Infanticide Victoria

In Victoria, infanticide is created by section 6(1) of the Crimes Act 1958. To prove the offence of infanticide, the prosecution must prove beyond reasonable doubt that:

• A woman carried out conduct that caused the death of her child;
• In circumstances that would constitute murder; and
• At the time, the balance of her mind was disturbed because of:
  • Her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or
  • A disorder consequent on her giving birth to that child within the preceding 2 years.

Child

While “child” is not defined for the purpose of section 6 of the Crimes Act 1958, the provision makes it clear that the offence relates to conduct causing the death of a child that is under 2 years of age. The provision also specifies that the offence only applies to the mother to whom the child was born.

Disturbance of mind

As considered by the English Court of Appeal, the effect of giving birth does not need to be the main cause of the disturbance of the mother’s mind, and it is sufficient if the effects of birth were a “substantial or operating” cause (R v Tunstill [2019] 1 WLR 416; [2018] 2 Cr App R 31; [2018] 2 Cr App R 31; [2018] EWCA Crim 1696 at [31]).

The Victorian legislation requires that a mental disturbance suffered by the mother be:

• From the effect of giving birth; or
• A disorder consequent on her giving birth to the child.

This definition includes postnatal depression and psychosis, as well as conditions and factors that may not be strictly biologically connected to childbirth. Unlike the defence of mental impairment, infanticide does not require proof of a particular psychiatric disorder.

In contrast to the defence of mental impairment, infanticide does not require proof of a severe psychiatric disorder. Whilst it will not be sufficient that the offending occurred in circumstances of socioeconomic pressures (such as unemployment, poverty, family violence or lack of social support), these non-biological factors can be utilised to support a finding that the woman was suffering a mental disturbance connected with giving birth to her child. Infanticide, therefore, recognises that despite the absence of a diagnosis, the mother’s circumstances warrant a reduction in her criminal responsibility from murder to infanticide.

Infanticide as an alternative verdict

Section 6(2) of the Crimes Act 1958 permits a jury to return a verdict of infanticide for an accused charged with murder. However, a verdict of murder cannot be brought on a charge of infanticide. Section 6(3) specifically provides that the section does not affect the power of the jury to return a verdict of not guilty on the grounds of mental impairment (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s20).

Sentencing infanticide

Infanticide recognises the particular challenges faced by some mothers postnatally. Recognition of the psychosocial and medical factors that may lead to infanticide favours leniency in sentencing and the imposition of a custodial sentence for infanticide, which is unusual in Victoria.

Infanticide penalty

The maximum penalty for infanticide is level 6 imprisonment, with a maximum of 5 years.

Defences to Infanticide

If you have been charged with infanticide, you may have a defence available. There are several essential questions to consider with an experienced and compassionate lawyer before proceeding:

• Did your actions or omissions cause the death of your child under 2 years old?
• What were the circumstances?
• What was your state of mind at the time?

Evidence of postnatal depression or other psychological disorders may provide a complete defence of mental impairment. If successful, this defence means that an accused who was mentally unwell at the time of the offending conduct cannot be convicted of the offence and is entitled to an acquittal. This defence is codified in section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Infanticide cases

Director of Public Prosecutions v Nguyen [2023] VSC 325

Case Summary:

1. Ms Nguyen pleaded guilty to the offence of infanticide, contrary to s 6(1) of the Crimes Act 1958, in relation to the death of her six-month-old son, S, which occurred on 20 May 2022.
2. The incident involved Ms Nguyen inserting two beads from a teething toy into her son’s throat, causing asphyxiation and death. She then inflicted life-threatening injuries on herself with the intention of ending her life.
3. At the time of the incident, Ms Nguyen was suffering from severe postnatal depression and postnatal anxiety.
4. Ms Nguyen was admitted to intensive care at The Alfred Hospital and later to the psychiatric ward as a voluntary patient.
5. The maximum penalty for the offence under s 6(1) of the Act is five years’ imprisonment, however, neither the prosecution nor the defence suggested a custodial sentence.

Submissions:

1. The prosecution and defence both agreed that a custodial sentence was not appropriate.
2. The defence argued for a release on an adjourned undertaking for a period of up to five years, while the prosecution suggested a Community Correction Order.

Judgement:

1. The court accepted the diagnosis of severe postpartum major depression with psychotic features, grief, and post-traumatic stress symptoms, which were considered extenuating circumstances.
2. The court noted that Ms. Nguyen had no prior criminal history, had shown remorse, and had cooperated with treatment and supervision.
3. The court also considered the victim impact statement from Ms Nguyen’s partner, who expressed hope for increased awareness of postnatal depression and its effects.
4. The court decided that a custodial sentence was not appropriate and that mercy was justified in this case.
5. The court convicted Ms Nguyen and released her on an adjourned undertaking to be of good behaviour for a period of three years under s 72 of the Sentencing Act 1991. The undertaking will remain in force until 9 June 2026.

R v Azzopardi [2004] VSC 509

Case Summary:

1. Ms A pleaded guilty to the charge of infanticide under s.6 of the Crimes Act 1958.
2. The prosecution accepted Ms A’s plea on the basis that at the time of the commission of the offence, she was suffering from a postnatal condition caused by the birth of her child.
3. Ms A was born on 10 November 1972 and was married in October 2000. She fell pregnant in September 2002 and gave birth to her daughter on 11 June 2003.
4. Ms A experienced difficulties with breastfeeding and was disappointed when her daughter was placed on bottle feeding after three days.
5. Ms A contacted the 24-hour government maternal and child health line on multiple occasions, expressing feelings of exhaustion, weight loss, and identification with indicators of depression.
6. On 18 July 2003, Ms A drowned her five-week-old daughter in the bath. She initially attempted to mislead the police by pretending that someone had broken into her house but later confessed to the crime.

Judgement:

1. Ms A was examined by a forensic psychologist and psychiatrist, both of whom concluded that she was suffering from severe postnatal depression at the time of the offence.
2. The court accepted the psychiatric evidence and noted that Ms A was a law-abiding citizen with no criminal record. The court also noted her deep contrition and remorse.
3. The court found that the mitigating factors in the case were overwhelming and that incarcerating Ms A would not serve the community’s interest.
4. The court convicted Ms A and ordered her to enter a community corrections order, which began on 6 December 2004 and ended on 6 June 2006.
5. The order included conditions such as supervision by a Community Corrections officer, continued psychiatric treatment, and compliance with all lawful instructions from Community Corrections officers.

Where an infanticide case is heard

Infanticide cases can only be heard in the County Court or Supreme Court of Victoria.

What to do if charged with infanticide

Legislation for infanticide

Crimes Act 1958, Section 6 Infanticide

(1) If a woman carries out conduct that causes the death of her child in circumstances that would constitute murder and, at the time of carrying out the conduct, the balance of her mind was disturbed because of—

(a) her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or

(b) a disorder consequent on her giving birth to that child within the preceding 2 years—

she is guilty of infanticide, and not of murder, and liable to level 6 imprisonment (5 years maximum).

(2) On an indictment for murder, a woman found not guilty of murder may be found guilty of infanticide.

(3) Nothing in this Act affects the power of the jury on a charge of murder of a child to return a verdict of not guilty because of mental impairment.