R v Guode

[2019] HCATrans 100

[2019] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M145 of 2018

B e t w e e n -

THE QUEEN

Applicant

and

AKON GUODE

Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MAY 2019, AT 10.15 AM

Copyright in the High Court of Australia

MR C.B. BOYCE, SC:   If it please the Court, I appear with my learned friend, MS A.S. ELLIS, for the applicant.  (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, Mr Boyce.

MR BOYCE:   Your Honours, it is, we would submit, rather difficult to reconcile the competing opinions as between the sentencing and leave judges on the one hand in this matter, and the opinion of the Court of Appeal on the other.  It is difficult to reconcile them in terms of them being a mere difference of impression.  Certainly that difficulty arises, we would submit, because of how stark that difference is. 

Justice Lasry no doubt thought that the sentences that he imposed were appropriate and fitting.  Justice Weinberg thought that it was not even reasonably arguable that they were manifestly excessive.  The Court of Appeal has reduced the sentences really, I think I can say this, by a third.  Now, that invites scrutiny, it is respectfully submitted, at the first instance, and can only be explained by the Court of Appeal bringing into play something that was apparently, or must have been, overlooked by the other judicial officers who considered the matter.

As we have submitted, the point of difference between the two groups of judges – and what one does not find in the sentencing reasons of Justice Lasry or indeed in the reasons on the lead application of Justice Weinberg – but what one does find in the Court of Appeal is the emphasis on the Crown’s acceptance of an infanticide plea in respect of the death of the youngest child as being a significant or relevant matter in and of itself in colouring and in assessment of the other sentences..

We extract the relevant parts of the court below’s reasoning in this respect in our special leave application at paragraphs 3.11 and 3.13 at application book 73 to 75, but really it is probably opportune to go directly to those passages.  One finds them expressed really at application book 60 to 63.  At that part of the judgment under the heading of “Analysis” from paragraphs 61 through to 67, we find emphasised the law of infanticide and at paragraphs 61, 65 and 67, at least on three occasions the statement or the proposition that I have referred to, namely – and it is probably best that I read them out.  For example, at paragraph 61, application book 60, a little down into the paragraph:

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 –

This is the important part:

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.

Just pausing there, Mr Boyce, that was the evidence of Dr Sullivan anyway, was it not?

MR BOYCE:   Certainly, I will come to that.  That is so, your Honour.

NETTLE J:   It was the basis on which both the sentencing judge and, in effect, the Court of Appeal proceeded.

MR BOYCE:   There is no question that the evidence of Dr Sullivan bore upon the mental state of the respondent according to accepted sentencing principles that are found, for example, in the Victorian case of Verdins.  But on three occasions we find in the reasoning of the court below – 61, 65, which I will come to – that, for example, at 65, the second sentence:

As we have indicated, however, the prosecution’s acceptance of a plea to infanticide is not irrelevant to a consideration of the applicant’s other offending.  Indeed, the opposite is true.

KIEFEL CJ:   How can that be if a state of mind is a state of mind?

MR BOYCE:   It cannot be.

KIEFEL CJ:   You mean you take it into account – you take into account the evidence of a person’s state of mind for the one charge, but you put it out of your mind with respect to the others?

MR BOYCE:   No, it can be examined this way.  The prosecution’s acceptance of a plea to infanticide in and of itself, our submission is, had nothing to do with an assessment or a colouring or a – I think the best term is assessment of the sentences on the other offending, and yet the court has on three occasions, we submit, submitted that that is so.  In some way, because we have accepted or the Crown has accepted a plea to infanticide, that colours the other offending.

KIEFEL CJ:   Well, perhaps that is not the right prism through which to view it.  Perhaps the correct prism is the evidence as to her state of mind.

MR BOYCE:   With respect, I agree with your Honours.  You see, defence counsel on the plea, and I think perhaps even on the appeal, was asking or inviting both the sentencing court and the Court of Appeal to view the offending on the other charges through the term “prism of infanticide” which would no doubt carry with it everything that it carries, namely, also perhaps even the reduced maximum.

NETTLE J:   Is that the error then?  It is not the state of mind being the same ‑ ‑ ‑

MR BOYCE:   No.

NETTLE J:   It is that the state of mind drags with it the much reduced sentences?

MR BOYCE:   Exactly, quite.  You see, how could it possibly be relevant, we would submit ‑ ‑ ‑

NETTLE J:   To murder?

MR BOYCE:   It cannot be relevant, and yet we are told on three occasions that it is relevant, and then as a separate matter on application book 63 at paragraphs 68 to 69 we come to the evidence as well.  So we would submit we spend two pages, or two and a half pages on infanticide.  We wonder why it is at all relevant.  We are told on three occasions it is in effect relevant to an assessment – the Crown’s acceptance of that plea is relevant to this, and then we move on as a separate matter to the evidence itself, as to which there was no – or there was some issue, but effectively there was no issue below about that and the evidence was what it was.  The evidence was from Dr Sullivan that the respondent suffered from, I think – if I can encapsulate it here ‑ ‑ ‑

NETTLE J:   Major depressive disorder with mild to moderate severity.

MR BOYCE:   Yes, that is right.  I am reading I think from application book 52 in the middle where ‑ ‑ ‑

KIEFEL CJ:   Do you say that that is wholly irrelevant to sentencing on charges of murder – on convictions of murder?

MR BOYCE:   No, I am not – the state of mind is ‑ ‑ ‑

KIEFEL CJ:   You do not have any problem with that, though?

MR BOYCE:   No, no problem with that.  There are two paragraphs about that towards the end - we have two and a half pages or thereabouts of being told that our acceptance of the plea to infanticide is a relevant consideration and in response to the submission being made the other offending must be viewed through the prism of that and exception was taken to that below.

KIEFEL CJ:   If it is correct to take it into account – the evidence as such into account – do you quibble with the result reached by the Court of Appeal, putting aside their reasoning process which I understand you to take issue with ‑ ‑ ‑

MR BOYCE:   Absolutely.

KIEFEL CJ:   But the appeal is not brought on manifestly inadequate ‑ ‑ ‑

MR BOYCE:   No, there are two grounds.  The appeal is brought on – or there are three grounds – but the first two grounds which I am arguing together, the specific error ground is the court has considered as a relevant factor the Crown’s acceptance to the plea of infanticide and by doing so has erred in finding that the sentences were manifestly excessive.  There is a third reduction in the sentence.  The sentence comes down from I think 26 and a half years as a total effective sentence that his Honour Justice Weinberg felt was not reasonably arguable was manifestly excessive.  You do not find any reasoning of this nature that is the relevance of the infanticide acceptance in either his Honour’s reasons or indeed in the sentencing judge.

Yet, we first find it here in the Court of Appeal and it is the only point of difference that we would submit that you can point to between the two groups of justice and must explain this massive, we would submit, reduction in sentence to a sentence which is grossly inadequate, we would submit, having regard to the objective gravity of the offending, namely, the number of deaths, the deliberation and, indeed, the breach of trust. 

Even taking into account the mitigatory – the circumstances as well and a sentence that sits really quite inconsistently with those other child killing cases that are broadly consistent that are referred to by Justice Weinberg in his reasons – Fitchett, Farquharson and Freeman and so forth – we end up I think in this case with a total effective of 18 years.

NETTLE J:   Fitchett is really the only close analogy, is it not?

MR BOYCE:   It is the closest, I accept that, and I think that was what was said below by my predecessor.  But the point is if – it is not a matter of inference either.  The court has expressly said it is a relevant – and why

dwell on the law of infanticide?  It is has nothing to do with – the question is not that.  The question is the mental – is the evidence.  And yet we are expressly it is relevant in response to a submission by defence counsel that it should be viewed through that prism and come down accordingly.  It must explain, we would respectfully submit, the reduction. 

It can be tested at least this way.  If by some quirk of fate or chance the youngest child did not happen to be in the Toyota as it plunged into Lake Gladman, if by some quirk of fate that could have been so, is it to be said that somehow the respondent would be deprived of a mitigatory circumstance that was relevant?  Of course not, and yet we would submit logically that must be so, having regard to the reasons. 

Does the evidence of Dr Sullivan, because it might ground a plea to infanticide, somehow cloak that evidence with a power or authority that it otherwise might not have?  The answer to that must be no, because all that is required is a disturbance to the balance of a woman’s mind consequent upon a disorder of a certain provenance, and we know what the provenance is.  So if there is a disturbance to the balance – so it had nothing to do with – acceptance on the plea to infanticide had nothing to do with the assessment of the other offending.

KIEFEL CJ:   I think we have understood your point.

MR BOYCE:   I am sorry, your Honour, I do not mean to repeat myself.  That is really the reason why the Crown is here, your Honours.  We submit, with the greatest respect, that it is an important matter and it is a serious error of sentencing principle and it is an appropriate vehicle to consider the matter for obvious reasons.  Those are my submissions.

KIEFEL CJ:   Thank you, Mr Boyce.  Yes, Mr Holdenson.

MR HOLDENSON:   Can I just commence by saying that there is no suggestion from the reasoning of the court below that the court in imposing sentence on charges 2, 3 and 4 – two offences of murder and the offence of attempted murder – somehow or other got mixed up with respect to maximum penalties.  There is no basis whatsoever upon which it can be said that imposing sentence on charges 2 and 3, the court disregarded the maximum penalty of life imprisonment and somehow or other took into account that the maximum penalty was somewhat less by reason of the fact that the first charge on the indictment carried a prescribed maximum penalty of only five years’ imprisonment.

KIEFEL CJ:   There is a distinction to be drawn, though, in the approach to sentencing between having regard to the evidence of the convicted person’s state of mind and saying that the acceptance of the charge of infanticide carries with it something which applies in a way which might seemingly skew the notions of murder.  That is the point made against you, and from a reading of the Court of Appeal’s reasons that is a view that is open, but that is the view that they took.

MR HOLDENSON:   In our submission, a careful analysis of the reasons below is to the effect that the effect of the evidence concerning the respondent’s state of mind had the effect first of all of falling within the second limb of section 6(1) of the Crimes Act which creates the offence of infanticide, thereby founding the offending the subject of charge 1.  That very same evidence and the effect of that evidence upon the various purposes and sentencing principles also had an effect on the offences the subject of charges 2, 3 and 4.  That is illustrated, for example, within the reasoning of the court in paragraph 61 of the judgment below at page 60 of the application book.  That of course is I think the first paragraph to which our learned friend took the Court where you will see in the very last sentence ‑ ‑ ‑

KIEFEL CJ:   I am sorry, which paragraph?

MR HOLDENSON:   Paragraph 61 of the judgment below at page 60 of the application book.  The subheading is “Analysis”.  Our learned friend took your Honours from about lines 15 to probably about 18 or 20, but it is the last sentence:

That acceptance must, we consider, influence any assessment of the applicant’s moral blameworthiness on all of the charges that she faced.

That is repeated in effect a little further on, namely, in paragraph 65 of the judgment below at page 62 of the application book.  In the last sentence on the page in paragraph 65:

It was thereby conceded that at the time that the applicant drove into the lake intending to kill the child Bol –

That is charge 1, infanticide:

‘the balance of her mind was disturbed –

and there is the wording of section 6(1)(b) of the Crimes Act.

NETTLE J:   Just pausing there, why is it that the acceptance of the plea to infanticide adds anything of significance in relation to counts 2, 3 and 4 to the evidence which was given by Dr Sullivan and taken to be accepted?

MR HOLDENSON:   The effect of the acceptance is an acceptance of the evidence.  The evidence ‑ ‑ ‑

NETTLE J:   But the evidence was not in dispute by the time it reached appeal.

MR HOLDENSON:   That is correct, it was not in dispute and it had, if you like, two effects.  It made out the element of the offence of infanticide and the Crown accepted that and did not dispute that.  It is the acceptance and non‑dispute of that evidence which then is of relevance in imposing sentence on the other three charges.

NETTLE J:   But what was of relevance on the other three counts was Dr Sullivan’s evidence as accepted by the sentencing judge.

MR HOLDENSON:   Yes, and that was taken into account as explained in paragraph 67.  Perhaps if I could just go to the last three lines of paragraph 67 of the judgment below at page ‑ ‑ ‑

NETTLE J:   The first two lines are perhaps more significant.  Perhaps the first two lines of 67 are more significant for present purposes.

MR HOLDENSON:   Well, I think that is referable to paragraph 66 which sets out the passage from the judgment of his Honour Justice Bongiorno, but the explanation of what your Honour Justice Nettle has put to me is dealt with in the last three lines of paragraph 67:

by which it acknowledged that all four offences were committed in circumstances arising from, or causally connected to, a disorder consequent upon the –

then applicant, now respondent:

recently having given birth to Bol.

Then, the evidence of Dr Sullivan is conveniently summarised within a paragraph.  I pause there.  That summary is very much sourced to the extracts from the three reports of Dr Sullivan set out earlier in the judgment below at pages 52 to 53 of the application book.  I do not pause to take the Court to those ‑ ‑ ‑

KIEFEL CJ:   Is not the Court of Appeal giving - in these passages referring to the evidence expounding what the conviction of infanticide encapsulates?  The point is, where their Honours refer in at least three passages to the prosecution’s acceptance of the plea to infanticide, the implication may well be that their Honours are allowing that offence to drive the view of the others.

MR HOLDENSON:   In our submission, the reason by which that implication cannot be drawn is that which, for example, is to be found in the last three lines of paragraph 67 in which the court below explains – and your Honour Justice Nettle and I think your Honour the Chief Justice has drawn my attention to the first few lines of paragraph 67 – but the effect of all of that is to acknowledge that all four offences were committed in circumstances arising from or causally connected to that disorder.  Dr Sullivan – and I am just identifying the last few words in the paragraph:

consequent upon the –

then applicant, now respondent:

recently having given birth to Bol.

It was within the evidence of Dr Sullivan that that was the source of the mental state – mental condition which of course had the effect of impairing the respondent’s mental functioning at the time that she committed each and all of the four offences. 

What lends force to that construction of the reasons, in our submission, is what is set out in paragraph 67 where there is, albeit in summary form, a summary of the evidence given by Dr Sullivan and its effect for sentencing purposes - uncontroversial effect for sentencing purposes is identified in paragraph 69 which draws attention to in the first line the assessment of moral culpability referable to each of the four offences; the principle of denunciation referable to each of the four; over the page, punishment, the first passage at the top of page 64 of the application book; then going on to consider, still within paragraph 69, still by reference to the evidence given by Dr Sullivan, a moderation – not an elimination - but a moderation of the weight given to specific and general deterrence.

NETTLE J:   Mr Holdenson, if the Court of Appeal did not make improper use of the acceptance of the plea to infanticide in relation to charges 2, 3 and 4, what else is it that explains the vast reduction in the sentence as against the sentencing judge, and the leave judge, Justice Weinberg?

MR HOLDENSON:   One difference is that, apart from the fact they might have both just got it wrong, which is what we do say, secondly, putting that to one ‑ ‑ ‑

KIEFEL CJ:   That is not your strongest argument, I do not think.

MR HOLDENSON:   No, but the better answer is that Justice Weinberg did not have the assistance of an oral hearing and he did draw attention to expressly within his reasons that he had given anxious consideration to the matter.

NETTLE J:   Of course he had; you would expect him to.

MR HOLDENSON:   To give anxious  ‑ ‑ ‑

KIEFEL CJ:   It is a difficult case.

MR HOLDENSON:   Well, it is a difficult case and he did not have the benefit of an oral hearing.  But the test of whether or not a judgment is correct and has been reasoned in accordance with proper principle is not whether or not a leave judge has granted leave.

NETTLE J:   No, of course it is not, but it is said by the Court of Appeal that the sentence imposed by the sentencing judge was manifestly inadequate.  Prima facie, that appears not to be the case.  There is then a one‑third reduction.

MR HOLDENSON:   Well, there are a number of responses that can be made.  With respect to the manner in which the court determined that the sentence imposed by the learned sentencing judge was manifestly excessive, there was no error with respect to the identification of the test as to manifest excess and the application of the test.  As I recall, it is in paragraph 72 at pages 64 to 65 of the application book.

KIEFEL CJ:   Is that a point in your favour?

MR HOLDENSON:   Well, there is a correct set of reasoning with respect to their determination that the sentence is manifestly excessive.  But can I just say this, at the end of the day what we have here is a case where the applicant is saying to this Court by way of submission the court below got it wrong in determining that the sentence imposed at first instance was manifestly excessive. 

Now, this Court for at least 40 years – and we have identified the cases on the first page of our written response at page 82 of the application book in footnote 1 - this Court has consistently and repeatedly stated that whether or not a sentence be manifestly excessive is not a matter for which special leave is granted.

NETTLE J:   Unless it raises a question of principle of general importance.

MR HOLDENSON:   Correct, yes, and there is no question of principle identified, in our submission, when one contrasts what the sentencing judge did, in a sense affirmed by the leave judge, but then comprehensively rejected after full argument by the court below.  It must be that much harder, we say by way of submission, for the Crown to be granted special leave when the Crown is saying that the intermediate appellate court got it wrong in determining that the sentence was manifestly excessive. 

Now, reference was made a little earlier to cases such as Fitchett and reference was certainly made in discussion below to cases, not only Fitchett, but also Farquharson, but those cases are indeed absolutely and completely distinguishable on the facts from a case such as this.

NETTLE J:   I accept Farquharson and Freeman are certainly – as is also Acar, but what about Fitchett?

MR HOLDENSON:   Well, Fitchett, for a start, was a plea of not guilty.  So what goes with Fitchett is there is no benefit of the plea of guilty and what goes with it.  It was also a case where the offending was planned and contemplated for not just a couple of hours but a very lengthy period of time and it was a case where it was determined that it was appropriate that much weight be given to the principles of general deterrence and denunciation.  That is how it was dealt with at the end of the day by her Honour Justice Curtain in imposing sentence at the conclusion of the retrial.

So, a very, very different case, and the evidence was different of course, too, with respect to mental state and impaired mental functioning.  So no regard can really be had as a matter of fact to cases such as Fitchett, and of course Farquharson and Freeman are not only pleas of not guilty, but they are actually revenge killings.  They are revenge, not at the children, but at someone else, so a markedly different situation.

One thing that concerns me is there has been no attention given yet to remorse.  I presume that that has fallen away, that being the third ground upon which the applicant has relied.  But if it still be on the table – and I have not been told that it is not – if I could just say concerning remorse, on the plea the Director expressly conceded that there was a level of remorse.  There was some remorse.  On the plea again, the Director said what had to go into the mix with respect to mental state was the fact that it had a long history, and what was made of less significance, that is, the so‑called limitations on remorse and the lack of remorse, was the diagnosed medical condition.  That explains how the sentencing judge dealt with it.

In the Court of Appeal with respect to the manner in which the court below dealt with it, they did not move away from the content of the

concessions which had been made by the Director below.  There is no suggestion in the judgment below that the court approached the question of remorse in a manner different from the manner in which remorse had been dealt with expressly by the Director on the plea.  In those circumstances, ground 3 very much, with respect, falls away.

Just going back to grounds 1 and 2, the reason why we say that no question of principle is involved – in addition to what I have already said – is that on a careful analysis of the reasoning below the court, in imposing sentence on each charge for each of the four offences, has had regard of course to the maximum penalty - they were set down in the judgment; they were identified I think on the first page of the reasons – and the applicable mental state. 

I say the applicable mental state because the mental state was common to each of the four offences and, with respect to those trite principles which have been summarised to death in the case of Verdins, they were recognised, and that was the manner in which there was the resentence.  If your Honours please.

KIEFEL CJ:   Thank you, Mr Holdenson.  Mr Boyce, are you pursuing the question of remorse?

MR BOYCE:   No, your Honour. 

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.

KIEFEL CJ:   There will be a grant of special leave limited to ground 1.2.

MR BOYCE:   If the Court pleases.

KIEFEL CJ:   Time estimate, gentlemen – would it go beyond half a day, perhaps a bit longer than half?

MR HOLDENSON:   No more than half a day.

KIEFEL CJ:   No more than half a day?

MR BOYCE:   No, your Honour.

KIEFEL CJ:   Would you please ensure that your instructing solicitors obtain a copy of the timetable from the Deputy Registrar before you leave?  Thank you. 

The Court will adjourn to reconstitute.

AT 10.46 AM THE MATTER WAS CONCLUDED