Gordon v The Queen

[2004] NZCA 318

IN THE COURT OF APPEAL OF NEW ZEALAND

CA276/04

THE QUEEN

v

MARSHA TARA WAIROA GORDON

Hearing:8 December 2004

Court:O’Regan, Randerson and Doogue JJ

Counsel:G L Turkington for Appellant

J C Pike for Crown

Judgment:16 December 2004 

JUDGMENT OF THE COURT

A.The appeal against conviction is dismissed.

B        The appeal against sentence is allowed.  We quash the sentence of three years imprisonment imposed in the High Court, and substitute a sentence of two years imprisonment.  In accordance with s 93(2) of the Sentencing Act 2002, we impose the following conditions of release:

(a)The standard release conditions described in s 14(1) of the Parole Act 2002; and

(b)The following special conditions which are designed to promote the rehabilitation and reintegration of the appellant:  The appellant must, until the date which is six months after her sentence expiry date:

(i)       live where directed by a probation officer;

(ii)participate in any programme as defined in s 16 of the Parole Act 2002 as directed by a probation officer.

REASONS

(Given by O’Regan J)

Introduction   

[1]       Ms Gordon was convicted after a jury trial of manslaughter of her two month old baby Brodie Gordon.  She was sentenced by the trial judge, Wild J, to imprisonment for a term of three years.  She seeks leave to appeal to this Court against both the conviction and sentence.

Extension of time

[2]       Ms Gordon’s notice of appeal was filed out of time.  An adequate explanation for the late filing of the appeal has been provided, and counsel for the Crown, Mr Pike, raises no objection to the granting of leave.  Leave is therefore granted.

Issue on appeal against conviction

[3]       The principal issue which we must determine on the appeal against conviction is whether the Judge ought to have directed the jury that infanticide was a possible verdict even though the appellant was not charged with infanticide and neither defence counsel nor Crown counsel raised the issue at any time during the course of the trial. 

[4]       There is another ground of appeal relating to the direction given by the Judge in his summing up on lies.

Factual background

[5]       In his sentencing notes, Wild J set out his findings of fact, and this provides a convenient summary for the purposes of the appeal.  The Judge said:

[3]       For the purposes of sentencing you, I find the facts to be as follows:

[a]       Brodie was born on 11 July 2002, some five weeks prematurely.  He was your sixth child.  The eldest had died a cot death, but you had surviving children then aged 7, 6, 3 and 2 – all boys.

[b]      You did not want Brodie.  The pregnancy was unintended.  He was born by Caesarean section and you resented the scar that left you with.  You suffered from post natal depression and had real difficulties nursing Brodie.  You did not want to touch him, so had difficulty feeding him.  It seems that it was your husband Daniel who mainly cared for Brodie, with very considerable assistance from great grandparents.

[c]       The nurses who were visiting to care for you and Brodie were worried about you to the extent that one arranged for you to be admitted to the psychiatric ward at Palmerston North Hospital.  The hospital notes record that you presented with low mood.  You reported feeling unable to cope any more with your duties as a wife and mother.  You disclosed having suicidal thoughts – as you didn’t have any life, considering that you may as well end it.  You were there for the four days from 26 to 29 August 2002, before being discharged home.

[d]      On or about 2 September you shook Brodie for the first time.  This shaking caused haemorrhaging in Brodie’s brain and affected his behaviour over the following days.  He mainly slept but did not eat.

[The Judge noted that the appellant’s then counsel challenged this finding, but later said he considered the evidence at trial removed any reasonable doubt that the appellant was the person who inflicted on Brodie the injury he suffered on approximately 2 September 2002.]

[e]       On 4 September you left with your sister for Matamata where you stayed with your parents and attended an auntie’s tangi.  While you were there another family member, a young boy, was killed in an accident and you stayed on for his tangi also, returning home to Feilding by bus on the afternoon of Friday 13 September 2002.  As was pointed out at the trial, indeed a black Friday.

[f]       Almost immediately after arriving home, you went in to see Brodie who was sleeping in his bassinette in your bedroom.  You picked him up and shook him again violently causing him fatal brain injuries.

[g]       Almost immediately Brodie began losing consciousness and having breathing difficulties.  You made attempts to resuscitate him until an ambulance crew arrived.  Brodie was taken by ambulance to Palmerston North Hospital and then transferred by air to Starship Hospital in Auckland.  Life support was stopped on Sunday 15 September after the doctors advised you and your husband that Brodie was only being kept alive artificially, and that there was no hope of his recovering.

Issue 1: Infanticide

The trial

[6]       The appellant denied that she assaulted Brodie.  She did not give or call evidence.  The defence relied on the denial she made in three separate statements to the police.  The first of these was made on 14 September 2002 at Starship Hospital, just after Brodie’s death, the second was made by way of video interview on 6 October 2002 and the third was on 30 October 2002.

[7]       We were told that the Crown prosecutor wrote to the appellant’s trial counsel before the trial asking whether there were psychiatric issues relating to fitness to plead, insanity or s 178 of the Crimes Act.  He was told by way of reply that defence counsel’s instructions were to defend the case on the basis of a denial by the appellant that she had caused the injuries from which the baby died.  Defence counsel added that in the light of her instructions, she did not wish to pursue any of the issues raised by the Crown. 

[8]       The Crown led evidence which related to the mental health of the appellant from a number of witnesses who had seen the appellant during her pregnancy with Brodie and after Brodie’s birth (up to 2 September 2004).  The purpose for leading this evidence was to support the Crown’s case, based on circumstantial evidence, that it was the appellant who had shaken Brodie on 13 September 2004.  The Crown case was that the appellant alone went to Brodie’s bedroom at the relevant time, and that only she could have shaken Brodie.  The Crown relied on evidence from a relative who was present in the home at the time, who saw some of the events that happened in Brodie’s bedroom and saw the appellant shake Brodie again when she brought the baby into the lounge, at which time she attempted CPR.  The Crown sought to rule out any other possible perpetrators (other people present in the house at the time) and bolstered its case with evidence of the appellant’s mental state which it said disclosed a degree of anger against Brodie and a concern that she could hurt him. 

[9]       In his summing up, the Judge described this aspect of the Crown’s case as follows:

[f]       What was the reason or motive for the accused Marsha shaking her own baby Brodie in this manner?  The Crown says the answer lies:

[i]       In what Marsha disclosed to the nurses when they spoke to her on 23 August.  She said that Brodie was an unplanned baby, that she did not really want him and did not like touching or holding him or breast feeding him.  She felt ugly because of the Caesarean.  She said she was not coping with Brodie crying all the time.  She said she felt angry and frustrated and found she was yelling at the children and breaking plates.  But she volunteered to the nurses she wouldn’t hurt Brodie.

[ii]      Her post-natal depression – which she described to Dr Andrews at Starship Hospital as “full depression”.  That depression had led to her admission to the psychiatric ward at Palmerston North Hospital for the four days from 26 to 29 August 2002.

[iii]There are some indications of Marsha’s lack of attachment to Brodie:

·     Following her discharge from hospital after a few days she went to stay with her parents in Matamata for 9 days.  Although the evidence in this trial was that she had gone for an aunty’s tangi and stayed for the tangi of a young relative, what she said at the time, and what she stated to the Police immediately following Brodie’s death, was that she had gone to her parents for a holiday for two weeks – for a break from her children.  Brodie was a little over 6 weeks old at that stage.

·     Nurse Lois Butler’s visit to Marsha on 6 August – she found Brodie was limp and cyanosed.  Marsha said she hadn’t called an ambulance or summoned medical help because she knew the nurse was coming.

[10]     Because neither party raised the issue of infanticide at the trial, there was no expert evidence from a psychiatrist or psychologist as to the appellant’s mental state.  However, the evidence led by the Crown which described the appellant’s mental state included evidence from:

(a)       A senior midwife who described an incident on 6 August 2002 when Brodie was admitted to hospital with breathing difficulties.  She said that on that day the appellant came across as “a very upset lady”, “at the end of her tether”, “desperate from what I could see of her mental state.  Desperate about getting help for herself, she realised she couldn’t cope any longer”;

(b)        A student midwife who described a visit to the appellant on 23 August 2002.  She said that the appellant had told her she was unhappy about being pregnant with Brodie and the witness said she gained the impression that the appellant was depressed during her pregnancy.  She also said that the appellant told her that she did not like to hold Brodie.  The witness noted that the appellant had said she had thought about hurting Brodie but had not done so.  There was also a discussion as to how the appellant could carry out breast feeding when she did not like holding Brodie.  The witness also noted that the appellant had said that she had been hearing voices and babies crying, but could not work out what the voices were saying.  She had also reported that she had smelt burning in the house and imagined the house was on fire, and that at times she had been angry and had been breaking plates.  The appellant confirmed these matters to the senior midwife when the senior midwife visited later the same day;

(c)        A registered nurse, who said that she saw the appellant on 2 September 2002.  The appellant confirmed to her that she had recently spent some time at the psychiatric unit of the local hospital.  The appellant also told her that medication had been prescribed but that she was not taking it;

(d)        Another nurse from a paediatric clinic who also saw the appellant on 2 September 2004.  The appellant told her that she was trying not to breast feed Brodie due to being on medication for depression (though the evidence before the Court was that the appellant was not taking the medication that had been prescribed to her).  The witness was asked in cross-examination to describe post-natal depression.  The exchange between counsel and the witness was as follows:

I am not asking you to comment on Marsha Gordon, just asking if you are in a position from your experience and training to tell us a bit about the kind of symptoms or manifestations women who suffer from post natal depression might show?  For example they might feel sad?  I have some understanding of post natal depression.  Are the sorts of expressions of feelings and moods by people women who suffer from this, can they include, they can cry a lot?  Can you repeat that?  Is one possible symptom or one symptom when shown post natal depression, is that women suffering that can cry a lot?  Yes they could.  Can they sometimes feel maybe sad?  Yes.  Maybe irritable or anxious for no real reason?  Yes.  They feel sometimes worthless or helpless?  Yes.  Sometimes they feel guilty about a lot of things, a sense of guilt for no real reason?  Yes.  They sometimes feel as if they should be able to cope with certain everyday things but because of their feelings they cant?  They are overwhelmed with everyday things?  Yes.  Does it sometimes affect their sleep, they either not sleep much at all or have long sleeps but still feel tired?  Yes.  Sometimes they feel after birth to be unattractive or even ugly?  Yes.  Quite often this is without any real reason to, just a feeling they have?  Yes it can be.  Sometimes can they start to feel a bit afraid of where these feelings may take them, they may harm themselves or perhaps others, including the baby?  Just feelings, not saying they do it, but they sometimes have these feelings?  I can’t comment on that one.

(e)        The deputy principal of the primary school attended by two of the appellant’s children gave evidence that she had discovered notes written by the appellant in the back of the school book of one of the appellant’s sons which could be construed as intended suicide notes.  The deputy principal and a colleague visited the appellant after they discovered this material: the appellant explained that she had written them when she had a “down day”.  However the appellant assured them that everything was now okay and that she did not need further assistance.  The visit to the appellant took place in May or June 2002, but there was no evidence as to when the notes had actually been written;

(f)        A neighbour of the appellants noted that the appellant had been depressed and crying on occasions after Brodie’s birth, and said that she thought the appellant might have been depressed.  She said that the appellant had told her about five weeks before Brodie died that the appellant was depressed and that she did not want Brodie anymore.  However the neighbour said she did not really believe that.  The neighbour also said that the appellant had told her that the appellant was not taking her medication after she was discharged from the psychiatric unit in late August. 

[11]     There was also evidence before the Court from the appellant herself as to her depression.  In particular:

(a)       In her first statement of 14 September 2002, she mentioned that she had suffered slight depression after her pregnancy with Daniel (an older brother of Brodie) and that she had been depressed during the pregnancy with Brodie and after his birth.  She told the detective that she had admitted herself to a psychiatric facility about three weeks before Brodie’s death and had stayed there for three to four days;

(b)        In her third statement of 30 October 2002, she said that she was depressed during her pregnancy with Brodie and that while Brodie was in the neo-natal ward she had to pull herself out of depression.  She said that she thought she had managed to get out of that depression, but accepted that she did get depressed when she was at home with Brodie although she denied getting angry with Brodie.

[12]     Counsel for the appellant in this Court, Mr Turkington (who was not her trial counsel) said that this evidence laid a proper foundation to show that the appellant had to be disturbed on 13 September, when Brodie’s death occurred, and that there was a duty on the Judge to raise the issue of infanticide. 

New evidence

[13]     Mr Turkington sought leave to adduce “fresh” evidence in the form of an affidavit by a forensic psychologist, Dr Barry-Walsh.  Crown counsel, Mr Pike, did not oppose the admission of this evidence in support of the appellant’s sentence appeal, but did oppose its admission in support of the conviction appeal. 

[14]     Mr Pike cited the decision of this Court in R v Power CA187/96 22 October 1996, where leave to adduce evidence to the effect that the accused may have had an insanity defence at trial was declined.  In that case, the Court found that Mr Power had been able to make effective decisions about the conduct of his trial and had elected not to run an insanity defence, but rather had denied involvement in the offending.  Mr Pike said there were many similarities with the present case.  However in Power there was no evidence of insanity before the jury, and therefore no basis for an argument that insanity should have been left to the jury.  That is quite a different situation from the one facing us.  In this case there was evidence before the jury as to the appellant’s depressed state, and Mr Turkington’s argument is that that evidence alone was sufficient to require the Judge to leave the possibility of an infanticide verdict to the jury.

[15]     We have Dr Barry-Walsh’s affidavit before us, and in the circumstances we believe it is appropriate to take it into account in relation to the conviction appeal, notwithstanding the Crown’s objections.  However, we see the issue on appeal as to whether the evidence which was before the High Court was, of itself, sufficient to require infanticide to be left to the jury.  We consider Dr Barry-Walsh’s affidavit as contextual background to the assessment of that issue, but not more.

Psychiatric assessment

[16]     Dr Barry-Walsh properly acknowledged the difficulty in providing an opinion on the psychiatric condition of the appellant at the time of Brodie’s death given the two year time gap between the event and his assessment of the appellant.  However, after reciting the evidence which was before the High Court, and which is summarised above, and taking into account further evidence which has been available to him (but which was not in evidence in the High Court), he felt able to conclude that:

(a)       At the time of the appellant’s admission to the psychiatric unit in late August, her psychiatric disorder would meet the criteria outlined in s 178(1) of the Crimes Act 1961;

(b)        It was implausible that she would have completely recovered from those symptoms at the time of Brodie’s death; and

(c)        “There would appear to be sufficient evidence to suggest that Ms Gordon may have fallen within the provisions of Section 178 of the Crimes Act”.

Section 178

[17]     For present purposes, the relevant provisions of s 178 are s 178(1) and (2) which provide:

(1)       Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

(2)        Where upon the trial of a woman for the murder or manslaughter of any child of hers under the age of 10 years there is evidence that would support a verdict of infanticide, the jury may return such a verdict instead of a verdict of murder or manslaughter, and the accused shall be liable accordingly.  Subsection (2) of section 339 or this Act shall be read subject to the provisions of this subsection, but nothing in this subsection shall affect the power of the jury under that section to return a verdict of manslaughter.

Submissions for appellant

[18]     Mr Turkington submitted that there was evidence before the jury on which they could have concluded that the balance of the appellant’s mind was disturbed at the time of Brodie’s death, by reason of her not having fully recovered from the effect of giving birth to Brodie (or, perhaps, his older brother Daniel) or by reason of a disorder consequent upon child birth to such an extent that she should not be held fully responsible.  He said that the evidence (which we have highlighted above) was “evidence that would support a verdict of infanticide” for the purposes of s 178(2), and therefore the jury should have been given the opportunity to return a verdict on infanticide in this case. 

[19]     Mr Turkington said, correctly, that it was not necessary that the appellant be charged with infanticide as an alternative to manslaughter: the verdict is available even where only manslaughter is alleged by the Crown.  In that sense, infanticide operates as something of a hybrid between a separate offence and a defence.  The learned authors of Adams (at CA178.04), say that where infanticide is advanced as a defence, an accused will be entitled to a verdict of infanticide if there is a sufficient evidential foundation for the defence leaving the jury in reasonable doubt, which means that the prosecution must negative the defence.  On the other hand, where an accused is charged with infanticide the prosecution must prove all its elements beyond reasonable doubt.

[20]     Mr Turkington did not suggest that there was any error by trial counsel in this case, and in oral argument said that he accepted that trial counsel had acted in strict compliance with the instructions given to her by the appellant in not raising the issue of infanticide.  However, he said that this did not absolve the trial Judge of his duty to put the issue of infanticide to the jury, in the same way as a Judge would have a duty to put a defence of insanity to the jury if there was evidence to found that defence, even though the defence did not rely upon insanity.  There was no challenge to that proposition from the Crown.

Submissions for Crown

[21]     Mr Pike said it would have been inappropriate for the Judge to raise the issue.  He said that if the Judge had done so it would have been apparent to the jury that the Judge shared the prosecution view that, despite the appellant’s denials and her defence of innocence, she had in fact killed Brodie. 

[22]     Mr Pike also said there was insufficient evidence to justify the issue of infanticide being raised with the jury.  He pointed out that neither the Crown nor the defence raised the issue in the course of the trial, and neither counsel informed the Judge that there had been correspondence before the trial about the possibility of an infanticide verdict.  He said defence counsel had effectively disavowed the possibility of such a verdict in pre-trial correspondence with the prosecutor.

Discussion

[23]     In our view, it would have been possible for the Judge to direct the jury on the need to determine whether or not the appellant had killed Brodie and, having done so, to then direct them that they needed to determine whether the correct verdict was infanticide or manslaughter if they concluded that the appellant was responsible for Brodie’s death.  We reject Mr Pike’s submission to the contrary.  This would be no different from directions commonly given when an accused faces a charge of murder and possible verdicts include not guilty of any offence (i.e. finding that the Crown has not proved that the accused person is the killer) or murder, or manslaughter (for example, where murderous intent has not been established).

[24]     We accept Mr Turkington’s contention that there was considerable evidence before the jury as to the appellant’s mental state.  But that evidence was of observations made or statements made in late August or early September, or earlier still.  The evidence showed that the appellant had travelled to Matamata and stayed there with her parents from 2 September 2002 to the day of Brodie’s death, and there was no evidence at all of her mental state during that period i.e. the 11 days before Brodie’s death.  There was also no expert psychiatric evidence before the jury.  The jury would have been left with observations and statements by caregivers and others which supported the contention that the appellant was suffering from post-natal depression, and the description of that condition referred to in para [10] (d) above but would not have had expert guidance on the issue as to whether of her mind was disturbed, and as to whether this resulted from one of the causes referred to in s 178(1).

[25]     Although the issue is very finely balanced, we conclude that we cannot say that the Judge was wrong not to have instructed the jury on the possibility of an infanticide verdict in this case.  In our view, it was open to the Judge to conclude that the evidence fell short of the standard required to take that step, particularly in view of the fact that the defence did not raise infanticide and ran the case on a basis of complete denial. 

[26]     We accept that, if Dr Barry-Walsh’s evidence presented to us (or similar evidence from an appropriately qualified expert) had been before the jury, the possibility of an infanticide verdict should have been left to the jury.  But for the same reasons as given by this Court in Power, we do not believe that it is appropriate to override the course which was set and on which the appellant proceeded to trial, once the appellant’s avowed defence of denial has been rejected by the jury. 

[27]     We are cognisant that, if a new trial were to be ordered so that the possibility of infanticide could be placed before a jury, this would effectively give the appellant a second chance to seek a complete acquittal on the basis of her denial, even though she has failed in that endeavour at the first trial.  Mr Turkington suggested that a new trial could be confined to the question as to whether the accused was guilty of manslaughter or infanticide, but in our view that would not be an appropriate course, particularly where the appellant’s counsel’s instructions are still to pursue the defence of denial.

Conclusion: Infanticide

[28]     Accordingly, we conclude that this ground of appeal fails.

Issue 2: Lies

[29]     Mr Turkington raised as a secondary point of appeal an issue about the fact that the Crown relied on lies told by the appellant as being probative of guilt.  He said that the Judge ought not to have permitted the Crown to do so. 

[30]     The law is well settled.  Normally proven lies by an accused will be relevant to the credibility of the accused, but not to guilt.  However, occasionally lies are capable of adding something to the Crown case.  This arises only where a lie is more consistent with guilt than with innocence such as when a lie suggests that the accused cannot give an innocent explanation: R v Toia [1982] 1 NZLR 555 at 559 and R v Louloli [1995] 2 NZLR 656 at 671-672.

[31]     The focus of Mr Turkington’s complaint is the alleged lie told by the appellant in the course of her police statement on 14 September 2002 at Starship Hospital.  In that statement the appellant said that she had gone straight from the psychiatric unit to her parents home in Matamata on 2 September 2002, the day on which the first event involving Brodie being shaken is said to have occurred.  She acknowledged during the interview on 30 October 2002 that this was wrong.  When asked to explain her earlier, false, statement, she said she had made it because she could not be bothered saying what they (the interviewers) wanted to hear.  She said that if she had told the truth she would have then been asked what she had done in the period between her release from the psychiatric unit and her departure for Matamata and that she had done absolutely nothing, other than sleep.  She had not wanted to tell the interviewer that she had gone straight to sleep.

[32]     In his summing up, the Judge gave a clear direction in conventional terms about lies, emphasising that if the jury was satisfied there had been a deliberate lie then it could regard that as a factor in assessing the appellant’s credibility, but cautioning the jury to guard against a tendency to think that if the appellant lied then she must be guilty of the offence for that reason alone. 

[33]     However, the Judge also noted that the Crown had said that some of the appellant’s lies tended to show that she was guilty, and referred to the lie about the time of her departure for Matamata.  The Judge recorded the Crown position to the effect that the appellant had told this lie to remove herself from the family home during the time at which the first shaking incident occurred.  He noted that the Crown said that the only explanation for the appellant’s telling that lie was because she had shaken Brodie on that occasion and that, in turn, pointed to her being the person who subsequently shook Brodie on 13 September 2002. 

[34]     The Judge also recorded the defence response, to the effect that, even if the appellant did tell lies, that did not indicate guilt.  In particular, the defence had said that her statement of 14 September had been made at a time when she had been told Brodie was likely to die and, given the very difficult time at which the statement was made, the inaccuracy was explicable. 

[35]     Having put these competing positions to the jury, the Judge said it was a matter for the jury to decide.  In our view the Judge’s direction on this was adequate.  We are not prepared to say the Judge was wrong to have allowed the Crown to make the submission that, in this case, a lie told by the appellant was more consistent with guilt than innocence, and could therefore tend to show that she was guilty.  We accept that there is room for alternative views, but we are not satisfied that any error has been demonstrated in the present case.  Accordingly this ground of appeal also fails.

Appeal against sentence

[36]     We now turn to the appeal against sentence.

High Court sentencing

[37]     In his sentencing remarks, Wild J referred to R v Kershaw HC PMN CRI 2003 054 2237, Durie J which was a sentencing for similar offending and, after discussion of that case, determined that the appropriate starting point for sentence was four years imprisonment.

[38]     He said there were three aggravating features, namely:

(a)       The use of physical violence on Brodie;

(b)        The fact that the appellant had killed a defenceless child who was only nine weeks old;

(c)        That the appellant was Brodie’s mother and protector, so the offending involved a breach of trust.

[39]     He said there were three mitigating factors, namely:

(a)       The appellant was a first offender;

(b)        The appellant was suffering from post-natal depression: he said that he did not underestimate how debilitating and distressing post-natal depression could be, and obviously was in her case;

(c)        The appellant had told the nurses and others of her concern that she had thoughts of harming Brodie, and had therefore sought professional help.  However he noted that, having received that help and being prescribed medication, she had not taken it.

[40]     The Judge noted that he could give no credit for remorse or willingness to come to terms with the offending, in the light of the appellant’s continued denial.

[41]     Ultimately, he concluded that the appropriate sentence was three years imprisonment.

Submissions

[42]     Mr Turkington submitted that the sentence was manifestly excessive and that a community-based sentence ought to have been imposed. 

[43]     As mentioned earlier, Mr Pike did not oppose the admission of the affidavit by Dr Barry-Walsh in relation to sentencing.  He said he accepted that this evidence placed this Court in a different position from that of the trial Judge, because, unlike the trial Judge, this Court had before it evidence of the nature and extent of the appellant’s psychiatric condition.

Discussion

[44]     There is no proper basis for criticism of the sentence imposed by the trial Judge, on the basis of the information which he had before him.  The only issue is, therefore, whether, in the light of the evidence now before us relating to the appellant’s psychiatric condition at the time of the offending, a different sentencing outcome is warranted. 

[45]     In the pre-sentence report which was before the Judge, it was stated that a psychological report had been carried out on the appellant, but that the probation officer had been unable to obtain access to it.  There had been a psychiatric assessment of the appellant when she was admitted to the psychiatric unit in late August.  Apparently the appellant’s counsel had a copy of it, but the prosecutor did not.  A copy was not provided to Wild J.  Accordingly, the Judge had no expert psychiatric or psychological evidence before him, though (as already noted) he did take into account the fact that the appellant was suffering from post-natal depression.

[46]     We now have before us Dr Barry-Walsh’s affidavit, and we are satisfied that the information contained in this affidavit is of such significance that it is appropriate to reconsider the sentence imposed on the appellant, in the light of that information.  In particular, we note that:

(a)        Dr Barry-Walsh reports that when the appellant was assessed by Dr Greenblatt at the psychiatric unit on 26 August 2002, Dr Greenblatt described her symptoms as “quite severe with low mood, crying, trouble concentrating, significant appetite decease with weight loss”.  Dr Greenblatt described her as experiencing internal auditory hallucinations, paranoid ideation, anxiety, difficulty bonding with Brodie and thoughts of harming Brodie.  Dr Greenblatt described the appellant as having “major depression with psychotic features”.  He prescribed anti-depressant and anti-psychotic medication.

(b)       Dr Barry-Walsh himself expressed the view that the combination of the appellant’s psychotic systems, depressed and sometimes angry mood and thoughts of harm towards herself and her son would, if active at the time of Brodie’s death, have substantially diminished her responsibility for her actions.

[47]     In our view an assessment of the culpability of the appellant in the light of this new information leads to a conclusion that her culpability is at a lower level than would have been apparent to Wild J on the basis of the more limited information available to him.  We are satisfied that it is appropriate to take a merciful approach in the light of the information now available as to the appellant’s psychiatric condition.  We cannot accept Mr Turkington’s submission that a community based sentence is justified.  In our view society’s denunciation of the taking of the life of another, makes a prison term appropriate.  However, we are satisfied that this objective can be achieved by a lesser term of imprisonment than that imposed by the trial Judge. 

Result

[48]     We therefore allow the appeal against sentence, quash the sentence of three years imprisonment, and substitute a sentence of two years imprisonment.  In accordance with s 93(2) of the Sentencing Act 2002, we impose the following conditions of release:

(a)The standard release conditions described in s 14(1) of the Parole Act 2002; and

(b)       The following special conditions which are designed to promote the rehabilitation and reintegration of the appellant.  The appellant must, until the date which is six months after her sentence expiry date:

(i)       live where directed by a probation officer;

(ii)participate in any programme as defined in s 16 of the Parole Act 2002 as directed by a probation officer.

Solicitors:
Crown Law Office, Wellington