Akon Guode v The Queen
[2020] VSCA 257
•30 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0137
| AKON GUODE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 September 2020 |
| DATE OF JUDGMENT: | 30 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 257 |
| JUDGMENT APPEALED FROM: | [2017] VSC 285 (Lasry J) |
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CRIMINAL LAW – Appeal – Sentence – Infanticide, murder and attempted murder – Mother caused the death of three children and attempted to kill a fourth – Guilty plea – Background of extreme disadvantage and hardship – Major depressive disorder as a consequence of having given birth to youngest child – Impaired mental functioning – Total effective sentence of 26 years and 6 months’ imprisonment, with non-parole period of 20 years – Whether manifestly excessive – Appeal allowed – Total effective sentence of 18 years’ imprisonment with non-parole period of 14 years substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Ms C A Boston and Ms V Drago | Stary Norton Halphen |
| For the Respondent | Ms K E Judd QC, DPP, with Ms A S Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
FERGUSON CJ
PRIEST JA
BEACH JA:
On 8 April 2015, Akon Guode, the applicant, deliberately drove her car into a lake in Wyndham Vale. Four of her children were in the car. Aluel, the oldest of those children, was 5 years old; Madit and Hangar, who were twins, were 4 years old; and Bol, the applicant’s youngest child, was 16 months old. Madit, Hangar and Bol drowned. The applicant and Aluel survived.
On 16 January 2017, the applicant pleaded guilty in the Supreme Court to the infanticide of Bol (charge 1), the murders of Madit and Hangar (charges 2 and 3) and the attempted murder of Aluel (charge 4). On 30 May 2017, following a plea hearing conducted in March and April of that year, the judge (Lasry J) sentenced the applicant to a total effective sentence of 26 years and 6 months’ imprisonment, with a non-parole period of 20 years,[1] in accordance with the following table:
[1]R v Guode [2017] VSC 285 (‘Sentencing Reasons’).
Charge on Indictment Offence Maximum Penalty Sentence Cumulation Charge 1
Infanticide
5 years
12 months
6 months
Charge 2 Murder Life 22 years Base Charge 3 Murder Life 22 years 3 years Charge 4 Attempted murder 25 years 6 years 1 year Total effective sentence: 26 years and 6 months Non-parole period: 20 years
Following sentencing, the applicant filed an application for leave to appeal against sentence on the grounds of manifest excess. That application was initially refused on the papers by a single judge of this Court (Weinberg JA),[2] but was renewed by the applicant pursuant to s 315(2) of the Criminal Procedure Act 2009.
[2]Guode v The Queen [2017] VSCA 311 (‘Initial Leave Reasons’).
On 16 August 2018, this Court granted the applicant’s application for leave to appeal, allowed the appeal and resentenced the applicant to a total effective sentence of 18 years, with a non-parole period of 14 years.[3]
[3]Guode v The Queen [2018] VSCA 205 (Ferguson CJ, Priest and Beach JJA) (‘2018-CoA Reasons’).
On 18 March 2020, the High Court, by a majority[4] held that in allowing the applicant’s appeal against sentence, this Court erred by taking into account an irrelevant consideration — namely, the Crown’s acceptance of the plea to the charge of infanticide being relevant to the sentences to be imposed on the charges of murder and attempted murder.[5] The High Court set aside this Court’s orders made on 16 August 2018, quashed the sentences imposed by this Court on that day, and remitted the matter to this Court for further determination according to law.
[4]Kiefel CJ, Gageler and Nettle JJ; Gordon and Edelman JJ dissenting.
[5]R v Guode (2020) 376 ALR 407, 409 [1]–[2]; [2020] HCA 8, [1]–[2].
Relevant background
In order to put the submissions of the parties in context, it is necessary to recapitulate the circumstances of the applicant’s offending as well as her personal circumstances as they were at the time of sentencing.
Circumstances of the offending
The circumstances of the applicant’s offending were described in some detail by this Court in its 2018 reasons as follows:
At about 10.30 am on 8 April 2015, the applicant left her house in Wyndham Vale and purchased groceries, including 12 litres of milk. After she returned home, the applicant received a telephone call at about 11.56 am from a friend, Rebecca Majak. She told Ms Majak that she was going to take Alual (who suffered from diabetes) to a hospital appointment.
The applicant once more left home at 1.00 pm, telling her eldest daughter, Akoi Chabiet, then aged 18 years, that she was going to visit the children’s grandmother. She left the house in her vehicle with the four youngest children, but, it seems, neither visited the grandmother nor took Alual to her hospital appointment. Instead, the applicant drove to the vicinity of Lake Gladman.
Lake Gladman is situated on Manor Lakes Boulevard, Wyndham Vale. The applicant drove along Manor Lakes Boulevard on five occasions, driving past the lake four times. After the first occasion, the applicant telephoned her daughter, Akoi, and said that she would be back home in a while. During the fourth occasion, at about 2.18 pm, the applicant attempted to call Joseph Manyang, who is the father of her four youngest children. Manyang did not answer. On the fifth occasion, at about 2.45 pm, the applicant’s mother called her from Sudan, the call lasting just short of four minutes. After this call, the applicant took her children to a park away from the lake. At 3.07 pm, Akoi called her mother, who said she would be back soon.
At about 3.15 pm, Hannah Foster was driving her vehicle northerly along Ballan Road following a Toyota. The occupants of the Toyota appeared to be Sudanese. Ms Foster observed children in the vehicle, one of whom she described as hysterical and one whom she said was hanging off or grabbing the front seat. A little way past Bolton Road, towards Manor Lakes Boulevard,[6] the Toyota pulled over, and Ms Foster observed the female driver huddled over the steering wheel with her face in her hands. The woman with her face in her hands was the applicant.
Not long afterwards, just after 3.30 pm, the applicant’s vehicle was captured on CCTV footage driving westerly along Manor Lakes Boulevard. At 3.40 pm, she is shown on CCTV footage performing a ‘U-turn’, pulling to the side of the road, pulling out again, disappearing from view and then driving over the nature strip toward the edge of the lake.
Alexandra Colston-Ing saw the applicant’s vehicle on the grass area, heading into the lake. She made an emergency ‘000’ call. At first, Ms Colston-Ing thought that the vehicle was floating in an area that was not deep enough for it to go under water, but she soon said to the emergency call operator that ‘it’s gone pretty deep actually’. Ms Colston-Ing saw the applicant leaning her head out of the driver’s window screaming. She saw that the other windows were closed. At one point she observed a baby laying on its back, floating, and trying to keep its head out of water.
Another witness, Richard Allman, saw the applicant’s vehicle just as it started to enter the lake. When he first called ‘000’ he did not think anybody was in immediate danger as the water was only up to the bottom of the door seal. He then heard the sounds of wheels spinning as well as splashing, and the vehicle moved another ten to twenty metres further into the lake. When it came to rest, the vehicle had turned to face in the opposite direction. Mr Allman observed the driver attempting to get out of the car through the driver’s window.
Travis Benson, who lived opposite Lake Gladman, was told a car was in the lake. He ran to the edge of the lake, and saw the applicant standing outside the Toyota motor vehicle next to the driver’s door. The applicant was wailing or moaning, but was not attempting to get the children out of the Toyota. Mr Benson yelled out to the applicant, asking whether there was anyone in the car, but he got no response. He swam out to the vehicle, which by this time was in the middle of the lake. The water was freezing. Mr Benson again asked the applicant if there was anyone in the vehicle, but she did not look at him or respond. The applicant did not appear to Mr Benson to be panicking. Mr Benson saw that the driver’s window was down all the way and the applicant was leaning on the door. Bol remained in the car, trapped in his baby seat.
Mr Benson looked inside the vehicle and saw the top of Bol’s head just above the water line in the middle of the vehicle. He tried to pull open the car door but it would not move, and he tried to break the window with his fist but it would not break. Eventually, he was able to use a steel-capped boot to break the rear cargo window. After a struggle with the straps on the baby seat, Mr Benson managed to free Bol, and he pulled him out of the car through the window. Bol was frothing at the mouth, he was not breathing and his body was limp. Mr Benson tried to walk to the bank with Bol but got stuck in the mud of the lake bed. By this time, both ambulance and County Fire Authority (‘CFA’) personnel had arrived at the lake. A CFA member took Bol from Mr Benson and conveyed him to the bank of the lake. Mr Benson returned to where the applicant was standing by her vehicle. He asked her if she was ‘okay’. The applicant nodded but did not say anything. With the help of another CFA member, Mr Benson took the applicant to the shore.
By that stage, three of the children had been found in the water and were taken to the bank. Ambulance paramedics delivered medical treatment. Hangar was then found beneath the water between the vehicle and shore. Paramedics continued efforts to revive the children. Alual was resuscitated on the bank and was put into an ambulance for observation. She was later taken to the Royal Children’s Hospital by air ambulance, and made a full recovery. Hangar was pronounced dead on the bank. Both Bol and Madit were taken to the Royal Children’s Hospital — Bol by air ambulance and Madit by ambulance — where they were pronounced dead.
Having been removed from the water, the applicant was attended to by a number of paramedics and was later taken to the Royal Melbourne Hospital. At 4.19 pm, paramedic David Hammond placed her in an ambulance. She told Mr Hammond that she felt dizzy whilst driving to the Manor Lakes shops and could not remember anything until she was in the back of the ambulance. During a conversation with a police officer, the applicant said that she was out shopping at Coles with her four children and became dizzy and wanted to go home. Later, at the hospital, the applicant told medical staff that she had been feeling dizzy for a month and that she had seen doctors as a result. Whilst being treated, the applicant stated that she was travelling at 50 kilometres an hour, became dizzy and failed to make the turn.
On 9 April 2015, commencing at 11.06 am, police conducted a record of interview with the applicant. She told them that she had wanted to go shopping, but the children asked to go to the park so she took them there. The applicant said Akoi called and she told Akoi that she was coming home. She said that on the way she felt dizzy and could not remember where she was going. The applicant said, ‘My eyes sometimes close and my heart doing not good, yeah, and then I lost control’. Later she said, ‘I was not feeling well and I feel like I’m going to faint’. The applicant told the police that she had a history of feeling dizzy which commenced after she received an injection in her neck whilst giving birth to her youngest child, Bol.
Despite what she told police, however, it is clear that in order to have driven her vehicle into the lake from Manor Lakes Boulevard, the applicant had to make at least three deliberate turns. Thus, she had to turn the steering wheel to the left in order to mount the kerb, and then towards the right in order to guide the vehicle through the trees to an access point on the lake. She then had to turn into the access point towards the lake and then left again. The point at which the Toyota entered the lake was the only realistic point of entry.[7]
[6]Ballan Road runs roughly north-south, whilst both Bolton Road and Manor Lakes Boulevard run roughly east-west. Bolton Road runs from the east into Ballan Road, southerly of Manor Lakes Boulevard, which runs westerly off Ballan Road.
[7]2018-CoA Reasons [11]–[23] (footnote in original).
Applicant’s personal circumstances
Similarly, the applicant’s personal circumstances were described in some detail in the same reasons as follows:
In his reasons for sentence, the sentencing judge described the applicant as having had ‘an extraordinarily difficult life — a life that most of us can hardly imagine’.[8]
Much of the applicant’s history and personal circumstances was set out in three reports produced by Dr Danny Sullivan, a respected consultant forensic psychiatrist. They revealed that the applicant was born in South Sudan in 1979, and was one of 16 children produced by her father with three wives. Her upbringing was disrupted by the civil war in the south of Sudan. The applicant told Dr Sullivan that schools would open and close without warning, and her education was disrupted. She told him that it was a stressful time. At times the family would flee to the bush, where they had a bunker to avoid planes dropping bombs. Family members were killed, including a brother in 2004.
In 1996, the applicant left home to move to the village of her husband — a soldier in the rebel army — in South Sudan. They had two daughters together. Based on the history given to Dr Sullivan, it seems that the applicant was exposed to severely traumatic events in South Sudan, involving a Janjaweed militia raid on her village, in which she witnessed her husband being shot dead and his body burnt. She was raped until she was unconscious.
After the death of her husband, as was the tradition, the applicant became the wife of her dead husband’s younger brother, who had two other wives and families. She told Dr Sullivan that life was more difficult, and that she had frequent arguments with his other wives. From this relationship she had a third daughter. In 2003, the applicant left Sudan (and her second husband) because of the civil war, and travelled with her three daughters to Uganda. The applicant there applied for refugee status, and was accepted to live in Australia. She has since become a permanent resident, but is not a citizen.
Upon arrival in this country, the applicant initially settled in Blacktown, in outer Sydney, with her sponsor, a brother-in-law. She told Dr Sullivan that she moved to Melbourne after a year, because rent was too expensive. In Melbourne, the applicant settled initially in Deer Park and then in Sunshine, and rented accommodation with her children.
In 2009, she commenced a relationship with Joseph Manyang. The applicant told Dr Sullivan that Manyang had said that he was separated from his wife and living at a different address, but this turned out not to be true. She and Manyang had a daughter, Aluel, in 2009. After Manyang’s wife discovered this, she caused problems for the applicant, in that she would telephone her, swear at her and threaten her.
Manyang also fathered the twins, Madit and Hangar, born in 2010. The applicant told Dr Sullivan that the problems between her and Manyang’s wife worsened. At times, the applicant would have to leave social events because Manyang’s wife and friends would threaten her with violence.
Bol was born in 2014. He, too, was fathered by Manyang. The applicant apparently suffered a significant postpartum haemorrhage, and she required ‘an injection in the neck’, a blood transfusion and life-saving surgery. She told Dr Sullivan that, after the birth of Bol, she became ‘sick and unwell’, not having previously experienced similar symptoms. The applicant reported dizziness and headaches. She told Dr Sullivan that the dizziness had occurred at least twice. When she sat up suddenly she would feel faint and experience blurred vision. She associated her dizziness with worrying. The applicant felt that everyone was against her, was preoccupied with her situation and thought that this might have caused the dizziness. She told Dr Sullivan that during this time she felt very tired and lacked energy, and she reported increasingly confused thinking, sometimes being uncertain as to what day it was. The applicant stated that she found it difficult to be happy. Her concentration was impaired and her sleep was also broken. At times she told Dr Sullivan that she could not sleep at all, and she would cry or vomit.
The applicant felt unable to cope with the children, and she spoke to her aunt about moving to Morwell where she would have support. Manyang refused to permit this, however, stating that he would not be able to travel to see his children. He provided little, however, in the way of money, and he did not follow through with his promises to help with the children, look after them or take them out. Further, the applicant received no assistance from other people.[9]
[8]Sentencing Reasons [32] .
[9]Ibid [24]–[32] (footnote in original).
Applicant’s mental condition
Evidence of the applicant’s mental condition was given on the plea in the form of three medical reports written by Dr Danny Sullivan, a respected consultant forensic psychiatrist. Dr Sullivan also gave oral evidence during the course of the plea hearing, and was cross-examined.
In his first report, Dr Sullivan stated:[10]
[The applicant’s] daughter and other sources indicated that [the applicant] had declined in functioning since the birth of Bol, with a reduced role in parenting, withdrawal from social events in the South Sudanese community, and increasing financial problems. On questioning she described a range of symptoms of depression which had developed after the birth of Bol (disturbed sleep and appetite, weight loss, reduced energy and concentration, subjective confusion and reduced interest in usual activities, tearfulness, hopelessness and helplessness about her situation). Although her daughter suggested some improvement in [the applicant’s] engagement with the family from October 2014, this cannot be corroborated. However it is clear that a range of stressors persisted in [the applicant’s] life without imminent resolution, and on this basis I think it most likely that her mood disorder had persisted to at least the time of the incident.
The description of mood disorder with onset after the birth of [the applicant’s] seventh child is consistent with a depressive disorder. There are no specific hallmarks which distinguish it as a postnatal depression, in particular psychotic features. Depression is more common after complicated births, and in [the applicant’s] case, there were clear sustaining factors: the burden of looking after a large family with limited assistance; financial stressors; relational problems with the father of the younger children; stigma and persecution within her community; and ill-defined health problems. Such somatic concerns, with associated anxiety, are common in depression.
The onset and persistence of her depressive symptoms are consistent with a diagnosis of major depressive disorder, mild-moderate in severity, with somatic syndrome, as set out in the International Classification of Diseases, 10th revision (ICD-10).
…
In my opinion, at the time of the incident with which [the applicant] is charged, I consider that she was suffering from a depressive illness which was a consequence of having given birth to Bol within the preceding two years. In my opinion, the balance of her mind was disturbed by depression.
[10]Emphasis in original.
In his second report, Dr Sullivan expressed the following opinions:[11]
I consider that [the applicant’s] mental functioning at the time of the offences was impaired by clinically significant mood disorder, and that this was likely causally associated with her behaviour in driving into the lake. In my opinion, depression impaired her capacity to exercise appropriate judgment, and her capacity to think clearly and make calm and rational choices. I consider that [the applicant’s] capacity to appreciate the wrongfulness of her conduct at the time was impaired. The intent of the behaviour was obscured. There is no indication that she was disinhibited by mental disorder.
[11]Emphasis added.
And in his third report, Dr Sullivan said:[12]
[The applicant] acknowledges that she was exposed to a severely traumatic event in South Sudan, involving a Janjaweed militia raid on her village, in which she witnessed her husband being shot dead and his body burnt, and she was raped until she was unconscious. Since then she describes some re-experiencing in the form of occasional flashbacks, patchy and impaired recollection, and efforts to avoid thinking about the events. She exhibits a range of mild anxiety symptoms which would not constitute an anxiety disorder but may be attributable to post-traumatic stress disorder.
On balance, there is evidence of post-traumatic stress disorder, which is mild in severity, but also overlaps with other features of mood disorder.
I do not consider that this diagnosis materially alters my previous consideration of impairment of mental functioning at the time of the alleged events. Although the traumatic events which occurred in South Sudan may have contributed to her mood disorder, they do not separately have any causal association with the offences …
[12]Emphasis in original.
In oral evidence, Dr Sullivan confirmed his diagnosis that the applicant was suffering from a depressive illness which was a consequence of having given birth to Bol within the preceding two years, and that the balance of the applicant’s mind was ‘disturbed by depression at that stage’.
In this Court, the applicant submitted that Dr Sullivan’s evidence was that she was suffering from a major depressive disorder with severe symptoms, likely as a result of the birth of Bol (at which time the applicant had suffered a significant post-partum haemorrhage requiring a blood transfusion and life-saving surgery). The respondent took issue with the applicant’s assertion that Dr Sullivan’s evidence was that the applicant was suffering from severe symptoms. In sentencing the applicant, the judge referred to the severity of the applicant’s symptoms as follows:
Your symptoms and their severity were described by Dr Sullivan in his reports and evidence. Those symptoms were severe and had been for some time.[13]
[13]Sentencing Reasons [58] (emphasis added).
In the course of his evidence-in-chief, Dr Sullivan explained what he meant by his use of the word ‘mild’, ‘moderate’ and ‘severe’, as follows:
I’ve described here as a major depressive disorder; mild to moderate in severity with somatic syndrome, so that’s using a diagnostic, a series of criteria developed by the World Health Organisation and used internationally. The major depressive disorder distinguishes it from other forms of sadness or normal human misery; and it says that this is a condition which reaches a threshold which is usually described as being involved with some degree of impairment of functioning, or with significant distress. The mild to moderate in severity means that, in general, as a benchmark, a person with moderate severity of depression is going to have some impairment of functioning. A person with mild depression is likely to show sadness but not necessarily to require medical treatment or not to be able to meet their demands. And a person with severe depression will often be unable to meet any of their demands, will often require treatment in sometimes, in hospital.[14]
[14]Emphasis added.
Prosecution and defence submissions to the sentencing judge
In order to give context to the judge’s sentencing reasons and the arguments in this Court, it is necessary to refer briefly to the submissions made on the plea.
The prosecution’s position on the plea may be encapsulated as follows:
(1)The offences were committed against four vulnerable and helpless children, who were completely dependent upon the applicant for their care. None of the children could swim. Given that the applicant had driven around the lake five times earlier on the day of the offending, there was ‘some degree of contemplation in respect of the commission of the crimes’; and in the aftermath, the applicant took no steps to save her children.
(2)Murder is the most serious offence known to law; and, particularly when that adult is the parent of the child, the murder of a child by an adult is one of the most serious examples of the crime of murder.[15] Conceding that it is impossible to find any case that could be considered ‘comparable’ to the present case for sentencing purposes, the prosecution submitted that, ‘even in the current case, where the balance of the offender’s mind was disturbed by depression’, it was important that any sentence imposed recognised the gross breach of trust and the applicant’s betrayal of her obligation to protect her children.
(3)The prosecution accepted that infanticide ‘was made out by reason of Dr Sullivan’s opinion that at the time of the incident the balance of the [applicant’s] mind was disturbed by a depressive illness which was a consequence of having given birth to Bol within the preceding two years’. While accepting that ‘in most cases of infanticide, the accused has been sentenced to either a community correction order or a community based order’, the prosecution submitted that a ‘community correction order was not an option’ in this case. Where the applicant fell to be sentenced for the murder and attempted murder of older children, the only realistic sentence was one of imprisonment.
(4)With respect to mitigating factors, the prosecution recognised the utilitarian benefit of the applicant’s guilty pleas, and accepted that they represented some degree of remorse. It was submitted, however, that the applicant’s remorse was qualified by lies that she told in the aftermath of the incident; her participation in a contested committal; and the fact that Dr Sullivan had documented no expressions of remorse. Further, it was accepted that the applicant’s anticipation of her probable deportation meant that the burden of imprisonment will be greater for her than for someone who faces no such risk.
(5)As to the evidence of the applicant’s psychiatric state, the prosecution submitted that, insofar as the applicant denied to Dr Sullivan that she intended to kill her children, so much seemed to traverse her pleas. Her assertion that she did not remember or understand the actions that led to the death of her children was implausible, and inconsistent with her lies and her preparatory conduct.
(6)The prosecution conceded, however, that some (but not all) of the Verdins[16] principles were in play. Thus, it was accepted that, by reason of the principles in Verdins, the applicant’s moral culpability (as distinct from her legal responsibility) was ‘reduced, but not eliminated’. It was also accepted that the principle of specific deterrence was to be moderated. The prosecution contended, however, that although Verdins often leads to general deterrence and denunciation being treated as lesser sentencing considerations, the applicant’s condition was ‘not such as to lead to a reduction or substantial reduction in the application of the principles of general deterrence or denunciation’. It was ultimately submitted that the ‘heinous nature of this offending’ had to be recognised and denounced, and others had to be deterred from engaging in ‘this type of criminal activity’.
[15]The Director of Public Prosecutions, who appeared on the plea hearing, cited R v Quarry (2005) 11 VR 337, 344 [25] (Warren CJ), 347 [35] (Batt JA); R v Fitchett [2010] VSC 393, [14] (Curtain J) (‘Fitchett’); R v Farquharson [2010] VSC 462, [2] and [43] (Lasry J).
[16]R v Verdins (2007) 16 VR 269 (‘Verdins’).
The applicant’s submissions to the judge may be similarly encapsulated. Specifically:
(1)Counsel for the applicant submitted that all of the applicant’s offending arose in a context of her deteriorating mental health combined with increasing personal pressures from many sources. The offending occurred in a ‘single episode’; one in which it is accepted that the applicant was suffering from a depressive illness which was a consequence of having given birth to her youngest child, Bol, within the preceding two years, and in circumstances where the balance of her mind was disturbed by depression. It was contended that the ‘entirety of her conduct needs to be examined and considered in that context’.
(2)The applicant’s offending, although grave, ‘must be seen contextually, through the prism of her poor mental health that is an essential part of the (accepted) plea to infanticide’. Further, in the present case, there are additional features at play. Not only was the applicant in poor mental health, but she ‘was not equipped to deal with a myriad of pressures in life and was utterly overwhelmed, especially so following the birth of Bol in December 2013’. Her offending, it was submitted, ‘is inseparable from her increasing isolation and her inability to cope’. There is an implicit acknowledgement, it was submitted, of the applicability of Verdins when considering the charge of infanticide, since the ‘very charge itself refers to a disturbance of the mind’. The applicant’s moral culpability is reduced, and the weight to be given to specific deterrence is moderated. Further, it was submitted that general deterrence also fell to be moderated, since the ‘unique constellation of pressures and compromised mental health’ made the applicant ‘a poor vehicle via which to discourage others from offending in this fashion’.
(3)Counsel submitted that the applicant’s time in protective custody and her separation from her family has been particularly difficult for her, those difficulties being exacerbated ‘by the almost inevitable prospect of her deportation once her sentence is complete’.[17]
(4)Finally, it was submitted that, although the offending demanded that a term of imprisonment be imposed, there were many features of the matter that warranted the imposition of both a low head sentence and low non-parole period. It was beyond argument, so counsel submitted, that the offending occurred at a time when the applicant ‘was in acute distress and when her judgement, decision-making and ability to make calm and rational choices was impaired’. The offending ‘was largely unplanned and occurred at a time when the balance of her mind was disturbed by depression’.
[17]Counsel cited Guden v The Queen (2010) 28 VR 288, 294 [25] (Maxwell P, Bongiorno JA and Beach AJA).
Sentencing reasons
In sentencing the applicant, the judge observed that she had had ‘an extraordinarily difficult life — a life that most of us can hardly imagine’.[18] This included the applicant having seen her husband shot dead and his body burnt, during a militia raid on her village, following which she was raped until she was unconscious.[19] The judge also observed that, as at the date the offences were committed, the applicant’s life ‘was in turmoil’.[20]
[18]Sentencing Reasons [32].
[19]Ibid [35].
[20]Ibid [9].
The judge set out the evidence of Dr Sullivan in some detail.[21] He accepted Dr Sullivan’s evidence that the applicant was suffering from ‘a major depressive disorder which is mild to moderate in severity’, and which involved ‘some degree of impairment in functioning’.[22] He also accepted Dr Sullivan’s opinion that the applicant’s condition existed at the time of the offences and impaired her ability to exercise appropriate judgments, think clearly, make calm and rational choices and appreciate the wrongfulness of her conduct.[23] As to the severity of the applicant’s symptoms, the judge said:
Your symptoms and their severity were described by Dr Sullivan in his reports and evidence. Those symptoms were severe and had been for some time.[24]
[21]Ibid [51]–[59].
[22]Ibid [53].
[23]Ibid.
[24]Ibid [58].
In relation to the applicant’s psychiatric condition, the judge accepted that several of the principles in Verdins applied in this case.[25] The judge accepted that there was a realistic connection between the applicant’s mental state, as Dr Sullivan described it, and her offending.[26]
[25]Ibid [57].
[26]Ibid.
Having set out all of the relevant background, both personal to the applicant and in relation to the circumstances of the offending, the judge then observed that sentencing principles required him to impose a sentence that is the product of an intuitive synthesis.[27] The judge then said:
The tragedy of this case highlights the occasional artificiality of this approach because the sentence I am about to impose is, in some respects, inadequate to reflect the gravity of what you have done yet at the same time excessive given your mental state as well as your background of hardship and desperation.[28]
[27]Ibid [71].
[28]Ibid.
Next, the judge said that the principles of totality and mercy were significant in sentencing the applicant.[29] He then described the offences committed by the applicant as ‘obviously grave offences’,[30] before saying:
Offending against children, particularly where a homicide occurs, shocks the public consciousness because invariably the victims are very young and innocent of any wrongdoing or contribution to their fate. These children trusted you as their mother as they were entitled to do. Your betrayal of that trust was catastrophic in its consequences whatever the true reasons were for your actions.[31]
[29]Ibid.
[30]Ibid [73].
[31]Ibid.
The judge described the case as ‘an all-encompassing tragedy’,[32] saying:
It is a tragedy for your family with three children deceased through your actions. It is a tragedy for you because you have destroyed the life you had started here in Australia and it is a tragedy for the community. But above all, your actions amounted to an horrendous crime on innocent children and a gross breach of trust and a betrayal by you of your obligation to protect your children.[33]
[32]Ibid [75].
[33]Ibid.
The judge concluded his reasons for sentence by saying:
Normally considerations of denunciation, punishment and general deterrence would be very significant. However, having come to the conclusions I have about your mental state, I am of the view that the significance of general deterrence and denunciation are lessened, although not eliminated, in your case.[34]
[34]Ibid [77].
While the judge observed that the applicant fell to be sentenced as a serious violent offender on charges 3 and 4, pursuant to pt 2A of the Sentencing Act, he noted that the prosecutor did not seek a disproportionately high sentence.[35] As to protection of the community from the applicant,[36] the judge said that, ‘in the unusual circumstances of this case’, the applicant ‘[was] not a future threat of committing further offences’.[37]
[35]Ibid [70]. See s 6D(b) of the Sentencing Act.
[36]See s 6D(a) of the Sentencing Act.
[37]Sentencing Reasons [70].
Parties’ contentions
In her written case in this Court, the applicant addressed Weinberg JA’s initial refusal to grant leave to appeal, by observing that his Honour did not have the benefit of hearing oral argument in relation to the matter. The applicant observed that his Honour’s reasons for refusing leave referenced cases which, ‘despite having a superficial similarity to the present case in that they involved the killing of children by a parent, [were] in fact not comparable’. As the applicant put it in her written case:
This was not a case of spousal revenge, as in R v Freeman[38] and R v Farquharson.[39] It was not a case of separate acts killing multiple children, as in R v Fitchett.[40] Further, the applicant’s traumatic background and impaired mental functioning were far more significant than the mitigating factors which applied in the cases to which his Honour referred. Further, and significantly, the judges in those cases did not apply the principle of mercy. Finally, unlike the accused in those three cases, the applicant pleaded guilty.
[38][2011] VSC 139 (‘Freeman’).
[39][2010] VSC 462 (‘Farquharson’).
[40][2010] VSC 393 (‘Fitchett’).
The applicant noted that the four offences for which she fell to be sentenced were committed simultaneously, by the same act of driving, and therefore her mental state was identical in respect of all four offences. The evidence of Dr Sullivan demonstrated that the balance of the applicant’s mind was impaired at the time, reducing the applicant’s moral culpability, and the need to give full effect to the sentencing objectives of denunciation and deterrence (both general and specific). The applicant’s state of mind was also relevant to the exercise of mercy, which the sentencing judge said that he extended to her.
Beyond the significance of the applicant’s impaired mental functioning at the time of the commission of all four offences, the following matters were submitted by the applicant to operate in mitigation of her sentence, and required the imposition of significantly lesser sentences than those imposed:
(1)Disadvantaged background: the applicant had had an extraordinarily difficult life. She was raised in South Sudan, and during the civil war witnessed her husband being murdered, before she was raped until the point of unconsciousness. She was subsequently married to her husband’s younger brother, as was the custom, before fleeing from South Sudan with her three young children (leaving her second husband behind), taking 18 days to walk to Uganda. She spent time in refugee camps before ultimately being granted refugee status in Australia in 2005. At the time of the offending, she was a single mother caring for seven children. She spoke little English and had severe financial problems.
(2)Previous good character: the applicant had no prior criminal history.
(3)Deportation: in all likelihood, the applicant will be deported from Australia upon her release, away from her family to a third-world country. This adds to the burden of her imprisonment and amounts to a significant additional punishment.
(4)Protective custody: the applicant has been and likely will continue to be incarcerated in protective custody. This further increases the burden of her imprisonment. She has been assaulted in prison. She has few visitors, and is further isolated by her lack of proficiency in English.
(5)Additional hardship: the burden of the applicant’s imprisonment was increased even further by her anxiety regarding the fact that her eldest daughter, Akoi (herself not long an adult at the time of the plea hearing), had been forced to assume the responsibility of raising her three youngest siblings due to the applicant’s incarceration.
(6)Effect on mental health: the sentencing judge concluded that, subject to treatment that may be offered to the applicant in custody and her willingness to accept that treatment, incarceration was likely to have an adverse effect on the applicant’s mental health.
(7)Rehabilitation prospects: the judge found that there was no real prospect of the applicant becoming involved in any further criminal activity, and she was not a person from whom the community would need to be protected.
(8)Mercy: the judge said it was appropriate to extend mercy to the applicant, considering that principle to be ‘significant’ in this case. It is a rare case of murder which calls for the application of the principle of mercy, let alone for that factor to be significant.
(9)Plea of guilty: significantly, the applicant pleaded guilty. At the time of the committal, she was facing a murder charge in relation to Bol. The matter ultimately resolved on the basis that she was guilty of the infanticide of Bol, not murder. In those circumstances, her guilty pleas fell to be accorded significant weight. Plainly, they had substantial utilitarian value.
(10)Totality: the principle of totality was important, given the applicant committed the offences by the same act and with the same state of mind.
The applicant submitted that had adequate weight been given to her mental condition and the other relevant matters in mitigation, significantly more lenient sentences would have been imposed. The sentences actually imposed were ‘simply too much’.
In response, the respondent contended that the sentence imposed by the judge was not manifestly excessive. The respondent observed that the test for manifest excess is whether the sentence imposed was wholly outside the range of sentencing options available to the judge; not whether some other sentence could have been imposed. Here, the sentencing judge had specific regard to each of the matters raised on behalf of the applicant during her plea.
The respondent accepted that there are differences in each of the cases to which Weinberg JA referred in his reasons for refusing the applicant leave to appeal. Each of the cases to which his Honour referred, however, were submitted to be relevant when considering whether the sentence for the offending in this case was outside the range. The respondent submitted that Weinberg JA aptly summarised the circumstances of the offending as follows:
The overall offending in this case, which included the murder by their mother of two young children, the attempted murder of a third and the crime of infanticide of a fourth, was objectively about as heinous a crime as one could reasonably contemplate. The offences involved a gross breach of trust. To make matters worse, this was no sudden, impulsive act. Rather, there appeared to have been a degree of planning involved.[41]
[41]Initial Leave Reasons [33].
The respondent took issue with the assertion that Dr Sullivan diagnosed the applicant as suffering from symptoms which were ‘severe’. It was submitted that the sentencing judge overstated the severity of the applicant’s depression. As this was in the applicant’s favour, it could not be said that inadequate weight had been given to the applicant’s mental condition. Additionally, the respondent noted that it was not the applicant’s mental state which would make her imprisonment more burdensome.
As to the matters in mitigation relied upon by the applicant, the respondent submitted that each of these matters was carefully considered by the sentencing judge, and all of them were given adequate weight. Although the respondent did not seek a disproportionate sentence, there was nevertheless a presumption of cumulation in respect of the sentences to be imposed on charges 3 and 4, having regard to the applicant’s status as a serious violent offender in respect of those charges.
Finally, the respondent submitted that, having regard to the fact that there were four victims, the degree of cumulation ordered by the judge was modest — showing that his Honour paid particular attention to the principle of totality.
Analysis
There can be no doubt, as Weinberg JA said when he refused the applicant leave to appeal, that ‘the overall offending in this case … was objectively about as heinous a crime as one could reasonably contemplate’.[42] That, however, is not the end of the matter. It is trite that the sentencing of an offender involves the proper synthesising of all of the circumstances of the offending, on the one hand, and all of the circumstances of the offender, on the other hand. Neither matter (the circumstances of the offending, or the circumstances of the offender) should be allowed to overwhelm the other.
[42]Ibid.
In the present case, the circumstances of the offending pointed towards the imposition of a very stern sentence of imprisonment. The applicant’s personal circumstances and the matters she was able to call in aid in mitigation, however, pointed to the imposition of a significantly more lenient sentence than might otherwise have been imposed if one looked only at the objective seriousness of the offending.
The sentencing judge was alive to the difficulty of the sentencing exercise in this case, saying that in some respects the sentence he was about to impose was inadequate to reflect the gravity of the offending, yet at the same time excessive given the applicant’s mental state and background of hardship and desperation.[43]
[43]Sentencing Reasons [71].
Plainly, the applicant’s mental condition as described by Dr Sullivan was a powerful mitigating factor in the sentencing synthesis. To the extent that the respondent submitted that the judge erred in describing the applicant’s symptoms as ‘severe’, based upon the evidence of Dr Sullivan, we reject that submission. While it is true that Dr Sullivan referred to the applicant’s major depressive disorder as being mild to moderate in severity, he was, as he said, ‘using a diagnostic … developed by the World Health Organisation’. The real substance of Dr Sullivan’s opinion was that the applicant’s symptoms were severe in that they impaired her mental functioning to a point where her capacity to exercise appropriate judgment, and her capacity to think clearly and make calm and rational choices, and to appreciate the wrongfulness of her conduct at the time, was impaired.
While the respondent sought to make use of the sentences imposed in Freeman,[44] Farquharson,[45] and Fitchett[46] to demonstrate that the sentence imposed in the present case was not outside the permissible range, we think the better approach is that taken by the prosecution during the course of the plea hearing — namely that there were no cases that were comparable to the present case for sentencing purposes. As the applicant observed, all three offenders in Freeman, Farquharson and Fitchett pleaded not guilty. For two separate and distinct acts of murder, Mrs Fitchett received sentences of only 17 years, albeit that 10 years of the second sentence was ordered to be served cumulatively.
[44][2011] VSC 139.
[45][2010] VSC 462.
[46][2010] VSC 393.
Additionally, none of the offenders in these three cases had anything like the powerful constellation of mitigating factors that existed in the present case (including the applicant’s extreme background of disadvantage, the likelihood that she will remain in protective custody, the likelihood that she will be deported from Australia at the end of her sentence, her mental state as described by Dr Sullivan, the fact that she is not a person from whom the community will need protection and the circumstances in which the judge found it was appropriate to extend mercy to her).
Having considered all of the circumstances of the offending and the offender afresh, we are driven to the conclusion that the sentences of 22 years’ imprisonment on each of the two charges of murder are beyond the range of those open in the sound exercise of the sentencing discretion, and are manifestly excessive. Sentences of this order are generally reserved for cases unattended by powerful mitigating features of the kind that exist in this case. In our opinion, giving adequate weight to the applicant’s mental condition and the other factors in mitigation to which we have referred, required significantly more lenient sentences to have been imposed by the judge on each of the murder charges. The same may also be said in respect of the sentence imposed on the charge of attempted murder.
Further, in relation to the issue of cumulation, it must be recognised that there is a commonality between the four offences to which the applicant pleaded guilty. It was a single act of driving her car into the lake which constituted the criminal act common to each offence (as compared, for example, to the separate acts of strangulation and suffocation committed by the offender in Fitchett). It follows that, while it was necessary for there to be some cumulation between the sentences on each charge,[47] that cumulation should have been more moderate than that ordered by the sentencing judge — particularly in light of the sentences imposed by his Honour on charges 2 and 3.
[47]See also the presumption of cumulation provided for in s 6E of the Sentencing Act in respect of charges 3 and 4.
Even if we were to have concluded that the individual sentences on charges 2, 3 and 4 were within range (although at the very top of the range in all the circumstances), the application of the judge’s orders for cumulation has, in our view, produced a total effective sentence which is beyond the permissible range when one factors in all of the circumstances personal to the applicant. If one merely looked at the objective gravity of the applicant’s offending there could not be any argument about manifest excess. It is the entirety of the applicant’s personal circumstances which, when synthesised with the objective gravity of the offending, that makes the sentence imposed by the judge manifestly excessive.
Moreover, while the judge said that the principles of mercy were significant in sentencing the applicant,[48] it appears to us that the sentence ultimately imposed on the applicant did not contain any element of mercy. As was said by Tadgell JA in DPP v Miceli:
[I]t cannot be doubted that an element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion.[49]
In the same case, Charles JA said:
It would be quite wrong for anyone to have thought that our system of justice did not entitle the prisoner standing for sentence to receive proper consideration of any claim he may legitimately have had to the exercise of clemency.[50]
[48]Sentencing Reasons [71].
[49][1998] 4 VR 588, 592 (‘Miceli’).
[50]Ibid 594.
On the evidence before the sentencing judge, the applicant was entitled to an exercise of mercy. The judge acknowledged so much in his reasons for sentence. Mercy permitted the applicant’s extreme disadvantage and hardship, amongst others, to be recognised as a factor mitigating her sentence.[51] In our view that mercy was not reflected in the sentence ultimately imposed by the judge.
[51]See DPP v Milson [2019] VSCA 55, [51].
It follows from what we have said above that we will grant leave to appeal and allow the appeal. In so doing, we would repeat what we said in our 2018 reasons:
It should not be thought that, in reaching [the conclusions we have reached], we have lost sight of the fact that three vulnerable children lost their lives (and that a fourth nearly did). Adjectives such as ‘tragic’ are inadequate to convey the depth of emotional response provoked by the destruction of such innocent lives. Each of the applicant’s children had a right to expect that she would protect them and keep them safe from harm. The applicant fatefully and irredeemably, however, breached their trust. But it must also be remembered that, when she did so, her capacity to make calm and rational decisions was severely compromised by a mental condition which was not of her own making. Her situation is pitiable. And although the Court must avoid being weakly merciful,[52] principle nonetheless demands that the punishment inflicted upon the applicant must be mitigated by, and justly reflect, her diminished moral culpability.[53]
[52]See R v Radich [1954] NZLR 86, 87; R v Williscroft [1975] VR 292, 298 (Adam and Crockett JJ). See also Miceli [I998] 4 VR 588; Richard G Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing, (1999) 25 Monash University Law Review 1, 3.
[53]2018-CoA Reasons [74].
In the event that the applicant persuaded us that the sentence imposed on her was manifestly excessive and the sentencing discretion was thus reopened, the applicant provided this Court with an updated report from Dr Sullivan. The contents of that report were not disputed by the respondent. In his updated report, Dr Sullivan described the applicant’s current circumstances of incarceration and mental condition. The report discloses that the applicant is at least as isolated in custody as was anticipated at the time of her original sentencing. The applicant submitted that, in any re-sentencing, Dr Sullivan’s updated report should be accorded due weight.
Additionally, the applicant submitted that, in any re-sentencing, the delay that has now occurred between the time of the offences and the present needed to be taken into account. Through no fault of her own (and equally, it must be said, through no fault of the prosecution) the applicant has now had this matter hanging over her head for more than five years.
We accept that the matters referred to by the applicant, and to which we have just referred, are relevant matters to be taken into account in any re-sentencing.
Conclusion
For the above reasons, we will grant the application for leave to appeal against sentence and allow the appeal. Having looked afresh at all of the relevant circumstances and matters relied upon by the parties, we would re-sentence the applicant as follows:
Charge on Indictment Offence Maximum Penalty Sentence Cumulation Charge 1
Infanticide
5 years
12 months
6 months
Charge 2 Murder Life 16 years Base Charge 3 Murder Life 16 years 12 months Charge 4 Attempted murder 25 years 4 years 6 months Total effective sentence: 18 years Non-parole period: 14 years
- - -
3
8
0