The same day CM telephoned the offender. The offender told him how happy she was living on a farm with animals around her and being in a natural environment. The offender said "I want the family back together, I am sick of this time wasted in arguments, how do you feel about that?" CM said in effect that a reconciliation was what he wanted. On 31 October, the day of the drowning, CM tried to ring the offender on about four occasions. The telephone was not answered.
4 The offender has a minor criminal record which assumes little, if any, significance for present purposes. In 1997 she was dealt with in the Local Court for an offence of mid-range PCA and driving without a licence. Pecuniary penalties were imposed in respect of those offences and related offences of resisting a police officer in the execution of duty and malicious damage to property. In 2000 a s 10 bond was imposed upon her in respect of an offence of common assault. All of these offences appear to have occurred at a time when the offender was intoxicated.
5 I have been provided with some insight into the offender's general character from statements which have been tendered in evidence. Her former partner CM described the offender as "a person with a good heart, [who] wants peace and a peaceful environment, she is kind, caring, honest. She is a decent person …[She] was a devoted mother…During the time I have known [her] I thought that some of her ideas were unusual however I have not seen anything that would lead me to believe that she was unstable". He also observed that she was not the sort of person who would be naked outside the house. His mother, LM, said that she formed a good relationship with the offender, whom she described as "a lovely person".
6 The offender has been employed, on an intermittent basis, in a number of occupations. She has variously worked as a cleaner and as a gardener, as well as working in a factory and in a nursery. Her employment opportunities have been limited in recent years, in part it would appear because of the debilitating effects of chronic fatigue syndrome and depression from which she has suffered.
7 The offender's landlords, the Browns, whose statements were tendered before me, expressed the view that the offender doted on her baby. They remarked that the baby was very well looked after and always looked immaculate. They said that the offender frequently took the baby for walks down to the river. The deceased was in good health and was progressing normally at the time of her death.
8 The evidence also suggests that the offender was looking positively towards her daughter's future development into childhood. So much is apparent from one of the notes which was discovered in the offender's home to which reference has already been made. Furthermore, Vernon Brown gave evidence during the course of the sentence proceedings. He told me that the offender had top-dressed an area outside her cottage so that the deceased could have lawn on which to play. She also told Mr Brown that she was going to buy a horse for her daughter when she got older. He described her as "the best mother I have ever known".
9 I am satisfied that the offender dearly loved her child and that she looked after her with complete devotion. If anything, she was somewhat obsessive in the manner in which she cared for her.
10 Of considerable significance to the present proceedings is the offender's mental condition at the time of the offence. In order to properly appreciate that issue it is necessary to also sketch some historical details. In November 1998 the offender was admitted to Hornsby Hospital following a suicide attempt. She had taken an overdose of medication which had been prescribed by her GP for insomnia. At the time she reported having had suicidal ideation for a period of two years following her divorce from her husband. Her husband was said to suffer from chronic alcoholism but it appears that the offender also drank heavily during the marriage. He also physically abused her. The offender informed Dr Nielssen, who examined her at the request of the Crown, that the suicide attempt had been "triggered by a visit to her family in Belgium, which she said undermined her image of an ideal childhood". As a result of her hospitalisation, she was prescribed Zoloft which she took for about 12 months.
11 In 2003 the offender received therapy and counselling over a three month period from a psychiatrist, Dr Blows, following the disintegration of her relationship with her daughter, LG. At some stage prior to 2003 LG assaulted the offender. Subsequently apprehended violence orders were taken out by each of them against the other. For some considerable time thereafter there was no contact between them. Contact was only restored following the deceased's birth although relations remained strained, apparently because LG did not "trust [the offender] with her grandson".
12 LG provided a statement in which she described the volatile nature of her relationship with the offender. After her parents separated, she lived mainly with her mother. The relationship undoubtedly deteriorated when LG became dependent upon illicit drugs. It may be that this affected her perception of events. Nevertheless she stated that her mother suffered bouts of depression. She said that at those times she "would lie in bed for a couple of weeks and cry and read self-help books". She described her as at times going "off on a religious tangent". She related several bizarre incidents which had religious overtones. One such occasion occurred when the offender found out that LG was having a son. The offender told her that "he is a very special boy, he is the chosen one, the fate of the world lies in his hands". LG said that the offender also told her that "you need to be careful while you are carrying this boy. Jesus will do anything to kill you." It was outbursts like these which prompted LG not to leave her son in her mother's care.
13 In the present context it is pertinent to observe that CM stated that the offender had wanted to call their baby Jesus if it was a boy. It was his view that "[s]he selected this name in a defiant stance against religion".
14 LG provided details to medical staff whilst the offender was in James Fletcher Hospital of other strange episodes in her mother's history. One of the psychiatrists, Dr Raggett, provided a statement in which he reports being told by LG:
[o]f episodes of depressed mood, tearfulness and apparent preoccupation with religious themes. These episodes lasted for a number of weeks at a time. [LG] also described a time two years previously when her mother had wanted to take her to meet [one of the] "12 Apostles". [LG] also reported that her mother had persuaded [a] church to allow her to preach to the congregation. She had taken this opportunity, however on stating her views that Jesus was a rapist who had raped his sister, she was escorted off stage by security.
In view of this information and the possibility that this alleged conduct represented a prior psychotic episode, RG was asked in detail about this incident and her religious beliefs. She stated that she had been raised in a strict Catholic family, attended church and believed devoutly in the Catholic faith until her marriage when she stopped going to church but retained her belief in God. She stated that her marriage had been traumatic and abusive and following separation from her husband she underwent a period of self reflection which included a re-examination of her religious views. She stated that she then believed that the Bible stories were a "Fairy Story" and she became angry at what she believed was the church's deceit. She did not deny her daughter's account of what happened at the church. She reported that she had wanted to express her anger and may have said "Jesus is a rapist". She said this was a general insult rather than an actual belief. She told me that she did not believe that Jesus existed at all.
15 The Statement of Facts also include a reference to the discovery of notes at the offender's home, concerning her troubled relationship with her own mother. The offender's feelings towards her mother may partly explain her emotional turmoil at the time of the offence. A letter which was addressed to her mother is in the following terms:
I am not going to drink and I am not going to keep smoking to be able to cope with what you've done to me.
Therefore I am going to deal with you here and now. You never wanted me when I was born so I have felt alone and lonely all my life. You did not show me or let me feel any love at all. You thought that I was just another burden on you. You never had time for me. Everything I ever loved as a child you took away from me. This made me believe that I was afraid to lose everything I love. This is why I have had nightmares about bad things happening to the things I love. The fear that you put into me made me afraid to the point of paranoia. You took away my childhood for all you praised me for was the work I did. You prided yourself on the fact that I could work "like a horse". You confused me to think that having you proud was love. So I worked even harder on the farm [which her parents owned]. Then you would break me down and humiliate me by saying to people that I was a dirty animal when it came to housework I was good on the farm but useless when it came to housework you said. You shamed me and belittled me. At school I never measured up for you always pushed me to do better you made me quit school because of that and made me believe that I could not do anything. I remember that I asked a lot of questions when I was little and you shut me down for it was too much for you to answer my questions. You never explained anything about sex to me and made me believe that sex was dirty bad and wrong. When I 'fell in love' with Christiaan you called me a slut, a whore, mansick, poisoned by lust and you envolved (sic) the whole family to come and humiliate me. You let my Uncle suggest that he would have my vagina sewed up if I was his daughter. Later, on my wedding day you wished misery upon me.
You mother, set me up for my life of misery that I had so far for you physically and emotionally abused me. You did not allow me to feel the feelings I had for your (sic) did not let me cry, laugh or be angry.
On the weekends when my sister and I had to wash the dishes you didn't event (sic) allow us to whisper.
You beat me when I was a little toddler you burned my toys.
You said that YOU were going to raise your kids well mother you raised me to hell and back.
I hate everything you have done to me.
It made me over responsible, perfectionist, scared of making mistakes, unable to be in a relationship, take on more than a horse can handle afraid of love and live (sic).
You also made me believe that I deserved everything that happened to me as some sort of punishment for mistakes I made.
But most of all, Mum, you scared me every time you said you were going to kill yourself for I loved you and I did not want to lose you.
I am not going to cry for the rest of my life over milk I have spilt. I am going to heal my life and try very hard to mend things with the people I love.
16 As the Statement of Facts make clear, the offender's behaviour in the period prior to her baby's death was somewhat curious. Her conduct after the event, and particularly following her admission to hospital, was quite bizarre. It included her sucking her thumb, wailing loudly and sniffing at the clothes of staff members. She did not speak for several days. When she resumed speaking she informed Dr Steele that "she was grieving [over] her daughter's death and that she was aware that she would not see her daughter again". She also said that shock had prevented her from being initially able to speak. Dr Bhattacharyya, who also saw her, reported that "her grieving for the loss of her child appeared to increase with time".
17 As noted earlier, the offender remained in James Fletcher Hospital for about a week during which time her mental state was carefully observed. She was only released after doctors satisfied themselves that she was no longer suffering from a mental illness. She was assessed not to have any formal thought disorder, delusions or cognitive impairment.
18 As I have already said, Dr Nielssen examined the offender at the request of the Crown. He then prepared a report in the light of that examination and after having had access to her background history. His assessment of her mental state was that she was suffering from a "psychotic illness (either a relapsing schizophrenia-like illness or a form of bipolar disorder with periods of elevated mood and severe depression)" and "a disabling level of depression (which she had suffered) from as early as 1996".
19 He continued:
[LG] reported episodes of abnormal behaviour and beliefs that were typical of psychotic illness in the years before the alleged offence. Dr Richardson, an experienced and very capable psychiatrist, concluded that RG's presentation at Manning River Base Hospital was due to a psychotic disorder. The accounts of RG's recent conversations and behaviour, including undressing before walking to the river with her child, was consistent with the onset of psychotic illness. The account of her presentation at Taree Hospital was consistent with a catatonic state, in which patients are usually mute. …
The rapid recovery from the acute phase of the illness may have been due to the single injection of potent antipsychotic medication, which is often enough to alleviate catatonic states.
I believe that on the balance of probabilities RG was acutely mentally ill at the time of her daughter's death and has the defence of mental illness available to her. I believe her illness resulted in an acute state of disorganised thinking and behaviour during which she was not aware of the nature and quality of her actions, or that her actions were wrong. …
20 Dr Westmore prepared a report in respect of the offender at the request of her solicitors. He observed that:
[t]he descriptions of her by others at the time she was found in the river suggest a severe behaviour disturbance in addition to anything she did leading to the child's death. I refer to the history where it is reported that she was found naked in the river and severely sunburnt.
The diagnosis of her mental state at the time of this incident is unclear. On the balance of probability however she was acutely disturbed, possibly depressed and/or psychotic. The fact that the symptoms did not take a chronic course argues against the diagnosis of an illness such as schizophrenia and the absence of an illicit drug history excludes the diagnosis of a drug induced psychosis.
Medical notes made shortly after she was admitted refer to her being depressed and suffering psychotic symptoms…
I believe this woman qualifies for the defence of substantial impairment. It is likely, on the balance of probabilities, that she was suffering an acute disturbance of her mental state, possibly of a psychotic type at the time her child died.
This would represent an abnormality of mind which, again on the balance of probability, would have substantially impaired her capacities. Again being precise as to which capacities were disturbed and to what degree is difficult because of the paucity of her history. If she did suffer an acute psychological decompensation, possibly into a psychotic state, then all her capacities may have been adversely affected by such a condition.
21 The offender also told Dr Westmore that she had been sexually abused as a child by her older brother. She told him that she had only recalled in recent times that such abuse had occurred.
22 Dr Westmore also gave evidence before me. It was his opinion that the offender committed the offence whilst "in a state of psychiatric distress". He pointed to the fact that it "occurred within the first twelve months of the post-partum period…[whilst] she was depressed". He also referred to the fact that "there were psycho-social stressors, she had a young infant and was trying to support the child without the assistance of the child's father…She was very unhappy with how that relationship was progressing."
23 Dr Westmore also confirmed the views of others that the offender had a tendency to religiosity which he described as "an abnormal preoccupation with religious themes which is out of context with the person's social and cultural background".
24 Dr Westmore informed me that the offender has had only intermittent contact with psychiatrists whilst she has been in custody. He pointed out that it is "quite hard to get regular psychiatric assistance in custody at present". He said that she has not been on medication for the last twelve months or so.
25 Although he could not identify any indication that the offender is presently suffering from any psychotic symptoms, he described her mood as "subdued". He diagnosed her as "currently suffering from a complicated grief reaction". He went on to say:
[t]he emotional distress she described and demonstrated occurred specifically in the context of questioning about future pregnancies. She became very uncontrollably tearful. She, herself has some insight into the fact that her grieving process has been hampered somewhat by her current situation and an inability that she has to express her grief for fear, I think, of alerting other inmates about her circumstances.
26 The offender has been in protective custody during the course of her incarceration because of the nature of the offence which she has committed. It is apparent that her present custodial circumstances have to some extent restricted her access to psychiatric and educational facilities within the gaol. I will take that factor into account in assessing the appropriate sentence to impose upon her: R v Durocher-Yvon (2003) 58 NSWLR 581.
27 Dr Westmore expressed the opinion that there was nothing to indicate that the offender represented an on-going risk to the community. As he put it, "this has been a very specific event which has occurred probably for some very specific reasons". He said however that there remained a risk of self-harm and further bouts of depression. Upon that subject he observed that, "much will depend on how she comes to terms with what has occurred [and her capacity to resolve her grief] and I think a lot's going to depend on how much support she gets, both professional and otherwise, when she's returned to the community".
28 There is a body of evidence which establishes that the offender will be provided with considerable support when she returns to the community. The Browns have remained in contact with the offender during her incarceration. They have also been looking after her personal effects including her dog and a motor vehicle. Moreover Vernon Brown told me that he and his wife are prepared to provide accommodation upon their farm for the offender upon her release. His family will also provide on-going support for her and will raise the alarm if they form the view that the offender is "going off the rails". They are also prepared to provide transport to enable the offender to travel into Taree, a trip of some 20 minutes, to access psychiatric or any other professional assistance. I have received evidence from the offender's solicitor, Michael Crozier, and a letter from Dr Richardson, who saw the offender immediately after the offence, about the availability of services provided by the Taree Community Mental Health Service. Mr Brown, whose family have lived in the area for five generations, expressed the view that there is no reason to believe that the offender would not be accepted back into the small community of Wingham upon her release. The offender told Dr Westmore that she believed that returning to the farm may indeed assist her in the grieving process.
29 LM, who also gave evidence, informed me that she has visited the offender on a regular basis whilst she has been in custody. She guaranteed to provide the continuing support of herself and her husband for the offender upon her release. I note that she and her husband have been at court to support the offender during the course of the proceedings.
30 LM also told me that in her view the offender does accept responsibility for her actions although she continues to have difficulties coming to grips with the enormity of what she has done.