her that the stress of the baby was affecting your relationship and although your husband was supportive he had returned to work and you felt a sense of loneliness and isolation. You told her that your mother was to spend that day, 3 July, with you. Sister Brewin discussed a number of matters with you. She talked about sleep deprivation and depression, and encouraged you to talk to your husband about your feelings. The help line being an anonymous service, she asked you for permission to enable her or her service to contact the Melton Maternal and Child Health Nursing Centre. You gave that permission. There is before me evidence which demonstrates that that telephone conversation between you and Sister Brewin occupied nearly one hour.
Sister Brewin did indeed arrange immediately for her service to be in touch with the maternal and child health centre at Melton, and later that day a nurse from that organisation telephoned your home. You were not home but your mother answered the phone and a discussion took place between the representative of the maternal and child health centre and your mother, whereby you were encouraged to have a sleep in the day to cope with interrupted nights and to contact the family doctor if you were concerned about postnatal depression syndrome.
On 7 July 2003 you attended at the Shire of Melton Maternal and Child Health Centre and saw Ms Hannam who had come earlier to your house. She examined your baby and again had no concerns about the health of your child. It is apparent that your child was in good care in your hands at that time.
Sister Hannam in the course of the discussion of 7 July 2003 raised with you the issue of the telephone call that you had had with the maternal health line on 3 July. She asked how you were feeling and told you that if you were feeling in any way emotionally unwell you should see your doctor. She considered that on that occasion you appeared tired but not depressed and she was satisfied from what you told her that you had sufficient support from your mother and your husband to enable you to have some time out from the baby. It is clear from the depositions that Sister Hannam had a lengthy discussion with you on this occasion about these matters but she was unable to detect, as were those close to you, such as your mother, the true state of your underlying distress. That is not a criticism either of her or your mother, but it is now apparent that you were suffering real distress at that time.
On Friday 18 July, some days later, you woke up at about 5 a.m. as Hayley had woken and needed a feed. You got up to feed her. Your husband got up at about 6 a.m. and observed you feeding Hayley and then he went to work. He did not suspect that anything was seriously wrong.
That morning, and soon after your husband left for work, you placed Hayley in the bath face down where she drowned. Thereafter for a period of time you sat crying and shaking. In panic you then decided to pretend that someone had broken into your house. Not surprisingly this charade did not withstand scrutiny and in the course of the day you confessed to Detective Senior Constable McCann as to what had occurred. You were asked by police what your reasoning was about this pretence. You said, “I don’t know. I wasn’t thinking, I wasn’t thinking. It wasn’t - my brain was mentally gone.” In relation to placing Hayley in the bath you said, “I know what my intention was, I didn’t want to hurt her but I just wanted to give her a bit of a fright at first. Yes, I did think about hurting her but I just couldn’t do it, she was just, she was so gorgeous, you know, the little faces that she made, and then I put her in and then, I don’t know if I made - something made me click, her crying, and I don’t know, I don’t know.”
You were remanded in custody thereafter for a period of five days before being granted bail by Gillard, J. in this court on 23 July 2003.
You were examined by Mr Ian Joblin, a forensic psychologist, on 21 July 2003 at the Melbourne Custody Centre. Regrettably, however, you were not seen by a psychiatrist during the early part of your custody and I accept everything that I have been told by Mr Allen as to the extreme distress suffered by you during the five days of imprisonment before the granting of bail by Gillard, J.
Finally, you were examined by a psychiatrist, Dr Anne Buist, on 29 July 2003, and you subsequently came under her care and remain under her care to this day. Mr Joblin, who as I have said saw you whilst you were first in custody, has also seen you subsequently on some 19 occasions. Mr Joblin is a well-regarded forensic psychologist. In his report tendered before me today he said: “There is no doubt of her contrition, indeed she is virtually unable to discuss her child or the circumstances of the death of her child without becoming extremely emotional. She is self-deprecating and intropunitive, she is humble, and in my opinion her presentation is sincere and genuine.” He said further: “It is my opinion therefore that continued mental health treatment is an imperative for her rehabilitation. Over the time I have seen her she has been seriously preoccupied with the offence and her travels through the criminal justice system. Obviously following disposition of this matter some of that distress may be alleviated and rehabilitative therapeutic endeavours may be more successful. One would expect her to be able to respond more positively following her travels through the criminal justice system.” As I said, Mr Joblin is a well-regarded leading forensic psychologist in this state. I accept his opinion about the depth of your contrition and the fact that you are self-punitive. I accept his opinion that continued crimes mental health treatment is imperative for your rehabilitation.
In addition Professor Mullen, perhaps the leading forensic psychiatrist in this country, saw you this year. I might say that in his report he described Dr Buist, who commenced treating you on 29 July 2003, as a leading expert in psychiatric disorders associated with pregnancy. Upon his examination in July this year Professor Mullen found you to be a distressed young woman. He inquired about your history, and although you had required counselling previously in 1999 as a result of being robbed in the street and sustaining a cut from a knife used by your attacker, you had never otherwise consulted a medical practitioner about anxiety, depression or any other symptoms suggestive of psychiatric difficulties.
You described to Professor Mullen what he said were the typical fluctuations between anxious, tearfulness and optimistic elation so common in the immediate post-partum period. This period of the “baby blues”, as he described it, had resolved before you returned home with the baby on the fifth day after her birth. I observe that it was in the following week that the more serious emotional and psychological problems began to emerge silently. The first warning of difficulties came with sleep problems. Your sleep was not only disrupted but you would remain awake between feeds ruminating anxiously about your capacity to mother your child. The sleep difficulties were followed by increasing preoccupation about a sense of failure as a mother, feelings of hopelessness about the future and anxiety about the safety of your baby. Professor Mullen is of the opinion that your description of significant depression, characterised by sleep disruption, loss of appetite, ruminations about guilt and worthlessness, together with a sense of hopelessness, was a clear suggestion of a state of significant depression.
Allied with this was the idealised view of motherhood that Professor Mullen considered you had. You believed that motherhood would be the most satisfying and important experience of your life, and you had what Professor Mullen described as a “rosy fantasy” of birth and motherhood, which was dented from the very beginning by your requiring a Caesarean section. Thereafter matters deteriorated further on returning home as the gulf between the idealised dream and the reality of the difficulty of caring for a small child began to impress itself upon you.
Professor Mullen noted that throughout this period you went to great lengths to cover up your increasing sense of failure as a mother by not sharing your anxieties to any extent with your husband or your most supportive mother. However, as is absolutely clear, you did share this sense of concern, failure and anxiety with the anonymous maternal and child health line. Professor Mullen is of the opinion that at the time of the death of your child you were suffering severe postnatal depression. This is a view shared by Dr Buist, who considers that you suffered a major depressive episode which severely affected your state of mind so that your ability to cope with daily tasks and child care was impaired, as indeed was your judgement and your perspective. In this regard Professor Mullen said that quite apart from the presence of a significant depressive illness you have a vulnerable personality that would have left you with more than the usual difficulties in caring for a new child. You are, he considers, a rigid perfectionist young woman with an idealised view of yourself and your abilities. I might say that the photographs of your home, which form part of the brief, demonstrate that you, no doubt with the assistance of your husband, kept the house in immaculate order. Professor Mullen considered that those vulnerabilities of personality would not have been apparent to those who knew you well, in that your outward appearance of confidence and competence, combined with a tendency to deny any difficulties or problems, would all too easily have disguised the reality of your increasing failure to cope.
Professor Mullen said: “In my opinion, when Ms Azzopardi killed her child of five weeks the balance of her mind was disturbed by a (post-partum) depression.” He said further: “This is, in my opinion, a tragic case where a mentally disordered woman with a vulnerable personality killed her child in the context of a situation which was beyond her limited capacities to manage. Ms Azzopardi is in all other ways a law-abiding citizen who has presented no threat to her fellow citizens in the past, and other than vulnerable children in her care is most unlikely to present any threat in the future”.
I have no doubt that the opinions of two such eminent psychiatrists as Professor Mullen and Dr Buist are entirely correct and I accept them.
You are a person who is clearly much loved and highly regarded by your family and your community. This large court this morning was full of people who have come to support you. Evidence was given on your behalf by five people, each of whom spoke highly of you. In addition, there were a number of other people who were prepared to speak on your behalf and whose statements have been tendered before me. I have before me numerous testimonials from people as to your considerable worth as a person.
The moving statement of your mother sets out in stark detail the tragedy which has befallen you and all around you. In particular you have suffered considerably. Your marriage has finished. The dreams and aspirations that you had when you fell pregnant are now a memory only, and are likely to remain so for a considerable period of time, if not for the rest of your life.
The powerful psychiatric evidence which is before me quite sufficiently establishes that your case is a case which should be treated as involving limited, if any, reference to any matter of personal or general deterrence. A person suffering from an illness such as that you suffered and which affected your responsibility for your action is not an appropriate person, either to deter from acting in this fashion by the punitive sanctions of the law, or to be made an example of to others in order to deter them from acting in this way. There is no suggestion in this case of any lapse of behaviour of any culpable kind that arose otherwise than by reason of the illness from which you suffered at the time. It is not suggested that the offence was rationally premeditated. You had, prior to these events, not offended against the criminal law in the remotest fashion. By your plea and by your actions you have evinced deep contrition and remorse at what has happened to your child at your hands. Apart from the initial attempt to mislead police, which I accept took place in panic and horror at what you had done, you were soon afterward cooperative with them in every way.
You pleaded guilty to the charge of infanticide at the earliest possible time. You are entitled to a significant discount upon the sentence which I would otherwise impose by reason of that plea and by reason of your cooperation with police and your sincere contrition and remorse.
This is a case where, as pointed out by Mr Allen of Senior Counsel who appeared for you, many of the objectives set out by the Sentencing Act are not relevant or have been already met. This is a case where the mitigating factors are overwhelming. In addition, this is a case which calls for a merciful disposition. The community interest is not served by you being incarcerated in a prison.
Accordingly, I am satisfied that notwithstanding the extreme seriousness of the matter before the court and the concern that this court must have in relation to the sanctity of life, the appropriate sentence in this case is a community-based order.
I convict you and I propose to order that you enter upon a community-based order which will commence on 6 December 2004 and will end on 6 June 2006.
In relation to the length of the order, I urge upon the Community Corrections Office, first, that they consider appointing a senior corrections officer to conduct your supervision, and that the matters which are set out in Mr Joblin’s report in relation to your continued association with the criminal justice system be considered by such senior corrections officer throughout the course of your supervision. Although this court has no power to direct the nature of your supervision, it may well be that although the period of your supervision will continue for 18 months, there may be ways of managing that supervision that are entirely different from the ways that other offenders are supervised.
You must attend Sunshine Community Corrections Centre at 10 Foundry Road, Sunshine, within two clear working days after the commencement of this order, that is by 4 p.m. on 8 December 2004. The program conditions that apply in addition to the core conditions listed below are:
First, that you must be under the supervision of a Community Corrections officer and, as I have said, in my view it would be appropriate for that officer to be a most senior one. You must also continue to be seen by Dr Anne Buist, or her nominee as directed by the regional manager, and you must comply with all lawful directions of Dr Buist or her nominee as to appropriate medication and psychiatric treatment.
The core conditions that apply to all community-based orders are that you must not commit another offence during the time of the order. You must report to, as I have indicated, and receive visits from a Community Corrections officer. You must advise Community Corrections officers within two clear working days if you change your address or job. You are not to leave Victoria without first getting permission to do so from a Community Corrections officer. You are to obey all lawful instructions from and directions given to you by Community Corrections officers. Ms Azzopardi, are you prepared to enter into such a community-based order?
PRISONER: Yes, Your Honour.
HIS HONOUR: Do you understand the effect and conditions of the order?
PRISONER: Yes, I do.
HIS HONOUR: You consent to it being made?
PRISONER: Yes.
HIS HONOUR: I ask you to be discharged from the dock and come down and sit next to your counsel, Mr Allen, and sign the order.
(Community-based order signed and acknowledged.)
I have signed that order, Mr Allen.
MR ALLEN: If Your Honour pleases.
HIS HONOUR: My associate will have a copy available for both you and Ms Cannon.
MR ALLEN: Thank you.
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