New South Wales Supreme Court CITATION : Regina v Juanita Leslie Schoultz [2007] NSWSC 809 HEARING DATE(S) : 23 March 2007, 13 July 2007 JUDGMENT DATE : 27 July 2007 JUDGMENT OF : Barr J at 1 DECISION : The offender is sentenced to a non-parole period of three and one-half years, commencing on 21 June 2005 and expiring on 20 December 2008 and to a balance of sentence of three and one-half years, expiring on 20 June 2012. The first day upon which she will become eligible for release on parole will be 20 December 2008. PARTIES : Regina Juanita Leslie Schoultz FILE NUMBER(S) : SC 2006/896 COUNSEL : M Cunneen P Young SC SOLICITORS : S Kavanagh Nick Boyden Lawyers IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J 27 JULY 2007 2006/896 REGINA v JUANITA LESLIE SCHOULTZ REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Juanita Leslie Schoultz, has pleaded guilty to the manslaughter on 22 February 2005 of her child Elissa Anne. The child was born on 18 May 2004 during the subsistence of a domestic relationship between the offender and a man I need not name. 2 On 26 April 2006 the offender was committed to this Court for trial on a charge of murder. The Crown presented an Indictment but the offender was permitted to defer consideration of a plea on arraignment. The trial was fixed to begin on 26 March 2007. On 6 October 2006 the offender pleaded not guilty and the trial date was confirmed. As will appear, she and her advisers were seeking all the while to obtain a psychiatric opinion about her state of mind at the time of the child's death. Eventually her advisers served on the Crown a report of Dr Westmore, psychiatrist. The Crown qualified Dr Neilssen, psychiatrist to report and both psychiatrists expressed the opinion that the offender had available to her the defence of substantial impairment by abnormality of mind as a consequence of which the appropriate verdict was not guilty of murder but guilty of manslaughter. During the week before the date fixed for commencement of the trial the offender and the Crown came to an agreement that if the offender should plead guilty to manslaughter the Crown would accept the plea in discharge of the Indictment. The parties informed the Court that there would be no need for a trial. On 26 March 2007 the offender asked to be arraigned again, offered the plea of guilty to manslaughter and the Crown accepted the plea in discharge of the Indictment. 3 Although on the face of it the plea was offered late, it can be said that the offer was made on behalf of the offender as soon as Dr Westmore had given his opinion and that reasonable notice was able to be given for the trial fixture to be vacated. So some benefit thereby accrued to the community, entitling the offender to some mitigation of her sentence. 4 The plea was offered and accepted on the basis of voluntary manslaughter, constituted by the commission by the offender of the act causing death in circumstances which would have amounted to murder but for the offender's substantial impairment by abnormality of mind. 5 The offender was born on 27 May 1981 into a family with a strong history of mental disorder. A paternal grandmother was treated for depression. A paternal uncle was admitted to hospital with bipolar disorder. The offender was apparently normal and healthy as a child. She began to smoke cannabis when she was thirteen years old and by the age of sixteen years was smoking the drug daily. During her high school years she needed the assistance of adolescent counsellors following mood swings and deliberate self-harm. No psychiatric diagnosis was apparently made and no medical treatment apparently offered. Although her father was never diagnosed as suffering from any mental disorder he threatened from time to time to commit suicide and the offender was aware of this. She believed that he would one day take his own life. He did so by hanging when she was eighteen years old. The offender found him and helped cut him down. The experience had a very bad effect upon her. She became depressed and began to be beset by troublesome memories of the event and of her father. She trained as a nurse's assistant and worked in that field for two years. She formed a relationship with the man who became the father of her children, but it was not ultimately a happy one. There were tensions and accusations of violence. The offender continued to smoke cannabis and to be troubled by memories of her father's death. She gave birth to a healthy boy in October 2002 and he progressed well. When he was six months old, however, her partner hit her and she took an overdose of a drug. She was admitted to a psychiatric hospital and was diagnosed as suffering from bipolar disorder. She was treated with a mood stabiliser, an anti-depressant and a tranquilising anti-psychotic drug. Those drugs helped and she was able to cease taking them when she became pregnant with Elissa. However, she seems to have continued smoking cannabis. Perhaps one reason was that she believed that it helped her to relax and cope more effectively with the problems she was facing. In fact the drug was probably exacerbating her depression. The officers of the Department of Community Services became concerned about her ability to care for the child or children, probably from the time that she was admitted to hospital following the overdose, and there was extensive contact between that department's officers and the offender from then on. Elissa was born at thirty-three weeks of gestation. She was small, of course, and had mild jaundice. She and the offender remained in hospital for four weeks. After they went home the offender found it difficult to manage her and had to have help. Three times in July and August 2004 the child was taken to Orange Base Hospital and on the third occasion was suffering from a bruise on the cheek. On 16 August 2004 departmental officers removed the child from the care of the offender and placed her in foster care, where she remained for the rest of that year. During that time the offender had access to her. On some occasions of access the child's forehead and arms were bruised and the offender said that the injuries had been caused by the boy or by falling on a toy, explanations those who had to treat the child considered untrue. During all this time the offender continued to receive the assistance of the officers of her local mental health service. Dr de Jong noted that she was very angry towards her partner and had very poor impulse control. Towards the end of 2004 Dr Apler, psychiatrist, observed that she was predisposed towards anger, impulsivity and fluctuating moods. 6 There followed proceedings in the Children's Court, which ordered the child to be returned to the care of the offender. She resumed her role as mother, assisted by a number of welfare organisations. On 18 January 2005 she was diagnosed as suffering from major depression, in remission. On 25 January 2005 her partner moved out of the family home. 7 At about 8:00am on 22 February 2005 the offender and the two children were at home together. The offender's partner had visited the house on the previous evening and cannabis had been smoked. He had left by the time of these events. The offender went into the street, holding Elissa and calling for help and a neighbour took them to hospital. The child was treated in the emergency department but died at 8:55am. A post-mortem examination revealed a number of bruises and other marks over the trunk and the head, one of which was on the forehead. A rib was broken posteriorly. There were two significant fractures of the skull and associated subdural haemorrhage. 8 The severity of the fractures to the skull is exemplified by their length and by the fact that one runs through thick occipital bone, as well as by the separation of the associated lambdoid suture. The evidence shows that Elissa died by having her head struck with great force, probably more than once, by or against some hard object. There was a raised brick hearth in the house and it seems possible that the offender struck the child's head against it. The rib might have been fractured as the child was tightly held. 9 The offender has given a number of accounts of the events of that day. In the earliest report the paediatrician at the hospital said this - Elissa's mother, Juanita, reports that Elissa had been alert and well that morning having woken from a normal night's sleep and there had been no features of illness apparent to Juanita. Juanita reports that whilst getting Elissa dressed, she cried out then went stiff and started to jerk in all her limbs. Juanita reports that she ran from the house to call out for someone to get an ambulance and returned to Elissa to find that she was stiff, blue and unresponsive. Juanita also noted that Elissa's eyes were rolled back and her breathing seemed shallow. 10 Reviewing the hospital notes and reports, Dr Little said - A number of scenarios as to the causation of Elissa's injuries are outlined in the information provided to me by the police. These include: "..the victim flung herself backwards and went into convulsions..", "..she was having a fit, hitting her head on the control..", "..Elissa had fallen over and hit her head on the heater..", and "..sat her down on the floor…I hear this crack and look back and she was … just going everywhere." 11 Summing up the notes and reports of others, Dr Moran said - Juanita said that she was changing Elissa's pyjamas. The change area in the living room is on the floor next to a tiled/brick hearth. The change area consists of some blankets over a carpet and the edge of the brick/tiled hearth behind this is covered with a pillow. Juanita says she sat the child up and that the child flung herself backwards and "went into convulsions". Juanita then picked Elissa up and she said her body was "having spasms every now and then". 12 The offender also said at the hospital that the ambulance officer who was called took the child and hit its head on the door of the ambulance, causing the bruise on the forehead. I am satisfied that that was not true. 13 In none of the early accounts was the offender reported to have said that she could not remember what happened. 14 The offender later told a psychiatrist that the child was just crying and screaming and began to get agitated as she tried to settle her. She said that she remembered grabbing and shaking the child, but no more. She has recently denied to Dr Westmore that she deliberately harmed the child. 15 The offender was interviewed by the Probation and Parole officer who prepared a Pre-Sentence Report for the Court. She would not discuss the circumstances of the child's death but wrote a statement for the Court which, in the absence of other explanation, the officer incorporated into the report. In it the offender said - I'd felt so alone and lost and that morning I was dressing my daughter she had been grizzly and crying since she awoke. I was midway trying to dress her when I felt I just couldn't take it no more. I just wanted her to stop crying when I shook her violently, that's all I really remember. … I want you to know your Honour that I had blocked all this out. It wasn't until I was in jail and on the right medication that things slowly started coming back. I still don't remember everything about that day. But, all I can tell you is I can never ever truly forgive myself for those seconds that I shook my baby. I just wanted her to stop crying and sometimes I felt like it didn't matter what I did when it came to settling my daughter I just wish I knew how to help her. I can now see why I snapped that morning. 16 She referred to the incident as "this terrible accident". 17 The agreed statement of facts says this - On that day the offender went to the bedroom where Elissa slept to attend to her in her cot. The baby was crying loudly for no reason the offender could understand, and she was unable to settle her. The offender took Elissa out of the cot and went into the lounge room of the house with her nappies and day clothes to change and dress her. The offender laid Elissa on a lambs wool blanket on the lounge room floor with the head of Elissa on a pillow adjacent to and partly covering the brick surrounds of the fireplace. The baby had continued crying hysterically the whole time. The offender was leaning over her attempting to calm her, and was singing to her as she did so. Her son … was present as he had been in the bedroom and was asking the offender to put on a DVD he had in his hand. The offender took hold of Elissa and shook her violently. The fatal injuries were consistent with the child's head striking the brick surrounds of the fireplace. When the offender became aware of Elissa's condition she left the house with her to seek help. 18 These various statements, some apparently false, suggest that the offender is having trouble admitting and coming to terms with what she has done. It must be said, however, that she admitted in the statement incorporated in the Pre-Sentence Report that she had "snapped". She also acknowledged to Dr Neilssen that the child had died by non-accidental means. There is her plea of guilty as well, and all that that entails. In the circumstances I am satisfied that the offender killed her child by a deliberate act done with intent to cause grievous bodily harm. I am not satisfied that she intended to kill. 19 It seems possible that her unwillingness or inability frankly to acknowledge her actions is associated with her mental condition. It also seems possible that she genuinely does not remember what happened, though I doubt that. I do not doubt that her repeated expressions of regret are genuine. I accept that she is full of remorse. 20 The offender was admitted to a mental hospital on 24 February 2005, and scheduled as a disordered person. She was discharged on the following day and then readmitted, expressing ideas of suicide. On 2 March 2005 she was discharged into the care of her family. 21 The offender was arrested on 21 June 2005 and has remained in custody since then. Not long after her arrest she was admitted to the female psychiatric ward at Long Bay Hospital because of concerns that she might harm herself. She has been treated by psychiatric staff at the hospital. On 25 August 2005 Dr Martin, psychiatrist, wrote a report to the Mental Health Review Tribunal recommending that she remain under treatment at the hospital. She was then continuing to have thoughts of suicide and had continuing depression and posttraumatic symptoms. Unfortunately there is no expert evidence about her treatment since then. Defence counsel attempted to obtain appropriate records from Justice Health, but no report later than Dr Martin's has been forthcoming. I accept counsel's statements that the offender has continued to seek psychiatric help. That is appropriate, as Dr Westmore and Dr Neilssen agree. Both say that she is likely to suffer long-term psychological and psychiatric problems and needs supervision and treatment. 22 Dr Westmore is of the opinion that the offender was suffering from an underlying condition, namely depressive illness. Dr Neilssen diagnosed major depressive illness, partly in remission, possible bipolar disorder and possible personality disorder, as well as cannabis abuse disorder. These opinions were offered after the two psychiatrists had interviewed and examined the offender and had read the history of her treatment. 23 Some of the statements that the offender has made suggest that there is a long way to go in her treatment. She clearly enough understands that she has been suffering from a mental illness, but readily and vehemently places blame on her former partner, on the Department of Community Services and others for the events leading up to the death of Elissa. Moreover, some of her expectations appear unrealistic. In the statement she wrote for the Court she expressed the intention once again to obtain the care of her son, who has been in foster care as a ward of the State since about the time of the offender's arrest. I note Dr Neilssen's opinion that the offender should have the care of children only under supervision. 24 The offender has never before been convicted of any criminal offence and is entitled to be treated as a person of prior good character. 25 I have mentioned the offender's long history of the use of cannabis. I accept that she has not used the drug in custody. I accept that she has been of good behaviour during her period of incarceration so far and is trusted by her officers. Even so, I think that there must be a concern about the risk that after her release into the community she may once again resort to the use of cannabis, believing that she needs it to help her cope with the stresses of life. She also needs more time and encouragement to come to terms with what she has done. These things and her need of long-term psychiatric care and of the careful supervision which must be exercised over her when she returns to the community at the expiration of her non-parole period justify fixing a balance of term, with the chance of parole, greater than twenty-five per cent of the non-parole period. I think that she has reasonable prospects of success if she can obtain the psychiatric care she needs and careful oversight of her progress once she is returned to the community on parole. I note the observation of the author of the Pre-Sentence Report that the supervision of the offender in the community would require the resources of the Probation and Parole Service, the Department of Community Services and Community Mental Health. 26 The offender is sentenced to a non-parole period of three and one-half years, commencing on 21 June 2005 and expiring on 20 December 2008 and to a balance of sentence of three and one-half years, expiring on 20 June 2012. The first day upon which she will become eligible for release on parole will be 20 December 2008. 27 I direct that copies of these remarks be sent to the Governor of the institution where the offender is held and to the officer in charge of the Probation and Parole Service. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.