DPP v Deakin [2021] VSC 719

2 When you got home, you filled the bath with water, and put both children in. After they had been in the bath for about 10 minutes, you held the back of your son's head and pushed it face down into the water. He kicked and struggled, while you held his face under the water. You let him go after about 5 seconds. He sat up and started coughing. You got him out of the bath, and went and dressed him in his pyjamas. You left your daughter in the bath alone, while you were dressing your son. After feeding them some dinner, you put them both to bed around 7:30pm.

3 The next morning, you made several calls to police and child protection services phone numbers. You told a child protection worker that you had tried to drown your son; they subsequently contacted the police.

4 When police arrived at your home, you told them that you had tried to drown your son in the bath, because you were not coping anymore and he had been hitting his sister. You said you had been thinking about killing both children for a couple of weeks. You said you held your son underwater for 5 seconds, and he may have ingested some water. When asked what your intention was in relation to your son, you said "I wanted to kill him."

5 Paramedics examined your son. They noted that he did not have any injuries, and did not need hospital treatment. Both children seemed happy and well-cared for, and were physically affectionate with you.

6 When child protection workers arrived around 1:00pm, you said you had called them because you had tried to drown your son. You indicated how you positioned him when you put his head under the water. When one of the workers asked why you had stopped, you said "I didn't want to kill my son." When they clarified by asking "But before, you did?" you replied "Yes". When asked if you also had thoughts about harming your daughter, you said "Yes, both of them."

7 You went on to tell the workers that you had not felt good since the children had been returned to your care by child protection services, about a month earlier. You described feeling tearful, stressed and desperate for help. You said you had suicidal thoughts for the past week, and had made a suicide attempt the day before. You also disclosed that you had a diagnosis of depression and anxiety, and were taking antidepressants.

8 The children were removed from your care, and placed into the care of a family member.

9 You were taken to hospital for a mental health assessment at 1:50pm, before being released into police custody at 4:00pm. At 7:00pm, a forensic medical officer deemed you unfit for interview, and unsafe for release due to the risk that you posed to yourself.

10 On 3 August 2020, you were interviewed again by child protection workers. You repeated that you wanted to drown your children at the time you ran the bath, and had thought about doing it for a couple of weeks.

11 You were originally charged with attempted murder in relation to your son, and reckless conduct endangering a person, for leaving your daughter in the bath unattended. After the prosecution reduced the charges, you pleaded guilty to one charge of reckless conduct endangering your son's life.

12 Your son was a vulnerable child, who was reliant on you for his care. Your actions constituted a serious breach of your parental responsibilities. Although your son did not in fact sustain any physical or mental injuries, your actions placed him at risk of sustaining severe injury or death. Fortunately, you stopped what you were doing after a few seconds, and did not carry through with your original intention. It is also fortunate that both of the children are too young to have any memory of the incident.

13 Your motivation was not anger or revenge, it was desperation. It is necessary to consider your history, particularly your mental health history, to understand how you came to do such a thing to your young son, who you love.

14 You were born in Geelong in March 1998, and were 22 at the time of this incident.

15 Your mother was diagnosed with paranoid schizophrenia, when you were 2 years old. She was often hospitalised, so you experienced frequent and lengthy separation from her from the ages of 2 to 10. During that time, your father was verbally and physically abusive towards you and your three siblings. Both of your parents smoked cannabis, and your father abused alcohol.

16 You completed your high school education at TAFE. After finishing year 12, you worked at Kmart for 3 years, and McDonald's for 4 months.

17 When you were 19, you moved in with your first serious boyfriend, the father of both of your children. You became pregnant with your son 6 months after the relationship began. After your son was born in October 2017, your boyfriend became violent; he would hit, punch and choke you. When your son was only 4 months old, you discovered you were pregnant again. Your boyfriend's repeated and severe violence continued during your second pregnancy. Your daughter was born in December 2018.

18 When your daughter was 5 months old, you left your boyfriend. A family violence intervention order was made against him, in favour of you and the children. After leaving the home you had shared with your boyfriend, you and the children spent some time in transitional housing, before finding a rental property.

19 You began to experience anxiety when you were in primary school, due to your mother's mental illness and your father's violence. Although no formal diagnosis was made at the time, you first experienced depression when you were 16. Around this time, you started "cutting" yourself. You did not receive treatment at the time, and your depression did not resolve. You also started abusing alcohol and cannabis in your teens, in order to deal with your distress.

20 One month after giving birth to your son, you developed post-natal depression. Your GP gave you a mental health plan, but you did not follow it up.

21 In January 2018, you went to a hospital emergency department, reporting depression and thoughts of self-harm; you said you had been "cutting" yourself. You were referred to the Jigsaw Youth Mental Health Service, and prescribed an anti-depressant.

22 When you found out you were pregnant with your daughter, you felt overwhelmed. You continued to experience depression, as well as family violence, throughout that pregnancy. When your daughter was 1 month old, a maternal and child health nurse detected your mental illness, and referred you to a GP. You were again prescribed an anti-depressant. Although the medication had a positive effect, you stopped using it. After the relationship with your boyfriend ended, you did not see a GP or receive any mental health care.

23 In September 2019, your mental health further deteriorated. You isolated yourself from your parents, and were using alcohol and "ice" every day. Around this time, you began experiencing auditory hallucinations of your children babbling and crying, particularly when you were in drug withdrawal. You began to experience delusional affect - the feeling of being in a dream - and psychotic symptoms, such as persecutory delusions that ghosts and human-eating spiders were trying to harm you. Later that month, both children were removed from your care by child protection workers, due to concerns for their welfare.

24 In February 2020, you spent a few days in Odyssey House, to address your substance abuse issues. After you left Odyssey House, you returned home and resumed using ice, GHB and alcohol. At times you would use GHB to the point of blacking out, in an attempt to numb your distress.

25 By March 2020, your persecutory ideation had intensified. You started believing that your neighbours were talking about you, and could see what you were doing. You suspected that people in your neighbourhood were after you and your family. As a result, you went to Melbourne. There, you were arrested after being found intoxicated, walking through traffic, and being verbally aggressive to strangers.

26 On 26 March 2020, the police took you to a hospital for a mental health assessment. After being discharged, you went to the paediatric ward of that hospital, looking for your children, who were not there. You were arrested again, after you broke some glass and a security entry system. Whilst in police custody, you flooded your cell.

27 You were released on bail to a mental health inpatient unit, where you spent a month under a temporary treatment order.

28 During this period, you were paranoid and fearful about a number of things, including: that your children were being sexually abused by their caretaker; that you were under surveillance through the television screen; that there were microchips in your brain; and that your mother was dead. You were agitated, suicidal, making bizarre statements about burying a dead rabbit, and responding to visual hallucinations, including hallucinations of bird-eating spiders.

29 Around this time, you were diagnosed with first episode psychosis, with co-existing multiple substance abuse disorder. You were treated with two antipsychotic medications.

30 Upon discharge from a mental health unit on 1 May 2020, you were referred to local mental health services. Within a few weeks of being discharged, you had started using GHB again, and stopped taking your prescription medication.

31 Around this time, while living with your sister and awaiting housing, you began having unsupervised visits with your children, who were living with their father's cousin.

32 On 30 June 2020, child protection services returned the children to your care, on an interim accommodation order, after their day-care centre reported signs of injury on your son. By 28 July 2020, a few days before this incident, you had found accommodation for yourself and the children in Corio.

33 At the time of the offending, you were being case-managed by Jigsaw. Your last engagement with Jigsaw was by telephone on 15 July 2020. In that call, you denied any psychotic symptoms, suicidal ideation or self-harm, and said you were managing the care of the children well.

34 Notwithstanding what you had told Jigsaw, you continued to experience mental health issues right up to the time of the incident; they included auditory hallucinations, in the form of voices making derogatory or instructive remarks to you. After dropping your son and daughter off at their childcare centre around 8:20am on the morning in question, you performed a Google search for the term "train timetable geelong". You caught a rideshare vehicle to the Corio train station, with the intention of killing yourself by jumping in front of a train. However, you did not go through with your plan, because you did not want the children to suffer if you were not there. You returned home. At 11:15am the same day, you texted your father that you had "Been a bit down and don't know why."

35 Since your arrest for this offending, you have been further assessed and treated in custody. In late August 2020, you were admitted to the prison mental health unit, after self-harming; you also exhibited anxiety and depression.

36 You have been assessed by consultant psychiatrist, Dr Victoria Jackson, who diagnosed you with unspecified psychotic disorder, substance use disorder, major depressive disorder with anxiety, including periods of pre and post-natal depression, and complex post-traumatic stress disorder. Although your psychotic symptoms were precipitated by substance use, Dr Jackson believes that the most likely primary diagnosis is schizophrenia or a depressive schizoaffective disorder, because your symptoms persisted after abstinence from substances. Your treating psychiatrist at Jigsaw agrees with Dr Jackson's diagnosis.

37 According to Dr Jackson, although you understood the nature and quality of your conduct, and knew it was wrong, at the time of offending you were experiencing a psychotic episode, characterised by auditory hallucinations and cognitive disorganisation, with associated depressive mood symptoms. Furthermore, Dr Jackson believes that your psychological history affected your ability to cope, problem-solve, communicate your distress to others, and seek help.

38 In those circumstances, there is no dispute that Verdins principles apply, so as to reduce your moral culpability for this offending.

39 Dr Jackson also believes that prison would weigh more heavily on you than an offender without your mental health issues. Furthermore, in Dr Jackson's opinion, your therapeutic needs would not be met in custody, and trauma-related mental illnesses like yours can be worsened by imprisonment.

40 You do not have any prior convictions. However, you were on bail for other charges at the time of endangering your son's life; accordingly, you have also pleaded guilty to committing an indictable offence whilst on bail.[2] Given your history, and the Verdins considerations, there is not a great need for specific deterrence in this case.

41 You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea. The utilitarian value of your plea is significant, given the suspension of jury trials for several periods due to the COVID-19 pandemic. Your plea has also facilitated the course of justice.

42 There is no dispute that you love both your children, and are genuinely ashamed and remorseful for what you did. The very next morning, you called the police and child protection, and made full admissions. But for your admissions, the offending would have gone completely undetected. The prosecution accepts that your admissions constitute a significant mitigating factor in this case.

43 The sentencing exercise often requires a court to weigh up conflicting factors. On the one hand, the court needs to acknowledge the importance of child protection, particularly for a child as young and vulnerable as your son. On the other hand, there is a public interest in encouraging people who are undergoing a mental health crisis to report what they have done, or are thinking of doing, and to seek help, without fear of harsh criminal penalties being imposed on them if they come forward. The need for general deterrence and denunciation is considerably moderated in a case such as this.

44 I turn to your prospects of rehabilitation. You are currently complying with your medication regime and not using illicit substances; those are both positive factors. You have maintained engagement with your case manager, and continue to take antipsychotic medication. You are currently in remission from positive symptoms of psychosis.

45 You have significant family support from your mother and siblings. You see your children for two hours every week, under supervision, and have expressed a desire to increase the duration of those visits. You are now living with a new partner.

46 You held down employment for a number of years before your children were born. After your release from custody in April of this year, you showed a desire to reengage in paid employment. You have recently got a job working in a factory.

47 Your rehabilitation depends on your continuing to stay away from drugs and alcohol, and continuing to comply with your mental health treatment, including taking all your prescribed medications. You have shown some ability to seek mental health support in the past. However, you have often ceased engagement with treating services prematurely, and stopped taking prescribed medications for your mental illness.

48 You were arrested and remanded into custody on 1 August 2020. You were finally granted bail on 9 April 2021, after several unsuccessful applications. That means you have already spent 251 days, more than 8 months, in custody in connection with these events.

49 The maximum penalty for conduct endangering life is 10 years' imprisonment. The maximum penalty for committing an indictable offence whilst on bail is 30 penalty units or 3 months' imprisonment. However, having regard to the particular circumstances of this case, the prosecution accepts (and I agree) that a further term of imprisonment is not appropriate.

50 Although you have been making good progress towards your rehabilitation whilst on bail, you and the community would both benefit from your being supervised under a community correction order. You have been assessed as suitable for a community correction order, with special conditions of treatment and rehabilitation for drug, alcohol and mental health issues, as well as supervision and judicial monitoring. I am going to impose a single community correction order in respect of both offences for a period of 18 months.

51 The main area of dispute between the parties is as to whether or not I should record a conviction against you. Section 8 of the Sentencing Act 1991 provides that, in exercising the discretion whether or not to record a conviction, the court must have regard to all the circumstances of this case, including:

(a) The nature of the offence;

(b) Your character and past history; and

(c) The impact of the recording of a conviction on your economic well-being, social well-being or employment prospects.

52 You have no prior criminal history. Despite your mental health and substance addiction issues, and other challenging aspects of your childhood, you managed to complete your education and hold down steady employment until you had your son. At the time of offending, you had experienced, and not recovered from, several years of post-natal depression and domestic violence. Your mental health had been deteriorating in the months leading up to the offending. Your two young children had been returned to your care, only a month before this incident. You were isolated, in the midst of the pandemic, and clearly not coping with the children on your own. In a fragile mental state, you had contemplated taking your own life, before contemplating ending theirs instead. However, after a few seconds of holding your son underwater, you came to your senses. Your son has suffered no physical or mental injury as a result of your actions. The next morning, you contacted the authorities, confessed freely to what you had done, and sought help.

53 As Coghlan JA observed at the hearing of your bail application, "This is a case that is at the very edge of the criminal justice system."

54 You are still only 23 years old. You have a lot of work to do to before you will be able to regain greater access to your children; I accept that your prospects of achieving that may be adversely affected by the recording of a conviction. As discussed earlier, I believe that you do have reasonable prospects of rehabilitation, if you continue to stay away from dangerous substances and comply with mental health treatment. I accept that your prospects of obtaining future employment and accommodation may also be adversely affected if a conviction was recorded against you.

55 Having regard to all those matters, I am minded to exercise mercy, and not record any conviction in this case.

56 Had you not pleaded guilty, I would have sentenced you to a total effective sentence of imprisonment of 1 year, plus a community correction order of 24 months.

[2] This offence is the subject of a notice of related summary offences dated 15 April 2021.