R v ZZMM
[2015] VSC 524
•30 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0158
| THE QUEEN |
| v |
| ZZMM |
Note: this proceeding is subject to a suppression order
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 September 2015 |
DATE OF SENTENCE: | 30 September 2015 |
CASE MAY BE CITED AS: | R v ZZMM |
MEDIUM NEUTRAL CITATION: | [2015] VSC 524 |
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CRIMINAL LAW – Sentencing – Infanticide – Plea of guilty – Sentencing considerations – Sentenced to a Community Correction Order for a period of one year with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Grant | Ms V. Anscombe, Acting Solicitors for Public Prosecutions |
| For the Accused | Ms H. Spowart | Victorian Legal Aid |
HIS HONOUR:
ZZMM, you have pleaded guilty to one charge of infanticide contrary to s 6 of the Crimes Act 1958. The maximum term of imprisonment for infanticide is five years’ imprisonment. As I indicated at the plea hearing on 24 September 2014, I will not impose a custodial sentence.
The charge of infanticide, pursuant to s 6 of the Crimes Act 1958, provides that you are guilty of infanticide, not murder, if your actions or omissions caused the death of your child in circumstances where the balance of your mind was disturbed because of not having fully recovered from the effect of giving birth to that child. The prosecution has accepted your plea of guilty on the basis that at the time of the commission of your offence the balance of your mind was disturbed from the effect of giving birth and because you were not aware that you were pregnant prior to going into labour. I will now detail the background circumstances to your offending.
On Tuesday 25 February 2014, you ate with your sister at a Malaysian restaurant, and attended, but did not actively participate in, a game of basketball. You came home and did not feel well, repeatedly going to the bathroom. In the early hours on Wednesday 26 February 2014, you gave birth to a baby daughter. The gestational age was 36 weeks. She measured 53 centimetres in length and four kilograms in weight. You were not aware that you were pregnant prior to commencing labour. You gave birth alone in your bedroom at your father’s house. You informed police that your daughter, immediately after birth, was moving and made a soft noise. You put your hand over her mouth so as to not wake up your family. You did this for a period of 30 – 60 seconds believing that she would be able to breathe through her nose. The medical evidence before me supports that belief. You then realised that the baby was no longer breathing. You cut the umbilical cord in the hope this would make her breathe. The baby was deceased. Upon realising this, you placed her in a ‘Cotton On’ bag, cleaned your room and went to bed. You subsequently, on the evening of Friday 28 February 2014, left the bag under a tree near your mother’s house, concealed from view.
On Thursday 6 March 2014, you informed your sister that you had given birth to a baby in your bedroom at your father’s house on 26 February 2014. With your sister, you went to the place where you had left the baby’s body. You were both distressed and crying. To your credit, you attended the Police Station with your sister and disclosed the birth of your baby to a female constable at the Police Station. As a consequence of police investigations, you were charged with infanticide on 28 March 2014.
A post-mortem examination was conducted by Dr Michael Burke on Tuesday 6 March 2014. Dr Burke concluded that the cause of death could not be ascertained. There was no evidence of a natural disease process or of overt injury that would have contributed to or led to the death of the deceased. The radiographic examination showed aerated lungs and the absence of significant gas in the blood vessels, joints or elsewhere in the deceased’s body. Your description of the baby at birth according to Dr Andrew Watkins, a consultant neonatologist at the Mercy Hospital for Women, is consistent with a baby born in very poor condition, in extremis. You described your baby as being very pale, with white lower limbs. The baby would only have survived with skilled aggressive resuscitation and even then there would have been a high risk of death or serious neurological morbidity.
Your counsel submitted that, in light of the mental disturbances that you suffered at the time of committing the offence, the principles established in R v Verdins[1] should reduce your moral culpability and moderate or eliminate the application of general and specific deterrence in your case.[2]
[1](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[2]Outline of Plea Submissions dated 23 September 2015, page 1 and paragraphs 8 and 15.
Your counsel tendered two psychiatric reports of Dr Adam Deacon dated 24 March 2015 and 18 September 2015. In his report dated 24 March 2015, Dr Deacon concluded that throughout your pregnancy and up to the point that you could see the head of the baby, you suffered a ‘rare but recognised’ mental state called ‘denial of pregnancy (or pregnancy denial)’.[3] Dr Deacon diagnosed you with a type of pregnancy denial called ‘pervasive denial,’ which means that you were not aware of the existence of the pregnancy.[4]
[3]Report of Dr Adam Deacon dated 24 March 2015, paragraph 9.
[4]Ibid, paragraphs 12 and 15.
In relation to your mental state immediately following the birth of your child, Dr Deacon stated that:
[ZZMM]’s mental state immediately altered when she consciously realised that she was in labour with the imminent delivery of her baby. Ms [ZZMM] became acutely stressed. She described her mental state as “shocked”, and this is likely to be the most understandable and valid description. An alternative psychiatric diagnosis is Acute Stress Reaction (Disorder). As a feature of her stressed state she also likely experienced feelings of dissociation as a continuum of her acute stressed state. Dissociation refers to an array of experienced [sic] of detachment from oneself and one’s environment. In more intense dissociative states one has an altered sense of self (depersonalisation) and sense of the environment (derealisation). To a lay observer a person in a dissociative state can appears [sic] detached, perplexed, internally distracted, emotionally distressed and confused.
[ZZMM]appears to have been so overwhelmed by her altered state of mind that she was rendered incapable of being able to think rationally. She was aware that she had given birth to a baby, but she was not able to consider her circumstances reasonably and mindfully.
[ZZMM]had difficulty recalling her specific thinking following her baby’s birth, and this likely reflects her dazed and distressed state. She recalled her baby making a noise on a single occasion. Her reflex response [sic] was to quieten the baby by covering its mouth. [ZZMM]thought she likely responded in this manner to avoid waking family members. She actively avoided covering the baby’s nostrils believing it could remain breathing. She also checked to ensure the baby was nasally breathing. The police interview confirms that she estimated that she covered the baby’s mouth for around 30 seconds to one minute. [ZZMM]could not recall the specific time period that she covered her baby’s mouth in this assessment. I would not consider this apparent inconsistency significant, as it most likely relates to [ZZMM]’s fading memory overtime [sic] and her dazed mental state following her baby’s birth. [ZZMM]then consciously realised the baby was not breathing after removing her hand, and responded by attempting to revive it by cutting the umbilical cord. This did not initiate a response and the baby was noted to be deceased. [ZZMM]appears to have had very limited knowledge of basic resuscitation techniques. Even if she had more advanced knowledge and experience, her compromised mental state would have likely hindered her capacity to employ these skills and resuscitate her baby.
[ZZMM]’s acutely stressed state significantly impaired her capacity to respond to her baby’s compromised state in a timely and reasonably [sic] manner. Her failure to effectively resuscitate her baby intimately relates to her altered mental state.[5]
[5]Report of Dr Adam Deacon dated 24 March 2015, paragraphs 17 to 20.
Your counsel also tendered a report by Dr Watkins dated 16 March 2015. In his report, Dr Watkins gave evidence that supported the findings of Dr Deacon, stating that:
A dissociative state, of psychic disorganisation and paralysis, may be seen in such instances. I have seen this myself around birth on a number of occasions and it is described in the literature concerning denied/concealed pregnancy.[6]
[6]Report of Dr Andrew Watkins dated 16 March 2015, page 17.
I accept that your impaired mental functioning at the time of offending impacted adversely upon your ability to think rationally and exercise appropriate judgement, thereby contributing causally to the commission of the offence.[7] On this basis, I find that your moral culpability for the offence is significantly reduced.
[7]R v Verdins (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA).
In R v Azzopardi,[8] Kellam J considered a case of infanticide in which the offender suffered from postpartum depression at the time of committing the offence. Kellam J held that the offender’s psychiatric illness rendered the case one:
…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.[9]
[8][2004] VSC 509.
[9]Ibid, [27] (Kellam J).
Kellam J’s comments are equally applicable to your case. In light of the severity of the mental disturbance that you suffered and that you continue to suffer, I find that specific and general deterrence are of limited relevance in sentencing you.
In his report dated 18 September 2015, Dr Deacon stated that:
[ZZMM]would likely experience prison as particularly onerous, and more significantly more stressful than a person of stable mental health. She is a very timid and insecure young woman who would likely experienced [sic] prison as intimidating and threatening. Her anxiety condition would likely increase and her overall mental wellbeing deteriorate.[10]
[10]Report of Dr Adam Deacon dated 24 March 2015, page 3.
I accept this finding and have taken this into consideration in determining your sentence.[11]
[11]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Your counsel submitted that the continuing effects of your committing the offence are a punishment in and of themselves. You were examined by Dr Watkins and Dr Deacon for the purposes of the plea hearing. Dr Deacon opines that you continue to be afflicted with chronic anxiety and depression directly attributable to the trauma of the circumstances surrounding the death of your daughter. It is also clear from the evidence tendered by your counsel that your court appearances to date have compounded your suffering; Dr Nicole Moriarty in her report dated 18 September 2015 stated that your ‘mental health deteriorate[d] significantly, close to, and just after, any court appearances.’[12]
[12]Report of Dr Nicole Moriarty dated 18 September 2015, page 1.
I have no doubt that the loss of your daughter has caused you to experience feelings of unfathomable loss and grief. The shock and trauma you would have experienced upon realising you were giving birth and that your child subsequently died is a pain and anguish that no one should have to experience, particularly at such a young age. The loss of a child is a life sentence in and of itself. It is a tragedy that will permeate your future. Memories and thoughts of the experience, varying between being ephemeral to profoundly severe, will be inevitable and inescapable. Life, with prospects and aspirations yet to unfold, will be permanently coloured by this experience.
I find that you have strong prospects for rehabilitation. You were a youthful offender. You have no prior or subsequent convictions. Your parents are separated, but remain on amicable terms. The evidence tendered on your plea hearing demonstrates that, prior to this offending, you led a relatively unremarkable existence. You were brought up within a supportive and stable environment. Your immediate family and partner, the father of the deceased, have continued to support you throughout these proceedings and intend to support you into the future.
Your remorse is palpable. The letters of support tendered at your plea hearing from your father, mother, step-mother, older sister and partner portray you as a loving, caring, generous and supportive member of the family. Your interactions with your younger sister demonstrate that you are capable, responsible and trustworthy. Your ability as a carer has not been questioned by your family as a result of your offending – a testament to how your behaviour was entirely out of character on the morning of the birth of your daughter.
My finding that you have strong prospects for rehabilitation is supported by the report of Dr Deacon dated 18 September 2015[13] and the report of Dr Moriarty dated 18 September 2015.[14] This finding significantly reduces the need for specific deterrence in your case.
[13]Report of Dr Adam Deacon dated 18 September 2015, page 3.
[14]Report of Dr Nicole Moriarty dated 18 September 2015, page 3.
There is also utilitarian value in you cooperating with the police and in pleading guilty, particularly as you have obviated the need for the Court and the State to devote resources to your trial.[15] It is a factor I have taken into consideration when sentencing you. I also take into account your self-reporting to police.
[15]Phillips v The Queen (2012) 37 VR 594, 610 [55] (Redlich JA and Curtain AJA, with whom Maxwell P and Harper JA agreed).
Taking into consideration the matters to which I have referred and the matters referred to in s 5(2) of the Sentencing Act 1991, and having regard to the principles of parsimony, proportionality and just punishment, on the charge of infanticide, I sentence you to a Community Correction Order (the ‘Order’) for a period of one (1) year. The Order will commence on 30 September 2015. Having considered the Community Correction Order Assessment prepared by the Department of Justice dated 24 September 2015, the conditions of the Order are:
(1)You must attend Carlton Community Correctional Services located at 444 Swanston Street, Melbourne, Victoria at 11.00am on 1 October 2015; and
(2)You must undergo a mental health evaluation and receive treatment accordingly as directed by the Regional Manager.
I direct that the Carlton Community Correctional Services located at 444 Swanston Street, Melbourne, Victoria is the centre having responsibility for the administration of the Order and appoint the Melbourne Magistrates’ Court as the supervising court under the Order.
I have decided on this sentence because ‘a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation’.[16]
[16]Boulton v R [2014] VSCA 342, [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
Pursuant to s 6AAA(3) of the Sentencing Act, if you had not pleaded guilty, I would have sentenced you to an eighteen (18) month Community Correction Order on the same conditions.
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