SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the application should be refused for those reasons.

[2]  JERRARD JA:  I agree that the application should be dismissed, for the reasons given by Keane JA.

[3]  KEANE JA:  On 24 May 2006, the applicant was convicted upon the verdict of a jury of one count of attempted murder.  The charge was that, on 9 October 2004, the applicant attempted to suffocate her three month old daughter. 

[4] On 25 May 2006, the applicant was sentenced to four years imprisonment, and it was declared that four days had been served in respect of that sentence.  The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive.  I will discuss the applicant's contention after first setting out the circumstances of the offence, the applicant's personal circumstances and the considerations to which the learned sentencing judge referred.

The circumstances of the offence

[5] The applicant was born in April 1984.  She was thus 20 years old at the time of the offence and 22 years of age when she was sentenced. 

[6] The offence occurred when she was experiencing difficulty caring for her three month old baby and a 15 month old daughter.  Both her partner and her mother worked and she was left alone with the children.  On the day in question, the baby girl would not stop crying.  The applicant placed a blanket over the face of the crying baby, but the baby continued to cry.  The applicant then placed a small pillow over the blanket and intermittently pressed it against the child's face over a period of about 15 minutes.  The applicant then placed the baby on her stomach face down on the pillow.  She said that she expected the baby to turn its head to the side, but did not see it do so.  She then walked away and went to the toilet.  Two minutes later she returned and found that the baby was blue and breathing only with difficulty. 

[7] The applicant immediately rang 000 and carried out the instructions given to her by an ambulance officer until the ambulance arrived and the child was taken to hospital.

[8] The child suffered no long term adverse consequences as a result of this incident.

The applicant's personal circumstances

[9] The applicant has a minor criminal history which is essentially irrelevant for present purposes.

[10]  The evidence of the applicant's personal circumstances was principally contained in a report of Dr Michael Beech, a psychiatrist.  This report was tendered in evidence before the sentencing judge by the applicant's legal representatives.  The applicant told Dr Beech that she felt "depressed, alone and smothered" by the demands of caring for her children.  She felt that the baby was especially difficult to manage.

[11]  The applicant told Dr Beech that her own parents had separated before she was born and she felt rejected by her father.  She was "disruptive, truant, oppositional and defiant" at school.  She was sexually abused for a time by her mother's boyfriend.  Her relationship with her partner has been strained and he is sometimes violent towards her.  Somewhat surprisingly, having regard to the applicant's stated difficulties in coping with the demands of caring for infant children, the applicant was pregnant again at the time she was convicted.

[12]  Dr Beech noted that at interview the applicant denied attempting to smother her daughter, although she had told police of the circumstances of the incident summarised above.

[13]  Dr Beech expressed the following conclusions:

"In my opinion, [the applicant] has a mixed personality disorder with features of emotional immaturity, an unstable relationship with her children, and affective instability with periods of low mood. There was not time to fully assess her personality style but in my opinion, it is likely that she is generally an immature young woman and her history is suggestive of a number of traits seen in those who have developed a borderline personality disorder. I believe that it is likely that at the time of the incident, her mood was low and depressed but I believe it is more likely than not that this arose out of adjustment to her circumstances and emotional immaturity rather than the presence of a severe mental illness such as a major depressive episode.

…

In my opinion, it is likely that [the applicant] has an undifferentiated personality disorder with features of emotional immaturity and affective instability. It has been present since early adolescence and is moderately severe. The prognosis at this stage in [sic] guarded. However, it is unlikely that she would be capable of adequate parenting without support within the near future.

I do not believe that she would have been deprived of any capacity, which would have rendered her of unsound mind at the time of the alleged offence. It is likely that she has had an ambivalent attitude towards her child and that the maternal child bonding was disrupted by the circumstances of the birth and aggravated by her own immaturity and the circumstances of her living and her relationships. There is evidence that she has a poor coping style and indeed it is quite possible that her alleged attempt to smother her child did in fact reflect help seeking behaviour. None the less, I do not believe that she would have been deprived of the capacity to know what she was doing was wrong nor that it was dangerous. Her judgment may have been impaired but I believe her actions arose significantly out of her personality style where by she placed her own needs before that of her child.

…

[The applicant] requires further treatment and counselling. I believe she should be referred for further psychiatric assessment with a longer-term possibility that she should be engaged in psychological therapy. She needs assistance with her current living circumstances. I do not believe that currently she is fit to parent children without significant supervision.

Overall, in my opinion, it is more likely that [the applicant] at the time of the alleged offence was seeking both to quell the source of her distress (that is her daughter’s crying) while seeking support and intervention. As noted above, I believe that she is immature and irresponsible and is likely to have placed her needs above that of her daughter’s[.] It is probable, given her description of her actions to police, that her intention was to kill her child at the time but that her judgement [sic] was impaired by her distress caused by her daughter[']s crying. She does not have the personal strengths to cope with these types of demands of parenting and felt unsupported."

[14]  It can be seen that Dr Beech's report does not support the view that the applicant's attempt to murder her child occurred because of mental illness or depression.  Rather, the applicant acted out of impaired judgment associated with her immaturity and inability to cope with the demands of parenting.  Connected with these features was a disturbing irresponsibility associated with a "personality style whereby she placed her own needs before that of her child". 

The sentence

[15]  The learned sentencing judge accepted the submission on behalf of the applicant that, because the applicant desisted of her own motion from her attempt to kill her baby, by virtue of s 538 of the Criminal Code 1899 (Qld) the maximum punishment to which the applicant was liable was imprisonment for seven years.  It should be noted that it was not argued on behalf of the Crown before her Honour that s 538 of the Criminal Code did not apply; and it is not necessary for this Court to consider whether s 538 applied in these circumstances.

[16]  Her Honour recognised that the applicant had also shown "remorse in a very important respect" by desisting from her attempt on the life of her child and calling the ambulance.

[17]  The learned sentencing judge referred to the personal difficulties suffered by the applicant and Dr Beech's opinion as to the applicant's personality problems and immaturity. 

[18]  It was submitted by the Crown Prosecutor to the learned sentencing judge that the appropriate range of imprisonment was between five and six years.  On the applicant's behalf, it was submitted that a non-custodial sentence was appropriate.

[19]  The learned sentencing judge said:

"I am of the view that a finding of attempted murder, which necessarily carries with it a finding of satisfaction beyond reasonable doubt that you intended to kill your baby daughter on the 9th of October, even though you subsequently desisted, calls for a period of imprisonment. It is a very serious offence. These vulnerable little ones in our community really need the public vindication of their rights, because they are silent on their own behalf.

I impose a term of imprisonment of four years upon you. In imposing that head sentence I take into account two important factors; your youth and that the consequences for the baby physically have not been serious. I also order that the report of the psychiatrist, Dr Michael Beech, which is Exhibit 4 on the sentence proceedings be placed with your custodial file and that those who have your care in prison pay particular attention to his concluding recommendations for your further therapy and needs."

The application

[20]  The applicant contends that the sentence which was imposed should be varied by adding a recommendation for parole after 12 to 16 months.  On the applicant's behalf, it is submitted that the learned sentencing judge gave "no significant weight" to the extenuating circumstances identified by Dr Beech, in particular the likelihood that the applicant at the time of the offence "was seeking both to quell the source of her distress (that is her daughter's crying) while seeking support and intervention" bearing in mind that she does not have "the personal strengths to cope with these types of demands of parenting and felt unsupported".  It is also submitted on the applicant's behalf that the learned sentencing judge failed to give sufficient weight to "the recognition of the applicant's remorse for her conduct". 

[21]  It is clear from the learned sentencing judge's remarks that her Honour was fully aware of the personality problems besetting the applicant.  It is also clear that her Honour recognised the circumstance of the applicant's desisting and calling the ambulance as a demonstration of the applicant's remorse: her Honour said so.  In my respectful opinion, to say that her Honour failed to give significant weight to these considerations is simply to fail to recognise that, in this kind of case, there are other more compelling considerations including the strong countervailing consideration which a sentencing judge is obliged to take into account in terms of deterrence both personal and general.[1]  In this regard, two points need to be borne in mind.

[22]  First, it is to be emphasised that the sentence imposed by the learned sentencing judge involved the exercise of a discretion in which competing considerations have to be weighed against each other.  An appeal against such an exercise of discretion can succeed only if an error of the kind identified in House v The King[2] has occurred:  it is not enough that this Court might have struck a different balance between the competing considerations.  While there may be cases where the sentence which has been imposed is so "unreasonable or plainly unjust" in the circumstances that it can be inferred that error has occurred, as was restated in Dinsdale v The Queen,[3] this Court may allow an appeal against sentence only when error is apparent.  The decisions of this Court in R v Reeves[4] and R v Forster[5] confirm that the appropriate range for the offence of attempted murder is generally from 10 to 17 years.  Even allowing for the operation of s 538, it is apparent that the learned sentencing judge has taken into account the circumstances of extenuation in this case.

[23]  Secondly, Dr Beech's report, to which her Honour referred extensively, does not provide any substantial basis for regarding the applicant as a person impeded by circumstances over which she has no control in caring properly for her baby, as opposed to a person whose irresponsible self-regard makes her a danger to infants entrusted to her care.  Considered in its totality, the report of Dr Beech presents a rather disturbing view of the applicant as an immature and irresponsible individual.  To the extent that the applicant's personality problems are associated with her youth, the learned sentencing judge expressly treated them as circumstances of mitigation.  To the extent that the applicant may have acted out of an irresponsible degree of self-regard, that is not a factor which extenuates the criminality of her attempt to murder her baby child.

[24]  There were powerful claims of deterrence upon the discretion of the sentencing judge in this case where the life of an infant was placed at serious risk by her mother who, as the jury found, actually intended to kill her.  It may be that the breadth of the sentencing discretion could have accommodated some marginal reduction in the applicant's non-parole period by reason of her personal circumstances, but to say that is merely to recognise the breadth of the sentencing discretion.  I am respectfully unable to conclude that the sentence imposed by the learned sentencing judge is so "unreasonable or plainly unjust" as to bespeak error on her Honour's part.

Conclusion and order

[25]  The applicant has not demonstrated that the sentence was affected by error on the part of the learned sentencing judge.

[26]  The application for leave to appeal against sentence should be refused.