Charged With Infanticide?

What the Law States

Section 6(1) of the Crimes Act 1958 (Vic): 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 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, she is guilty of infanticide, and not of murder, and liable to level 6 imprisonment (5 years maximum).

Maximum Penalty

Level 6 imprisonment — 5 years maximum.

What the Prosecution Must Prove

1. Conduct causing death in circumstances constituting murder — The accused is a woman who carried out conduct that caused the death of her child, in circumstances that would otherwise constitute murder.
2. Disturbance of the balance of her mind — At the time of carrying out that conduct, the balance of her mind was disturbed because of either her not having fully recovered from the effect of giving birth to that child within the preceding two years; or a disorder consequent on her giving birth to that child within the preceding two years.

Sentencing

Although the maximum penalty is 5 years' imprisonment, custodial sentences for infanticide are rare in Victorian practice. Courts consistently recognise the tragic circumstances underlying infanticide offending — including postnatal depression, psychosis, and other childbirth-related disorders — as powerful mitigating factors, and non-custodial dispositions are the norm.

Possible Defences

The accused did not cause the death

Challenging whether the conduct caused the death or whether the circumstances would have constituted murder.

The mental disturbance element is not established

That the balance of the accused's mind was not disturbed, or the disturbance was not causally connected to giving birth within the preceding two years.

Not guilty by reason of mental impairment

Under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), where the impairment goes beyond the specific childbirth-related disturbance contemplated by s 6.