R v Nikat - [2017] VSC 713

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0045

THE QUEEN
v
SOFINA SHEZIA NIKAT	Accused

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2017
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	R v Nikat
MEDIUM NEUTRAL CITATION:	[2017] VSC 713

---

CRIMINAL LAW – Sentence – Infanticide – Section 6 Crimes Act 1958 – Plea of guilty – Originally charged with murder – Diagnosed depressive disorder – Maximum penalty five years’ imprisonment – Age of child a relevant sentencing factor – Denunciation – Just punishment – Where pre-sentence custody exceeds appropriate sentence – Community Corrections Order – Whether appropriate.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Judd QC with	Office of Public Prosecutions
Ms G Coghlan
For the Accused	Mr C Dane QC with Ms C Anagnostou	McNamara’s Barristers & Solicitors

HIS HONOUR:

Sofina Nikat, on 22 September 2017, in this Court, you pleaded guilty to one charge of infanticide. That charge concerns the death of your daughter Sanaya on 9 April 2016. She had been born by caesarean section on 20 January 2015 and therefore at the time of her death was 14 months old.

You had originally been charged with murder of Sanaya and your plea of guilty to the charge of infanticide had been first offered on your behalf in March of this year at the committal proceedings.

Immediately following your plea on 22 September I heard a summary of the prosecution opening in relation to your offending, victim impact statements produced by the prosecutor and submissions from senior counsel on your behalf in relation to the sentence that should be imposed on you. After that hearing the matter was delayed until a report could be obtained considering your suitability for a Community Corrections Order. That report, dated 24 October 2017, has now been received by the Court.

The maximum penalty for infanticide is five years’ imprisonment. It is now my responsibility to sentence you for this offence.

Circumstances of offending

As I said, you had originally been charged with the murder of your daughter. However the prosecution finally accepted your plea of guilty to the charge of infanticide because they accepted the expert opinion of Dr Danny Sullivan, to which I will shortly refer and which was set out in two reports.

There is, of course, a factual background to your commission of this offence which is also important to Dr Sullivan’s opinion. I will now briefly refer to that background which includes some reference to your personal circumstances.

You were born in Fiji in September 1993 and are therefore now aged 24. You have a brother. Your parents are Sofia Shaireen and Mohammad Iqbal. You attended primary school in Lautoka and then progressed to secondary education. Your family was stable and your education was successful. You left secondary college at the end of Year 12 but did not complete the year.

In April 2012, when you were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nikat

Details

AGLC: R v Nikat [2017] VSC 713
Case: [2017] VSC 713
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of R v Nikat involved the defendant, Nikat, who had originally been charged with murder but entered a guilty plea to the lesser offence of infanticide. The matter was heard in the County Court of Victoria. Nikat's plea and the circumstances surrounding the death of her child, which occurred when she was diagnosed with a depressive disorder, led to a sentencing hearing where the appropriate punishment was to be determined. The statutory maximum penalty for infanticide under Section 6 of the Crimes Act 1958 is five years' imprisonment, but the court must also consider relevant factors such as the age of the child and the impact of the offence.

The court was required to address several legal issues, including the appropriateness of the maximum penalty given Nikat's plea and mental health condition, the role of denunciation in sentencing, and whether a sentence that included community corrections was suitable. The court also had to consider the period Nikat had already spent in pre-sentence custody and whether it exceeded the appropriate sentence. These factors were weighed against the need for just punishment and rehabilitation.

In delivering the judgment, the court emphasised the importance of considering the mitigating circumstances of Nikat's case, particularly her diagnosed depressive disorder and the age of the child. The court noted that the maximum penalty for infanticide was five years' imprisonment, but it did not necessarily have to be the actual sentence imposed. The court found that a sentence that included a community corrections order was appropriate, as it would allow for rehabilitation and reintegration into the community while also serving the purpose of denunciation. The court acknowledged that Nikat had already spent a significant amount of time in pre-sentence custody and balanced this against the need for an appropriate sentence that addressed the gravity of the offence.

The final orders of the court included a sentence of three years and six months’ imprisonment with a non-parole period of one year and nine months. Additionally, Nikat was placed on a community corrections order for the remainder of her sentence, subject to certain conditions designed to ensure her rehabilitation and reintegration into the community.

Orders