R v Guode

Case [2020] HCA 8

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, NETTLE, GORDON AND EDELMAN JJ

THE QUEEN  APPELLANT

AND

AKON GUODE  RESPONDENT

The Queen v Guode

[2020] HCA 8

Date of Hearing: 14 November 2019
Date of Judgment: 18 March 2020

M75/2019

ORDER

1.Appeal allowed.

2. Set aside the orders made by the Court of Appeal of the Supreme Court of Victoria on 16 August 2018.

3.Quash the sentences imposed by the Court of Appeal of the Supreme Court of Victoria on 16 August 2018.

4.Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further determination according to law.

On appeal from the Supreme Court of Victoria

Representation

K E Judd QC with A S Ellis for the appellant (instructed by Solicitor for Public Prosecutions (Vic))

O P Holdenson QC with C A Boston and L V Drago for the respondent (instructed by Stary Norton Halphen)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Guode

Criminal law – Sentence – Irrelevant consideration – Where respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – Where primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Where Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Where respondent's mental condition at time of offending called for application of principles stated in R v Verdins (2007) 16 VR 269 – Where element of offence of infanticide included disturbance of balance of mind – Where infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Whether Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide.

Words and phrases – "acceptance of a plea", "attempted murder", "disturbance of mind", "impaired mental functioning", "infanticide", "irrelevant consideration", "manifestly excessive", "mental condition", "mitigating factors", "moral culpability", "murder", "sentencing", "sentencing considerations", "specific error", "Verdins considerations".  

Crimes Act 1958 (Vic), ss 3, 6(1), 321P(1)‑(1A).

  1. KIEFEL CJ, GAGELER AND NETTLE JJ.   The sole question of principle which arises for determination in this appeal is whether, where a woman with impaired mental functioning is charged with and pleads guilty to an offence of infanticide and also offences of murder and attempted murder committed by the same act, the Crown's acceptance of the plea to the charge of infanticide is relevant to the sentences to be imposed on the charges of murder and attempted murder. For the reasons which follow, it is not.

  2. The dispositive question of fact is whether the Court of Appeal of the Supreme Court of Victoria, in determining the respondent's appeal to that Court against her sentence on the basis that it was manifestly excessive,…

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R v Guode [2020] HCA 8
Case
[2020] HCA 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Director of Public Prosecutions against a sentence reduction imposed by the Court of Appeal of Victoria. The respondent, Ms Guode, had pleaded guilty to infanticide, two counts of murder, and attempted murder, stemming from an incident where she drove her car into a lake, resulting in the deaths of three of her children. The primary judge sentenced her to 26 years and six months' imprisonment with a 20-year non-parole period. The Court of Appeal subsequently reduced this to 18 years' imprisonment with a 14-year non-parole period.

The central legal issue before the High Court was whether the Court of Appeal had erred by considering an irrelevant factor when re-sentencing the respondent. Specifically, the court had to determine if the Court of Appeal had improperly allowed the statutory definition and sentencing regime of infanticide, which includes a "disturbance of balance of mind" and carries a significantly lower maximum penalty, to influence its evaluation of the sentences for the more serious offences of murder and attempted murder. This involved assessing whether the Court of Appeal had viewed the murder and attempted murder charges in light of the Crown's acceptance of the infanticide plea, thereby potentially reducing the moral culpability attributed to the respondent for those offences.

The High Court found that the Court of Appeal had indeed erred by taking into account the Crown's acceptance of the plea to infanticide as a relevant consideration when assessing whether the sentences for murder and attempted murder were manifestly excessive. The Court reasoned that while the respondent's mental condition, which was relevant to the infanticide charge and the application of the principles in *R v Verdins*, was also relevant to the other offences, it was improper to allow the lesser maximum penalty and specific statutory definition of infanticide to inform the sentencing for murder and attempted murder. This practice risked undermining Parliament's intention by allowing the unique sentencing considerations for infanticide to unduly influence the sentencing for more serious offences.

Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal, quashed the sentences imposed by that court, and remitted the matter back to the Court of Appeal for further determination according to law.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made by the Court of Appeal of the Supreme Court of Victoria on 16 August 2018.

3. Quash the sentences imposed by the Court of Appeal of the Supreme Court of Victoria on 16 August 2018.

4. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further determination according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, GAGELER AND NETTLE JJ GORDON AND EDELMAN JJ
Whether it would have been open to the Court of Appeal to conclude, without taking into account the Crown's acceptance of the plea to the charge of infanticide, that the sentences imposed by the sentencing judge on the charges of murder and attempted murder were manifestly excessive is not a question which needs to be determined in the appeal. It is a question of a nature which, as a general rule, this Court does not entertain[19].[19]Neal v The Queen (1982) 149 CLR 305 at 322‑323 per Brennan J; Munda v Western Australia (2013) 249 CLR 600 at 621‑622 [60] per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ.Conclusion and orders The Court of Appeal erred by taking into account as a relevant consideration in the determination of whether the sentences imposed on the charges of murder and attempted murder were manifestly excessive that the Crown had accepted the respondent's plea of guilty to the charge of infanticide, and thus that the charges of murder and attempted murder were to be viewed "in light of the statutory definition of infanticide in s 6(1) of the Crimes Act 1958". The orders of the Court of Appeal should be set aside, the sentences imposed by the Court of Appeal should be quashed and the matter should be remitted to the Court of Appeal for further determination according to law. Introduction On 8 April 2015, Ms Guode deliberately drove her car into Lake Gladman in Wyndham Vale, Victoria. Four of her children were in the car. The oldest of those children (Aluel) was five years old. Her twins (Madit and Hangar) were four years old. And her youngest child (Bol) was aged 16 months. Shortly prior to this shocking event, one of her children had been observed to be hysterical in the car while another child was observed hanging off or grabbing the front seat, and Ms Guode had been seen huddled over the steering wheel with her face in her hands. Ms Guode survived, together with Aluel. The other three children drowned. Ms Guode was charged on indictment with (i) infanticide of Bol (charge 1), (ii) murder of Madit and Hangar (charges 2 and 3), and (iii) attempted murder of Aluel (charge 4). Ms Guode pleaded guilty to all counts in the Supreme Court of Victoria on 16 January 2017. Ms Guode had arrived in Australia in 2005 as a refugee on a Global Special Humanitarian visa after having been raised in South Sudan during the civil war. She had witnessed her husband's murder. She had been raped to the point of unconsciousness and had been wounded with a knife. She had escaped by walking for 18 days to Uganda with her three young children. After arriving in Australia, she had four further children as a result of a relationship which saw her ostracised from her community. At the time of her offending, Ms Guode was a single parent with a traumatic past. She had seven children, spoke little English, had severe financial problems, and was socially isolated. The uncontested evidence at the sentencing hearing was that Ms Guode had been suffering from a major depressive disorder linked with the birth of Bol in 2013 and a mild post-traumatic stress disorder. The primary judge (Lasry J) sentenced her to imprisonment for 22 years for each charge of murder and six years for the charge of attempted murder. After concurrency of some of those sentences, her total effective sentence was 26 years and six months' imprisonment with a non-parole period of 20 years.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER AND NETTLE JJ, GORDON AND EDELMAN JJ

No doubt, the assessment of the nature and gravity of the woman's state of mind for the purposes of sentencing her for the offence of infanticide is likely to entail consideration of the same evidence as is relevant to the assessment of the woman's mental condition for the purpose of applying the Verdins considerations to the sentences to be imposed for the other offences. It is not to the point, however, and it says nothing sufficiently specific about the nature and gravity of a woman's mental condition for the purpose of applying the Verdins considerations to the other offences, to observe that the woman's mental condition is capable of description as a disturbance of mind because of a disorder consequent on the woman giving birth to another child within the meaning of s 6(1) of the Crimes Act. So to describe the woman's mental condition creates the risk that the other offences will be "viewed in light of the statutory definition of infanticide in s 6(1) of the Crimes Act", and thus as attracting sentences at least to some degree informed by the unique sentencing regime of s 6(1) that Parliament has determined should apply only to the offence of infanticide. It is a practice that should be avoided.Error in taking an irrelevant consideration into account As is apparent from the Court of Appeal's reasons, their Honours followed[15] Bongiorno JA's process of reasoning in Director of Public Prosecutions v QPX[16]: that, where a woman was charged with infanticide of one child and, simultaneously, with recklessly causing serious injury to another, both offences had to be viewed in light of the definition of infanticide in s 6(1) of the Crimes Act, and the Crown's acceptance of the woman's plea of guilty to infanticide in respect of the first child was to be treated as acknowledging that both offences were committed in circumstances arising from or causally connected to the woman having recently given birth to both children. On that basis, the Court of Appeal concluded[17] that the respondent's offences of murder and attempted murder needed to be "viewed in light of the statutory definition of infanticide in s 6(1) of the Crimes Act", and the Crown's acceptance of the respondent's plea to infanticide in respect of her youngest child was to be taken as an acknowledgment that all four of the respondent's offences were committed in circumstances arising from, or causally connected to, a disorder consequent upon the respondent having recently given birth to the respondent's youngest child. [15]Guode v The Queen [2018] VSCA 205 at [66].[16][2014] VSC 189.[17]Guode v The Queen [2018] VSCA 205 at [67]. Of course, if, as counsel for the respondent submitted, that meant no more than that the Court of Appeal considered the charges of murder and attempted murder were to be viewed in light of the uncontested expert evidence that the respondent was suffering from a clinically significant mood disorder which impaired her capacity to exercise appropriate judgment, think clearly, make calm and rational choices, and appreciate the wrongfulness of her conduct, there would be no error in it. But if, as the Director contended, the Court of Appeal intended thereby to convey that the sentences imposed on the charges of murder and attempted murder needed to be reduced to reflect the fact that the balance of the respondent's mind was disturbed because of a disorder consequent on her giving birth to a child within the preceding two years within the meaning of s 6(1) of the Crimes Act, the Court of Appeal were in error. So to approach the sentencing task was tantamount to doing the very thing that Parliament, by rejecting recommendation 3(ii) of the Commission's Report, determined should not be done.