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The Queen v Nikat [2017] VSC 713 (23 November 2017)

Last Updated: 24 November 2017

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0045

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CRIMINAL LAW – Sentence – Infanticide – Section 6 Crimes Act 1958 – Plea of guilty – Originally charged with murder – Diagnosed depressive disorder – Maximum penalty five years’ imprisonment – Age of child a relevant sentencing factor – Denunciation – Just punishment – Where pre-sentence custody exceeds appropriate sentence – Community Corrections Order – Whether appropriate.

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HIS HONOUR:

1 Sofina Nikat, on 22 September 2017, in this Court, you pleaded guilty to one charge of infanticide. That charge concerns the death of your daughter Sanaya on 9 April 2016. She had been born by caesarean section on 20 January 2015 and therefore at the time of her death was 14 months old.

2 You had originally been charged with murder of Sanaya and your plea of guilty to the charge of infanticide had been first offered on your behalf in March of this year at the committal proceedings.

3 Immediately following your plea on 22 September I heard a summary of the prosecution opening in relation to your offending, victim impact statements produced by the prosecutor and submissions from senior counsel on your behalf in relation to the sentence that should be imposed on you. After that hearing the matter was delayed until a report could be obtained considering your suitability for a Community Corrections Order. That report, dated 24 October 2017, has now been received by the Court.

4 The maximum penalty for infanticide is five years’ imprisonment. It is now my responsibility to sentence you for this offence.

Circumstances of offending

5 As I said, you had originally been charged with the murder of your daughter. However the prosecution finally accepted your plea of guilty to the charge of infanticide because they accepted the expert opinion of Dr Danny Sullivan, to which I will shortly refer and which was set out in two reports.

6 There is, of course, a factual background to your commission of this offence which is also important to Dr Sullivan’s opinion. I will now briefly refer to that background which includes some reference to your personal circumstances.

7 You were born in Fiji in September 1993 and are therefore now aged 24. You have a brother. Your parents are Sofia Shaireen and Mohammad Iqbal. You attended primary school in Lautoka and then progressed to secondary education. Your family was stable and your education was successful. You left secondary college at the end of Year 12 but did not complete the year.

8 In April 2012, when you were 19 years of age, you became engaged to Abdul Sameer Sahib, pursuant to an arranged marriage. You were married in September 2012. As I understand it, your husband lived in Australia and, ultimately, you came here obtaining permanent residency. However you found it difficult being separated from your parents in Fiji and your relationship was difficult. Once here you mainly lived with your parents-in-law and that relationship did not go well. There were significant marital difficulties and a pregnancy which ended in a miscarriage in 2013.

9 In March 2014, you returned to Fiji and the problems between yourself and your husband continued until November 2014. By that stage you had returned to Australia and continued to reside with your husband and his parents, again becoming pregnant during that time.

10 Towards the end of 2014 your relationship difficulties became more serious as a result of which you obtained interim intervention orders against your husband and his parents, by which time you were seven months’ pregnant with Sanaya. Final intervention orders were obtained against your husband and his family in 2015. There was some kind of reconciliation before your child was born.

11 As I have already noted Sanaya was born on 20 January 2015. After her birth your parents arrived in Australia and for a time you resided with them. They stayed in Australia until May 2015 and your husband had also moved in with you, but the troubles continued and he left you in July 2015.

12 From there on your life became complicated and for a time you maintained a long distance relationship with a man named Mohammad Khan, though you and he never actually met in person. That contact finished in early 2016.

13 In November 2015 you moved into a women’s refuge and shortly after that your mother returned to Fiji. Whilst you were at the refuge from time to time you visited your cousin’s house at 47 Perth Street, West Heidelberg and on occasions stayed there overnight. In March 2016 you had contact with a child health nurse at the City of Whitehorse. You told her that your child was waking frequently at night and was needing to be fed. You also discussed resolving your marriage issues by divorce and by obtaining orders for custody.

14 In the two weeks prior to the child’s death she was crying regularly and you were struggling to cope with your circumstances. You spoke numerous times about killing yourself and killing the child. You seemed to blame her for making your life so miserable. At this time the child was seen to have scratches and bruises. You were very agitated at this stage. In the week prior to Sanaya's death she suffered from a seizure which required hospital treatment.

15 On the day of this offence, Saturday 9 April 2016, at about 9.40am you took your child Sanaya for a walk in her pusher. Your cousin had offered to accompany you but you were very clear you did not want that to happen and insisted on going on the walk alone. Much of what then occurred is recorded on various closed circuit television cameras (CCTV).

16 I have seen the CCTV television footage and it was played in court during the plea. It shows you walking pushing a stroller along Liberty Parade and then some time later crossing that street and heading towards the Darebin Creek trail. Shortly after 10.00am, the footage shows you on the eastern side of the Darebin Creek. During the time you were walking you were seen by other people in the vicinity. You were observed by one witness to looked troubled and sad.

17 Sometime after 10.20am, having killed your child by suffocation and leaving her body at the creek, you left the Darebin Creek trail pushing the empty stroller back the way you had come to your cousin’s house in Perth Street.

18 When you returned to the house, you told your cousin that while you were sitting by the creek at Northland someone grabbed the child from the stroller and pushed you. Your cousin called 000 straight away, and the call is logged at 10.39am. You spoke on the phone to the operator until the police arrived.

19 The police arrived and commenced a search. In the early hours of the following morning a family helping in the search located Sanaya's body in the Darebin Creek and police were informed.

20 You gave an account of what occurred to police both when speaking to the triple-0 operator and subsequently at the Heidelberg Police Station, and essentially described an African man who was barefoot and smelled of alcohol who had taken your child. You claimed to have chased him but twisted your ankle when you fell over during the course of that event.

21 Three days later on 12 April 2016, you were formally interviewed by police and during that interview you admitted that you had killed the child. You described Sanaya as being possessed and also referred to criticism that had been made of the child. You said you thought what you did would be better for the child and that she would be in a better place. You described how you killed the child by covering the mouth and nose and rolling the child into the creek. You explained that the reason you gave the account you did of a man seizing the child and taking her away was because you were scared.

22 You have pleaded guilty to the charge of infanticide and you had been willing to do so for some prior to the prosecution accepting your plea. In March 2017 reports were obtained which supported the conclusion that you fell within the meaning of s 6 of the Crimes Act 1958 which establishes the offence of infanticide. You were willing to plead guilty to infanticide at that time. However, a change of mind of one of the medical practitioners who reported on you has meant that the time for finalisation has been unfortunately extended until the production of Dr Sullivan’s reports.

23 In my opinion your plea of guilty does represent a willingness on your part to take responsibility for what you have done, though your continued reluctance to go to the detail of your offence is, I accept, reflective of your shame and distress at what you have done.

24 You are without any previous criminal history.

25 At the conclusion of the hearing on 22 September 2017 I released you on your own undertaking on bail. By that stage you had been in custody for 529 days. No application for bail had been made by you prior to that because, as your counsel put it, you effectively had nowhere to go and, apart from that, you would have been required to establish exceptional circumstances as long as the charge of murder persisted.

26 As I understand it, upon your release on bail by me you were provided with accommodation by the Women’s Housing Limited which is a member of the Corrections Housing Pathways Initiative.

Victim impact statements

27 The Court was provided with six victim impact statements. One of the statements I received was from Ms Zarine Sahib, who is the grandmother of the deceased child. Her statement sets out the extreme stress she has been required to deal with, including the stress of identifying the child with the child’s father. The effect of the death of this child is, as she described it, haunting for the family and this difficult and negative impact will last for a considerable time.

28 The victim impact statement of the father of the child was also read to the Court and it is clear whatever difficulties there were between you and him, he is suffering significantly as a result of Sanaya's death. Likewise, the paternal grandfather of Sanaya filed a statement which again illustrates the emotional turmoil created by what you did.

29 Your step- cousin Rabia Ali also filed a statement describing a profound effect on her life and her family’s life as a result of Sanaya's death. Similar emotional impact was described in the statement of Habib Ali.

30 Finally there was a statement from Loreza Zaheer, who is the grandmother of the child and whose statement was not read aloud but I have considered it with the others.

31 As always is the case, the stress of a loss like this will last with the victims for a significant period of time. The death of a child is traumatic for all connected with that child. I have of course taken the victim impact statements into account in determining the sentence that should be imposed upon you.

Mental state

32 Over a somewhat extended period there were professional assessments of your mental state in order to understand whether at the time of your conduct causing the death of your child the balance of your mind was disturbed because of a disorder consequent on you giving birth to Sanaya within the preceding two years. It is now accepted by the prosecution that the balance of your mind was so disturbed resulting in acceptance of your plea of guilty to infanticide. Earlier assessments from Dr Skinner and Professor Buist do create some difficulties of consistency.

33 However, the decision made by the prosecution to accept your plea to the charge of infanticide was, as I understand, largely based on the report prepared by the Consultant Forensic Psychiatrist, Dr Danny Sullivan and I have concentrated on his opinion. Dr Sullivan's first report is dated 5 September 2017 and based on his observations and assessment of you made on 12 May 2017. He concluded that you would have had a mild to moderate depressive episode. That mood disorder would have begun shortly after your arrival in Australia and was made worse by your pregnancy, the separation from your husband and the stress of raising your child. At the time that Dr Sullivan saw you he diagnosed a recurrent depressive disorder, mild in severity.

34 Dr Sullivan prepared an ‘addendum’ to his report dated 20 September 2017. He restated his opinion about your condition at the time of your daughter’s death and also thought you continued to show the symptoms of the recurrent depressive disorder. He observed, as he had on the previous occasion, that you are reluctant to acknowledge that you caused your daughter’s death. He thought that reflected your shame and distress at what you have done and I accept that without hesitation. I do not consider your post-offence explanations, including your reference to your cousin, as aggravating circumstances. In my opinion you were simply avoiding the acceptance of the reality rather than trying to actually shift the blame for what occurred.

35 Since I accept the conclusions of Dr Sullivan, I will sentence you on that basis. As he said, your depressive disorder continues. However, your conduct has resulted in a tragedy as is always the case with the deliberate killing of one so young and thoroughly defenceless. It is a tragedy for you and everyone connected with your family. It is true, as your counsel submitted, that the death occurred with what might be described as minimal violence. I accept that the way that you acted after you had killed Sanaya was consistent with your irrational mental state.

36 On your behalf it was put that this offence was committed in the context of your social and emotional isolation combined with significant difficulties within your arranged marriage. In addition you are of low to average IQ having been brought up in what appears to have been a strongly co-dependent family atmosphere.

Disposition

37 Your pre-sentence custody of 529 days is on any view a period long in excess of any sentence of imprisonment I would have considered imposing on you.

38 Your counsel, having submitted that a Community Corrections Order was an appropriate sentence to be imposed, meant that on 24 October 2017 a report was prepared by two members of the Department of Justice and Regulation entitled ‘Extended Pre-Sentence Assessment – Outcome Report’. That report has assessed you as suitable for a Community Corrections Order. The report also describes you as ‘highly motivated’ to engage in counselling with a mental health professional. Two conditions are therefore recommended concerning your supervision and also your mental health and treatment. I should say that in accepting that report that I regard your prospects for rehabilitation as reasonably good, though much will depend on the level of personal support that is offered to you and the level at which you accept it. In my opinion a Community Corrections Order would significantly assist your improvement.

39 In the course of submissions, the Senior Prosecutor argued that this was a ‘very serious example’ of the offence of infanticide and that a Community Corrections Order was not an appropriate outcome. However infanticide is an offence to which, because of its very nature, phrases like ‘very serious example’ do not attach in a simplistic manner. The complexity of the mental state of some women after child birth and for some time thereafter is not to be underestimated, particularly when it is made more difficult by the surrounding circumstances which occurred in your case.

40 Reference was made in submissions to R v Azzopardi^[1] in which the offender suffered from postpartum depression at the time of committing the offence. Kellam J concluded that the offender’s psychiatric illness rendered the case one:

...which should be treated as involving limited, if any, reference to any matter of personal or general deterrence. A person suffering from an illness such as that you suffered and which affected your responsibility for your action 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.

41 Logical as that is, in many cases^[2] the offence of infanticide is committed against a very young baby shortly after birth. On the other hand, in Guode,^[3] to which the prosecutor referred, the child subject of the charge of infanticide was aged 17 months. In addition, in that case significant prison sentences were being imposed on the accused in respect of the murder of her other children.

Conclusion

42 Your child was 15 months old. The maximum penalty for this offence is five years’ imprisonment. It therefore can be easily assumed that the Parliament contemplated that there will be occasions when, notwithstanding the mitigating circumstances arising from the mental state of offender, it is appropriate to impose a sentence of imprisonment for the purposes of just punishment and denunciation. Such a sentence can also include conditions which would assist in rehabilitation. It should not be assumed that all cases of infanticide will be met with non-custodial sentences.

43 However, in the unusual circumstances of this case, you have already served 529 days of pre-sentence detention. It would, in my opinion, be thoroughly artificial to announce a sentence of imprisonment on you at this stage of the proceedings which would have inevitably been less than the time in custody you have already served. If it had been the case that you had been charged with infanticide and released on bail and therefore not served any pre-sentence detention, I would have been disposed to sentence you to nine months’ imprisonment in combination with a 12-month Community Corrections Order and, pursuant to the somewhat artificial requirements of s 6AAA of the Sentencing Act 1991, I would have declared that the period of the sentence, had you not pleaded guilty, would have been 18 months' imprisonment.

44 Thus, in all the circumstances, I propose that the sentence now to be imposed on you will be a Community Corrections Order for a period of 12 months.

45 I will hear further from counsel as to the particular conditions which should be included in that order.

^[1] [2004] VSC 509.

^[2] See for example ZZMM [2015] VSC 524 and Azzopardi.

^[3] [2017] VSC 285.