REGINA v. POPE [2002] NSWSC 397

IN THE SUPREME COURT OF NEW SOUTH WALES criminal division

1 HIS HONOUR: Karen Diana Pope has pleaded guilty before me to one count of infanticide, that being an offence under s.22A of the Crimes Act 1900 punishable, as for manslaughter, by a maximum of 25 years' imprisonment. That plea has been accepted by the Crown in full discharge of an indictment, which also included a count of murder, to which count Mrs. Pope had pleaded not guilty. 2 The Crown has accepted the plea on the basis that at the time of the acts or omissions causing death, she was suffering from a post-natal condition caused by the birth of the child which, in the context of her pre-existing psychiatric illnesses, affected the balance of her mind to the extent that in wilfully causing the death of the child she was not guilty of murder but guilty of the crime of infanticide. I shall deal with the matter on that basis. 3 The consequence of those pleas is that I am, therefore, to sentence her for the crime of infanticide. That crime was committed on her child, Rachael Victoria Audrey Pope, who was, at the time, aged 12 weeks, in circumstances that, because of the mental condition of Mrs. Pope, have not been able, despite conscientious investigation, to be precisely detailed, but where Mrs. Pope drowned her daughter in the baby's bath. 4 At the time of the acts or omissions causing the death, it is common ground that Mrs. Pope, who had had a lengthy history of psychiatric illness and had been the subject of recent admissions to hospital and very recent medical observation and treatment, was suffering from such a condition of mind as to verge upon not being mentally responsible in law for her actions at all. 5 Later in these remarks on sentence I will refer to the psychiatric opinion concerning her condition at the time in more detail. 6 Following the discovery of the infant's body, Mrs. Pope spent a very lengthy period of time in psychiatric institutions, in full-time care. During that period she was treated for her psychiatric condition, not only with psychotropic medication, but during bouts of catatonia, with electroconvulsive therapy; she was so treated on some 21 occasions. That treatment and the whole of the psychiatric treatment afforded to her, restored her to such a degree of health that on 25 September 2001, by arrangement with her solicitor, she attended the Castle Hill Police Station to be charged with the homicide of her daughter. 7 The background to the events includes reference to the child Rachael having been the child of Mrs. Pope and her present husband, she having had a child by a previous relationship who is somewhat older. The birth of that earlier child had been attended by a consequential post-natal depression on Mrs. Pope's part. She had a lengthy history of psychiatric problems. She had been diagnosed, on occasion, as suffering from severe anxiety neurosis, schizophrenia, including in its acute form, and the post-natal depression following the birth of the first child I have referred to. In early 1998 she was diagnosed as suffering from a major depression and severe anxiety symptoms. 8 It is common ground from a number of witnesses that her marriage was an extremely happy relationship, in which her husband cared for her, and she described him as her best friend and lover. The relatives observing that relationship noted the mutuality of love and care between the partners to the marriage. All noted that her condition improved after she became pregnant with Rachael and that, upon Rachael's birth, she showed immense happiness and great tenderness and care for the child. So much, however, did she care for her child that she increasingly became bizarre in her views as to others not caring or being unable to care for the child when in its vicinity. In particular her worries focused on her mother-in-law. 9 She recommenced smoking, she was having difficulty sleeping, she patently became more and more worried and attended a private hospital, her husband having taken her there, complaining of vomiting, anxiety, conflict within the family and spinal pain. 10 Again, on 28 January 1999, some days later, her husband took her to the same hospital where some details of her psychiatric history were given. She was then diagnosed as suffering from post-natal depression, prescribed Prozac, and a recommendation was given that she see her general practitioner for follow-up treatment. It is patent from all the material that the depth and extent of her condition was not fully recognised at that time. 11 In accordance with that recommendation, her husband took her to see a general practitioner on 1 February 1999. That practitioner was given the history of panic attacks, difficulty sleeping, inappropriate mood and a history of depression. That doctor diagnosed insomnia, agitation and anxiety and prescribed Prothiaden, an anti-depressant, and also advised a follow-up. 12 Unfortunately, the prescribed drug of choice was not available and the doctor gave an authority to a pharmacist to substitute Dothep, and following a further contact by Mrs. Pope's husband with the doctor, Valium in addition was prescribed. 13 On 3 February 1999, Mrs. Pope's relatives visited her. They noticed she was agitated and panicky, smoking, continually drinking tea and apparently she had taken a quantity of Valium already and it was decided that the Valium should be hidden in order to avoid her overdosing. 14 On Thursday 4 February 1999, when Mrs. Pope's mother went to collect her first child to take him to school, Mrs. Pope was still in bed and appeared to be depressed. Her mother took Rachael for the day to enable Mrs. Pope to sleep. However, when her mother returned to the premises that afternoon she could not rouse Mrs. Pope and contacted her husband. An ambulance was called and she was taken to the Baulkham Hills Private Hospital where she was kept overnight. She had overdosed on a number of drugs. She was released with advice to see her general practitioner and psychologist. 15 Again, it appears the extent and nature of the severe condition affecting her was not fully realised. Her husband stayed home to care for her on the 5 February and was with her during the weekend. He took her, on the afternoon of the Saturday, to a chiropractor and thereafter she slept until 11.30 the following day. She appeared to be fine on the Sunday. 16 On the Monday she appeared to her mother to be a bit better. The deceased child was dressed and in her bouncer and Mrs. Pope was caring for her. Mrs. Pope said she was going to stay home for the day and do some housework. 17 About 8.45 am that morning she telephoned a pharmacy enquiring as to whether she could pay by cheque to have her prescription for Prozac filled. She also bought a box of Mersyndol and a herbal stress relief product. Upon attending the pharmacy at about 10.30 she appeared to the pharmacist to be "glassy-eyed", as though she had already taken something. She was sold the Mersyndol. It is possible she may have bought more Mersyndol at another pharmacy. 18 Her husband rang her during the morning to check on her. She told him she had been to see the chiropractor. However, she had missed the appointment, telling the chiropractor she could not go because she was vomiting. Her mother rang around lunchtime; she rang a number of times and there was no answer so she became alarmed and decided to go to check. 19 When she arrived she knocked; there was no answer. She used her own key to unlock the door but couldn't enter because the safety chain was on. She had never known her daughter to use this during the day. She called out but could get no answer. In due course she smashed a window next to the front door to effect entry. 20 She found Mrs. Pope unconscious in bed. She contacted her son in law. She was unable to find the child. She saw empty boxes of Mersyndol and other things on the kitchen bench. She attempted to rouse and interrogate her daughter. The best information she could get in the condition in which Mrs. Pope was, was a statement that the baby was "at Linda's". This appeared to be a reference to a family friend. 21 She asked her son in law for the name of the psychiatrist who had treated her daughter in the past. She contacted that psychiatrist, Doctor Teoh, and gave him the history. Her husband went to Linda's only to find that she had been out all day. When he returned to the home he found that the baby had still not been located. He became highly distressed but, notwithstanding that, was persuaded to return to Linda's in case there had been a misunderstanding. 22 Mrs. Pope's sister had collected the elder child from school and when they returned to the home the baby was located, fully clothed, lying in water in the baby's bath, the lid of which had been closed, hiding her from view. That bath is part of a combined nappy change table and bath unit on a trolley. The nappy change table forms a lid, which fits down over the bath. 23 Mrs. Pope's mother called the police and the ambulance. Mrs. Pope was taken to Westmead Hospital where she was admitted and treated, she being plainly in need of emergency treatment. In due course she was transferred to Cumberland Hospital and remained there under treatment, as I have already said, until February 2000. She was treated by a number of doctors. 24 Doctor Michael Kluger, who had treated her during that period, was of the view that she had suffered from a post-natal psychotic episode of an essentially schizophrenic type and subsequently developed a dissociative amnesia. In consequence, she was unable to recall any of the events leading to Rachael's death, or what she did. She was told of the baby's death only some time after she had been admitted to hospital and refused for some time to accept that information. 25 An investigation of a most detailed kind was carried out by Detective Sergeant McFadden to provide a report to the New South Wales Coroner. That report, which is numbered 10 in the materials forming part of Exhibit A, sets out the prior history of the matter in considerable detail. It noted that the bond between Karen and Rachael Pope was strong and positive. There was no suggestion of hostility in the relationship; the wider family network was supportive and adoring of Rachael; that Karen Pope had a history of mental illness which had included prior overdoses and referred to her admission to St. John of God Hospital at Richmond in 1985, an admission to Cumberland Hospital in 1988, where she was diagnosed as having an acute relapse of schizophrenia and in 1998 the treatment by Doctor Teoh, the psychiatrist to whom I have referred, who treated her in particular, for major depression and severe anxiety. 26 The report further noted that her condition improved and stabilised during the course of the pregnancy and after the birth of Rachael. Reference is made to her depression, including focusing upon a perceived inability of her mother-in-law to be able to hold the baby adequately. The report particularly refers to the attendances at the private hospital to which I have already referred, and the diagnosis of Doctor Cimen of 28 January 1999, who then assessed her at that hospital as suffering from "post partum depression", at a time at which that doctor prescribed Prozac and referred her to a psychiatrist. The general practitioner to whom I have already referred was also of the view that she was then suffering from depression. 27 Doctor Amor, on 4 February 1999, on a further attendance at that private hospital, diagnosed her as suffering from post-natal depression. The pharmacist at the pharmacy she attended when she filled the prescription for Prozac described her as being "under stress and indicated depressive suicidal tendencies". 28 Specifically dealing with particular issues, Detective McFadden was able to ascertain that the extent of the illness she had suffered was such as to verge upon her totally lacking mental responsibility for her actions. He was able to ascertain that the family, including her husband and the more extended family, were entirely supportive and of assistance to her, and that there was no suggestion of any matter which might in any way have caused the child to be at risk, except her mother's mental condition. 29 It was in those circumstances then, and following the interview which the offender conducted with the police on 27 May 1999, that medical reports were obtained from psychiatrists in respect of the possible diagnoses. They confirm what is set out in the report by Detective McFadden. Doctor Teoh confirmed that she had suffered from a severe psychotic illness; he had been seeing her on a monthly basis after her discharge from a psychiatric hospital on 22 February 2000; at that hospital she was treated for chronic schizophrenia. 30 He records, in considerable detail, the medical background to his diagnosis, including the reference to her having become catatonic, that is to say, withdrawn and immobile, a condition which was treated, as I have already referred to, by the bouts of electroconvulsive therapy. He referred to the long history of psychotic illness on her part. 31 From my viewpoint, when dealing with what course should now be taken, he importantly refers to the fact that Mrs. Pope has been attending her appointments with him on a regular basis since discharge from hospital. She has not missed any appointment, has been compliant with her medication under the supervision of her husband, who has been extremely supportive, and he refers to the assistance provided to the family by relatives. 32 Doctor Bruce Westmore, who is a most respected practitioner in this field, reviews the medical history and the history of the pregnancy, together with the offender's personal history. He concludes, following a mental state examination and in the light of the extensive documentation, which includes reference to the opinions of the other medical practitioners, that she suffered from a psychotic illness, and still does; that she suffered at the time of the acts causing death from post-natal depression in a severe form. 33 The differential diagnosis he expressed would include major depression with psychotic symptoms or schizophrenic illness with a significant mood component, which I apprehend would be depression. He concludes that her illness was such as might have totally deprived her of the capacity to know that she ought not to act towards her child as she did and that her capacity to understand right and wrong was also likely to have been affected. Certainly he said she suffered from an acute psychotic illness with a depression of mood with catatonic features. 34 He concludes that, on a balance of probabilities, her illnesses played a primary role in any action she took towards her daughter and that she will obviously require long-term close psychiatric support and supervision. He refers again to her husband's willingness to assist and supervise her. 35 This plenitude of material quite sufficiently establishes that this is a matter which, in accordance with the principles referred to in such cases as Regina v. Scognamiglio (1991) 56 A. Crim. R. 81, Regina v. Letteri (unreported, New South Wales Court of Criminal Appeal, 18 March 1992) and Regina v. Engert (1995) 84 A. Crim. R. 67, should be treated as involving limited reference to any matter of personal or general deterrence. 36 A person suffering from an illness such as this, so affecting their responsibility for their actions, is not an appropriate person either to deter from acting in this fashion by the punitive sanctions of the law or to be made an example of to others in order to deter them from acting in this way. 37 There is no suggestion in this case of any lapse of any culpable kind that arose otherwise than by reason of the illness. It is not suggested the offence was rationally pre-meditated. Mrs. Pope had, prior to these events, not offended against the criminal law and she has, by her plea and by her actions, evinced deep contrition and regret at what has happened to her child at her hands by reason of her illness. 38 The objective gravity of the crime must be considered in the light of the limited culpability of an offender who bears so little responsibility for their acts. Given that one must, however, remain aware that the offender is responsible for an act which took the life of another person and which, but for the abnormality of mind, involved in any such crime as is mitigated by diminished responsibility or as here, by the lack of balance of mind, would bear the character of murder. 39 It is accepted that the plea was entered at the first real opportunity. It is accepted that the plea is of utility. One would, indeed, conclude that the Crown case, on any charge but this, would almost certainly have failed. 40 It is to be accepted also that the sanction the criminal law applies will be an additional burden to Mrs. Pope because she will remain stigmatised by the fact of her conviction even, given that I conclude, as it has been submitted to me by the Director of Public Prosecutions and by counsel for the offender, that I should, that the appropriate course to take is to require Mrs Pope to enter into a bond but, one of the terms of which will be that she submit herself to a further supervising agency, to wit, the Probation and Parole Service. 41 In that regard I note that for the assistance of the family and in particular having regard to the welfare of the child that has been born to Mrs. Pope and her husband since these events and that of Mrs. Pope's older child, there has been entered into voluntarily a care plan registered pursuant to the Children and Young Persons (Care and Protection) Act 1998 at the Children's Court, Lidcombe. That care plan contains detailed provision for assistance and supervision to the family by officers of the Department of Community Services, officers from the Local Area Health Service and members of the families of both Mr. and Mrs. Pope. That supervision is continuous and will continue for quite a long while. 42 That is to ensure not only the welfare of the children, but also in order to ensure the welfare of the children, the welfare of the family unit, and that involves the welfare of Mr. and Mrs. Pope. 43 In the circumstances the appropriate course, as I have indicated, is that I should accept the submission and make an order for a bond pursuant to s.9 of the Crimes (Sentencing Procedure) Act 1999, in lieu of imposing a sentence of imprisonment. The term of such a or bond must not exceed five years. 44 Part 8 of the Crimes (Sentencing Procedure) Act 1999 applies to bonds so ordered. That Part provides that it is necessary, on making such an order, that the bond contain a condition that the offender to whom the bond relates will appear before a court if called on to do so at any time during the term of the bond and must contain a condition that during the term of the bond the person under bond will be of good behaviour and will inform the court in which the bond is imposed of any change in the residential address, and may contain such other conditions as are specified. 45 It is necessary under s.96 of that Act that it be explained to Mrs. Pope the obligations under the bond and the consequences that may follow. 46 Mrs. Pope, under that bond, you are required to be of good behaviour and to inform of any change of address and to appear if called on. I explain to you also that it will be necessary for you to accept the supervision of the Probation and Parole Service in respect of the matters that I shall refer to in a few moments' time. 47 The consequences are that if you fail to comply with those conditions, you could be brought back to court and sentenced according to law, the possible sentences include a number of sanctions, including imprisonment. In the event that there is a breach of the bond, a warrant may be issued for arrest and the court may, unless there are some reasons for excusing such a breach, proceed to enforce the bond by passing sentence in the way in which I have stipulated. 48 In summary, the medical evidence discloses such a severe condition that the court would not be warranted in law in imposing any other penalty than that bond and, therefore, I now pass sentence formally in terms of s.9 requiring you, Mrs. Pope, to enter into a bond for a period of three years, subject to the conditions to which I have referred concerning cal up, good behaviour and notifying residential address, and a further condition requiring you, for the duration of the bond or such lesser period as your supervising officer may think fit, to submit yourself to the supervision of the Probation and Parole Service and to obey reasonable directions of that Service, in particular concerning medical and psychiatric assistance to be provided to you and concerning compliance with the registered care plan. 49 In that regard it will be necessary for you to report to the relevant local Probation and Parole Service Office within 14 days of today's date. That office in your case is located at Parramatta; you should call by appointment to that office. 50 You will have to enter into the bond at the registry and bail will continue until that recognisance is entered. ******

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