R v Guode

[2019] HCATrans 224

[2019] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M75 of 2019

B e t w e e n -

THE QUEEN

Appellant

and

AKON GUODE

Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 NOVEMBER 2019, AT 9.46 AM

Copyright in the High Court of Australia

MS K.E. JUDD, QC:   If the Court pleases, I appear with MS A.S. ELLIS for the appellant.  (instructed by Solicitor for Public Prosecutions (Vic))

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friends, MS C.A. BOSTON and MS L.V. DRAGO, for the respondent.  (instructed by Stary Norton Halphen)

KIEFEL CJ:   Yes, Ms Judd.

MS JUDD:   If the Court pleases.  The respondent was charged with and pleaded guilty to four charges.  The indictment is at page 7 of the core appeal book.  The infanticide was in respect of the child, Bol, of 17 months.  There were two charges of murder in respect of the twins, four‑years‑old Madit and Hanger, and there was an attempted murder of Alual, who was five years of age at the time.

The infanticide was put, and proceeded on the basis of paragraph (b) of the definition of infanticide, not (a).  The infanticide section of the Crimes Act is in the joint book of authorities at page 24.  You will see there that in order for infanticide to be committed there had to be sufficient evidence that the death of the child occurred in circumstances that would constitute murder.  There was a body of evidence as to the elements of murder as well as obviously the plea of guilty and then for infanticide it was necessary for either paragraphs (a) or (b) to be satisfied and, as I said, it was on the basis of (b): 

at the time of carrying out the conduct, the balance of [the respondent’s] mind was disturbed because of‑

. . . 

(b)a disorder consequent on her giving birth to that child within the preceding two years -

Now, the evidence that was relevant to this was contained in two reports of Dr Sullivan.  The first report at paragraph [66] – and if I could take you to the core appeal book at 288, paragraph [66] reads:

In my opinion, at the time of the incident with which Ms Guode 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.

So it picks up the words of paragraph (b).  Then, again, something similar is said in the second report at paragraph [23], and if I could take you to the core appeal book at 292 you will see that same paragraph repeated.

Now, the Crown’s submissions on the relevance of the mental state and, in particular, its overlap with moral culpability, those submissions were contained in oral submissions and written submissions, and if I could take you first to the core appeal book at 128 - these are the oral submissions, line 18.  There is a reference to infanticide remaining a criminal offence but, more importantly, if we could jump to line 23:

It simply carries a lesser maximum penalty and that was a decision that the legislature has made. The legislature chose to retain murder and life as a maximum penalty where there was a child over two years, so, Your Honour, when you come to the murders Your Honour has to sentence on that basis. It is not so much the infanticide influencing the way in which you approach the murder, it is the principles of Verdins that influence Your Honour in terms of how you take that mental state into account for the murders.

The Verdins principles in respect of infanticide are somewhat already accommodated by reason of the fact that the offender is facing that very much significantly lesser maximum penalty.

Then, with the written submissions, if I could take you to 171 of the core appeal book.

EDELMAN J:   None of those oral submissions were controversial, were they?

MS JUDD:   In a way - perhaps I should go back to what the respondent had earlier submitted, because it is that that I was responding to in those oral submissions and I was going to deal with it when I came to point 6 of the outline, but it seems appropriate to deal with it now in response to that question, if I may.  So, the respondent certainly‑ sorry, no, there is one more thing I need to take you to, to understand this earlier submission.  I will just explain it, rather than taking it to you. 

The gist of what I want to submit is that in terms of the infanticide there were particular paragraphs of Dr Sullivan’s report that were relied on to enable that.  In terms of the Verdins principles, there were different paragraphs.  The paragraph that the Crown relied on in respect of Verdins and, indeed, the defence relied on this same paragraph - they talk about [25], but it is paragraph [30] - that is just a misquotation - it is paragraph [30] at the core appeal book 293.  So:

I consider that her 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 Ms Guode’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.

That is addressing the principles in Verdins and if I take you to the joint book of authorities, Verdins (2007) 16 VR 269 starts at page 26 but if you could jump over to paragraph 26 at line 32 you will see there a reference to:

Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –

and relevantly for what Dr Sullivan has written there:

(a)impairing the offender’s ability to exercise appropriate judgment;

(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;

. . . 

(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct –

and that is ultimately picked up by Justice Lasry in terms of the way he deals with the moral culpability.  What the respondent submitted on the plea was, yes, paragraph [30] is relevant but what the respondent had also submitted is contained at pages 58 to 59 of the core appeal book and at line 13 Mr Dempsey says that he is going to move:

to some complex issues by way of matters of principle.  But the most complex, really, is that one the intersection between murder and infanticide.

He goes on to say that – he refers to the 2004 Law Reform Commission Review and Recommendations and he submits that those recommendations:

not only extended the temporal connection between the birth of child from 12 months to two years, they did away with outdated notions such as the disorder of the mind . . . the one that wasn’t picked up on, was that there was no logical or moral reason to distinguish between a mother who kills child who is under two, suffering from the kind of disorder that Ms Guode was, and in that same episode, kills children of her own that are older than two.  So there is this arbitrary line that is drawn, because of the age of the deceased where conduct that may well otherwise be infanticide becomes murder. 

You probably gathered from those introductory remarks we’re asking Your Honour to really view her conduct through the prism of infanticide rather than this is a murder first with an infanticide tacked on to the end. 

So there seems there to be some kind of request that the judge give some kind of effect to the rejected Victorian Law Reform Commission recommendations.  What I took you to earlier in terms of the oral submissions was really in response to that. 

GAGELER J:   Why are we looking at the submissions to the primary judge? 

MS JUDD:   Really to set, I suppose, an example of the way that it was approached by the primary judge, but I am going to take you to the way that the Court of Appeal – because the Court of Appeal seemed to pick up on that.  So Justice Lasry did not seem to pick up on that and sentence according to that, but it seems that ultimately the Court of Appeal, who you rightly say we should be considering, has to some extent gone down that path and I suppose that is why.  So to set the scene as to - the sequence. 

EDELMAN J:   But you say this was put before the Court of Appeal as well; the same type of argument was put to the Court of Appeal?

MS JUDD:   You do not have the transcript that was put before the Court of Appeal.  You do have the written submissions, but certainly it was put to the Court of Appeal, and that is acknowledged in their reasons, that the Court of Appeal were asked to look at this through the prism of infanticide.

GORDON J:   Is that right?  The way I read the Court of Appeal’s reasons for decision was that it was through the prism of the underlying mental health, in particular at paragraph 46 where they set out the submission:

The applicant’s counsel submitted that her 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’.

That seemed to be the Verdins principle, taking into account the underlying poor mental health.  Is that not an accurate reflection of the submission made?

MS JUDD:   Certainly there was a submission that it was necessary to look at this through the Verdins principles, but it was also said that the other charges needed to be looked at through the prism of infanticide.

GORDON J:   So that is not accurate at 46?

MS JUDD:    Well, it is not – it is dealing with an aspect of the submissions.  So in terms of the Court of Appeal approach, at paragraph 33, the Court of Appeal notes:

By its acceptance of the plea to infanticide with respect to the child Bol, the prosecution accepted that, at the time that the applicant carried out the conduct that caused his death, ‘the balance of her mind was disturbed’ because of ‘a disorder consequent on her giving birth to that child within the preceding [two] years’.

It goes on at paragraph 61 - just after 38, the Court of Appeal considers the prosecution’s submissions to the sentencing judge, but then just after paragraph 44, it considers the defence submissions to the sentencing judge.  So this is all under the broader – it is not under the broader banner but it does consider - is taking into account the defence submissions to the sentencing judge.  So in addition to what is being said ‑ ‑ ‑

NETTLE J:   I suppose principal amongst those would be page 124 of the core appeal book at lines 11 and following where that proposition is put that:

infanticide informs everything about the offender and everything necessary about the offence.

MS JUDD:   Yes, indeed.  I acknowledge that that is the submission to the sentencing judge.

NETTLE J:   Was it not picked up by the Court of Appeal?  Did they not have ‑ ‑ ‑

MS JUDD:   I submit that it was.

EDELMAN J:   But there is no reference in any of the written submissions or in the decision of the Court of Appeal to any submission specifically that the murder offences needed to be viewed through the prism of infanticide?

MS JUDD:   I do not know that that is quite right, your Honour, because the next paragraph – after the submissions in the court below, we jump to paragraph 61 which is the actual analysis.  So it does not set out in precise detail what the arguments were, but it starts off by saying:

Much of the discussion in this case concerned the ramifications of joining charges of infanticide and murder (and attempted murder) on the indictment; and more particularly, whether the charges of murder needed to be viewed through the ‘prism’ of infanticide.

So the way that it did proceed in the Court of Appeal, as acknowledged there, was pretty much it seems on that basis and it seems, because it did proceed on that basis, that is a sensible explanation as to why there was such a difference in the sentence from Justice Lasry compared to the sentence of the Court of Appeal.  They go on in 61 to say:

In our view, the real relevance of the charge of infanticide lies not so much in its presence on the indictment vis-à-vis the charges of murder (and attempted murder), but in the prosecution’s acceptance — in laying that charge and accepting a plea to it — that the balance of the applicant’s mind was disturbed due to a depressive disorder consequent on her giving birth to the child Bol.  That acceptance must, we consider, influence any assessment of the applicant’s moral blameworthiness on all of the charges that she faced.

So in that paragraph they are not looking at it from the perspective of the Verdins principles and the Verdins language; they are looking at it in terms of - the discussion there was the discussion about viewing it through the prism of infanticide.  We then jump to paragraph 65 – before I get to paragraph 65, at 64 the Court of Appeal acknowledged that a major recommendation from the Victorian Law Reform Commission, so this is 395 just before the quote:

A major recommendation to correct what the VLRC saw as an ‘anomaly’ was not, however, adopted by the legislature.

They set out what the VLRC said.  So there is an acknowledgement by the Court of Appeal that the recommendation was not accepted but effectively, in our submission, what they have done is they have gone on and viewed this in a way so as to give some effect to that rejected recommendation.

NETTLE J:   That is the last three lines of paragraph 65.

MS JUDD:   Yes.

NETTLE J:   We are back to the balance of mind rather than the Verdins principle.

MS JUDD:   Exactly.  So they say:

the applicant fell to be dealt with according to what the law is, not according to what the VLRC thought desirable -

in the first two lines, but they end up dealing with it pretty much on that basis of what the VLRC thought desirable.  Not completely, because obviously they cannot alter the maximum penalty, but there is a flavour of that recommendation filtering through to the reasoning.  So that is 65.  Then 67, again, in a like vein:

we consider that the charges of murder and attempted murder must be viewed in light of the statutory definition of infanticide in s 6(1) of the Crimes Act 1958, and by the prosecution’s acceptance of a plea to infanticide with respect to Bol, by which it acknowledged that all four offences were committed in circumstances arising from, or causally connected to, a disorder consequent upon the applicant recently having given birth to Bol.

They go on, in paragraphs 68 and 69, I acknowledge, to deal with the Verdins principles, but that is where they should have started, not ended.

GORDON J:   Is that right?  Take the analysis of 64 and 65 with them accepting as I think you accepted and put to them that they just have to accept that there is this underlying balance of mind being disturbed - so one has the identification of the mental disorder.  The question is what you do with it in relation to the other charges.  Is that not what they then go on to deal with by reference to the Verdins principles in 68 and 69 and following?

MS JUDD:   What they have done, though, in that preceding bit that they have spent a lot of time on is simply accept the statutory definition and the conclusion.  What is required to be done in Verdins is something a little bit different to that.  If I could take you to page 28 of the joint book of authorities, starting at paragraph 8 ‑ ‑ ‑

GORDON J:   What is this case?  Is this Verdins?

MS JUDD:   This is Verdins.

GORDON J:   What paragraph?

MS JUDD:   At paragraph 8.  The last two lines:

What matters is what the evidence shows about the nature, extent, and effect of the mental impairment experienced by the offender at the relevant time.

So, in our submission, it is not the statutory definition of “infanticide”, it is not the prosecution’s acceptance of a plea to infanticide. It is what the evidence shows, and it is an assessment of that evidence and that makes sense, because section 6(1) does not stipulate any particular level or threshold of imbalance that must be exceeded. You go on in Verdins, from paragraph 8 right down to paragraph 13, where there is a focus on looking at the nature and the severity of the symptoms, effect upon the mental capacity, and 13 in particular:

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry.  As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances — that is, at the time of the offending or in the lead‑up to it — or is likely to affect him/her in the future.

So the fact that the Court of Appeal has spent so much time talking about the statutory definition and the prosecution’s acceptance of it, it really was, for the purposes of Verdins, an irrelevant consideration.  The relevant consideration was the quite appropriate assessment of what that evidence meant in terms of how that could impact on moral culpability.  The fact that the legislature has chosen to have a much lesser maximum for infanticide and chosen to treat it as such, is just simply not relevant to those considerations.

EDELMAN J:   Do you take any objection to paragraphs 55, 56, and 57 of the sentencing reasons on page 334 to 335 which, in some respects, bear a similar flavour to the approach taken by the Court of Appeal, although at 57 at least, the sentencing judge makes it fairly clear that it is the principles in Verdins that are being applied?

MS JUDD:   I cannot remember what paragraph you said to start with ‑ ‑ ‑

EDELMAN J:   Page 334.

MS JUDD:   I have the page, if I start with 53, did you ‑ ‑ ‑

EDELMAN J:   Or 55, but 53 is ‑ ‑ ‑

MS JUDD:   Well, if I go back to 53, what the sentencing judge says is:

In his assessments, Dr Sullivan diagnosed you –

as follows and he picks up that paragraph that picks up Verdins principles about the respondent had an impaired ability to exercise appropriate judgment and then impaired ability to:

think clearly, make calm and rational choices –

and an impaired ability to:

appreciate the wrongfulness of her conduct. 

Paragraph 55 acknowledges the submission made by the respondent’s counsel at the time.  Paragraph 56 is quite important because if you look at the last sentence, the sentencing judge says:

Clearly, your mental state as I conclude it to be, affects all four charges.

So, the sentencing judge is saying there is a role for me to assess the evidence and I make the conclusions about that.  So, the sentencing judge is not going down that path.  Now, I do acknowledge in the next paragraph, the judge says:

Therefore, you plea to infanticide having been accepted –

but he goes on to say, “and” and it is important there:

and there being evidence to support a conclusion from Dr Sullivan, it also follows that several of the principles decided in R v Verdins apply in your case.

It is difficult to know exactly what he means by that.

GORDON J:   It is set out in 53.  In 53 his Honour, as I read it, identifies – or refers to the evidence of Dr Sullivan diagnosing the respondent:

as suffering from a major depressive disorder . . . This disorder, he said, involved some degree of impairment –

links the condition to the birth of the child and then goes on to say at the end:

However, importantly your condition remained at the time of these offences ‑ ‑ ‑

MS JUDD:   Exactly.

GORDON J:   So, it is the same condition.  So, the logic is, Crown has accepted plea to infanticide underlying balance of mind disturbed.  I have gone to the evidence which is led in order to identify that condition at the time of the birth and it is that mental condition by reference to that evidence which I find has continued giving rise to the application of the Verdins principle.

MS JUDD: I submit that the sentencing judge did approach it correctly but in terms of what the sentencing judge did – in terms of the mental state, the sentencing judge relied on paragraph [30] of Dr Sullivan’s report and that analysis, as opposed – for the purpose of the moral culpability side, as opposed to the paragraphs that lead to a conclusion that infanticide can be accepted. When you look at section 6(1) itself – I take you back to section 6(1), the extra element is that:

the balance of her mind was disturbed because of –

. . . 

(b)a disorder consequent on her giving birth to that child within the preceding 2 years –

That definition does not give a lot of context.  It does not give enough context to necessarily pick up the Verdins principles.

The other problem with it is that if it is – and it is the Court of Appeal that we need to be concentrating on rather than the sentencing judge.  If the sentencing judge erred as well, well, it does not mean it is right but, in my submission, it seems that the sentencing judge has gone down the right path.  But the difficulty is if you give some kind of effect, as a relevant consideration, to infanticide having been accepted, whether it is on the indictment or not, but if it is somehow relevant that it has been accepted, it means that in a case where, for example, Bol had not been in the car, there would be no acceptance of infanticide.  In a case, for example, where Bol ‑ ‑ ‑

KIEFEL CJ:   Because infanticide relates only to the one child?

MS JUDD:   That is right.  So if you pick up those principles for the other offences it cannot possibly be that the sentence for the others is dependent upon whether or not Bol is in the car or not.  Another example might be, for example, is if Bol was not actually killed.  So infanticide, as such, would not have been on the indictment.  I have never seen an attempted infanticide.  I think, as a prosecutor, we would always probably find another offence that fit more than attempted infanticide.  But if he had not been killed like Alual, the five‑year‑old, we then have a very different scenario.

EDELMAN J:   Well, of course, because if there is no infanticide on the indictment then, clearly, there is no common ground that there is necessarily any disturbance of mind.  There has got to be evidence led about that, or further evidence led about that.  As I understand the point that was being made by the sentencing judge, at least in one or two of the paragraphs of the Court of Appeal’s reasons, it is to say that the acceptance of the plea shows, at least, that there was some common ground of disturbance of mind.

MS JUDD:   That is all right.  The difficulty is when you have such a marked difference between what the sentencing judge did and what the Court of Appeal did, it needs to be explained by reference to something.

EDELMAN J:   But that is a submission about the Court of Appeal erred in concluding that there was manifest excess.  That is not a ground of appeal before us.

MS JUDD:   No, but what I am submitting is that you can infer from such – as well as the comments of the Court of Appeal where they go through this material – as well as those comments where they seem to regard as relevant the acceptance and they do seem to give quite a bit of effect to it, you can also infer that they have given effect to this irrelevant consideration by reason of such a marked difference in sentence.  And just if I could take you to the two sentences for a moment; we have Justice Lasry’s sentence, at page 339 ‑ ‑ ‑

KIEFEL CJ:   Well, I think we are aware of what they are.  There is a substantial difference.

MS JUDD:   Yes.  Well, if I could just make this ‑ ‑ ‑

KIEFEL CJ:   Your point is that the eight and a half year on the head sentence in the Court of Appeal, the reduction is only explained by an approach which had regard to infanticide applied to all of the children?

MS JUDD:   Yes, that is my point.  Could I just make this one further point to note, though ‑ ‑ ‑

KIEFEL CJ:   What do you say that the Court of Appeal identified as the error of the sentencing judge?

MS JUDD:   That there was a relevance in considering the prosecution’s acceptance of a plea to infanticide.

KIEFEL CJ:   Sorry, where do you say the Court of Appeal identifies the sentencing judge’s error?

MS JUDD:   Sorry, no, the Court of Appeal does not identify the sentencing judge’s error as such.  The Court of Appeal says it was a manifestly excessive sentence. 

KIEFEL CJ:   Do you say it would not have been open to the Court of Appeal to say that the sentencing judge had failed to apply Verdins in relation to the children not the subject of the infanticide charge? 

MS JUDD:   Sorry, could you please repeat that? 

KIEFEL CJ:   Do you say that – do you submit – that it would not have been open to the Court of Appeal to say that the sentencing judge had failed to apply Verdins in relation to the children other than the child the subject of the infanticide charge? 

MS JUDD:   The sentencing judge applied Verdins.  What I say that the Court of Appeal did was that over and above – well, that they did not analyse it so much on the basis of Verdins and an assessment of that evidence relevant to Verdins, that they analysed it in addition through the infanticide having been accepted. 

NETTLE J:   Can I just ask you this.  If you look at paragraph 72 of the Court of Appeal’s reasons for judgement, they express the view that a sentence of 22 years of imprisonment is manifestly excessive.  The Chief Justice, I think, if I may say so, was putting to you, is your contention that it was not open to the Court of Appeal to say that without taking the view that the trial judge had erred in the application of Verdins principles. 

MS JUDD:   Yes, yes.  I am sorry, Chief Justice, that is what I am saying.  And in that paragraph that your Honour Justice Nettle has taken me to, it is noted at line 4:

Had adequate weight been given to the applicant’s mental condition and other factors in mitigation ‑

So mental condition is at the forefront. 

EDELMAN J:  Why was it not open to the Court of Appeal to say that the – in effect, that the trial judge applied the Verdins principles, but placed weight on them in such a way as to be manifestly excessive?

MS JUDD:   It is very hard to find a case by way of comparison here, but if you had – I suppose the closest case is the case of Fitchett which Justice Weinberg also referred to in his reasons.  I will just find that.  So that is the sentence of R v Fitchett ‑ ‑ ‑ 

GAGELER J:   Ms Judd, we are not dealing with an all grounds appeal here.  You have one very targeted ground of appeal on which you have been granted special leave.  It is that an irrelevant consideration was taken into account.  The irrelevant consideration is that which you say appears at paragraph 61 through to 65 – to 67 and you say that that fed into the conclusion at ‑72 ‑ ‑ ‑  

MS JUDD:   Yes.

GAGELER J:   ‑ ‑ ‑ and if you are right about that, all you are asking for is that the matter goes back ‑ ‑ ‑ 

MS JUDD:   Yes, I am.

GAGELER J:   ‑ ‑ ‑ to the Court of Appeal, and they look at it again.

MS JUDD:   Yes.

GAGELER J:   And they may well come to the same conclusion.

NETTLE J:   Why would it go back to the Court of Appeal?  Why would not the sentences as imposed by the sentencing judge simply stand?

MS JUDD:   I thought about asking the Court to do that but the submission that – my main submission is that the Court of Appeal has erred and therefore, on that basis, that there is an argument that the sentence ought stand.  It would be, I suppose, whether or not this Court felt that it was in possession of sufficient material and was prepared to determine the issue of manifest excess itself.

EDELMAN J:   That is not a ground before us.

MS JUDD:   No, but the ground of appeal is that the Court of Appeal erred and so, if you accept my submission that they have taken into account an irrelevant consideration, some court then needs to determine whether or not it is manifestly excessive according to the correct principles of law.  So, unless this Court were prepared to and felt able to engage in that task as well, then it would go back to the Court of Appeal to determine it according to law.  Does that answer your Honour Justice Nettle’s question?

NETTLE J:   Yes, thank you.

MS JUDD:   But I say I get there for two reasons, Justice Gageler.  One is the terminology that is used, the reasons that are used by the Court of Appeal.  But I say that I am supported – or those reasons, or my interpretation of those reasons, are supported by the marked difference in the sentence itself.  I do just want to make a comment about the ultimate sentence because I think it is important in this context.  If you could turn to page 399 of the core appeal book, just by way of comparison you have – paragraph 75:

a total effective sentence of 18 years’ –

with 14 years’ non‑parole period.  Then when you jump down to 6AAA, there would have been:

33 years’ imprisonment, with a non‑parole period of 27 years –

had there not been a plea of guilty.  It seems on its face a massive reduction for a plea of guilty that came very late.

GORDON J:   I speak only for myself, Ms Judd, but I do not understand why we are being taken to this and what the relevance of this is.

MS JUDD:   Well, just that the ‑ ‑ ‑

GORDON J:   There has been a reduction; that is a fact.

MS JUDD:   The sentence itself that the Court of Appeal have ultimately come up with cannot really be explained by giving that type of reduction for the plea of guilty, so if you compare – I suppose what I am saying is do not just compare the total effective sentence, but also ‑ ‑ ‑

EDELMAN J:   That strongly militates against your submission because, if your submission is that the infanticide prism‑type error can only be explained because of the marked difference in sentence, now you are saying, well, the marked difference in sentence should be explained by an over‑reduction that has been given as a result of a plea of guilty.

MS JUDD:    In part, I am bringing this to your attention against myself; I acknowledge that, but I am also saying ‑ ‑ ‑

KIEFEL CJ:   I thought you were saying that a reduction as significant as this could not be explained by an early plea of guilty.

MS JUDD:    Yes, I am, but I am saying that - they asserted that, but I am saying that as a matter of appropriateness, such a discount ought not have been given in that manner.

GORDON J:   Separately from this contention about infanticide.

MS JUDD:    No, I am not asserting that it is a – I am trying to bring all of the facts, to make sure the Court has all of the facts.

EDELMAN J:   Your submission, as I understand it, you are effectively accepting that the large reduction, the six and a half year reduction in sentence is not just explicable on your case ‑ ‑ ‑

MS JUDD:    No, I am not submitting that at all.  I am not doing it very well.  Let me start again.  Let us just say we did not have a plea of guilty in this case and the Court was sentencing not on the basis of giving any discount for a plea of guilty.  What you would have, probably, is a sentence of 33 years with a non‑parole period of 27 years.  I would find it difficult to be asserting that that was an error that was not within the range.  I find it difficult to be using this second limb of you compare the two sentences to support my argument.

My primary argument is you just need to look at the reasons, but insofar as there is a difference in sentence I say look at the total effective sentence of 18 years and 14 years but I am acknowledging that if there had not been that plea of guilty it would not have been so concerning if 33 years and 27 years had gone down to something that was more comparable with that.

KIEFEL CJ:   Ms Judd, where are we in relation to your outline of argument?  Have you covered most of it?

MS JUDD:   I have actually covered most of it.

KIEFEL CJ:   Yes, I thought so.  I think the points that you have made are clear enough to the Court.

MS JUDD:   Yes.  There is just one more point that does not really have an impact on whether or not this Court should accept my argument, but I do want to point it out in the event that it is ultimately successful and there is a reconsideration.  It will not take long at all.  In the respondent’s submissions at paragraph 9, and I notice that it is picked up in the oral submissions, they refer to ‑ ‑ ‑

GORDON J:   What paragraph, please?

MS JUDD:   Paragraph 9 of the respondent’s submissions on the appeal, reference to:

Dr Sullivan concluded that the respondent was suffering from a major depressive disorder with severe symptons ‑

and they picked that up from Justice Lasry at paragraph 53 and that carries through to the Court of Appeal judgment.  I just want to point out that although I recognise that Justice Lasry categorised it in that way, Dr Sullivan’s report was – I will take you to it.  The second report is probably the best one.  At paragraph [20]:

The onset and persistence of her depressive symptoms are consistent with a diagnosis of major depressive disorder, mild‑moderate in severity‑

and continues, and then elaborates on that in the oral evidence at page 76 of the core appeal book, line 17:

would be consistent with what I’ve described here as a major depressive disorder; mild to moderate in severity with sematic syndrome‑

and then goes on to explain what “mild” means.

KIEFEL CJ:   Where do you say the Court of Appeal accepted that it was severe rather than mild to moderate?

MS JUDD:   So the Court of Appeal, to be fair to the Court of Appeal we start with Justice Lasry at‑ ‑ ‑

KIEFEL CJ:   No, where does the Court of Appeal‑ ‑ ‑

MS JUDD:   Court of Appeal, they quote Justice Lasry, 391, I think it is.  So it says, bottom of page 390, picking up the sentencing judge:

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.

The other point, just to note, is that it is suggested here that there was an agreed summary of facts.  That is not the case, and it is not the case that the Crown simply accepted the evidence of Dr Sullivan.  Yes, it did in large part, but this proceeded by way of a prosecution opening and Dr Sullivan was in fact cross‑examined by the Crown.  They are not big points, but it just completes the picture in terms of accuracy. If the Court pleases.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Holdenson.

MR HOLDENSON:   Your Honours will have received earlier this morning the respondent’s outline of submissions.  They were filed earlier this morning.  Can I commence by putting this all in some sort of context.  All four of the offences committed by the respondent arose out of one and the same event, one transaction, one course of conduct, namely the act of the driving of the car into the lake.  The respondent engaged in that course of conduct whilst affected by, or suffering from, to use a neutral expression, “the mental state” or condition which had been described by Dr Sullivan and accepted by the learned sentencing judge.

To be precise, the four offences the subject of the indictment, each of which had been committed by the respondent at the one time, were accompanied by the one mental state, which had the one source.  With respect to that state of mind, which involved the impaired mental functioning described by Dr Sullivan, he presented within his first report, and I will do this, if I might, by reference to his first report - his first report commences in the appeal book at 280, that is the report dated 13 January 2017, and his diagnosis is set out at page 287 at paragraph [64].  It is there described as a:

major depressive disorder, mild–moderate in severity with somatic syndrome –

and it is there described.  Likewise, described in the second report prepared by Dr Sullivan, that is the report dated 11 February 2017, in like terms at page 292 of the appeal book at paragraph [20] and, to be complete, there was then, and it is my expression only, “subsequently added” - I say “added” - the diagnosis of post‑traumatic stress disorder and that came in the third of the three reports prepared by Dr Sullivan dated 28 March 2017, in particular, at paragraphs [12] to [13] at the foot of 321.  He added that diagnosis but was very careful to state that that added diagnosis - and this is within paragraph [13] at page 321 - did not have the effect of altering the previous diagnosis in those two paragraphs. 

As to the onset of and the maintenance or persistence of that disorder, the subject of the diagnosis, it was described by Dr Sullivan in the first report, that is the report dated 13 January 2017 at paragraphs [61], [62] and [63] of the appeal book at 287.  The source of that which is the subject of the diagnosis is the birth of Bol, Bol being the subject of the charge of infanticide, charge 1 on the indictment, and that is explained in detail in paragraphs [61], [62] and [63]. 

There is a like sequence in the second report of Dr Sullivan in paragraph [15] at the foot of 291 of the appeal book, albeit there is a typing error in the second line - nothing turns on that, of course - but it is in paragraph [15] at the foot of 291 that there is recorded - and this is all under the subheading “Opinion and Recommendations” - the birth of the child, Bol, and then the similar sequence is set out in paragraphs [17], [18] and [19] on 292. 

There is then, again in each of the two reports, an expression of opinion by Dr Sullivan concerning the respondent’s state of mind at the time of the offending and it is in the terms of the second limb of section 6 of the Crimes Act, the section which creates the offence of infanticide in Victoria, the limb, of course, referred to by the Director in her submissions this morning.  He refers to it in terms in the first report at 288 of the appeal book at the very head of the page and, albeit, expressing the opinion there in the terms the subject of the second limb of the statutory offence of infanticide, the opening line is by reference to:

at the time of the incident with which Ms Guode is charged –

the incident which gives rise to not just the offence of infanticide involving the first child but also – I pause to note – the other three offences, the subject of the other three children.  There is a similar passage of course in the second report at 292 – that is the second report – at paragraph [23], at the foot of the page, again expressed in terms of:

at the time of the incident with which Ms Guode is charged –

and, again, picking up the language of the second limb of section 6 of the Crimes Act.  Then, as was fairly described by the Director this morning as to how it was that the respondent’s mind was concerned at this time as to the mental functioning involved at that time, it is described on page 293, in the second report of Dr Sullivan, at paragraph [30].  Again, it is by reference to all four offences for which the respondent, as she now is, fell to be sentenced: 

I consider that her mental functioning at the time of the offences –

plural:

was impaired by -

So that is the evidentiary foundation upon which both the learned sentencing judge proceeded because he accepted it, because there was no challenge to any of that material to which I have just taken the Court, albeit Dr Sullivan was the subject of some short cross‑examination ‑ ‑ ‑

KIEFEL CJ:   No one – I do not think it is suggested there is ‑ ‑ ‑

MR HOLDENSON: Not an issue. So the disorder described by Dr Sullivan, together with its cause, as described by Dr Sullivan, constituted or made out or satisfied – to use our friend’s expression – the second limb, one of the elements of the offence of infanticide, as per section 6, and the impairment which it produced on the respondent’s mental functioning constituted a substantial factor in mitigation of sentence, significantly bearing upon a number of the sentencing principles applicable or relevant to the exercise of the sentencing discretion in this case.

I know this appeal is brought from what it was that the Court of Appeal did, but the Court of Appeal analysed what the sentencing judge did.  So could I first take your Honours to what the sentencing judge did or, more precisely, as to how it was he exercised his discretion.  The submission we make with respect to the manner in which his Honour exercised his discretion was that his Honour exercised the discretion in accordance with the evidence as I have described it and its consequences as I have described it.

The reasons for sentence – and I know these passages have already been referred to thus far, so I can do it fairly quickly – in paragraph 53 of the reasons for sentence of the learned sentencing judge, which can be found on page 344 of the appeal book.  That is where in paragraph 53, albeit in summary form but in fair form, Justice Lasry sets out the diagnosis and its consequences.  That is apparent from the second line:

This disorder, he said –

Dr Sullivan said:

involved some degree of impairment in functioning.

The cause is identified.

Dr Sullivan links this condition with the birth of Bol –

16 months before the offending, and there is a short but accurate description or summary of what is to be found in paragraph [30] of the second report, prepared by Dr Sullivan, to which one then goes to the last sentence in paragraph 56.  Paragraph 56 I know commences at the foot of 334, but the last sentence is at line 10 on 335 where his Honour sets out his finding expressed in the form of a conclusion.  His Honour says:

Clearly, your mental state as I conclude it to be, affects all four charges.

Now, can I just pause for a moment.  I went from paragraph 53 to the end of 56.  I have jumped within 56 the submissions made by defence counsel on the plea.  I have also jumped what is set out in paragraph 55 where there is recorded the submission said to have been made by defence counsel which is referrable to “through that prism”.  Your Honours will see that phrase.  His Honour did you understand the use of this term “prism” in a manner which caused him to err.  His Honour has understood that to mean that the one state of mind accompanied the commission of all four offences and that is what his Honour then did ‑ ‑ ‑

KIEFEL CJ:   Are you saying that there is no error in the sentencing judge’s approach?

MR HOLDENSON:   Correct.  We say that there is no error in the approach adopted by the sentencing judge, save and except to impose a sentence which was manifestly excessive, for the reasons set out in paragraph 72 of the judgment below where, in an attempt, if I could use the language of Mr Justice Crockett, he always described manifest excess as non‑specific error, where you could not find a specific error; it is just that the end result was wrong. 

I likened it – perhaps my analogy is wrong – but the solving of a quadratic equation.  Every step you get right and then at the end instead of getting x = 2 or x = 3, you get x = 27 or x = -5.  There is an error in the last line.  Everything is right, all the working is right, last line wrong; non‑specific error.  In paragraph 72 of the judgment below is where their Honours conclude - at least as I recall it is paragraph 72 ‑ ‑ ‑

KIEFEL CJ:   But their Honours are not referring to any comparable sentence.  They are not saying that it is out of range.  What is the rationale?

MR HOLDENSON:   They do say it is outside of range because at the head of the next page, still within paragraph 72:

Indeed, in our view, the individual sentences on those charges are beyond the range of those open in the sound exercise of the sentencing discretion, and are manifestly excessive –

So that is charges 2 and 3, and then in the brackets the reference is made to the charge of attempted murder, the fourth.  Now, one must be careful about - your Honour I think in the question just asked of me used the word “comparable”.  It was said on the plea by both sides, including the prosecutor, that there were no comparable cases.  Could I just, now that I have said that ‑ ‑ ‑

KIEFEL CJ:   One could certainly accept that on the facts, talking about comparable sentences for murder.

MR HOLDENSON:   It was said on the plea by the prosecutor there are no comparable cases.  They are hard to find.

KIEFEL CJ: Mr Holdenson, in relation to paragraph 72, when the Court of Appeal refers to adequate weight had not been given to the applicant’s mental condition, is that just a reference to the medical evidence, or is it a reference to the conclusion for the purposes of section 6(1)?

MR HOLDENSON:   It is a reference to – if I can put it in the shorthand – what was in paragraph 32 of the second report of Dr Sullivan, which is set out within paragraph 68 on page 396 of the appeal book.  That is where one sees, first of all, in the third line, the causal connection is identified – as indeed it was by Dr Sullivan – and then still within the fourth line, the effect of it very much referable to paragraph [30] of Dr Sullivan’s second report, which of course was picked up on. 

KIEFEL CJ:   But, in any event, I take it from your earlier submissions that you would agree that where the Court of Appeal says it is manifestly excessive by not having regard to the applicant’s mental condition, that the Court of Appeal’s approach to viewing all of the charges as subject to the notion of infanticide. 

MR HOLDENSON:   No.

KIEFEL CJ:   You do not accept that?  You just say it is a ‑ ‑ ‑ 

MR HOLDENSON:   I will explain that ‑ ‑ ‑ 

KIEFEL CJ:   You just say it is a plain error. 

MR HOLDENSON:   Well, can I deal with a few things.  First of all, within your Honour’s formulation of the question in discussion just a moment ago, as I understood it, your Honour was construing paragraph 72 of the judgment below as though they were suggesting, within their reasons, that no weight had been given to the mental condition.  They said within 72 ‑ and this is at the very foot of page 397:

Had adequate weight been given to the applicant’s mental condition, and other factors in mitigation ‑ ‑ ‑ 

KIEFEL CJ:   What are the other factors in mitigation? 

MR HOLDENSON:   Well, there was obviously the plea of guilty and the effect of the plea of guilty.  There was also the question of burdensome nature, or the overly onerous nature of custody by reference to the deportation and the loss of the life ‑ ‑ ‑ 

KIEFEL CJ:   And the prosecution’s acceptance of the plea of infanticide? 

MR HOLDENSON:   Not of itself.  I think I had better spend some time on this ‑ ‑ ‑ 

GORDON J:   I think it is set out in paragraph 70, is it not?  Are they not the additional factors in mitigation? 

MR HOLDENSON:   Yes, that is where they start.  We have listed them in our respondent’s written submissions, but can I – I had better deal with this notion of what it was that the Court of Appeal, and for that matter the sentencing judge, first took into account in the exercise of the discretion.  So I have got to the – within the reasons for sentence of the learned sentencing judge I went to 53 and then the last sentence of 56.  Then in 57, which comes immediately after 56, of course:

Therefore, your plea to infanticide having been accepted and there being evidence to support a conclusion from Dr Sullivan, it also follows that several of the principles decided in R v Verdins apply in your case.

Then reference is made to what I will call, in a nutshell, causation:

There was a realistic connection between your mental state as Dr Sullivan described it and your offending.

“Offending” plural, offending referable to four offences:

There was no contention about that between your counsel and the prosecutor on the hearing of your plea. 

Then his Honour in 58 refers to those extracts or those principles from Verdins of relevance:

moral culpability . . . significantly moderate the role of specific deterrence . . . as well as general deterrence.  Your symptoms and their severity were described by Dr Sullivan -

That is also, for want of a better expression, repeated at 339 in paragraph 77, where reference is made to what would ordinarily be the relevant principles applicable to a case involving these offences, as listed on the indictment, and reference made to general deterrence and denunciation.

It is our submission that the very same approach was adopted by the court below in first determining that the sentence imposed by the sentencing judge was manifestly excessive and, secondly, in resentencing the respondent.

EDELMAN J:   Was there any argument or any dispute about paragraphs 55 to 57 of the sentencing judge’s reasons or was it common ground on the appeal that that is correct?

MR HOLDENSON:   Common ground on the plea and below.  It is said in terms in 56 or 57 that this was the approach – at the end of 57 this was the approach on the plea and it was the same approach, we say, in the court below and as is apparent from the judgment below, to which I should now come.

The paragraphs upon which our friend relied in order to make out or attempt to make out their contention is, first of all, paragraph 33 of the judgment below on page 384.  What is said in paragraph 33 is confined to charge 1 on the indictment, the offence of infanticide:

By its acceptance of the plea to infanticide with respect to the child Bol, the prosecution accepted that, at the time that the applicant carried out the conduct that caused his death, ‘the balance of her mind was disturbed’ –

and what is there picked up, what is there set out is the language in terms of the second limb of section 6 of the Crimes Act.  The Director then went to paragraph 61.  Paragraph 61can be broken up into – it is always dangerous to break anything up and to focus on anything because of course everything is to be construed by reference to context.  Working through paragraph 61:

Much of the discussion in this case concerned the ramifications of joining charges of infanticide and murder –

So that is 1, 2 and 3, then:

(and attempted murder) -

4:

on the indictment; and more particularly –

and we get this viewing through prisms. The next sentence, in our submission, sets that at naught.  It indicates that the discussion is really missing the point because what is said is:

In our view, the real relevance of the charge of infanticide lies not so much in its presence on the indictment . . . but –

and this is the real relevance:

in the prosecution’s acceptance –

and do not be misled by what comes between the dashes:

that the balance of the applicant’s mind was disturbed due to a depressive disorder –

they have left out the word “major”:

consequent on her giving birth to the child Bol.

KIEFEL CJ:   It is the last sentence that is the key, is it not?

MR HOLDENSON:   The phrase in the last sentence, that acceptance is referable to, in our submission, not what is in those dashes in the previous sentence but the balance of the applicant’s mind.

NETTLE J:   What is the relevance of referring to infanticide in relation to the other counts?  The only relevant evidence, surely, is doctor’s opinion as to the mental state.

MR HOLDENSON:   That is correct and that is what, in my submission, is being said within that paragraph – what is really relevant ‑ ‑ ‑

NETTLE J:   You keep on talking about infanticide ‑ through the prism of infanticide, the real relevance that the Crown accepting the plea to infanticide, then the reference to the law reform, then the prism again. 

MR HOLDENSON:   No, your Honour has gone beyond 61 in putting that to me and I am going to go beyond 61 in a moment but in 61 what is being said is the real relevance is the prosecution accepting:

that the balance of the applicant’s mind was disturbed due to a depressive disorder –

and that – I am now into the last sentence:

we consider, [must] influence any assessment of the applicant’s moral blameworthiness –

We would use the phrase “moral culpability”, but nothing turns on that:

on all of the charges that she faced.

EDELMAN J:   Your submission broadly is that it is a compendious way of saying it was common ground between the prosecution and the defence that she suffered from a major depressive disorder.

MR HOLDENSON:   Yes, now, Justice Nettle went beyond 61 to 65 ‑ ‑ ‑

KIEFEL CJ:   Just before you leave 61, so you are saying that the reference to “infanticide” and how the statutory matters - conclusions relevant to infanticide are to influence all of the other charges, the reference to “infanticide” is surplusage?  It just meant nothing at all.

MR HOLDENSON:   It is what infanticide entails.  Can I – at the risk of using more language to explain this, it is our submission that the court below has approached its function in this way.  In talking about the presence of there being a charge of infanticide, or in using the language that the Crown has accepted a plea of guilty to the offence of infanticide, the court below was not proceeding on the basis that either of those matters, itself, was a relevant consideration in the exercise of the sentencing discretion. 

What was relevant, however, was what necessarily followed from the commission of the offence of infanticide at the same time as the other three offences were committed, namely, there was a major depressive disorder which impaired the respondent’s mental functioning and it was as described in that paragraph [30] of the second report of Dr Sullivan and it was that impaired mental functioning which constituted a mitigating factor, apparently, a substantial and strong mitigating factor in mitigation of sentence.

KIEFEL CJ:   Mr Holdenson, how much longer do you think you will be?  I am not rushing you, just assessing whether to have a morning break.

MR HOLDENSON:   Subject to questions, I will be less than 10 minutes, I should think.

KIEFEL CJ:   We will proceed, then, thank you.

MR HOLDENSON:   So, I then move on to the next paragraph upon which the Director relied, and your Honour Justice Nettle took me to it.  It is paragraph 65.  Now, again it can be broken up into a number of passages.  In fact, the paragraph might have been written as not one paragraph, but be that as it may, the first sentence makes reference to what had been said by the VLRC and says, that goes by the wayside.  I know what comes in the next two sentences, I will come back to them.

NETTLE J:   Can I just, perhaps, put to you that they have set up five large paragraphs of these reasons for judgment simply to set them aside?

MR HOLDENSON:   Sorry?

NETTLE J:   Five large paragraphs, beginning with 62, 63 ‑ ‑ ‑

MR HOLDENSON:   I am sorry, I am not ‑ ‑ ‑

NETTLE J:   Well, each of them refers to infanticide ‑ ‑ ‑

MR HOLDENSON:   Yes.

NETTLE J:   ‑ ‑ ‑ and its significance, only to have them set aside, as you say.

MR HOLDENSON:   Well, no, I am only setting aside ‑ I draw attention to the first sentence in paragraph 65, and that is where they say what the VLRC said in that passage immediately above it, at the end of 64, can be set to one side.  As to the history of the offence of infanticide, it is a nice repository of learning, the entirety of which was set out in the Crown’s materials placed before the learned sentencing judge, and which are to be found in this appeal book earlier on.

So for practitioners in Victoria who do not, as it turns out, often see, on an indictment, this offence, it is a nice repository of some of the history of the offence and some of the learning of the offence and reference being made to the legislative history in section 6, which was the subject of a substantial amendment some years earlier, however notwithstanding the fact that the amendment or amendments were substantial, they were not in accordance with the entirety of the recommendations made by the VLRC.

KIEFEL CJ:   But, Mr Holdenson, no change was made to the sentence with respect to infanticide, so what is all this about?  What are all these paragraphs about?  They made no change ‑ ‑ ‑

MR HOLDENSON:   It is because of ‑ ‑ ‑

KIEFEL CJ:   ‑ ‑ ‑ there was no change, really, open.

MR HOLDENSON:   It is what goes with the offence of infanticide, it is the impaired mental functioning, and it was that impaired mental functioning which I ‑ ‑ ‑

KIEFEL CJ:   They are questions of fact.  This is put as a question ‑ this is developed in these paragraphs by the Court of Appeal towards a question of law affecting sentencing.  There can be no other reason for it being there.

MR HOLDENSON:   Well, can I ‑ ‑ ‑

KIEFEL CJ:   There is one thing to say, as you have developed before, that her state of mind was a matter of evidence and it was uncontroversial and accepted.  They are questions of fact.  That is not what the court is talking about in these paragraphs.

MR HOLDENSON:   Well, if I could focus upon the last four and a bit lines of paragraph 65:

At the risk of repetition ‑

Well, they certainly repeated, as your Honour is making it clear to me:

the second limb of s 6(1) ‑

And one then sees within section 6 ‑ within the remainder of paragraph 65, the terms of the second limb of section 6 of the Crimes Act:

It was thereby conceded that at the time that the applicant drove –

Then referencing 66, and I do repeat, each passage identified by the Director as part of the source of their complaint must be read by reference to context, and so I am reading all of these paragraphs, one after the other, it is in paragraph 66 that there is set out the passage from the judgment of his Honour Justice Bongiorno in QPX, within which it is said ‑ and this might be the source of the language that everybody is on about:

By the Crown’s acceptance of QPX’s plea of guilty to infanticide in respect of –

It might read “the child M”:

M it has acknowledged that both offences ‑

both offences involving children:

were committed in circumstances arising from or causally connected to her recently having given birth to her twin daughters.

Paragraph 67:

In alike ‑ ‑ ‑

KIEFEL CJ:   Now, in paragraph 67, in the first couple of lines, is not the Court of Appeal suggesting that a legal approach to sentencing on the charges of murder has to be dealt with in like way to infanticide, to be approached in a similar way?  Is that not part of drawing upon all that has gone before?

MR HOLDENSON:   In my submission, no, because the key to paragraph 67 is the first three words in the fourth line, namely:

by which it acknowledged –

So that which precedes in the first three lines, or couple of lines, as your Honour Justice Kiefel just put to me:

by which it –

the prosecution:

acknowledged that all four offences were committed in circumstances arising from, or causally connected to, a disorder –

And we then see, in summary form, again referable to that paragraph [30] in the second report of Dr Sullivan, how it is that there was involved impaired mental functioning at the time of the commission of all four offences.

Now, one thing that can be said about the first couple, or three lines of paragraph 67 – one thing that can be said about those few lines is that the court has not said that the charges of murder and attempted murder, charges 2, 3 and 4, were to be viewed in the light of – and I see the words in the second line:

be viewed in light of –

to be viewed in light of the prescribed maximum penalty for the offence of infanticide.

GAGELER J:   Mr Holdenson, can I just ask you a question about the Verdins principles?

MR HOLDENSON:   Yes, your Honour.

GAGELER J:   They require, as I understand them, the sentencing court to take into account the nature, the extent and the effect of a mental impairment.

MR HOLDENSON:   Yes, you do not just look at the label, what someone calls it.

GAGELER J:   Do they require the court to take into account the cause of the mental impairment?

MR HOLDENSON:   No, they do not.  But here there was, as I understand – and the Director drew attention to the relevant paragraphs ‑ the answer to that is no – sorry, on the assumption that it is not self‑induced.

GAGELER J:   Yes.

MR HOLDENSON:   And that is certainly this case, it is not self‑induced.  And we do get that in situations of some sort of psychosis caused by ingestion of various substances.  The answer is you do not look to the cause.  But here it was, in a sense, there was only the one cause.

GAGELER J:   Yes.

MR HOLDENSON:   And it had an effect, literally, to make out the first charge, the charge of infanticide.  And because the terms of that provision are in – speak in terms of balance of mind being disturbed, then it is a convenient shorthand, if you like, in making reference to the so‑called Verdins principles, to be making reference to the source of the disorder ‑ because it is a disorder which has the effect of causing the balance of mind to be disturbed.

Here, the unusual point is that the court ‑ sentencing judge and the court were able to, or did speak – either were able to or did speak of – the cause because it was there in the form of an element of the offence or one of the offences charged.  That is why this case is so unusual.  That does not happen.  There has not been one anywhere that has been found.  So, the fact about it not being of the offender’s own making is a point made in the judgment below at, I think, paragraph 74, at 398 of the appeal book.

So, having taken your Honours through those paragraphs – and I got through beyond 67 which is to be read in the light of 68 – could I now go to the last page of the oral submissions and make the concluding submissions that the court below analysed the sentence which had been imposed at first instance, notwithstanding the lengthy discussion we have had here today about the language used.  But, what they did was the court below analysed the sentence and determined manifest excess in accordance with the correct approach and resentenced, accordingly.

And, as we have said in paragraph 10, upon a proper and full and fair reading of the passages in the judgment below, at no point did the court below take into account, as a relevant consideration, the mere fact that infanticide was on the indictment or reduce the culpability of the respondent for the offending the subject of charges 2, 3 and 4 merely because there was also, on the indictment the subject of charge 1, the offence of infanticide.  So, it is in those circumstances that we say that the appeal should be dismissed.

NETTLE J:   May I ask you one question?  You may not know the answer.  At 61, as you have shown us, the Court of Appeal refers to:

Much of the discussion in this case concerned the ramifications –

MR HOLDENSON:   Sorry, 61, yes.

NETTLE J:   Paragraph 61, I am sorry, page 393:

Much of the discussion [was about] the ramifications of joining –

the count of infanticide with the others.  At page 124 of the appeal book, in the transcript of the plea submissions made on behalf of the respondent, lines 8 through to about 15, the submission is put in relation to the prism, that you have got to look for the fact that the maximum sentence for infanticide is five years.  Are you able to tell us whether that was much the same sort of submission as was put to the Court of Appeal and is reflected in this observation at 61, that much of the case concerned the ramifications of joining the counts?

MR HOLDENSON:   I cannot tell you what the source of the phrase “the discussion in this case” concerned.  But, can I say this, having been ‑ ‑ ‑

KIEFEL CJ:   Are copies of the submissions before the Court of Appeal available?

MR HOLDENSON:   The submissions are.  They are in the appeal book at page 344 – that is the applicant’s written case – 344 – and the respondent’s ‑ ‑ ‑

KIEFEL CJ:   But not the oral submissions?

MR HOLDENSON:   No.  But can I say this.  We have spent a lot of time talking about this word “prism”.

KIEFEL CJ:   Does anyone present in Court amongst the instructors have a copy of the transcript?

MR HOLDENSON:   I imagine it could be obtained.

GORDON J:   Is there a transcript?

NETTLE J:   Before the Court of Appeal, do they have one?

GORDON J:   They do not have one, do they?

MS JUDD:   It has not been provided.

NETTLE J:   It can be got, can it not?

MR HOLDENSON:   It can be generated, so if the Court is calling for it, it will have to be provided.

GORDON J:   They do not normally prepare them, do they, unless they are asked for it.

MR HOLDENSON:   They do not normally prepare them, but if one is required, it can be generated.  But can we just ‑ your Honour Justice Nettle has taken me, perhaps not intentionally, by reference to the first sentence in paragraph 61 this phrase of “prism”.  I rather suspect that it is just an oral flourish that got into the mind of the advocate presenting the plea in mitigation.  I think the full – or the non‑shorthand version of “prism” is to be found at the very foot of 254 of the appeal book.  At the very foot of 254, that being the first page of the defence outline of submissions on the plea, it is said, second sentence of paragraph 4 at the foot of the page:

This offending, though, must be seen contextually –

in context, and there is the word “prism”:

through the prism of her poor mental health that is an essential part of the (accepted) plea to infanticide.

GORDON J:   That is picked up in paragraph 46 of the Court of Appeal’s reasons for decision, that very wording, when they cite that submission.  They say:

The applicant’s counsel submitted . . . through the prism of her poor mental health ‑

MR HOLDENSON:   Yes, and that is under the subheading, as I recall, on the page the submissions made to the learned sentencing judge.

GORDON J:   Correct.

MR HOLDENSON:   But there is a trap in this.  The Court of Appeal ‑ ‑ ‑

GORDON J:   You might want to wait, Mr Holdenson.

MR HOLDENSON:   I am sorry, your Honour.

NETTLE J:   I am sorry, Mr Holdenson.

MR HOLDENSON:   I have concluded the oral submissions I seek to make, save to say in response to the point made by Justice Gordon which was to identify the fact that that passage at the bottom of page 254 was picked up in paragraph 46 of the judgment below.

EDELMAN J:   In turn, paragraph 4 seems to be reflecting the reasons that were given by the sentencing judge, around paragraph 55 of the sentencing judge where the sentencing judge uses the phrase “prism” in that sense.

MR HOLDENSON:   Yes, this was the submission on the plea at 254.

EDELMAN J:   This is the submission on the plea?  I see.

MR HOLDENSON:   Now, can I say just – I am reminded of a couple of things.  There was discussion ‑ which caught me by surprise, but that is more a comment about myself ‑ concerning the disposition of this appeal.  We say, of course, from our end of the Bar table that the appeal should be dismissed.  If, however, the appeal is to be allowed, contrary to our submissions, then it is clearly a case, in our submission, where the matter must be remitted to the court below.

Can I just remind the Court of three things in that regard?  First, that is how the notice of appeal is itself drafted.  Secondly, that is how the appellant’s submissions are in fact drafted, their written submissions as well as their oral submissions, and that was very much a question which was picked up by your Honour Chief Justice Kiefel at the special leave hearing where at page 12 of the transcript at line 482 the transcript records, and I recall your Honour the Chief Justice saying:

KIEFEL CJ:   Given that the order sought, if leave were granted, does not involve this Court in dealing with sentence itself but rather remitting it to the Court of Appeal for further hearing, is not the only ground that you are really pursuing 1.2?

MR BOYCE:   That is right.

So there was, by necessary implication, an adoption by counsel below for the Director, as counsel has said here, that the matter should be remitted.

Now, we have not put in a notice of contention, proceeding on the basis that if we lose and the appeal is allowed we get the opportunity to put arguments below because our submission not only is that the court below did not make the error suggested within the one ground of appeal but if they did the end result is not that you get back to a sentence of 26 and a half years as that imposed by the learned sentencing judge.  And it would also deny this respondent ‑ ‑ ‑

GORDON J:   To put on new material.

MR HOLDENSON:   I was just going to say that ‑ because the effect of setting aside a sentence is, of course, there is a plea, albeit, often enough, there is not further material put forward.  Because often enough we, at that end of the Bar table succeed on appeals against sentence and are content to proceed on the material as it was placed before the learned sentencing judge.  And this being, clearly – let us move away from language of comparable cases – an exceptional case, and both the sentencing judge and the judge in the court below considered it appropriate that mercy be extended.

There is one other matter, perhaps, just on – an argument has been put on behalf of a sentenced person.  If the ground of appeal which succeeds on a sentence appeal is manifest excess, then it must necessarily follow – and no other ground succeeds – that there is a substantial reduction because the effect of a determination of manifest excess is that the sentence imposed was not reasonably open and is beyond that which was reasonably open as a sound exercise of sentencing discretion.

Now, if one succeeds on specific error and gets a resentence one can have a sentence which was originally 25 and now 23, or 8 now 7.  But with manifest excess, if that is the only ground which succeeds, then as our Court of Appeal says, they do not tinker.  There is a real reduction.  And that concludes the submissions we make.  If we lose, it should be remitted and that is the basis upon which we came here.

KIEFEL CJ:   Do you have anything in reply, Ms Judd?

MS JUDD:   Nothing in reply, other than I may be able to assist with the point that Justice Nettle raised, because I did appear in the Court of Appeal.  I must admit I cannot remember everything that was said in oral argument.  And the oral argument was, to a large extent, different to the written submissions.  But my memory is – and Ms Drago appeared, so if there is any issue about this, she can yell out.

KIEFEL CJ:   I think we will probably ask for a copy of the transcript, anyway.

MS JUDD:   Yes, that is okay.  But my memory is that it was never submitted that it was the maximum penalty of infanticide that ought influence the assessment.  It was the language rather than the actual maximum.

KIEFEL CJ:   I think, to be clear, that the Court would be assisted by a transcript of the oral submissions by the respondent, which is to say the applicant, in the Court of Appeal as soon as it can be made available.

MS JUDD:   So just those submissions?

KIEFEL CJ:   The oral submissions.

MS JUDD:   Did you want the oral submissions of everything or just confined ‑ ‑ ‑

KIEFEL CJ:   No, just confined to ‑ ‑ ‑

MS JUDD:   The respondent’s submissions?

KIEFEL CJ:   Yes.

MS JUDD:   Very well.  I have sent an email as to how long that will take.  I will just see if we have got an email back.

KIEFEL CJ:   I withdraw that.  I think the whole of the transcript of the oral submissions in the Court of Appeal, when they can be made available.

MS JUDD:   Very well.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Sydney and in Canberra.

AT 11.18 AM THE MATTER WAS ADJOURNED