DPP v LK [2020] VSC 193

3 In any event, you have pleaded guilty to the charge of reckless conduct set out above having offered to do so on 24 January 2020. I regard that plea as being an entirely appropriate way of dealing with this matter and I commend the good common sense of the parties.

4 The first thing to be said about this case is that the consequences for both you and your daughter might have been much worse and you, your daughter and the community should be grateful for that outcome.

5 You are still young, having been born on 21 November 1993. Your daughter was born on 12 July 2018 and is almost two years of age.

6 She was born after you had been in a short relationship with her father, Jason Chan, who was killed in a motor vehicle accident in Hong Kong in September 2018. That is what is set out in the Crown opening but you have separately reported on a number of occasions that he died in his sleep, but I suppose nothing much turns on the difference. His death was sudden and unexpected.

7 After the birth of your daughter, you had undergone a number of medical reviews by both doctors and mental health nurses. On 24 August 2018, Dr Yao, your general practitioner, had referred you for a mental health assessment but you did not take that up, although he noted 'no self-harm nor risk to baby' at that time.

8 On 27 August, you had an appointment with mental health nurse, Mary Kang, who noted that at the time, 'risk of postpartum depression', although about a week later, she noted 'no concerns for postpartum depression'. At that time, you and your daughter had been living with your mother, your stepfather and your sister in Bundoora.

9 In May 2019, you had been arguing with your mother and apparently you had broken a TV and a microwave. Your mother eventually asked you to move out of the house. At about 10 pm on 15 May 2019, in an SMS exchange with your sister, Nikki, you said you were 'going to kill [your daughter] and then yourself'. At about 10.55 pm you repeated those threats in a WeChat message.

10 At about 11.16 pm, you booked a taxi to take you to the Mantra Hotel in Russell Street. At about 11.20 pm you booked a room at that hotel. At 11.42 pm, you posted a further WeChat message where you said 'I have decided to commit suicide'. At about midnight, you checked into the hotel and were given room number 805, on the eighth floor.

11 You later reported that you had consumed four glasses of wine and in another place you said a bottle, again not much difference can be found in that.

12 At about 5.50 am on 16 May 2019, you rang 000 and spoke to Ambulance Victoria. You said 'I kill myself'. The ambulance arrived at the hotel at about 6.05 am and managed to get into your room which was found to be vacant. The ambulance officers noted that on the balcony of the sixth floor, there was a baby lying face down in a raised flower bed. You were lying on the balcony calling for help. Your daughter was taken to the Royal Children's Hospital for assessment and she was found to have suffered a broken collarbone.

13 You were taken to the Royal Melbourne Hospital when you were found on examination to have:

(a) a fracture at the base of the skull;

(b) undisplaced T12 column fracture;

(c) left 9-11 rib fractures, comminuted and displaced;

(d) small right pneumothorax;

(e) right lung contusion;

(f) left olecranon fracture, displaced;

(g) grate 2 splenic capsular laceration;

(h) devascluarised ischaemic splenic flexure;

(i) traumatic dissection medial branch renal artery with renal infarction;

(j) 2x small bowel mesenteric haematoma;

(k) caescal serosal tear;

(l) abdominal wall muscle herniation; and

(m) traumatic pancreatitis.

14 The police were able to search the hotel room and there recovered your phone from which the material to which I have referred to above was obtained.

15 On 17 May 2019, while in hospital you said you had been 'Feeling depressed for at least 12-18 months since the birth', that is why you jumped off the balcony. Your daughter was then only 10 months old. You said that your depression had become worse because of the death of your partner in September 2018. You said you jumped holding your daughter. You did not want her to live without a mother and a father.

16 You said a number of other things whilst in hospital in which you emphasise that you became depressed after the death of your partner and you did not regard life as worth living. You said that you jumped intending to kill yourself and your daughter but later said that was not your intention.

17 On 6 June 2019 you were arrested, charged and remanded in custody. You had been under police guard since 16 May 2019. You remained in custody until 7 February 2020, when I released you on bail.

18 In the two years before the birth of your daughter you had been employed as a cosmetic consultant in a large department store. You were trying to resume that work at the time of these events. The report of Dr Fiona Best, forensic psychiatrist, dated 2 August 2019 and the report of Dr Praveen Das dated 5 December 2019 were tendered on the plea and became Exhibits 2 and 3.

19 The basis of the report of Dr Best was to advise on issues relating to mental impairment and whether there were reasons involving principles set out in R v Verdins[2] in relation to your sentence. Dr Das' report was prepared in reply.

20 Because of the question of your possible intoxication, the question of mental impairment was never finally resolved although it does not seem to have been opened. It seems fair to say that both psychiatrists formed the view that you were suffering from a major depressive disorder at the time of these events and the disorder was linked to your pregnancy.

21 Your daughter was born six weeks prematurely. Giving birth, the death of your daughter's father, and in the context of your difficult upbringing, and your relationship with your mother, it seems to me that both psychiatrists found that the matters which would underlie the crime of infanticide were present in your case.

23 You are now 26 years of age. You were born in the New Territories and are Hong Kong Chinese. Your mother had left Hong Kong when you were 7, leaving you with your elder brother in the care of an aunt and your grandparents. You grew up in Hong Kong. You had little contact with your father, even though he was in Hong Kong at that time and is now in Australia.

24 Your younger sister was born in Australia and your mother returned to Hong Kong for about 18 months at that time. She returned to Australia, leaving you and your brother again in the care of your aunt and your extended family. You regarded yourself as very isolated during that time. When you were 13 your mother returned to Hong Kong and brought you to Australia. You struggled with English and your education was difficult because of that. You did better in mathematics, which did not rely upon English skills.

25 You left home at 16 and were involved with your then partner, who was 19. That arrangement lasted for two years and, after spending six months at the end of that relationship living with a friend, you returned home after one of your aunts intervened on your behalf.

26 In what must have been mid-2017 you went to Hong Kong on a 14-day holiday. You became involved with Jason Chan and you became pregnant. Jason Chan was already in a relationship. You did, however, hold out hope that you and your daughter would be able to have a relationship with him. He did not appear particularly to want to be in such a relationship, but his death in September 2018 when your daughter was only about two months old meant that the question could never be resolved.

27 Your feelings were such that you did go to the trouble of going to Hong Kong to attend the funeral. After your daughter's birth you were living at home, as I have already pointed out, with your mother, stepfather and younger sister.

28 At that time, your family was estranged from your older brother, although that has been resolved and you are presently living with him. After your daughter's birth, you struggled in your relationship with your mother and your stepfather, and that led eventually to you leaving home in the circumstances that I have set out above. It is accepted that you were then suffering from post-natal depression and major depressive disorder.

29 You have largely recovered from you physical injuries, but I have taken into account the fact that you received those injuries as part of your general circumstances. I have also taken into account the fact that the injuries suffered by your daughter were relevantly minor.

30 When you were in prison, you had, with the assistance of your mother and your sister, some access to your daughter. There is in force an interim accommodation order by the Children's Court in relation to your daughter, placing her with your mother. And there is still in force an interim family violence intervention order limiting your access, but now allowing you to attend your mother's house.

31 As I understand it, your access to your daughter is under Department of Health and Human Services' supervision, which is very difficult, verging on impossible under the present COVID-19 circumstances. But you have video access to your daughter on an unlimited basis. There is to be a further hearing with respect to custody on 9 June 2020 at the Melbourne Children's Court.

32 I am satisfied that your mental health is now stable. You are on some medication, which you are attempting to vary, but you are actively seeking medical support. But it will be a condition of the Community Correction Order ('CCO') that I am to place you on, if you consent, that you undergo any treatment as directed by the manager.

33 I am satisfied that because of your mental health at the time of the offending, coupled with your difficult upbringing, means that you are less morally culpable than you otherwise would have been, and the question of both general and specific deterrence should be significantly moderated in your case.

34 You have no prior convictions. I regard you as being remorseful. You have the support of your family. Indeed your mother, your sister, your brother and two aunts came to court on the day of your plea.

35 As constrained by what I have said, I have regard to just punishment and denunciation. I regard your prospects of rehabilitation as being reasonable towards good, and I have taken into account your plea of guilty.

36 It has always been the prosecution position that it would not be necessary for me to impose a further term of imprisonment on you and, in general, accept the appropriateness of the CCO.

37 The only question which arises is whether or not I should impose a term of imprisonment upon you, being the 267 days, about nine months, which you have already served, but declare those days as already served. That is the prosecution's position because of the seriousness of the offending, the nature of your young victim and the maximum term of imprisonment for this offence, which is 10 years.

38 Mr Bayles, who appeared on your behalf, submitted that it is not necessary to have a term of imprisonment as part of the sentence. I have come to the conclusion that I would have imposed a CCO in this case even if you had not served a term of imprisonment.

39 In part, and this comparative analysis should not be taken too far, but the contemplated crime of infanticide would carry five years' imprisonment, and if the attempted offence existed, it would carry 2 years' imprisonment, and it is in that context that I have decided that I will impose only a CCO. I do note, however, that you have served 267 days in custody.

40 I am obliged under s 6AAA of the Sentencing Act 1991 to set out what sentence I would have imposed had you not pleaded guilty. I would have sentenced you to be imprisoned for 4 and a half years, with a non-parole period of 2 and a half years, and direct that this indication be entered into the records of the court.

41 I have also decided that it is appropriate that I should order, pursuant to s.464ZF(2) Crimes Act 1958 ('the Act'), that you should provide a sample of saliva or a blood sample for the purpose of DNA analysis. The order will be in the following terms.

1. I order that pursuant to s.464ZF(2) of the Crimes Act 1958, you undergo a forensic procedure for taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A(iii) of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database.

2. The court further orders that pursuant to s.464ZF(2)(a) of the Crimes Act 1958 for the purpose of undergoing the said procedure, you report to the officer in charge of the Broadmeadows police station during the period 4 weeks commencing 28 days after the day of sentence, that is today, or once the instituted conviction appeal is finally determined and the conviction for the forensic sample office is upheld, whichever is the latter.

42 Having considered the charges to which the order relates, all charges on Indictment No.K113507777.1, having considered the seriousness of the circumstances of the forensic sample offence listed above, I am satisfied in all the circumstances that the making of the order is justified for the following reasons, the seriousness of the circumstances of the offending warrant the order and that the granting of the order is in the public interest.

43 I am obliged to indicate to you that if at the time a request is made you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable the forensic procedure to be conducted and I make that order.

44 Although I have set out the dates as being the period of 4 weeks commencing 28 days from now, we will have to keep that matter under review and your legal advisers will keep you informed of how that will work.

45 I had you assessed for your suitability for a CCO and you were found to be suitable in what is a reasonably supportive report.

46 I can only release you on such an order with your consent. You need to listen carefully at the moment. The period of the order would be for 36 months, that you would be required to report to the Broadmeadows Justice Services Centre by telephone on 22 April 2020, that is tomorrow, that is in light of circumstances surrounding COVID-19.

(a) You must not commit another offence for which you could be imprisoned during the time that the order is in force.

(b) You must comply with any obligation or requirement prescribed by Reg 17 of the Sentencing Regulations 2011.

(c) You must report to and receive visits from a Community Corrections officer.

(d) You must report to the Community Corrections Centre within two clear working days of the order starting, that being varied by what I have said above.

(e) You must let a Community Corrections officer know within two clear working days of you changing your address or job.

(f) You must not leave Victoria without first getting permission to do so from a Community Corrections officer.

(g) You must obey all lawful instructions from and directions of Community Corrections officers.

48 The conditions that apply in addition to the mandatory terms are:

(a) You must be under the supervision of a Community Corrections officer for the duration of the order.

(b) You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as directed by the regional manager.

(c) You must participate in programs and or courses that address factors relating to your offending behaviour as directed by the regional manager.

(d) You must participate in programs and or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include personal development programs as to your case directed by the regional manager.

(e) You must attend for review at the Supreme Court of Victoria on 21 July 2020 at 9.30 am.

[1] To ensure that there is no possibility of identifying the victim, this sentence has been anonymised.