The Queen v Wright

IN THE COURT OF APPEAL OF NEW ZEALAND

CA478/00

THE QUEEN

DESIREE ANNE WRIGHT

Hearing:	28 March 2001
Coram:	Richardson P Anderson J John Hansen J
Appearances:	B J Hart for Appellant M A Woolford for Crown
Judgment:	2 May 2001

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

On 19 August 1999 an eight month old boy, River Michael Wiremu Manawatu-Wright, died in the care of his mother, the appellant. In the last six weeks of his life he had suffered many episodes of breathing stoppages, called apnoea, and because of these and recurring digestive disorder he had been returned to hospital care on many occasions. It seemed, after investigation, that this was another sad case of cot death.
On 26 January 2000, some five months after River’s death, the appellant went to the Te Awamutu Police Station with her Pastor. She confessed to having caused her child’s death by smothering him with a blanket and to having partially smothered him on a previous occasion while at Waikato Hospital. She denied any murderous intent but was arrested and charged with murder.
On 27 February 2000 at her request she was again interviewed by the police. At this interview she confessed that she had tried to smother River about 10 times and that most of his apnoea episodes had been caused by this.
On 17 March 2000 she was again interviewed by the police at her request and she made another confession. This time she said that she had administered to the child crushed up Diazepam pills.
In all the appellant seriously interfered with her child’s health about 18 times in the last six weeks of his life. Her explanation was that she had wanted her life back the way it was before River’s birth; that the child had become the centre of attention, with her seeming to be merely his mother; and that she resented attention being drawn to him and away from her. She also felt that the baby had affected her relationship with her parents.
The circumstances of the case, including the appellant’s personal history, show that when she was injuring her child she was suffering from a serious mental disorder known as Munchausen’s Syndrome by Proxy. When the Crown obtained expert psychiatric opinion confirming the disorder it accepted, on the very morning when the appellant’s trial for murder was to begin, a plea of guilty to manslaughter. The appellant was subsequently sentenced to seven years imprisonment. She now appeals against that sentence.
It can be very difficult for a Judge to sentence a person for serious violence induced by a mental disorder falling short of the legal defence of insanity. Often an imperative of public protection may overshadow considerations of reduced responsibility. But sometimes a Court is faced with balancing rightful condemnation of violent conduct, which has brought tragedy and grief to others, with a just appreciation of reduced moral responsibility because of mental disorder, in circumstances where issues of deterrence and risk to others have limited application. This is such a case.
Munchausen’s Syndrome by Proxy is a recognised mental disorder. The literature shows that the syndrome is defined by the conduct of a parent who causes or feigns sickness in a young child, often repeatedly, and in circumstances invoking sympathetic responses by others to the child and parent. Usually the parent is a mother and the child is younger than about six. The actual illness or disorder afflicting the child is likely to be apnoea or the physiological consequences of poisoning by salt or prescription medicines. The parent’s conduct is repetitive and, in about 10% of cases, fatal. The induced or feigned illness in the child is calculated to attract sympathetic care and attention from others, usually medical professionals. For a person so affected to crave that result at the expense of her helpless little child indicates a derangement of personality, the causes of which may not always be apparent but the manifestation of which evidences serious mental disorder.

Background to the offence

The appellant’s mother was only 13 years of age when she gave birth to her. A married couple who were related to the mother immediately adopted the infant to complement their family of four sons. The child appeared to develop well but beginning at primary school and carrying on through intermediate and secondary school the appellant exhibited patterns of dishonesty which led to the involvement of psychologists, youth aid officers, and school counsellors. She left school in the seventh form and at the age of 18 began a pattern of dishonesty offences which over the next three years, until about mid 1998, resulted in many convictions for false pretences, fraudulent use of documents, and theft. Attempts by her parents to obtain psychological assistance for her over that period came to nothing because she would not attend appointments. Also in 1998 after a brief affair with a man in his late 30’s she became pregnant with River. She invented a story that conception resulted from rape and later gave fictional instalments about the prosecution and conviction of the supposed rapist. Three weeks early, at her request, despite warnings that the baby’s physical development was immature, birth was induced. In the absence of any suggestion to the contrary, we have to assume that notwithstanding the implications for the unborn child, there were adequate medical indications for premature induction at the time.
Shortly after River’s birth, nursing staff had noted concerns over a lack of bonding between the mother and child, and a reluctance by her to care for him. Her emotional condition prompted a referral for psychological assessment and anti-depressant medicine was prescribed. On 5 March 1999 the appellant was discharged into the care of a family with whom she remained for a few weeks. She then went to board with a woman member of her church. For three months the medical care of the child involved only regular check-ups. However, early in July 1999 there occurred the first re-admission to hospital because of concerns about coughing and apnoea. This was followed by many more re-admissions over the next few weeks, for similar reasons, until the child died. The following month she was again prescribed medicine for depression.
Various psychiatric opinions, obtained by both the defence and the Crown after the murder charge was laid, refer to the appellant’s mental state in terms of “Adjustment Disorder with depressed mood”; “… some depressive symptomatology in keeping with her vulnerable personality probably aggravated by the increased stress of having to care for a young baby”; “I think the evidence sufficient to indicate that the balance of this woman’s mind was disturbed”. The appellant’s conduct, both confessed and observed; the literature relating to Munchausen’s Syndrome by Proxy; the psychiatric opinions; all these show that the appellant’s treatment of River was a tragic result of a serious mental disorder exacerbated by the emotional aftermath of birth.

Reasons for Sentence

The sentencing Judge noted the contemporary expressions of concern about bonding with the baby and that there had been various attempts to ensure adequate supervision both in and out of hospital. He examined the psychiatric evidence suggestive of Munchausen’s Syndrome by Proxy, and referred to some of the literature on the subject and accepted that the syndrome was a recognised psychiatric disorder. He found that the appellant suffered from the disorder. It was, however, not a form of insanity which leads to the setting aside of criminal responsibility altogether, but –
Rather, the case falls into that very difficult area where a person is criminally responsible, but some allowance may have to be made for their disorder.
The Judge then commented upon implications of such a view, both generally and in terms of this Court’s judgment in R v Tipene and Edmonds CA309/00 and CA310/00, 30 November 2000. In that case sentences of five years and 18 months imprisonment had been respectively imposed on a mother who killed her child, and on her female lover. The Crown had contended that the present case exemplified a course of cruel conduct which rendered it indistinguishable from R v Tipene and Edmonds. We note that on this appeal the Crown accepted that R v Tipene and Edmonds was a worse case than the present.
The Judge found that there should be a sentencing starting point of 10 years imprisonment. He held that this should then be reduced by 15% for the guilty plea, and a further 15% for the psychiatric disorder, resulting in seven years imprisonment.

Counsels’ Arguments on Appeal

In their thorough and helpful submissions to this Court both learned counsel focused on three principal issues – the guilty plea, the confessions, and the appellant’s mental disorder. Mr Hart submitted that in respect of each of these the sentencing Judge had not allowed sufficient discounts. Mr Woolford contended otherwise.
Counsel for the appellant submitted that Ms Wright had never denied causing her baby’s death, but rather had denied any intention to do so. The plea of guilty to manslaughter was entered immediately that charge was preferred against her. As to the confessions, these were the inspiration for the charge because River’s death had been accepted as a cot death. Further, the psychiatric state of the appellant significantly reduced her responsibility.
Counsel for the Crown submitted that the discount of 15% for the guilty plea was within the Judge’s discretion, the discretionary nature having been referred to by this Court in R v C (CA225/98, 3 September 1998). He distinguished this case from one where a guilty plea spares a complainant the burden of giving evidence.
As to the appellant’s co-operation, Mr Woolford accepted that the Judge did not make a specific reference to this in his sentencing remarks but, in view of the summary of facts, the Judge was aware of that matter. He submitted that the confessions were not the product of contrition but another exemplification of the Munchausen’s Syndrome.
As to the appellant’s disorder, Mr Woolford submitted that this should not be regarded as an illness but as an explanation for motivation for the conduct of fabricating or inducing illness in a child. He submitted that there is a voluntary element in such conduct, that it victimises children, and amounts to a form of child abuse. In the present case the repetitive attacks on River amount to aggravating cruelty.
Mr Woolford referred to a number of authorities which confirmed the relevance of psychiatric conditions to sentencing. These included R v C (CA225/98, 3 September 1998); R v Nilsson (CA552/99, 27 July 2000); and R v Abraham (1993) 10 CRNZ 446 at 449.
Counsel submitted that having regard to all of these matters, sufficient allowance was made for mitigating features and the resulting sentence was not manifestly excessive.

Reasons for Judgment

The relevance of mental disorder in sentencing is conveniently summarised in passages from the three judgments of this Court, cited by Mr Woolford and referred to in paragraph 20 above. It is a factor which will inform a just sentence having regard to the character of the disorder and the weight it ought carry when balancing sentencing objectives. Its character may indicate a lesser degree of moral culpability or a greater subjective impact of penalty. It may suggest a more or a less risk of a repetition of offending, so as to direct particular attention to issues of personal deterrence or public protection. And these considerations must be synthesised with the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims. As to that last matter, we are mindful of the Victim Impact Statements in this case, including one presented on behalf of River’s family expressing their grief over the loss of the baby.
The Crimes Act 1961, s 178, and the jurisprudence of other Commonwealth countries, such as England, Canada, and Australia, regard postnatal consequences for a mother as capable of mitigating criminal responsibility for violence to children. The primary purpose of s 178 is to give recognition to mitigating features of postnatal physiology in cases of the culpable homicide of children. Subsection (1) states:-
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.
The extent to which postnatal physiology and its impact on mental condition mitigates criminal responsibility has been debated. For example, Ms Bernadette McSherry, a lecturer in the Faculty of Law at Monash University, argues in the Sydney Law Review (Vol 15:292, 1993) in an article entitled “The Return of the Raging Hormones Theory” that the law has reduced the complex causes of child-killing to a medical model which disregards socio-economic factors. In that writer’s opinion such medical model exemplifies “… antiquated beliefs in the link between women’s physiology and mental illness.” It is the case, however, that Ms McSherry’s thesis is the inaptness of a gender specific defence based on the physiology. She does appear, however, to accept the relevance of postpartum consequences to sentencing.
In another learned article entitled “A Rationale For Infanticide Laws” [1993] Crim.L.R. 903, Dr D Maier-Katkin and Mr R Ogle argue that the English Infanticide Act and the pattern of sentencing that has emerged under it are consistent with the dominant historical trends of the past 200 years in relation to penological principles in general and the punishment of infanticide in particular. In the opinion of these authors, expressed at p913:-
The psychiatric principles from which the Act is derived have been shown to be supported by a considerable body of scientific evidence.
Notwithstanding academic debate, the jurisprudence we must apply is informed by longstanding statutory recognition that significantly mitigating circumstances may occur in connection with parturition and lactation.
In New Zealand the maximum penalty for infanticide is three years imprisonment but more merciful sentences than that are imposed in practice. For example, in R v M (T65/89, Christchurch Registry, 4 April 1991); R v Setefano (S6/91, Wellington Registry, 8 March 1991); and R v Moke (T46/97, Wellington Registry, 12 September 1997), the sentence in each case was two years supervision. A similar pattern is evident in England. In R v Sainsbury (1989) 11 Cr.App.R. (S) 533 the Criminal Division of the Court of Appeal reduced a sentence of 12 months detention to one of probation. The Court was informed that in 59 cases of infanticide dealt with between 1979 and 1988 there had been no custodial sentences, all defendants having been dealt with by means of probation, supervision, or hospital orders.
Infanticide and sentencing approaches to that offence are broadly analogous to, rather than identical to, the offending in the present case. The analogy is in terms of legal recognition of the mitigating factor in offending of psychological disturbance for a time following birth. Here, that mitigating factor must be combined with the concurrent or merging disorder manifested by Munchausen’s Syndrome by Proxy.
In the present case the appellant’s disorder, exacerbated by circumstances which include recent parturition, warranted a considerably greater allowance than the Judge thought appropriate. We think, with respect, that he saw too close an analogy with R v Tipene and Edmonds. This Court’s decision in that case plainly emphasised the need to denounce prolonged cruelty to six year old Mereana Edmonds by two women, neither of whom was affected by a relatively rare, actual mental disorder, still less one exacerbated by recent child birth. That was a case of unremitting brutality. This is one of tragic violence by a mentally disturbed recent mother, without the support of a partner or the skills to care for the infant. A comparison between the two cases must identify the relevant differences and avoid over simplification.
On a closer analysis of the features of the case and all the circumstances, we are satisfied that the 15% allowance for the mitigating mental condition of the appellant was manifestly inadequate.
We are also of the view that inadequate recognition was given to the combined mitigating features of the confession and the guilty plea. As to the latter, it is plain that a plea to a charge of manslaughter could not be entered until the charge had been laid. By accepting such plea the Crown recognised that its indictment for murder overstated the crime. The plea is, however, not a discrete mitigating factor. It must be considered in conjunction with the confessions which disclosed the fact and the extent of the crime. Such confessions must count for something more than even an immediate submission to a charge which, for sound reasons, is always recognised with a significant reduction of an otherwise appropriate sentence.
The Judge’s starting point of 10 years is not an inappropriate measure of the criminality of the acts which caused injury and death. But, for the reasons given earlier in this judgment, we think the learned sentencing Judge erred in his assessment of the allowances which should be made for the combination of the confessions and plea, as one combined factor, and for the appellant’s mental and emotional disorders, as another. At least twice as much allowance should have been made for each of these factors, so as to prescribe four years imprisonment. Such a term represents an appropriate balancing of the relevant sentencing objectives.
For these reasons the appeal against sentence is allowed, the sentence of seven years imprisonment is quashed, and a sentence of four years imprisonment is substituted.

Solicitors
Crown Solicitor, Auckland

[2001] NZCA 138

2 May 2001