JUDGES:	FERGUSON CJ, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2018
DATE OF JUDGMENT:	16 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 205
JUDGMENT APPEALED FROM:	R v Guode [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 — Traumatic life — Major depressive disorder as a consequence of having given birth to youngest child — Post-traumatic stress disorder — Total effective sentence of 26 years and 6 months’ imprisonment, with non-parole period 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 J McMahon SC with Ms V Drago	Stary Norton Halphen
For the Respondent	Ms K Judd QC, DPP, with Ms G Coghlan	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ
PRIEST JA
BEACH JA:

Introduction

In the afternoon of 8 April 2015, Akon Guode, the applicant, now aged 39 years,[1] deliberately drove her Toyota Kluger SUV, with her four youngest children inside it, into Lake Gladman, Wyndham Vale.
[1]Her date of birth is 20 June 1979.

Twins Madit Manyang and Hangar Manyang, aged four,[2] and Bol Manyang, aged 16 months,[3] drowned. Only the eldest child of the four, Aluel Chabiet, aged five years,[4] survived.
[2]Their date of birth was 25 December 2010.
[3]His date of birth was 21 December 2013.
[4]Her date of birth is 22 May 2009.

On 16 January 2017, the applicant pleaded guilty in the Supreme Court to the infanticide[5] of Bol (charge 1), two charges of the murder[6] of Madit and Hangar (charges 2 and 3) and one charge of the attempted murder[7] of Aluel (charge 4).
[5]Crimes Act 1958, s 6(1). The maximum penalty is five years’ imprisonment.
[6]Common law. By virtue of s 3 of the Crimes Act 1958, the maximum penalty is life imprisonment.
[7]Crimes Act 1958, s 321M. By virtue of ss 321P(1) and (1A), the maximum penalty is 25 years’ imprisonment.

Following a plea, the sentencing judge imposed a total effective sentence of 26 years and 6 months’ imprisonment on the applicant, with a non-parole period of 20 years,[8] according to the following table:
[8]R v Guode [2017] VSC 285 (Lasry J) (‘Reasons’).

Charge Offence Sentence Cumulation

1 Infanticide 12 months 6 months

2 Murder 22 years Base

3 Murder 22 years 3 years

4 Attempted murder 6 years 1 year

Total effective sentence 26 years and 6 months’ imprisonment

Non-parole period 20 years

Pre-sentence detention 660 days

Section 6AAA declaration Life imprisonment with 30 years non-parole

Other orders Disposal order and forensic sample order

By virtue of Part 2A of the Sentencing Act 1991, the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guode v The Queen

Details

AGLC: Guode v The Queen [2018] VSCA 205
Case: [2018] VSCA 205
Decision Date: 16 August 2018

CaseChat Overview and Summary

The appellant, Guode, was convicted of infanticide in relation to the death of her youngest child, and murder and attempted murder in relation to her other three children. The trial judge determined her sentence to be 26 years and 6 months’ imprisonment, with a non-parole period of 20 years. Guode appealed on the basis that the sentence was manifestly excessive, and the High Court allowed the appeal. The Court substituted a total effective sentence of 18 years’ imprisonment with a non-parole period of 14 years.

The appeal raised several issues, including whether the sentence was manifestly excessive, whether the trial judge had erred in failing to adequately consider the impact of Guode’s traumatic life on her culpability, and whether the sentence was disproportionate to the offending. The appeal also considered whether the trial judge had adequately assessed the mitigating factors, including Guode’s major depressive disorder and post-traumatic stress disorder.

In allowing the appeal, the Court found that the sentence was manifestly excessive and disproportionate to the offending. The Court found that the trial judge had failed to adequately consider the impact of Guode’s traumatic life on her culpability, and had not sufficiently assessed the mitigating factors. The Court found that the sentence imposed was disproportionate to the offending, and that a sentence of 18 years’ imprisonment with a non-parole period of 14 years was more appropriate.

The Court substituted a sentence of 18 years’ imprisonment with a non-parole period of 14 years, and allowed the appeal.

Orders