R v LTN [2011] NSWSC 614

Supreme Court New South Wales

Medium Neutral Citation: R v LTN [2011] NSWSC 614 Hearing dates: 6 June 2011 - 8 June 2011 Decision date: 17 June 2011 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Sentence of 4 years, NPP 2 years, from 21.3.10 Catchwords: CRIMINAL LAW - plea of guilty to manslaughter in satisfaction of indictment for murder - killing of child by her mother during psychotic episode - substantial impairment Category: Sentence Parties: Regina (Crown) LTN (offender) Representation: Counsel S Huggett (Crown) B Rigg (offender) Solicitors S Kavanagh (Solicitor for Public Prosecutions) (Crown) S E O'Connor (Legal Aid Commission) (offender) File Number(s): 2010/72112 Publication restriction: Offender to be identified by initials LTN to protect the identity of the child victim.

REMARKS ON SENTENCE 1The offender stands for sentence for the manslaughter of her 2 year old daughter. To preserve the anonymity of the child, I shall not refer to either of them by name. The offender was charged before me with the murder of the child, but her plea of guilty to manslaughter was accepted by the Crown in satisfaction of the indictment. 2To understand the offence it is necessary to sketch the offender's background. She is 29 years old. She was born in Vietnam, and at the age of 13 she came to this country with her family. She married in 2006, and her daughter was the only child of the marriage. The offence occurred on 21 March 2010. At that time she, her husband and her daughter were living with her parents at Dulwich Hill. 3She has a history of mental illness. In 2003 she was diagnosed as suffering from schizoaffective disorder. She received psychiatric treatment, was prescribed medication and was managed by the Marrickville Community Mental Health Centre. Over the ensuing years, she regularly attended that centre and was reviewed by a consultant psychiatrist. She also had home visits from mental health professionals and telephone contact with them. She had the benefit of the supervision of her husband and her parents and, generally, a significant level of family support. 4It seems that symptoms of her mental illness first appeared after a cousin, to whom she was close, hanged herself in 2000. She and her father witnessed the aftermath of this suicide. She came under psychiatric care when she was admitted to Rozelle Hospital as an involuntary patient in May 2003, after the intervention by police in an incident in which she locked her family inside the family home. Her behaviour was disorganised and disinhibited, and she suffered auditory hallucinations. She was observed to be talking to her deceased cousin, and appeared to be preoccupied with her death. 5She benefited from the treatment available to her and, generally, was compliant with it. However, there were a number of subsequent occasions on which her condition deteriorated. 6She was again admitted to Rozelle Hospital in June 2003 because she had been running in front of traffic. Her behaviour was hostile and obstructive and she exhibited paranoid thoughts. Later in that year, she came to the attention of the Community Mental Health Centre because she reported hearing voices and having delusional thoughts. She told her then boyfriend that she was feeling suicidal because she believed that she was not pretty enough for him. She said that the voices were telling her to kill herself. On one occasion she held a knife and threatened to kill herself, but was restrained by family members. She was still troubled by the suicide of her cousin. 7In early 2004, she told staff at the centre that she had had thoughts of harming herself by driving her car off a cliff or by cutting herself. 8In early 2006, she was again detained as an involuntary patient at Rozelle Hospital following a severe deterioration in her mental state. She had been seen punching a wall and banging her head against it. At the hospital she was assessed as being a medium risk of suicide and was preoccupied with death, saying "Stop the pain ... judgment day ... die, die, die ... kill me." Her behaviour was bizarre, sometimes aggressive, and sometimes sexually inappropriate. Medical staff noted her to be acutely psychotic, and a provisional diagnosis of schizophrenia was made. 9Towards the end of her stay in hospital she showed signs of improvement, but was reluctant to take her medication. She was ultimately discharged, subject to a community treatment order. 10During a home visit in April 2006, she was upset and preoccupied with voices telling her that her family was going to die. A couple of days later she was observed to be delusional, saying that she had a special mission from God and was receiving messages to relieve her parents' suffering by strangling them. She said, however, that she had not acted on those messages and would never hurt her family. She also reported auditory hallucinations about killing herself, but said that she had no intention of doing so. 11She was admitted to Rozelle Hospital yet again in May 2006, where she was observed to be at risk of self harm and harm to others and was described as being disinhibited and promiscuous. She had thoughts about the world and her life ending, although she denied having suicidal thoughts. Nevertheless, she had experienced thoughts of self harm, including choking herself, so that the world would carry on. In that month she came to the attention of the Mental Health Review Tribunal, which made a further community treatment order. 12She gave birth to her daughter on 25 June 2007, and ceased her medication because she was breastfeeding. In the following month the Mental Health Review Tribunal decided not to make a further community treatment order, noting that she appeared to have strong family support, good insight into her illness and compliance with treatment, and a good relationship with her case manager. She was not medicated at that time, and felt well. 13In November 2007, she discovered that she was pregnant again. She was ambivalent about the pregnancy but, due to her religion, termination of it was not an option for her. She ceased taking her medication because of the pregnancy, apparently with the concurrence of her treating psychiatrist. However, at the end of 2007 she was admitted to hospital after her husband noted a deterioration in her mental health. She exhibited gross thought disorder, and there were lacerations and abrasions to her face and legs which were self inflicted. Again, she behaved in a bizarre and sometimes inappropriate way. She was diagnosed as suffering from a relapse of chronic schizophrenia due to the cessation of her medication. She suffered a miscarriage in January 2008, and was discharged at the end of that month. 14During a home visit at the end of 2009, she said that she felt stable and well, although she sometimes experienced symptoms such as receiving special messages from the television. Her caseworker observed her to be anxious about her daughter, expressing a fear that the child might hurt herself. It was agreed that she would attend the Koala Playgroup, for mothers with a mental illness, at Glebe. 15On two occasions in February 2010 she attended that playgroup, where she was seen to be involved with her daughter's activities and interacting a little with the other mothers. The child was observed to be active and energetic, running around excitedly, but not sitting still during reading and music activities. 16It was at this time that there was a deterioration in her condition which, with the wisdom of hindsight, appears to have been significant. Her mother told her caseworker in a phone call that same month that her mental state was "up and down." In a consultation with her treating psychiatrist, also in that same month, the doctor observed her to have an anxiety disorder, noting that she worried about what would happen if she did things, that she was anxious about meeting and mixing with people, and was afraid of what they would think. Notably, a few weeks before the offence she tried to stab her mother, saying that she would kill her and then kill herself and her daughter. Although she had generally been reliable in attending for consultations with her treating psychiatrist, she missed an appointment on 11 March 2010. 17I turn, then, to the fateful day, 21 March 2010. In the late afternoon of that day, the offender's uncle visited the family home. He was concerned about her because she looked very vague and was unresponsive in conversation. He thought that she was getting sick again. Sometime before 9pm the offender left the family home with her daughter. Her mother was also concerned about her, and after she and the daughter left, the mother rang the offender's sister and said, "I don't know why, but I am very worried about this time." 18What ensued after the offender left with her daughter emerges from her admissions to police in a videotaped interview and walkthrough with police. She drove with the child to the Tempe Recreation Reserve, and took her to a canal adjacent to the Cooks River. She intended to drown the child and herself. She sat on a bench on a pathway adjacent to the canal, and sang the child a song. Carrying the child, she then climbed down an embankment and entered the canal. She walked out about 50 metres until she was out of her depth. She tried to get under the water and roll around in it, but she and the child kept flipping over. As she was unable to force herself under the water without letting go of the child, she returned to the shore. At this stage the child was not moving. 19She returned to the path, sat on the same bench and again sang a song to the child. A man walked past. She said to him, "Help me, I've killed my daughter," but he kept walking. She then drove back to the family home, holding the child on her lap. 20Upon arriving home, she said to her parents, "I have killed my daughter. I wanted to kill both of us but I couldn't kill myself." Her father called the emergency line and the police arrived. The child was dead. Her sister arrived and observed that she appeared as she had on a previous occasion when she was unwell and had not taken her medication. (It is not clear when this was, but I take it to be the occasion at the end of 2007 when she was off her medication during her second pregnancy.) 21To one or other of the police officers who came to the home, the offender said: "I have killed my daughter, she drowned." "I drowned her, I wanted to die with her but I couldn't. I should be dead, not her ... . ... I'm a bad teacher to her and I wanted to die with her ... . I hold her close to me and I jump under the water. I kept rolling around and around in the water, trying to die ... . I wanted to die with her. I am the one who should be dead." "I'm a bad mother. ... It's all my fault. I drowned her." "I killed her, I killed the baby. ... I am a bad mother." 22She was arrested. Prior to leaving the family home she pleaded with police on several occasions to allow her to hug her daughter and to dress her. Police protocol prevented the officers from allowing her to do so. She buried her head in her hands and sobbed. 23She was conveyed to Newtown Police Station, where she was placed under the supervision of the custody manager. She said to one of the officers, "Do I get to go to gaol soon? ... I deserve to be locked up forever." 24In the recorded interview, asked why she entered the water with her daughter, she said: "I don't know, I just think that I won't be a good mother ... and I'm just scared that she's going to be bullied or she's going to hurt so I just decided me and her will die together ..." Asked why she wanted to die as well, she said: "I don't know, I just think that I can't do anything anymore and I feel like I'm a bad mother, a bad daughter, a bad wife and I can't ... do anything anymore." 25Asked why she did not think that she was a good mother, she said: "Because of the medicine that I take, sometimes I can't wake up and then ... I try to cook but ... it really confuses me because some days I know how to cook and sometimes I don't and I wake up ... a little funny sometimes. I just don't know like, I can't be there for everyone ... some days I would wake up really early and cook and some days I would wake up really late and my daughter has to knock on the door and call me 'Mummy, Mummy, wake up', ... and then sometimes ... I can't even get up, I hear her voice and it hurts me ... and then I get up, I go out and look after her ... . I don't know what's wrong with me. Some days I drink my medicine and other days I forget and I'm just jumbled up everywhere. I don't know what to do." 26In answer to further questions, she told police something of her psychiatric history and her regime of medication, which required her to take a tablet in the morning and again at night. She acknowledged that she did not always take both tablets each day, and revealed that on the day of the offence she had taken neither of them. Asked why she did not take her tablet that night, she said that she wanted to die with her daughter and she forgot about taking it. Asked why she wanted to die with her daughter, she replied: "I don't know ... I felt that ... I'm not a good teacher to her. I've been going to school with her ... to learn things but then like, it's out of control ... , she doesn't understand and all she does is run around like, jumping up and down and I can't control her and like, when I look at other kids ... they listen and I feel that ... I'm teaching her wrong stuff and I'm not a good mum." 27Asked whether her daughter went to a playgroup or to kindergarten, she said: "Yeah, she goes to the playgroup but then the more I read books or the more I watch TV I get really like, offended because I'm not a good mum ... everyone's talking about me and not being a good mother so everything I read or something like that, I just think that, 'oh, no, you know, I'm doing wrong every day and my daughter's not learning like she's supposed,' ... I'm supposed to read books for her everyday but then she enjoys watching TV more and ... the information I get from anywhere is just wrong and I just can't help myself because I can't help my brain, you know, it just think weird stuff, bad stuff like, all the time." 28Asked if she had ever tried to hurt her daughter before, she said, "I tried to but then ... I couldn't imagine me holding a knife, stabbing her or hurting her ... ." She said that she had never told anyone, even her treating psychiatrist, about this. By her expression "I tried to" I take her to mean that she had thought about harming the child but had never actually attempted to do so. 29A post mortem examination of the child on 23 March 2010 confirmed that the cause of her death was drowning. 30While in custody the offender has been interviewed by two respected forensic psychiatrists, Dr Olav Neilssen, engaged by her legal representatives and Dr Stephen Allnutt, engaged by the Crown. She gave to each of those doctors an account of her state of mind consistent with what she had told the police. In addition, she described to each of them thoughts of a paranoid kind at the time, including a conviction that the world was about to end and that she wanted to die with her daughter. The effect of what she told them was that she feared for the child's well being and, in particular, that she might succumb to mental illness such as she herself had suffered. 31Both these experts confirmed that she suffered from schizophrenia or schizoaffective disorder. Dr Neilssen provided a report in which he expressed the opinion that the offender "was affected by an acute exacerbation of her chronic psychotic illness at the time of the offence." He expressed the view that she had the defence of mental illness available to her, and could also raise the partial defence of substantial impairment by abnormality of mind "because of the effect of symptoms of mental illness on her perception of events and her capacity to judge right from wrong." 32In his report, Dr Allnutt expressed the same view. He put it this way: "... I do believe that she was suffering a defect of reason of a nature and severity that she was significantly compromised in her capacity to know the wrongfulness of the actions for the following reasons: 1. At the material time of the alleged offence she was experiencing a delusional belief of a nihilistic nature perceiving the world to be coming to an end, herself to be a poor mother and fearful for her child's future. 2. She had incorporated the victim, her child, into this delusional belief. 3. She described seeing her behaviour as being the only option for her. 4. She described believing at the material time of the alleged offence that this was the right thing to do and I would be of the view that this was consistent with her delusional justification." He also concluded that she had a defence of mental illness or, alternatively, the partial defence of substantial impairment. 33The offender has no previous convictions. She was educated to year 10 standard and attended TAFE after leaving school. She worked mainly as a nail artist but since 2006, because of her mental illness and the side effects of her medication, she had been on a disability pension. I received a statement from her sister, written on behalf of the family, expressing their shock at her crime but attesting to her good character. Putting aside the symptoms of her mental illness, she is described as a generous and caring person. Her sister acknowledges her illness and her need for treatment in a caring protective environment. Clearly, she has the continuing support of her family. 34She is deeply remorseful for her crime and, as is apparent, has been from the day it was committed. Indeed, when she was first arraigned in this Court she pleaded guilty to murder, in the teeth of advice from her solicitor and counsel that the defence of mental illness was available to her. At that time the Crown was not prepared to accept a plea of guilty to manslaughter because, as I understand it, whether she was not guilty by reason of mental illness was seen to be the central issue in the case. She told her legal representatives that she wanted to plead guilty to murder because she was responsible for what she had done and deserved whatever sentence she got. From an affidavit by her solicitor, Ms Coultas-Roberts, it is apparent that she understood the defence of mental illness and its legal consequences, but could not bring herself to plead not guilty even on that limited basis. The subsequent decision of the Crown to accept her plea of guilty to manslaughter was obviously in the interests of justice. 35By her plea the offender abandoned the prosect of the special verdict of not guilty by reason of mental illness. Her plea was entered on the basis that at the time of the killing she suffered from an abnormality of mind which substantially impaired her capacity to understand events and, in particular, to judge whether her actions were right or wrong. It is that impairment which characterises her crime as manslaughter, rather than murder. Clearly, on the material before me, her impairment was of a very high order. 36While acknowledging that that impairment is the basis for her crime being characterised as manslaughter, the high level of it entitles her to a considerable measure of leniency. Of course, the protection of the community has to be considered and the question whether she poses a danger because of her mental illness must be faced. There are aspects of the history which I have recounted which are cause for concern: her sometimes aggressive behaviour observed in hospital, the delusional experience of messages that she should strangle her parents and her attempt a few weeks before the offence to stab her mother, accompanied by her threats to kill her mother, herself and her daughter. Moreover, it is of concern that she did not reliably take her medicine in the period leading up to offence and did not take it at all on the day itself. She should have known of the danger of not doing so from her experience of going off medication during her second pregnancy. 37Nevertheless, as I have said, it seems that over the years of her treatment between 2003 and 2010 she was generally conscientious in attending for psychiatric treatment and compliant with her regime of medication. From what she told police after her arrest, from her account to the forensic psychiatrists and her discussions with her legal representatives disclosed in the affidavit of Ms Coultas-Roberts, it is apparent that she has insight into her mental illness and recognises it as the cause of her criminal behaviour. As I have said, she is assured of the continuing support of her family. In all the circumstances, I am of the view that she unlikely to present a danger to the community, that she will be compliant with treatment in the future, and that her prospects of rehabilitation are good. 38This is a tragic case. Manslaughter is an inherently serious crime, involving the unlawful killing of a human being. The killing of a child, particularly by his or her mother, is a terrible thing. Nevertheless, the condition of the offender obviously calls for sympathy. One can understand that she believes that her crime deserves severe punishment. But no one in this community, informed of all the circumstances, would demand it. 39I shall reduce the sentence I would have passed by 20% in recognition of the utilitarian value of the offender's plea of guilty. It is common ground that there are special circumstances justifying a departure from the statutory proportion between sentence and non-parole period. But for the plea of guilty, I would have imposed a sentence of imprisonment for 5 years. In recognition of that plea, it will be a term of 4 years. I shall set a non-parole period of 2 years. The sentence will date from the day of the offence, when she was taken into custody, 21 March 2010. She will be eligible for release on parole on 20 March 2012, and the sentence will expire on 20 March 2014. 40For the crime of manslaughter the offender is sentenced to a non-parole period of 2 years, commencing on 21 March 2010 and expiring on 20 March 2012, and a balance of term of 2 years commencing on 21 March 2012 and expiring on 20 March 2014. 41I must express my appreciation to counsel for the Crown and the offender, and those who instruct them, for their responsible and humane approach to this sad case.