The King v G

[2024] NZHC 1201

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-044-3505

[2024] NZHC 1201

THE KING

v

G

Hearing:

15 May 2024

Appearances:

R McCoubrey and I Archibald for the Crown

A Roebeck on instructions from M Kan for the Defendant

Sentencing:

15 May 2024

(REDACTED) SENTENCING NOTES OF GORDON J

Solicitors/Counsel:

Meredith Connell, Auckland M Kan, Auckland

A Roebeck, Auckland

R v G [2024] NZHC 1201 [15 May 2024]

Introduction

[1]                 Ms G, you appear before me for having pleaded guilty to the charge of infanticide of your 15 week old daughter, J.

[2]                 You were originally charged with murder, but following psychiatric reports from three psychiatrists, it became common ground that infanticide rather than murder was the appropriate charge. That is because it was apparent from the reports that you were suffering a severe depressive episode following (and caused by) J’s birth.

[3]                 The offence of infanticide carries a maximum sentence of three years’ imprisonment.1 I say at the outset I will not be sentencing you to imprisonment.

[4]                 Before I begin my sentencing decision I acknowledge the members of J’s family who are, of course, your family as well, who are present in Court.

The offending

[5]                 In entering your guilty plea, you accepted the contents of the summary of facts. Although you are familiar with the summary of facts it is necessary for me to summarise those facts in this decision.

[6]                 On 15 November 2022, J was 15 weeks old. She lived with you, your husband and another family member. That morning, you conducted a number of internet searches on the financial effect of your death on your family. Not long after those searches and after the other two other adults in the household left for work, when you were alone with J, you tragically killed her by drowning her.

[7]                 You then sent messages of love to your husband, your family, and your community group, before attempting to kill yourself. Just before noon, you called 111. You told the operator that you had poisoned yourself intentionally with a household drain cleaner. You then said “I killed my daughter.” When emergency services arrived, you were slumped in the shower next to J’s unresponsive body. She was pronounced dead. You told the paramedic that you had drowned her. A note in your

1      Crimes Act 1961, s 178.

handwriting and dated 15 November 2022 was found at the scene which detailed the unexpected difficulties of motherhood including feelings of isolation and loss of independence and which advised your husband to seek the advice of a Public Trust lawyer.

Victim impact statement

[8]                 The Court has received victim impact statements from your husband and your cousin.

[9]                 It is clear that J was a much-loved baby girl. The impact of her death on your cousin, who is very much a part of your family, has been profound. She says that she can never look at babies the same way again. She says you are “jolly, caring, generous, and the most thoughtful person” she has ever known. She blames herself for not realising sooner you were battling depression and that she was not there to save J. She says that justice for your family is about healing, moving forward, and focussing on your recovery.

[10]            Your husband says that the two of you celebrated when J was born. He says you will both cherish those short-lived memories. He accepts that J is gone but he is here for you. He says you are not a bad person. Instead, you are “smart, intelligent, caring, and a responsible individual” who had severe post-partum depression. He says you need continuous support from your family and friends and working back in the nursing profession is the ideal path for your recovery. He is hopeful that the two of you will get through this very tough time in your lives together.

Your circumstances

[11]            You are 36 years of age. You have no previous convictions. Other than this tragic incident, you have an outstanding background. The Provision of Advice to the Courts report speaks of you being highly literate and educated, having obtained a licence to practise nursing in the country where you were born and lived before moving to New Zealand when you were 26 years old. You gained a New Zealand registration for nursing and worked as a nurse up until your offending. Your workplace was notified of the incident and you resigned, never returning from maternity leave.

Following the incident you have found other employment, but this does not bring you the fulfilment and sense of purpose that you experienced in nursing.

[12]            Leading up to the offending you did not recognise that your mental health was suffering. In retrospect you now recognise the signs but you did not identify them at the time. You cannot remember the sequence of events on that day. At interview you presented as emotional and distressed and wished you could have your baby back.

[13]            You are assessed to be at high risk of self-harm. The report writer recommends a sentence of intensive supervision with special conditions to provide oversight from Community Corrections to aid you in your rehabilitation and reintegration into the community.

[14]            There are a total of five psychiatric reports on the file for you from three psychiatrists. The reports note that you likely meet the diagnostic criteria for chronic major depressive disorder with marked anxiety, peripartum onset. Two psychiatrists further note that you meet criteria for post-traumatic stress disorder with dissociative symptoms, with the traumatic incident being the index offence.

[15]            The Court has received three letters of reference from your nursing colleagues who speak to your positivity and professionalism, both at work and as a friend.

Approach to sentencing

[16]            Infanticide as an offence, is unusual because it recognises that in certain tragic circumstances, such as in this case, where the balance of your mind was disturbed by reason of a disorder consequent upon childbirth, you should not be held fully responsible for the homicide of your own child. The legislation recognises this by setting a maximum term of imprisonment of three years (as opposed to murder or manslaughter, where the maximum penalty is imprisonment for life). Additionally, the principles of sentencing require me to consider any particular circumstances of you as the offender which might make an otherwise appropriate sentence

disproportionately severe, and I must impose the least restrictive outcome that is appropriate in the circumstances.2

[17]            There are no guideline cases for sentencings of this nature. However, I take into account the general desirability of consistency between sentencing decisions for offending in similar circumstances. Counsel have referred me to a number of authorities which indicate that a sentence of imprisonment is rarely imposed.3 The more common sentences for infanticide appear to be supervisory sentences.

Submissions

[18]            At the request of your counsel, Mr Kan, a conviction was not entered when you entered your guilty plea. That is because Ms Roebeck, now appearing for Mr Kan, seeks that you be discharged without conviction. She submits this is appropriate for three main reasons; first she says if convicted your mental health could, and likely would, deteriorate and this would place you at a significant risk of suicide; second she says a conviction could, and likely would result in condemnation and stigma from your community and society as a whole, and third a conviction could and would likely prevent you from returning to your chosen profession of nursing. She says this could cause financial hardship. Alternatively, Ms Roebeck submits that a sentence of conviction and discharge is appropriate.

[19]            In addition, Ms Roebeck applies for your interim name suppression orders to be made permanent.

[20]            Mr McCoubrey, appearing for the Crown, opposes the application for discharge without conviction for three main reasons. First, he submits there is insufficient evidence to show that there is a real and appreciable risk that a conviction will impact on your risk of suicide. Second, he submits that any risk of condemnation and stigma from the community will be sufficiently mitigated by permanent name suppression (which the Crown does not oppose). Third, he submits that the nursing

2      Sentencing Act 2002, s 8.

3      These included: R v Nagle [2013] NZHC 2532; R v Wright [2001] 3 NZLR 22; R v CRS [2012] NZHC 709, (2012) 25 CRNZ 839; R v JRH HC Wellington CRI-2007-032-2799, 31 July 2009; R v Golovale-Siaosi HC Dunedin CRI-2006-012-002533, 11 December 2007.

authorities are best placed to determine whether you are fit to return to nursing, with full knowledge of your conviction.

Name suppression

[21]            The issue of permanent name suppression would commonly be considered at the end of sentencing. But I will address this issue first, as my decision on permanent name suppression will be relevant when considering your application for discharge without conviction.

[22]            A court may make name suppression orders for a defendant if it is satisfied that publication would be likely to cause extreme hardship, and that the hardship clearly outweighs the presumption of open justice.4 In other words, the Court has to make two separate assessments. I will start with the first one. I need to decide whether publication of your name and identifying details would be likely to cause you extreme hardship. That expression means a very high level of hardship.5 “Likely” means a real and appreciable possibility that the risk will eventuate if your name and identifying details are published.6 The risk in your case is a risk of suicide.

[23]            There is another provision I consider you could rely on, although Ms Roebeck has not specifically advanced it. That is, whether publication would be likely to endanger your safety.7 “Likely” again means a real and appreciable possibility that the risk will eventuate if your name and identifying details are published. And the risk is again a risk of suicide.

[24]            Both Ms Roebeck and Mr McCoubrey submit that permanent name suppression is appropriate.

[25]            It is clear from the reports of consultant psychiatrist Dr Dean that you continue to experience symptoms of a major depressive disorder, anxiety, and post-traumatic

4      Criminal Procedure Act 2011, s 200(2)(a).

5      Robertson v Police [2015] NZCA 7 at [48]; D (CA443/2015) v Police [2015] NZCA 541, (2015)

27 CRNZ 614 at [11].

6      D (CA443/2015) v Police, above n 5, at [30(a)].

7      Criminal Procedure Act, s 200(2)(e). “Any person” in subs (2)(e) includes a defendant: R v Shailer

[2015] NZHC 2607 at [17].

stress disorder. He says that you remain a significant risk of suicide. He further says publication of your name is likely to be a further stressor that could increase the risk of suicide.

[26]            I consider that there is a risk of suicide if your name and identifying details were to be published. That satisfies either extreme hardship or endangering your safety. But name suppression does not automatically follow.  There is a second stage I must consider and that is whether, in my discretion, I should make an order for permanent name suppression. An important consideration at this point is the need for open justice. The Court must balance that principle against the risk to you. In this case I consider there can be a balancing that gives some weight to open justice but more weight to the risk to you.

[27]            I propose to make an order for permanent name suppression. Open justice will be served to the extent that the media may report on the case but without naming you or without any details that would identify you.

[28]            In the event that I refuse your application for discharge without conviction there will need to be an exception to the name suppression order so that the Nursing Council of New Zealand may be notified by the Registrar of this Court of your conviction and that the Nursing Council may in turn could refer the conviction to a professional conduct committee. That is conceded by defence counsel in the written submissions.

What sentence should be imposed on your case?

Discharge without conviction

[29]            A discharge without conviction involves a two-step inquiry. First, the Court must identify the direct and indirect consequences of conviction and consider whether those consequences are “out of all proportion” to the gravity of the offence (taking into account all aggravating and mitigating factors of the offending and the offender).8 Then, the Court exercises its discretion as to whether a discharge without conviction

8      Sentencing Act, s 107. See also: Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

is appropriate under s 106 of the Sentencing Act 2002. There must be a “real and appreciable” risk that any given consequence will happen.9

[30]            As I outlined earlier, Ms Roebeck submits that the consequences of your conviction are that your mental health would decline, and you would be at significant risk of suicide. In support of this submission, Ms Roebeck relies on the psychiatric reports which comment on your intermittent suicidal thoughts and continuing mental health issues. She also refers to a number of cases which I will include in a footnote when this decision is typed up.10 In response, Mr McCoubrey submits there is an insufficient evidential basis to link an increased risk of suicide to the entry of a conviction.

[31]            Four of the five psychiatric reports were filed prior to the charge against you being amended. Those reports mainly speak to whether a charge of infanticide is appropriate, and accordingly none directly comment on the impact of conviction on your mental health.

[32]            The only psychiatric report received after the charge was amended is Dr Dean’s report dated 8 April 2024. Dr Dean does not link the risk of suicide to the entry of a conviction.

[33]            I agree with the Crown position. There is simply a lack of expert evidence to show that an increased risk of suicide would be a direct or indirect consequence of the entry of a conviction. In any case, I am not satisfied that the consequences of a conviction would be out of all proportion to the gravity of your offence. As submitted for the Crown, the gravity of your offending is serious. Your personal mitigating factors, such as prompt guilty plea and remorse, do not significantly detract from the gravity of the offending such that the entry of a conviction would be out of all proportion. I return to this point after I have considered the further bases for a discharge without conviction.

9      DC (CA47/2013) v R [2013] NZCA 255 at [43].

10 Prasad v R [2018] NZCA 537; Carruthers v New Zealand Police [2018] NZHC 187; R v T [2021] NZHC 64; R v Waiba HC Auckland T.025743, 8 August 2003; R v Illston HC Whanganui CRI-2011-034-273, 26 October 2011; R v X [2015] NZHC 1244.

[34]            Ms Roebeck’s second basis for a discharge without conviction is that the entry of a conviction would result in you facing condemnation and stigma from your community. Mr McCoubrey submits that permanent name suppression orders would prevent your conviction from becoming public knowledge. I have already decided I will make a permanent name suppression order. I consider this will sufficiently mitigate this concern.

[35]            Third, Ms Roebeck submits that, if convicted, you would likely be prevented from returning to your chosen profession of nursing, either by a delay in the re-registration process or complete prevention from registering as a nurse, and this will cause you financial hardship.

[36]            Mr McCoubrey submits that entry of a conviction does not, in itself, make you unfit to be registered as a nurse.11 Instead, a conviction would require the Registrar of the Court to notify the Nursing Council of New Zealand, and the Nursing Council would   then   refer   the   conviction   to   a   professional   conduct   committee.12   Mr McCoubrey submits that it will remain open to you to satisfy the Nursing Council that, having regard to all the circumstances, including the time that has elapsed since the conviction, the offence does not reflect on your fitness to practise as a health practitioner.

[37]            The Crown position is that the authority best placed to consider whether you are a fit person to return to nursing is the Nursing Council, and not the Court. If you are fit to return, then the Nursing Council is also best placed to decide whether your return should be subject to supervision or conditions, with full knowledge of your conviction.

[38]            Finally, on the financial hardship point, Mr McCoubrey submits that it remains open to you to pursue an alternative field of work, such as your current employment.

[39]            I accept the Crown’s submissions. While I acknowledge Dr Dean’s comment in his report dated 8 April 2024 that a return to your nursing career would enable you

11     Health Practitioners Competence Assurance Act 2003, s 16(c).

12     Health Practitioners Competence Assurance Act, ss 67(a) and 67A(2)(a).

to re-establish your identity and self-worth, I also take into account his comment that a return to the nursing workforce may require your mental health to be closely managed and monitored by the Nursing Council. Further and in any event there is no evidence before the Court as to the likelihood that a professional conduct committee would deny your registration or whether it might simply place conditions on your registration.

[40]            In any case, as Mr McCoubrey submits, this is a determination for the Nursing Council or professional conduct committee to make, and is not a direct or indirect consequence of conviction that is out of all proportion to the gravity of the offence. This finding is consistent with a similar case referred by the Crown, which I will mention in a footnote of this decision when it is typed up.13

[41]            I acknowledge there will be a degree of hardship as any income that you earn is likely to be less than you would earn as a nurse and also that finding alternative employment may not be easy. However, your offending is serious notwithstanding that the charge is one of infanticide rather than murder and notwithstanding mitigating factors relevant to you personally.

[42]            Overall, I consider the consequences of a conviction are low to moderate. The fact that you, if you choose to return to nursing, will be subject to an inquiry as to your fitness to remain a registered nurse, is a proportionate response to your offending. As Mr McCoubrey submits, it is in neither your interests nor the community’s interests for you to return to nursing without further inquiry.

[43]            I do not consider the consequences of a conviction are out of all proportion to the gravity of the offence.

[44]            Accordingly, I now enter a conviction on the charge of infanticide and proceed to sentence.

13     Daleszak v Police [2015] NZHC 1952 at [26].

Conviction and discharge

[45]            I first mention a conviction and discharge.   I deal with the submission by   Ms Roebeck briefly. Conviction and discharge under s 108 of the Sentencing Act means that a conviction will still show up on your record, but instead of being sentenced, you will be discharged.

[46]            I do not accept Ms Roebeck’s submission that this is an appropriate sentence. A conviction and discharge does not mitigate any of the risks or consequences your counsel submits will result from your conviction. It also does not provide the ongoing support that, as I will discuss, can be facilitated by intensive supervision.

Intensive supervision

[47]            And I turn now to intensive supervision. It is clear from the psychiatric reports, the victim impact statements, and your own affidavit, that you need help. On the other hand, I need to keep in mind that a life has been taken.

[48]            The Crown submits that there are two aggravating factors of your offending: premeditation and abuse of trust. I note on your behalf Ms Roebeck disputes both of those propositions. Although the evidence shows that you conducted related internet searches around nine hours prior to the offending, I do not consider premeditation to be an aggravating factor because of the psychiatric evidence that you were in a dissociative state consistent with symptoms of severe depressive disorder, and you have difficulty recalling the events on the day of the offending. I accept that abuse of trust is an aggravating factor of your offending. It is hard to imagine a greater abuse of trust than the taking of a life of a baby. But that is inherent in the offence of infanticide and it is something you will have to live with.

[49]            While there are no mitigating factors of your offending, I keep in mind your guilty plea and the genuine remorse you have shown for your offending.

[50]            In the normal course of sentencing it is usual for a Judge to adopt a starting point and then take into account aggravating features and mitigating features before arriving at the end result. However, I am not going to follow that process in your case.

It is clear to me that a sentence of imprisonment is not appropriate. To the extent that the usual sentencing purposes and principles are required to be served I consider the effects of the offending on you and the fact of a conviction would serve those purposes. As to other purposes, a sentence of intensive supervision would assist in your rehabilitation and reintegration. That is the sentence I consider is appropriate. The period should be for two years.

[51]            I understand that you are already receiving grief counselling and you have ongoing support from your family and friends. In Dr Dean’s report dated 8 April 2024, he recommended for a supervisory end sentence to include a condition of psychological assessment and treatment for PTSD.

[52]            Ms G, at this point in my sentencing decision I am going to pause. That is because before I finally pass sentence on you, I am going to check with counsel as to the conditions I propose, to see if they have any comment on those conditions.

[53]            Ms G, having heard from counsel I now return to my sentencing decision and at this point I ask you to stand:

(a)Your application for a discharge without conviction is refused.

(b)You are sentenced to two years intensive supervision. As well as the standard conditions for such a sentence,14 there will be the following special conditions:

(i)You are to undertake such psychiatric and psychological treatment or counselling or programme as directed by your probation officer (in consultation with your treating clinician); and

(ii)If you become aware that you may be pregnant you are to inform your probation officer immediately.

14     Sentencing Act, s 54F.

(c)Finally, I make an order permanently suppressing your name and identifying details. The exception to this order is that the Nursing Council of New Zealand and any professional conduct committee may be notified of your name, conviction and details of your offending.

[54]Stand down please Ms G.

Gordon J