What Happened?

In July 2021, Veterinarian Melissa Arbuckle, 32, laid her little girl Lily on the train tracks in Upwey, a suburb in Melbourne’s east. Her initial plan was said to in an attempt kill both herself and her daughter.

The train driver, who was about 52 metres away, didn’t manage to stop in time. The infant died of her injuries, although Arbuckle survived.

Subsequently, Arbuckle pleaded guilty to one count of infanticide, which in Victoria carries a maximum five-year prison sentence.

During sentencing, Justice Dixon agreed with the defence submission that Arbuckle’s was a case that ‘needed to be tempered with mercy’. It is a broken mother’s battle with postpartum psychosis and depression that spiralled into one of the most unimaginable tragedies. The reason behind the submission was that she had suffered major postpartum depression and psychosis not long after the birth of Lily, her daughter.

Justice Dixon further accepted Ms Arbuckle had suffered physical injuries after surviving her murder-suicide attempt, as well as mental injuries from the associated trauma. These factors were relevant in determining the sentence of Ms Arbuckle.

Finally, after ten months of Court proceedings, on Thursday the 8th of April 2022, Supreme Court of Victoria Justice Dixon sentenced Ms Arbuckle to a three-year good behaviour bond, sparing her any jail time. Justice Dixon, in her sentencing remarks added “It is beyond the power of this Court to repair the suffering and loss flowing from your actions in causing Lily’s death. Your life and the lives of others have been forever changed. It’s apparent that no one understood at that time the extent to which your judgment and decision-making were impaired by delusional thinking and frank psychosis.”

Justice Dixon further added that Ms Arbuckle appeared to have good prospects for rehabilitation and was already engaging regularly with mental health support. Her good prospects of rehabilitation were an important contributor to her no custodial sentence outcome.

The Law

In Ms Arbuckle’s case, she was charged under Section 6 of the Crimes Act 1958 (Victoria), which provides for 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—

  1. her not having fully recovered from the effect of giving birth to that child within the preceding two years; or
  2. a disorder consequent on her giving birth to that child within the preceding two yearsshe is guilty of infanticide, and not of murder, and liable to level 6 imprisonment (5 years maximum).

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.

Essentially, Ms Arbuckle was able to avoid jail time by utilising her postpartum depression and her mental injuries from the associated trauma.

In NSW, there are similar provisions regulating penalties with regard to defendant with mental health impairments or cognitive impairments.

Such as the commonly used  Mental Health And Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘MHCIFPA’), previously known as the Mental Health (Forensic Provisions) Act 1990 (NSW) (‘MHFPA’).

How Does The Law Work?

Part 3 of the old MHFPA (which contains ss 32 and 33) will be replaced by Part 2 of the MHCIFPA (which contains ss 14 and 18). The new provisions will apply to proceedings commenced on or after the 27th of March 2020.

The most widely used is s 14, under section 14 of the new MHCIFPA (NSW), a Magistrate may make an order to dismiss a charge and discharge the defendant—

  1. into the care of a responsible person, unconditionally or subject to conditions, or
  2. on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
  3. unconditionally.

And, an order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.

In order for a successful order under section 14, Section 12(1) of the new MHCIFP Act must be met.  Which provides that   a Magistrate “may” make an order under this division, if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both. Hence it preserves the wide discretion a Magistrate has in diversionary schemes to make a decision on what they think is best in the circumstances.

In the higher Courts, under section 28 of  MHCIFPA, a person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence,  the person had a mental health impairment or a cognitive impairment, where they did not know the nature and quality of the act, or did not know that the act was wrong. However, this is rarely used due to the fact that under section 33 of MHCIFPA, On the return of a special verdict of act proven but not criminally responsible, the court would most likely to make a order that the defendant be detained in the place and manner that the court thinks fit, such as in an inpatient mental health facility.

Even if the mental health application under MHCIFPA fails, any mental health issue suffered by  the defendant can be used as a subjective material to mitigate the sentence.

Why Choose National Criminal Lawyers

We are the experts in either defending or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. We have handled hundreds of mental health applications and have extensive knowledge on what the Court expects in a section 14 application.

You can find detailed instruction explaining on section 14 on the National Criminal Lawyers website.

If you or someone you know has been charged with a criminal offence and would like to discuss a potential section 14 application, contact us today.

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