R v X

[2016] NZHC 840

ORDER FOR PERMANENT SUPPRESSION OF NAME OR IDENTIFYING PARTICULARS OF DEFENDANT.

NOTE:  PUBLICTION OF NAME AND IDENTIFYING PARTICULARS OF VICTIMS PROHIBITED BY SECTION 204(1)(A) OF THE CRIMINAL PROCEDURE ACT 2011.

SENTENCING NOTES MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-021-0533 [2016] NZHC 840

THE QUEEN

v

X

Hearing:	29 April 2016
Counsel:	J Marinovich for Crown K Pascoe for Defendant
Judgment:	29 April 2016

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, New Plymouth

Nicholsons, New Plymouth

R v X [2016] NZHC 840 [29 April 2016]

Introduction

[1]      Ms X, you appear for sentence today having pleaded guilty to three charges of attempted murder.  Those pleas were entered on 15 February 2016, shortly after I gave a sentencing indication, on your application.

[2]      After  passing  sentence,  I  will  deal  separately  with  your  application  for permanent name suppression.

[3]      Before I start dealing with sentencing, there is one issue with which I must deal.  Under what is known as the “Three Strikes” regime you have committed an offence that qualifies for a warning.  I now give you the warning as required.

[4]      Should you be convicted of a second such offence you would be required to serve the full sentence imposed by the Court without the prospect of parole.  If you were convicted of a third such offence  you would be sentenced to a maximum penalty for that offence and again you would not be able to get parole.  You will receive written material shortly in which a full list of the offences that qualify as Three Strikes’ offences will be set out, including some special rules around the crime of murder.

Facts

[5]      All three charges of attempted murder arise out of events that unfolded on

28 July 2015.  The circumstances in which the offending occurred are most tragic. Nevertheless, given the nature of the sentence I will be imposing today,  I must outline the facts in a manner that can be published, so that the media and the public understand why I am imposing a merciful sentence for one of the gravest of crimes.

[6]      At the relevant time, you were living in the central North Island.  It is clear that, for some time, you had been suffering from major depressive episodes.  There were difficulties in your marriage.  You had given birth to your youngest child only months beforehand.   Events had conspired to such a degree that  you genuinely believed the only way in which you and your children could be kept safe was for you

to take your own life and those of your children.  The charges of attempted murder involve your three children, one of whom was under one year of age.

[7]      In the time leading up to the offending, you and your former husband had argued about custody of the children.  Your genuine belief that death was the only way to relieve you and your children from what lay ahead was based on a concern that you may not retain day-to-day care of your children if you and your husband were to separate or divorce.

[8]      While accepting the genuineness of that belief, any suggestion that the chasm that had grown between you and your husband might have affected the welfare of your children in that way was both misguided and illogical.  To some extent that is understandable.   People who are labouring under the effects of a severe mental illness do not tend to make logical or objectively justifiable decisions.

[9]      At some time during the early evening on 28 July 2015, you decided that you could not cope anymore.  Previously, you had used a “Google” search to find ways to commit suicide.   You chose the option of carbon monoxide poisoning because there was a high chance of success, it was likely to cause the least pain for the children, and was unlikely to create any mess for someone else to clean up.

[10]     At about 7.30pm, you put the two elder children in one of the bedrooms in your house.  You read a story to them and spoke about an upcoming holiday.  They then fell asleep. You then went to the living room with the youngest child and put on a DVD for both of you to watch.  While watching that, it appears that you decided it was time to carry out the suicide plan.

[11]     You left  your child watching the DVD.   You  removed a knife from the kitchen and went to the garage.  You obtained a hose from a vacuum cleaner and cut in two lengths.  You then took deliberate steps to turn off the house alarm system, so that any carbon monoxide fumes would not activate the smoke alarms, and fitted pipes in a manner that would allow the carbon monoxide to enter the bedroom. After returning to the house, you wrote a suicide note and cut up some flowers.  After

spreading the flowers throughout the house, you placed your youngest child in the same room as the other children.

[12]     After receiving a telephone call from your former husband, and reassuring him that all was well, you went back to the garage and started the vehicle, before going to the bedroom where your children were sleeping.  Your intention was that the carbon monoxide would operate to poison all four of you within about 15 to 20 minutes.

[13]     While in the room, you had second thoughts.   After an initial panic, you called an ambulance saying that you had tried to kill your children.  You were told to turn off the vehicle and remove your children from the bedroom.  Shortly after that emergency services arrived.   An ambulance transported you and your children to hospital  immediately.     By  this  time,  your  youngest  child  was  unconscious. Thankfully, all three survived, as did you.

Personal circumstances

[14]     Following your arrest, you were examined by a consultant psychiatrist, Dr Peter Dean, in August 2015.   In a report, he commented on your “long history of intermittent  depressed  mood  throughout  your  life,  with  periods  of  exacerbation during pregnancy and after childbirth”.   Dr Dean identified your vulnerability to depressed mood during periods of psycho-social stress as a significant trigger to your behaviour.  He considered that you were predisposed to psychiatric illness due to a form of abuse that you suffered when a child from a person outside your family circle.   The post-natal stress appears to have caused relapses in your psychiatric condition.

[15]     Following  your guilty pleas on the three charges of attempted murder,  I requested an updating psychiatric report.  That was obtained from Dr Street, another consultant forensic psychiatrist, who had previously interviewed you.   For the purposes of his report, he interviewed you again and also explored your medical condition with a third psychiatrist whom you had consulted, and a psychologist with whom you had been interacting since the events of 28 July 2015.

[16]     I summarise briefly the advice I have received from Dr Street:

(a)      Since the last psychiatric report, you have been seeing a psychologist regularly for psycho-therapy.  You attend a weekly group session and have demonstrated an acceptance of your condition and a commitment to improving it.

(b)You have acknowledged the difficulties that you encountered within your marriage and have achieved a better appreciation of your own self-worth.  You now recognise that your inability to control yourself in the presence of your former husband, something which I believe impacted significantly on your decision to take your life and the lives of your children.

(c)      Your ability to see your children under terms of supervised contact has improved your mood. You are fortunate to have a group of friends who are supporting you and helping you to rebuild your relationship with the children and to develop a better understanding of yourself. There has been a material improvement in your self-development and self-awareness, for which you should be commended.

(d)Your personal psychiatrist, who sees you primarily for medication purposes, reported that your moods were stable, you were tolerating your medications and were not experiencing any side effects from them.  She advised Dr Street that you now had good insight into your prior behaviour and were making better decisions.   She does not believe that you presently pose any risk to your children or yourself. You understand what behavioural patterns need to be changed to improve your condition further.   Nevertheless, I consider there is a clear risk  if  you  do  not in  fact  overcome  your condition  through psychiatric care.

[17]     From the depths of despair from which you attempted to take your own and your children’s lives, you have progressed significantly in a period of about nine

months to become a person whose thoughts, to use Dr Street’s words, are now

“linear, logical and goal directed”.

[18]  Notwithstanding those improvements, and while you are presently asymptomatic, you continue to meet criteria for a major depressive disorder, with an underlying anxiety disorder.

Analysis

[19]     When  I provided  a  sentence  indication,  I  said  that  the  most  appropriate sentence would be one of two years’ intensive supervision on standard terms, as well as any special terms necessary to assist compliance with that sentence.  Specifically, I had in mind continuing psychiatric assessments, treatment and attendance at any counselling or other programmes that might be required by a probation officer.

[20]     I also raised a possibility of another community-based sentence designed to meet society’s needs to denounce conduct of this type.  Today, I will be imposing the sentence of intensive supervision and I will also consider shortly whether any other community-based sentence is necessary.

[21]     An essential element of the crime of attempted murder is an actual intent to kill.  There can be no doubt, and your plea accepts this, that you made deliberate, though misguided decisions to take your own life and to kill your children.

[22]   The maximum penalty for the crime of attempted murder is 14 years imprisonment.   In  cases  involving attempted murder, particularly when  multiple victims are involved, a lengthy period of imprisonment is typically imposed to meet relevant sentencing goals of holding you accountable for your actions, denouncing your conduct and deterring others from committing similar offences.

[23]     But, this is not a typical case.   It is one in which I readily accept that, although the victims were your children, there is no need for a sentence of imprisonment to be imposed.  Indeed, it is much more desirable that a sentence be crafted to enable you to better manage the psychiatric disorder under which you labour.  Society will not be at further risk provided you are treated properly.  And,

your children will be able to fulfil their development knowing that their mother was very  ill  when  these  events  occurred.    In  rare  cases,  even  for  such  a  crime  as attempted murder, a merciful sentence is required to take account of significant extenuating circumstances and diminished responsibility on the part of an offender.

[24]     The most significant factor in this case is that, had the children been killed, your conduct might have amounted to the crime of infanticide, rather than murder – notwithstanding your actual intent to kill.1   The crime of infanticide occurs where a woman causes the death of any child of hers under the age of 10 years in a manner that would otherwise amount to murder or manslaughter, at a time when the balance of her mind was disturbed by reason of not having fully recovered from the effect of giving birth or any disorder consequent upon childbirth, to such an extent that she should  not  be  held  fully responsible.    In  that  situation  the  woman  is  guilty of

infanticide, but not murder or manslaughter.  The maximum penalty for that crime is a term not exceeding three years imprisonment, as opposed to a maximum penalty of life imprisonment for murder or manslaughter.

[25]     At  the  sentence  indication,  your  counsel,  Ms  Pascoe,  submitted  that  the charge ought to have been one of attempted infanticide, but the Crown did not accept that and raised an issue about the existence of such a charge.  Although it has been accepted  in  some  cases,2   I  harbour  doubts  about  the  existence  of  a  crime  of attempted infanticide given the way in which the crime of infanticide is expressed in the relevant statute.   If the charge had been amended, a formal application would have been required and a decision made.  You elected to plead guilty to the present charges rather than to go through that process.  Those pleas were entered on the basis

of my indication that, for sentencing purposes, I was prepared to equate your conduct to that of a person whom, if death had resulted, would have been guilty of the crime of infanticide.

[26]     For that reason, I take a starting point what would have been a maximum sentence for a crime of attempted infanticide, if it did exist.   Infanticide carries a

1      A charge involving culpable homicide may be reduced to infanticide in certain circumstances:

s 178, Crimes Act 1961.

2      Most notably R v L HC Invercargill CRI-2009-025-329, 24 November 2009 (Fogarty J).  See also Dawkins and Briggs, “Criminal Law, Attempted Infanticide” [2010] NZ L Rev761–772.

maximum penalty of three  years imprisonment.3     The maximum penalty for an attempt is one half of that, namely one year and six months.4

[27]     From that, I take account of mitigating factors.  Those factors are numerous. They include, in the context of this case, your demonstrable and genuine remorse, diminished responsibility due to a psychiatric illness and the early guilty pleas5 that you have entered.

[28]     It is clear from what I have read that what you need is help, not punishment. You fit the criteria for the sentence of intensive supervision, a sentence that is designed to reduce the likelihood of further offending through rehabilitation and reintegration into the community.   Such a sentence will ensure, with appropriate special conditions, that the type of situation that confronted you in this situation, will not arise again.  For the purposes of s 16 of the Sentencing Act 2002, I find that a sentence of imprisonment is not needed to respond to this particular offending.

[29]     A sentence of intensive supervision can only be imposed if the Court is satisfied  that  such  a  sentence  would  reduce  the  likelihood  of  further  offending through rehabilitation and reintegration into the community and that the nature of the rehabilitative or other (in this case medical) needs requires the imposition of conditions for a period longer than 12 months or that are not available through the sentence of supervision.6

[30]     The standard conditions of intensive supervision include requirements that you must report to a probation officer at least once in each week during the first three months of the sentence and at least once in each month during the remainder of the sentence, and thereafter as and when required to do so.7    A probation officer may also require you to take part in a rehabilitative and reintegrative needs assessment.

[31]     Special conditions may be imposed in relation to a “programme” if the Court is  satisfied  that  standard  conditions  alone  would  not  adequately  reduce  the

3      Crimes Act 1961, s 178(1).

4      Ibid, s 311.

5      Ibid, s 9(2).

6      Ibid, s 54C.

7      Ibid, s 54F.

significant risk of further offending.8   In that regard, the term “programme” includes any psychiatric or other counselling or assessment, and attendance at any medical, psychological or therapeutic rehabilitative or reintegrative programme.9

[32]     The  medical  evidence  I  have  received  leads  me  to  the  conclusion  that intensive supervision is required.  Your needs are such that a period of two years’ supervision is necessary.  I consider that the sentence should be imposed on standard terms  and  special  conditions  relating  to  psychiatric  care  or  counselling  and attendance at relevant programmes that might be directed by a probation officer.  On that basis, I shall be imposing a sentence of two years’ intensive supervision.

[33]     When giving my sentence indication, I raised the possibility that it may be necessary to combine the sentence of intensive supervision with another community- based sentence that was directed to meet the sentencing goals of denunciation, deterrence and accountability.  I indicated that a period of community detention may be required. While Parliament expressly refrained from using the term “punishment” in any part of the Sentencing Act, there is almost invariably a punitive element to sentencing for a crime of this type.

[34]     In  a  not  dissimilar  case,  a  sentencing  Judge  discussed  the  competing arguments over the need for a more punitive response in a case such as this.10    He concluded that the person he was sentencing was in need of long term and sustained intervention from experts and that it was in the best interests of herself, her children as well as the wider community that rehabilitation occur.  I agree entirely with that approach.

[35]     Existence  of  the  psychiatric  disorder  is  the  only  reason  why  you  might reoffend in some way.   Otherwise,  your history demonstrates a person of good

character, for whom offending of this type is aberrant.

8      Ibid, s 50.

9      Ibid, s 51.

10     Generally, see R v O [2012] NZHC 296 (Whata J); cf R v M HC Dunedin CRI-2007-012-211, 11

December 2007 (John Hansen J) and R v A HC Invercargill CRI-2009-025-329, 9 March 2010 (Fogarty J).

[36]     The medical reports I have received from both Dr Street and your personal psychiatrist, Dr Heermann, have led me to the view that imposition of a further community-based sentence would serve no purpose for society, and indeed may well be counter-productive.  I am persuaded that no such sentence is required.

[37]     My explanation for imposing the maximum period of intensive supervision should provide the community with an adequate understanding of the exceptional step I have taken.  Further, these remarks in transcribed form will be available to you in the future should you ever be asked why convictions of this type were entered.

Result

[38]     Ms X, please stand.

[39]     On  each  charge  of  attempted  murder  you  are  sentenced  to  a  period  of intensive  supervision  of  two  years.    Standard  terms  apply.    I  impose  special conditions requiring you to undergo any psychiatric, counselling or assessment programmes and to attend at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative or reintegrative programme as may be directed by a probation officer.11

[40]     Those sentences will be served concurrently.  You must report to a probation officer within the next 72 hours to begin that sentence.

Permanent name suppression

[41]     Ms  Pascoe  has  applied  for  permanent  suppression  of  your  name  and identifying particulars, as well as those of your children.   Mr Marinovich, for the Crown, abides the decision of the Court.

[42]     Section 204 of the Criminal Procedure Act 2011 prohibits publication of the name, address or occupation of any person who is under the age of 18 years who is a

11     Sentencing Act 2002, s 54H(a) and (b).

“complainant”.   The name of such a person may only be published if the Court makes an order permitting that to be done.12

[43]     While a decision to suppress the name of a defendant is discretionary,13  an order will generally be made if the Court is satisfied that publication would be likely to lead to the identification of someone whose name is suppressed by law.14

[44]     Although  the  children  are  too  young  to  have  made  the  complaint,  they should, in my view, be regarded as “complainants”, in the sense that a victim is ordinarily a person who is called a “complainant”.   It would be incongruous for a person who actually complained to have his or her name protected, but not someone who was too young to complain.   For the purposes of s 204(1)(a) of the Criminal Procedure Act, I hold that the terms “complainant” and “victim” are used interchangeably.

[45]     In my view, no public interest would be served if your name or the names of your children were to go into the public domain.  No order is needed in respect of your husband because his name could not be put into the public domain without identifying you or the children.  Because publication of his name would amount to publication of an identifying particular, publication is prohibited.

[46]     As I have just said to Ms Pascoe, I have tried to frame these remarks in a way which  will  enable  them  to  be  accessible  to  a  wider  community to  whom  it  is important to explain why I have imposed a sentence of this type for such serious crimes.  No suggestion has been made that anything I have said could identify you or the children.  In the document that will be made publicly available, your name will be shown as Ms X, and nothing further about you personally will be disclosed.

[47]     For those reasons, I make a permanent order suppressing your name and identifying particulars and confirm that the names and identifying particulars of your

children are suppressed by operation of law.

12     Criminal Procedure Act 2011, s 204.

13     Ibid, s 200(1) and (2).

14     Ibid, s 200(2)(f).

[48]     Ms X, you have been through difficult times.  You are making extraordinary efforts to put right, as far as it can be, what has happened before.  You have given yourself a life sentence and I understand that.  Good luck with your endeavours in the future.

[49]     Stand down.

P R Heath J