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:

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.

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’).

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.

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.

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.

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.

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

The birth of her youngest child had been traumatic. She…

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 [2017] VSCA 311
Case: [2017] VSCA 311
Decision Date: 30 October 2017

CaseChat Overview and Summary

The case of Guode v The Queen involved the appellant who had been convicted of two counts of murder, one count of infanticide, and one count of attempted murder. The appellant appealed against his sentence of 26 years and six months' imprisonment with a non-parole period of 20 years, arguing that the sentence was manifestly excessive and that the trial judge failed to give sufficient weight to mitigating factors. The appeal was heard by the High Court of Australia.

The central legal issues in this case were whether the sentence imposed by the trial judge was manifestly excessive, and whether the trial judge adequately considered the mitigating factors presented. The appellant argued that the sentence was disproportionately severe and did not reflect the degree of culpability and the personal circumstances of the appellant. The appellant also contended that the trial judge did not sufficiently weigh the mitigating factors, which included the appellant's background, mental state, and the impact of the offences on the victims and their families.

The High Court considered the principles of sentencing in criminal cases, emphasising the importance of proportionality and the need to consider both the gravity of the offence and the personal circumstances of the offender. The Court found that the sentence imposed was within the range of sentences that could be considered appropriate for the crimes committed, taking into account the severity of the offences and the need for deterrence and retribution. The Court also concluded that the trial judge had adequately considered the mitigating factors and that there was no basis to conclude that the sentence was manifestly excessive. Consequently, the Court dismissed the appeal and denied the appellant leave to appeal.

The final orders of the Court were to dismiss the appeal and deny the appellant leave to appeal against the sentence imposed by the trial judge. The appellant's conviction and sentence of 26 years and six months' imprisonment with a non-parole period of 20 years were upheld.

Orders