Guode v The Queen

[2017] VSCA 311

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2017 0137

AKON GUODE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	30 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 311
JUDGMENT APPEALED FROM:	R v Guode [2017] VSC 285 (Lasry J)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Appeal – Sentence – Two charges of murder, one charge of infanticide and one charge of attempted murder – Applicant sentenced to 26 years and 6 months’ imprisonment with a non-parole period of 20 years – Whether reasonably arguable that sentence manifestly excessive – Whether trial judge gave sufficient weight to mitigating factors – Sentence within range – Leave to appeal refused.

APPEARANCES:	Counsel	Solicitors
On the papers

WEINBERG JA:

1. This is an application for leave to appeal against sentence, heard on the papers by a single judge, pursuant to section 315 of the Criminal Procedure Act 2009. The applicant pleaded guilty in the Trial Division to two charges of murder, one charge of infanticide and one charge of attempted murder. The charges arose out of the deaths of three of her children. The charge of infanticide related to her 17 month old son.

1. It was accepted, on the plea, that in relation to all four children, at the time of the offending the applicant’s mind was disturbed, and that the principles set out in R v Verdins[1] were applicable.

   [1](2007) 16 VR 268 (‘Verdins’).

1. The offences were committed on 8 April 2015. The applicant drove a vehicle containing her four children into Lake Gladman, at Wyndham Vale. The two children who died (in addition to her 17 month old son) were twins. The oldest child, then aged five, survived and has made a full recovery. At the time of the offending, the applicant had seven children in all.

1. The applicant was born in South Sudan and came to this country in 2006. Her husband was killed during the course of the Sudanese civil war.

1. After she arrived in Australia, the applicant commenced a relationship with a man who was married, and had children of his own. He was the father of the four children who were in the vehicle when the applicant drove it into the lake.

1. The applicant’s relationship with the father of these four children was turbulent. This caused significant issues for her within the local Sudanese community. As a result, she experienced a good deal of social ostracism, and was subjected to derision. The main source of the difficulty was the wife of the man who had fathered her children. Not unnaturally, she was upset about the relationship.

1. The applicant’s situation was made worse by the significant financial problems she faced in caring for seven children, with little support from anyone.

1. The birth of her youngest child had been traumatic. She suffered from a haemorrhage and subsequently underwent lifesaving surgery. Following that child’s birth, the applicant struggled greatly. She was later diagnosed as suffering from a major depressive disorder.

1. On the day of the offending, the applicant left her home and spent some time driving, seemingly aimlessly. Between 1pm and 3.30pm she made approximately five trips to the area around the lake. Significantly, she was seen at one stage to be hunched over the steering wheel of her car, with her face in her hands, while the children appeared to be distressed.

1. Shortly thereafter, at about 3.40pm, the applicant was seen to do a U turn, drive over to the side of the road, mount the curb and head towards the lake. There was evidence that she needed to make at least three deliberate turns in order to negotiate the obstacles between the road and the lake.

1. Once the vehicle entered the lake, witnesses saw water rise up to the door seal. Not long afterwards, the car was seen between 10 and 20 metres further into the lake, and facing the direction from which it had come.

1. The applicant was leaning her head out of the window, and was heard screaming.  A number of people came to her aid. At one point she was observed standing in the water next to the driver’s door, making a wailing or moaning sound. She was making no effort to get the children out of the car. When asked by bystanders how many people there were in the car, she did not respond. Thereafter, she was taken by ambulance to the Royal Melbourne Hospital.

1. When initially questioned by police, the applicant said that she had gone shopping, and taken the children to the park. She said that she felt dizzy, and could not recall anything prior to finding herself in the ambulance. She said that she had ‘lost control’. A subsequent neurological assessment found no abnormalities.

1. Later, at the hospital, the applicant told medical staff that she had been feeling dizzy for a month and that she had seen her doctors about that condition. In the course of an interview with police, she said that she had had a history of dizziness which began after she received an injection in her neck while giving birth to her youngest child.

Proposed Ground of Appeal

1. There is one proposed ground of appeal. It is in the following terms:

That the initial sentences imposed on charges 2 and 3, the total effective sentence and the non-parole period fixed were manifestly excessive particularly in view of the following matters:

(a)        The Applicant’s mental state leading up to and at the time of the offending;

(b)        The Applicant’s mental state at the time of sentencing;

(c)        The Applicant’s difficult background and circumstances;

(d)       The Applicant’s lack of prior convictions;

(e)        The Applicant’s plea of guilty;

(f)         The Applicant’s possible deportation.

1. In support of that ground, it was submitted, in the applicant’s Written Case, that by virtue of her plea of guilty to infanticide, it should be accepted that at the time of the offending the balance of her mind was seriously disturbed by reason of a major depressive disorder. There was psychiatric evidence to support that conclusion. This was provided by Dr Danny Sullivan, an experienced consultant psychiatrist.

1. There was unchallenged evidence, on the plea, that after her youngest child’s birth the applicant appeared constantly tired, quiet and distant. She lost weight and regularly complained of headaches. She had difficulty getting out of bed some days.

1. It was submitted that the applicant’s moral culpability was greatly reduced by reason of her mental condition. It was further submitted that, in accordance with the principles laid down in Verdins, less weight than might otherwise be appropriate, should be given to both general and specific deterrence. It was said that the same could be said of considerations of denunciation, and just punishment.

1. It was next submitted, on the plea, that the applicant was entitled to a greater degree of leniency because of the burdensome nature of the conditions under which she would be incarcerated. She had not received visits from her younger children. She was being held in protection. In addition, she was suffering grief over what she had done. The fact that she did not herself characterise that grief in terms of remorse was explicable given her background, and complex psychological condition.

1. The sentencing judge accepted that the applicant had had ‘an extraordinarily difficult life’. At the time she came to be sentenced, she was aged 37. She was one of 16 children. She had lived through the civil war in Sudan, witnessed the death of her husband, and had herself been raped. Not surprisingly, she suffered from post-traumatic stress disorder.

1. The applicant and her children had left Sudan on foot, en route to Uganda, foraging for food along the way. She spent three years in a United Nations refugee camp in that country before being granted a special humanitarian visa to come to Australia. She had no prior convictions and was of otherwise blameless character.

1. The applicant had pleaded guilty after being assessed by Dr Sullivan. Plainly, she was entitled to a discount for having done so, the plea of guilty having considerable utilitarian value. It was noted that she would be liable to deportation after she had served her sentence. This was said to increase the burden associated with her incarceration.

1. It was submitted on behalf of the applicant that although the murder of any child had to be regarded as a particularly heinous offence, the law rightly allowed that the state of mind and motives of the offender were highly relevant factors when assessing the objective gravity of that crime. Where a child was aged less than two, that was reflected in the special charge of infanticide. However, in the case of older children, the very same factors that would go to mitigate, to some degree, the gravity of the offence, leading to the lesser charge of infanticide, would also be relevant in relation to the charge of murder.

1. The judge below sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Infanticide [s 6(1) Crimes Act 1958]	5 years’ imprisonment [s 6(1) Crimes Act 1958	12 months’ imprisonment	6 months
2 and 3	Murder [Common law and s 3 Crimes Act 1958]	Life imprisonment [s 3 Crimes Act 1958]	Charge 2: 22 years’ imprisonment Charge 3: 22 years’ imprisonment	Charge 2 – Base sentence Charge 3 – 3 years
4	Attempted murder [s 321MCrimes Act 1958]	25 years’ imprisonment [s 321P Crimes Act 1958]	6 years’ imprisonment	1 year
Total Effective Sentence:		26 years and 6 months’ imprisonment
Non-Parole Period:		20 years’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		660 days
6AAA Statement: Life with a non-parole period of 30 years
Other relevant orders:  Forensic sample order and Disposal order

1. In support of this application for leave to appeal against sentence, it was submitted that sentences of 22 years’ imprisonment for murder were generally imposed only in cases of significantly greater moral culpability than the present. It was further submitted that the sentencing judge had failed to give sufficient weight to the powerful mitigating factors that the applicant was entitled to call in aid. Finally, it was submitted that both the total effective sentence of 26 years and six months, and the non-parole period of 20 years, were themselves manifestly excessive.

1. In support of that submission, reference was made to R v Farquharson.[2] In that case, the offender was convicted of three counts of murder, the victims being his young children whom he had killed by driving his car, containing them, into a dam. He was sentenced to life imprisonment with a non-parole period of 33 years.

   [2][2010] VSC 462 (‘Farquharson’).

1. It was said that the applicant’s mental state, and her personal circumstances, were so much more pitiable than those of the offender in Farquharson, as to have justified a much lower sentence than was imposed. 

1. The Crown replied by submitting that the sentence imposed in the present case had been reasonably open. The sentence imposed in Farquharson, life imprisonment with a non-parole period of 33 years (imposed by the same judge as sentenced the applicant in the present case), greatly exceeded the sentence that she received. For that reason, the applicant could gain no comfort from the sentence that Farquharson had been given. 

1. The Crown noted that the judge below had referred specifically to each of the mitigating factors particularised in the applicant’s Written Case. It was said that his Honour had shown compassion and empathy in his sentencing remarks. He had given the applicant the benefit of a strong finding regarding her reduced moral culpability, and this was reflected in the sentence imposed.

1. Moreover, the Crown submitted that the sentencing judge had given due weight to the fact that the applicant would have to serve her sentence under burdensome conditions.

1. Finally, it was submitted that his Honour had taken into account the applicant’s difficult background and circumstances, as well as her lack of prior convictions, her plea of guilty and her possible eventual deportation.

Conclusion

1. It cannot be doubted that the murder of a young child by its mother will invariably ‘shock the public consciousness’. As the sentencing judge rightly observed, that is because the crime is unnatural, and the victim is both innocent and vulnerable.

1. 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.

1. The Crown drew attention, in its Written Case, to R v Fitchett.[3] There, a mother had been found guilty of having murdered her two sons. It was clear that she was depressed at the time and had been suffering from that condition since the birth of her first child. The principles in Verdins were held to be applicable. The offender received a total effective sentence of 27 years with a non-parole period of 18 years, after a trial.

   [3][2010] VSC 393 (‘Fitchett’).

1. In the present case, the applicant can perhaps rely upon more mitigating factors than were present in Fitchett. However, this must be balanced against the fact that there were four victims here, and only two in that case.

1. Mention should also be made of R v Freeman,[4] where the offender was convicted of the murder of his young daughter by hurling her off the Westgate Bridge. He received a sentence of life imprisonment with a non-parole period of 32 years.

   [4][2011] VSC 139 (Coghlan J).

1. I note that the sentencing judge expressed doubts as to whether the applicant had demonstrated any actual remorse. His Honour observed that she had told lies in the aftermath of the incident, having at one stage denied driving around the lake as a prelude to the killing of her children. There had also been a contested committal, though plainly the only defence that had been contemplated was one of mental impairment.

1. This is obviously a painful and distressing case. One cannot read the facts surrounding the deaths of these three children without a profound sense of horror. At the same time, the applicant’s past privations, and her chronic and deep seated depression, evoke a deal of natural sympathy for her dreadful situation.

1. Having given this application anxious consideration, I cannot see how it can reasonably be contended that the individual sentences, the total effective sentence, or the non-parole period, were wholly outside the range reasonably available for offences of this gravity. Accordingly, leave to appeal must be refused.

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