Guode v The Queen [2018] VSCA 205

1 In the afternoon of 8 April 2015, Akon Guode, the applicant, now aged 39 years,[1] deliberately drove her Toyota Kluger SUV, with her four youngest children inside it, into Lake Gladman, Wyndham Vale.

2 Twins Madit Manyang and Hangar Manyang, aged four,[2] and Bol Manyang, aged 16 months,[3] drowned. Only the eldest child of the four, Aluel Chabiet, aged five years,[4] survived.

3 On 16 January 2017, the applicant pleaded guilty in the Supreme Court to the infanticide[5] of Bol (charge 1), two charges of the murder[6] of Madit and Hangar (charges 2 and 3) and one charge of the attempted murder[7] of Aluel (charge 4).

4 Following a plea, the sentencing judge imposed a total effective sentence of 26 years and 6 months' imprisonment on the applicant, with a non-parole period of 20 years,[8] according to the following table:

5 By virtue of Part 2A of the Sentencing Act 1991, the applicant was to be sentenced as a serious violent offender on charges 3 and 4. In his reasons for sentence, however, the judge noted:[9]

Pursuant to Part 2A of the Sentencing Act, on charges 3 and 4 you are to be sentenced as what legislation refers to as a serious violent offender. Section 6E of that Act means there is a presumption of cumulation and as a result of 6D(a) the protection of the community is the principle sentencing purpose. I have however been informed that the prosecutor does not seek a disproportionately high sentence as is allowable under those sections. I have already indicated that in the unusual circumstances of this case, you are not a future threat of committing further offences.

6 On 30 October 2017, a judge of this Court refused the applicant leave to appeal against sentence 'on the papers'.[10]

7 Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant elected to renew her application for leave to appeal against sentence, relying on the following ground:

1. That the individual sentences imposed on charges 2, 3 and 4,[[11]] the total effective sentence and the non-parole period fixed were manifestly excessive particularly in view of the following matters:

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

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

(c) the Applicant's difficult background and circumstances;

(d) the Applicant's lack of prior convictions;

(e) the Applicant's plea of guilty;

(f) the Applicant's possible deportation.

8 Having now heard full oral argument, we are of the view that the application for leave to appeal against sentence should be granted and the appeal allowed. We will make orders resulting in a total effective sentence of 18 years' imprisonment, and will fix a non-parole period of 14 years, our intention being reflected in the following table:

Sentenced as a serious offender on charges 3 and 4[12]

10 It is convenient to turn first to the circumstances of the applicant's offending.

11 At about 10.30 am on 8 April 2015, the applicant left her house in Wyndham Vale and purchased groceries, including 12 litres of milk. After she returned home, the applicant received a telephone call at about 11.56 am from a friend, Rebecca Majak. She told Ms Majak that she was going to take Alual (who suffered from diabetes) to a hospital appointment.

12 The applicant once more left home at 1.00 pm, telling her eldest daughter, Akoi Chabiet, then aged 18 years, that she was going to visit the children's grandmother. She left the house in her vehicle with the four youngest children, but, it seems, neither visited the grandmother nor took Alual to her hospital appointment. Instead, the applicant drove to the vicinity of Lake Gladman.

13 Lake Gladman is situated on Manor Lakes Boulevard, Wyndham Vale. The applicant drove along Manor Lakes Boulevard on five occasions, driving past the lake four times. After the first occasion, the applicant telephoned her daughter, Akoi, and said that she would be back home in a while. During the fourth occasion, at about 2.18 pm, the applicant attempted to call Joseph Manyang, who is the father of her four youngest children. Manyang did not answer. On the fifth occasion, at about 2.45 pm, the applicant's mother called her from Sudan, the call lasting just short of four minutes. After this call, the applicant took her children to a park away from the lake. At 3.07 pm, Akoi called her mother, who said she would be back soon.

14 At about 3.15 pm, Hannah Foster was driving her vehicle northerly along Ballan Road following a Toyota. The occupants of the Toyota appeared to be Sudanese. Ms Foster observed children in the vehicle, one of whom she described as hysterical and one whom she said was hanging off or grabbing the front seat. A little way past Bolton Road, towards Manor Lakes Boulevard,[13] the Toyota pulled over, and Ms Foster observed the female driver huddled over the steering wheel with her face in her hands. The woman with her face in her hands was the applicant.

15 Not long afterwards, just after 3.30 pm, the applicant's vehicle was captured on CCTV footage driving westerly along Manor Lakes Boulevard. At 3.40 pm, she is shown on CCTV footage performing a 'U-turn', pulling to the side of the road, pulling out again, disappearing from view and then driving over the nature strip toward the edge of the lake.

16 Alexandra Colston-Ing saw the applicant's vehicle on the grass area, heading into the lake. She made an emergency '000' call. At first, Ms Colston-Ing thought that the vehicle was floating in an area that was not deep enough for it to go under water, but she soon said to the emergency call operator that 'it's gone pretty deep actually'. Ms Colston-Ing saw the applicant leaning her head out of the driver's window screaming. She saw that the other windows were closed. At one point she observed a baby laying on its back, floating, and trying to keep its head out of water.

17 Another witness, Richard Allman, saw the applicant's vehicle just as it started to enter the lake. When he first called '000' he did not think anybody was in immediate danger as the water was only up to the bottom of the door seal. He then heard the sounds of wheels spinning as well as splashing, and the vehicle moved another ten to twenty metres further into the lake. When it came to rest, the vehicle had turned to face in the opposite direction. Mr Allman observed the driver attempting to get out of the car through the driver's window.

18 Travis Benson, who lived opposite Lake Gladman, was told a car was in the lake. He ran to the edge of the lake, and saw the applicant standing outside the Toyota motor vehicle next to the driver's door. The applicant was wailing or moaning, but was not attempting to get the children out of the Toyota. Mr Benson yelled out to the applicant, asking whether there was anyone in the car, but he got no response. He swam out to the vehicle, which by this time was in the middle of the lake. The water was freezing. Mr Benson again asked the applicant if there was anyone in the vehicle, but she did not look at him or respond. The applicant did not appear to Mr Benson to be panicking. Mr Benson saw that the driver's window was down all the way and the applicant was leaning on the door. Bol remained in the car, trapped in his baby seat.

19 Mr Benson looked inside the vehicle and saw the top of Bol's head just above the water line in the middle of the vehicle. He tried to pull open the car door but it would not move, and he tried to break the window with his fist but it would not break. Eventually, he was able to use a steel-capped boot to break the rear cargo window. After a struggle with the straps on the baby seat, Mr Benson managed to free Bol, and he pulled him out of the car through the window. Bol was frothing at the mouth, he was not breathing and his body was limp. Mr Benson tried to walk to the bank with Bol but got stuck in the mud of the lake bed. By this time, both ambulance and County Fire Authority ('CFA') personnel had arrived at the lake. A CFA member took Bol from Mr Benson and conveyed him to the bank of the lake. Mr Benson returned to where the applicant was standing by her vehicle. He asked her if she was 'okay'. The applicant nodded but did not say anything. With the help of another CFA member, Mr Benson took the applicant to the shore.

20 By that stage, three of the children had been found in the water and were taken to the bank. Ambulance paramedics delivered medical treatment. Hangar was then found beneath the water between the vehicle and shore. Paramedics continued efforts to revive the children. Alual was resuscitated on the bank and was put into an ambulance for observation. She was later taken to the Royal Children's Hospital by air ambulance, and made a full recovery. Hangar was pronounced dead on the bank. Both Bol and Madit were taken to the Royal Children's Hospital - Bol by air ambulance and Madit by ambulance - where they were pronounced dead.

21 Having been removed from the water, the applicant was attended to by a number of paramedics and was later taken to the Royal Melbourne Hospital. At 4.19 pm, paramedic David Hammond placed her in an ambulance. She told Mr Hammond that she felt dizzy whilst driving to the Manor Lakes shops and could not remember anything until she was in the back of the ambulance. During a conversation with a police officer, the applicant said that she was out shopping at Coles with her four children and became dizzy and wanted to go home. Later, at the hospital, the applicant told medical staff that she had been feeling dizzy for a month and that she had seen doctors as a result. Whilst being treated, the applicant stated that she was travelling at 50 kilometres an hour, became dizzy and failed to make the turn.

22 On 9 April 2015, commencing at 11.06 am, police conducted a record of interview with the applicant. She told them that she had wanted to go shopping, but the children asked to go to the park so she took them there. The applicant said Akoi called and she told Akoi that she was coming home. She said that on the way she felt dizzy and could not remember where she was going. The applicant said, 'My eyes sometimes close and my heart doing not good, yeah, and then I lost control'. Later she said, 'I was not feeling well and I feel like I'm going to faint'. The applicant told the police that she had a history of feeling dizzy which commenced after she received an injection in her neck whilst giving birth to her youngest child, Bol.

23 Despite what she told police, however, it is clear that in order to have driven her vehicle into the lake from Manor Lakes Boulevard, the applicant had to make at least three deliberate turns. Thus, she had to turn the steering wheel to the left in order to mount the kerb, and then towards the right in order to guide the vehicle through the trees to an access point on the lake. She then had to turn into the access point towards the lake and then left again. The point at which the Toyota entered the lake was the only realistic point of entry.

24 In his reasons for sentence, the sentencing judge described the applicant as having had 'an extraordinarily difficult life - a life that most of us can hardly imagine'.[14]

25 Much of the applicant's history and personal circumstances was set out in three reports produced by Dr Danny Sullivan, a respected consultant forensic psychiatrist. They revealed that the applicant was born in South Sudan in 1979, and was one of 16 children produced by her father with three wives. Her upbringing was disrupted by the civil war in the south of Sudan. The applicant told Dr Sullivan that that schools would open and close without warning, and her education was disrupted. She told him that it was a stressful time. At times the family would flee to the bush, where they had a bunker to avoid planes dropping bombs. Family members were killed, including a brother in 2004.

26 In 1996, the applicant left home to move to the village of her husband - a soldier in the rebel army - in South Sudan. They had two daughters together. Based on the history given to Dr Sullivan, it seems that the applicant was exposed to severely traumatic events in South Sudan, involving a Janjaweed militia raid on her village, in which she witnessed her husband being shot dead and his body burnt. She was raped until she was unconscious.

27 After the death of her husband, as was the tradition, the applicant became the wife of her dead husband's younger brother, who had two other wives and families. She told Dr Sullivan that life was more difficult, and that she had frequent arguments with his other wives. From this relationship she had a third daughter. In 2003, the applicant left Sudan (and her second husband) because of the civil war, and travelled with her three daughters to Uganda. The applicant there applied for refugee status, and was accepted to live in Australia. She has since become a permanent resident, but is not a citizen.

28 Upon arrival in this country, the applicant initially settled in Blacktown, in outer Sydney, with her sponsor, a brother-in-law. She told Dr Sullivan that she moved to Melbourne after a year, because rent was too expensive. In Melbourne, the applicant settled initially in Deer Park and then in Sunshine, and rented accommodation with her children.

29 In 2009, she commenced a relationship with Joseph Manyang. The applicant told Dr Sullivan that Manyang had said that he was separated from his wife and living at a different address, but this turned out not to be true. She and Manyang had a daughter, Aluel, in 2009. After Manyang's wife discovered this, she caused problems for the applicant, in that she would telephone her, swear at her and threaten her.

30 Manyang also fathered the twins, Madit and Hangar, born in 2010. The applicant told Dr Sullivan that the problems between her and Manyang's wife worsened. At times, the applicant would have to leave social events because Manyang's wife and friends would threaten her with violence.

31 Bol was born in 2014. He, too, was fathered by Manyang. The applicant apparently suffered a significant postpartum haemorrhage, and she required 'an injection in the neck', a blood transfusion and life-saving surgery. She told Dr Sullivan that, after the birth of Bol, she became 'sick and unwell', not having previously experienced similar symptoms. The applicant reported dizziness and headaches. She told Dr Sullivan that the dizziness had occurred at least twice. When she sat up suddenly she would feel faint and experience blurred vision. She associated her dizziness with worrying. The applicant felt that everyone was against her, was preoccupied with her situation and thought that this might have caused the dizziness. She told Dr Sullivan that during this time she felt very tired and lacked energy, and she reported increasingly confused thinking, sometimes being uncertain as to what day it was. The applicant stated that she found it difficult to be happy. Her concentration was impaired and her sleep was also broken. At times she told Dr Sullivan that she could not sleep at all, and she would cry or vomit.

32 The applicant felt unable to cope with the children, and she spoke to her aunt about moving to Morwell where she would have support. Manyang refused to permit this, however, stating that he would not be able to travel to see his children. He provided little, however, in the way of money, and he did not follow through with his promises to help with the children, look after them or take them out. Further, the applicant received no assistance from other people.

33 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'.[15]

34 The prosecution's position accorded with psychiatric opinion, rendered by Dr Danny Sullivan, who is, as we have said, a respected consultant forensic psychiatrist. As earlier indicated, he provided three reports with respect to the applicant's mental condition - the first dated 13 January 2017, the second dated 11 February 2017 and the third dated 28 March 2017 - and he also gave evidence on the plea.

35 In his first report, Dr Sullivan stated:[16]

[The applicant's] daughter and other sources indicated that [the applicant] had declined in functioning since the birth of Bol, with a reduced role in parenting, withdrawal from social events in the South Sudanese community, and increasing financial problems. On questioning she described a range of symptoms of depression which had developed after the birth of Bol (disturbed sleep and appetite, weight loss, reduced energy and concentration, subjective confusion and reduced interest in usual activities, tearfulness, hopelessness and helplessness about her situation). Although her daughter suggested some improvement in [the applicant's] engagement with the family from October 2014, this cannot be corroborated. However it is clear that a range of stressors persisted in [the applicant's] life without imminent resolution, and on this basis I think it most likely that her mood disorder had persisted to at least the time of the incident.

The description of mood disorder with onset after the birth of [the applicant's] seventh child is consistent with a depressive disorder. There are no specific hallmarks which distinguish it as a postnatal depression, in particular psychotic features. Depression is more common after complicated births, and in [the applicant's] case, there were clear sustaining factors: the burden of looking after a large family with limited assistance; financial stressors; relational problems with the father of the younger children; stigma and persecution within her community; and ill-defined health problems. Such somatic concerns, with associated anxiety, are common in depression.

The onset and persistence of her depressive symptoms are consistent with a diagnosis of major depressive disorder, mild-moderate in severity, with somatic syndrome, as set out in the International Classification of Diseases, 10th revision (ICD-10).

...

In my opinion, at the time of the incident with which [the applicant] 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.

36 In his second report, Dr Sullivan expressed the following opinions:[17]

I consider that [the applicant's] 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 [the applicant'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.

37 And in his third report, Dr Sullivan said:[18]

[The applicant] acknowledges that she was exposed to a severely traumatic event in south Sudan, involving a Janjaweed militia raid on her village, in which she witnessed her husband being shot dead and his body burnt, and she was raped until she was unconscious. Since than she describes some re-experiencing in the form of occasional flashbacks, patchy and impaired recollection, and efforts to avoid thinking about the events. She exhibits a range of mild anxiety symptoms which would not constitute an anxiety disorder but may be attributable to posttraumatic stress disorder.

On balance, there is evidence of post-traumatic stress disorder, which is mild in severity, but also overlaps with other features of mood disorder.

I do not consider that this diagnosis materially alters my previous consideration of impairment of mental functioning at the time of the alleged events. Although the traumatic events which occurred in south Sudan may have contributed to her mood disorder, they do not separately have any causal association with the offences ...

38 In his oral evidence, Dr Sullivan confirmed his diagnosis of a major depressive disorder, mild to moderate in severity, with somatic syndrome; and, whilst acknowledging that it is 'very difficult to pin it down to a single unifying cause', Dr Sullivan linked the onset of the applicant's depression to the birth of the child Bol.

Prosecution submissions to the sentencing judge

39 The prosecution submitted that the offences were committed against four vulnerable and helpless children, who were completely dependent upon the applicant for their care. None of the children could swim. Given that the applicant had driven around the lake five times earlier on the day of the offending, there was 'some degree of contemplation in respect of the commission of the crimes'; and in the aftermath, the applicant took no steps to save her children.

40 Murder, the prosecution submitted, is the most serious offence known to law; and, particularly when that adult is the parent of the child, the murder of a child by an adult is one of the most serious examples of the crime of murder.[19] Conceding that it is impossible to find any case that could be considered 'comparable' to the present case for sentencing purposes, it was submitted that, 'even in the current case, where the balance of the offender's mind was disturbed by depression', it was important that any sentence imposed recognises the gross breach of trust and the applicant's betrayal of her obligation to protect her children.

41 The prosecution accepted that infanticide 'is made out by reason of Dr Sullivan's opinion that at the time of the incident the balance of the [applicant's] mind was disturbed by a depressive illness which was a consequence of having given birth to Bol within the preceding two years'. Having referred to some of the social and legislative history of the offence of infanticide, the prosecution submitted that 'the circumstances of committing the offence of infanticide can be quite varied'. Whist accepting that 'in most cases of infanticide, the accused has been sentenced to either a community corrections order or a community based order', the prosecution submitted that a 'community corrections order is not an option here, where the [applicant] is also being sentenced for the murder and attempted murder of older children', the only realistic sentence being one of imprisonment.

42 With respect to mitigating factors, the prosecution recognised the utilitarian benefit of the applicant's guilty pleas, and accepted that they represented some degree of remorse. It was submitted, however, that the applicant's remorse was qualified by lies that she told in the aftermath of the incident; her participation in a contested committal; and the fact that Dr Sullivan had documented no expressions of remorse. Further, it was accepted that the applicant's anticipation of her probable deportation meant that the burden of imprisonment will be greater for her than for someone who faces no such risk.

43 As to the evidence of the applicant's psychiatric state, the prosecution submitted that, insofar as the applicant denied to Dr Sullivan that she intended to kill her children, so much seemed to traverse her pleas. Her assertion that she does not remember or understand the actions that led to the death of her children is implausible, and are inconsistent with her lies and her preparatory conduct.

44 The prosecution conceded, however, that some (but not all) of the Verdins[20] principles were in play. Thus, it was accepted that, by reason of the principles in Verdins, the applicant's moral culpability (as distinct from her legal responsibility) 'is reduced, but not eliminated'. It was also accepted that 'the principle of specific deterrence is to be moderated'. The prosecution contended, however, that although Verdins often leads to general deterrence and denunciation being treated as lesser sentencing considerations, the applicant's condition 'is not such as to lead to a reduction or substantial reduction in the application of the principles of general deterrence or denunciation'. It was ultimately submitted that the 'heinous nature of this offending must be recognised and denounced and others must be deterred from engaging in this type of criminal activity'.

45 Counsel for the applicant submitted that all of the applicant's offending arose in a context of her deteriorating mental health combined with increasing personal pressures from many sources. The offending occurred in a 'single episode'; one in which it is accepted that the applicant was suffering from a depressive illness which was a consequence of having given birth to her youngest child, Bol, within the preceding two years, and in circumstances where the balance of her mind was disturbed by depression. It was contended that the 'entirety of her conduct needs to be examined and considered in that context'.

46 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'. Further, in the present case, there are additional features at play. Not only was the applicant in poor mental health, but she 'was not equipped to deal with a myriad of pressures in life and was utterly overwhelmed, especially so following the birth of Bol in December 2013'. Her offending, it was submitted, 'is inseparable from her increasing isolation and her inability to cope'. There is an implicit acknowledgement, it was submitted, of the applicability of Verdins when considering the charge of infanticide, since the 'very charge itself refers to a disturbance of the mind'. The applicant's moral culpability is reduced, and the weight to be given to specific deterrence is moderated. Further, it was submitted that general deterrence also falls to be moderated, since the 'unique constellation of pressures and compromised mental health make [the applicant] a poor vehicle via which to discourage others from offending in this fashion'.

47 Counsel submitted that the applicant's time in protective custody and her separation from her family has been particularly difficult for her, those difficulties being exacerbated 'by the almost inevitable prospect of her deportation once her sentence is complete'.[21]

48 Finally, it was submitted that, although the offending demands that a term of imprisonment be imposed, 'there are many features of the matter that warrant the imposition of both a low head sentence and low non-parole period'. It was beyond argument, so counsel submitted, that the offending occurred at a time when the applicant 'was in acute distress and when her judgement, decision-making and ability to make calm and rational choices was impaired'. The offending 'was largely unplanned and occurred at a time when the balance of her mind was disturbed by depression'.

49 Among other things, the sentencing judge observed that, as at 8 April 2015, the applicant's life was 'in turmoil'. She was experiencing a degree of social isolation, the source of which appears to have been her relationship with Manyang which itself was encountering difficulties.[22]

50 Having discussed the circumstances of the applicant's offending, the judge observed that the applicant appeared to have thought about what she was going to do, at least in the two hours or so before she drove into the lake (and possibly for longer than that).[23] His Honour acknowledged the difficulty attached to drawing inferences from the applicant's conduct 'after this terrible incident'; and said that, in the circumstances, he was not prepared to treat her conduct in the immediate aftermath of her vehicle entering the water as an aggravating circumstance. The judge said that he could not be satisfied beyond reasonable doubt that the applicant's conduct represented 'a continuing intention by [her] to kill [her] children'. Whilst she 'obviously had such an intention on entering the water in [her] vehicle', by that stage she was 'shocked by what [she] had done and had no real ability to deal with it'.[24]

51 As we have mentioned, the judge observed that the applicant had endured 'an extraordinarily difficult life', one that most could hardly imagine.[25] By April 2015, the pressures on the applicant included the difficulties arising from her relationship with Manyang, a degree of ostracism from her community and very severe financial problems.[26] Importantly, the judge observed:[27]

... As far as I know there has not been an occasion where a woman has been sentenced for infanticide and for other offences concerning the killing of children who do not fall within the legal definition. Clearly, your mental state as I conclude it to be, affects all four charges.

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. There was a realistic connection between your mental state as Dr Sullivan described it and your offending_._ There was no contention about that between your counsel and the prosecutor on the hearing of your plea.

In particular, those principles apply so as to reduce but not eliminate the moral culpability of your conduct on 8 April 2015. They also apply to significantly moderate the role of specific deterrence in the sentence to be imposed on you as well as general deterrence. 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.

Sentencing principle requires me to impose a sentence on you that is the product of what is described as an instinctive synthesis. The tragedy of this case highlights the occasional artificiality of this approach because the sentence I am about to impose is, in some respects, inadequate to reflect the gravity of what you have done yet at the same time excessive given your mental state as well as your background of hardship and desperation. In my opinion it is a case where principles of both totality and mercy are significant.

53 Counsel for the applicant submitted that the present case was unprecedented, in that there had never before been a documented case where a charge of infanticide had been joined on an indictment with murder.

54 Although accepting that killing of a child is properly regarded as a grave offence, and that 'each life is valuable', counsel for the applicant submitted that an understanding of the state of mind and motives of the killer are highly relevant to the sentencing task. In the present case there was a 'constellation of factors' that bore on the imposition of sentence, the applicant's disturbed mind necessarily being relevant to an assessment of the seriousness of the offending. The murders in the present case having been committed with a disturbed mind, in circumstances where the applicant could not cope with the extreme difficulties she encountered, provide a 'stark contrast' to the motivations lying behind most crimes of murder.

55 Counsel for the applicant submitted that terms of imprisonment approximating 22 years are generally imposed in cases of murder where the kinds of mitigating features in this case are absent. The applicant's moral culpability was reduced by reason of her mental condition, so that the need for general and specific deterrence, denunciation, punishment and community protection, were all lessened.

Submissions of the Director of Public Prosecutions in this Court

56 In oral submissions, the Director confirmed the prosecution's acceptance of Dr Sullivan's opinion that, at the time that she drove her children into the lake, the applicant was suffering from a depressive illness which was a consequence of having given birth to Bol within the preceding two years, and that the balance of her mind was disturbed by depression at the relevant time.

57 Contending that the sentences imposed upon the applicant were open to the sentencing judge, it was submitted (by reference to written submissions) that the judge had regard to all of the matters embraced by the particulars set out in the ground of appeal.

58 Further, it was submitted that, notwithstanding that they may be founded on the same facts, the offence of infanticide is starkly different to that of murder (so much being demonstrated by the different maximum penalties). It was contended that, although infanticide could be called upon to excuse the conduct to an extent in relation to one child, that did not (and could not) extend to the others in the same way. The different offences had to be treated distinctly, such that the sentences imposed on the applicant for murder were entirely appropriate. Sentences for murders of children by their parents must adequately reflect the gross breach of trust and parental betrayal that is involved.

59 The overall offending in this case, the Director submitted - which included two murders, attempted murder and infanticide - was grave. There was a degree of planning and contemplation involved, and each crime involved a gross breach of trust of innocent and vulnerable victims. And, although accepting that all cases must be considered on their own facts, the Director submitted that Fitchett provided a useful comparison.

60 With respect to the applicant's remorse, the Director submitted that the sentencing judge was correct to express reservations about the extent to which the offender had demonstrated any remorse, given the lies that she had told; her participation in a contested committal; and the fact that Dr Sullivan had not documented any expressions of remorse.

61 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. 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.

62 For almost a century, English law - and for not quite as long, Victorian law[29] - has recognised that some women suffer significant mental disturbance consequentially upon giving birth. Thus, in England, in the 17 years between 1905 and 1921, 60 women were sentenced to death for killing their infants, but the sentence was commuted in 59 of those cases.[30] As a result, the Infanticide Act 1922 (UK) was enacted to 'remove this divergence between theory and practice'.[31] The Act provided that if a woman wilfully caused the death of her 'newly born' child, but, at the time, the balance of her mind was disturbed from the effect of giving birth to the child, she should be guilty of infanticide and punished as if for manslaughter. Within a short time of its introduction, however, it was held by the Court of Criminal Appeal (UK), that the expression 'newly born' did not apply to a child 35 days old.[32] To overcome that difficulty, the Infanticide Act 1938 (UK) - which was largely adopted by the legislature of this State[33] - was enacted.

63 In Victoria, infanticide is now proscribed by s 6(1) of the Crimes Act 1958. It is a crime that only a woman can commit, and is both an offence in its own right and an alternative verdict to murder[34] (for that reason sometimes also being referred to as a defence to murder).[35] Indeed, the offence is predicated upon a woman who kills her child possessing the same intention as for murder. Importantly, however, although murder attracts a maximum penalty of life imprisonment, the seriousness with which infanticide is to be judged may be gauged by its maximum penalty, five years' imprisonment. Section 6(1) provides:

6 Infanticide

(1) If a woman carries out conduct that causes the death of her child in circumstances that would constitute murder and, at the time of carrying out the conduct, the balance of her mind was disturbed because of -

(a) her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or

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

she is guilty of infanticide, and not of murder, and liable to level 6 imprisonment (5 years maximum).

As we have mentioned, when a woman is charged with murder, s 6(2) permits a jury to return an alternative verdict of infanticide. Section 6(3) specifically provides that the section shall not affect the power of the jury to return a verdict of not guilty on the ground of mental impairment.[36]

64 The current manifestation of the offence of infanticide is the product of the Crimes (Homicide) Act 2005, with effect from 23 November 2005. It was introduced following recommendations made by the VLRC in its Defences to Homicide: Final Report (although not all of the VLRC's recommendations were adopted). The major change to the former law is to extend the period during which infanticide might operate to two years following birth. A major recommendation to correct what the VLRC saw as an 'anomaly' was not, however, adopted by the legislature. The VLRC said:[37]

The Commission has sought the views of experts on the appropriate upper age limit for infanticide. The literature suggests that the vast majority of child killing by mothers occurs within the first 12 months of the child's birth. However, because there are cases where, due to mental disturbance, mothers kill children who are older than 12 months it was felt that extending the age might ensure that all the deserving cases are given access to infanticide. Based on expert opinion and the statistics on child killing, the Commission believes the upper limit should be extended to two years. The Commission agrees that it is unjust that a woman who, due to a disturbance of mind, killed more than one child, can rely on infanticide for one child but not the other. The Commission recommends the law should be changed to rectify this anomaly.

65 Of course, the applicant fell to be dealt with according to what the law is, not according to what the VLRC thought desirable. 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. At the risk of repetition, the prosecution conceded that the second limb of s 6(1) was engaged. It was thereby conceded that at the time that the applicant drove into the lake intending to kill the child Bol, 'the balance of her mind was disturbed because of ... a disorder consequent on her giving birth to that child'.

66 In QPX,[38] Bongiorno JA was required to sentence a woman who had pleaded guilty to the infanticide with respect to one twin, 'M', and to recklessly causing serious injury to the other twin, 'N'. In the course of his reasons for sentence, his Honour said:[39]

This case of infanticide and, in this particular instance, the charge of recklessly causing serious injury must both be viewed in light of the statutory definition of infanticide set out in the Crimes Act 1958. By the Crown's acceptance of QPX's plea of guilty to infanticide in respect of M it has acknowledged that both offences were committed in circumstances arising from or causally connected to her recently having given birth to her twin daughters. The prosecutor in this Court correctly acknowledged this analysis. ...

67 In alike 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.

68 Given the state of the evidence, it cannot be denied that the applicant's mental functioning at the relevant time was impaired by a clinically significant mood disorder, which very likely was causally associated with the applicant's behaviour in driving her children into the lake. Major depression impaired the applicant's capacity to exercise appropriate judgment, and her capacity to think clearly and make calm and rational choices. Indeed, the uncontradicted psychiatric opinion is that the applicant's capacity to appreciate the wrongfulness of her conduct at the time was impaired, and the intent of her behaviour was obscured.

69 Those factors holding sway, we consider the applicant's moral culpability to be significantly reduced, so much rendering denunciation less important in the exercise of the sentencing discretion than would otherwise be the case, and affecting the punishment that might be considered just in all of the circumstances. Moreover, given the manner in which the applicant's condition diminished her capacity to exercise appropriate judgment and to think clearly and make calm and rational choices, and adversely affected her capacity to appreciate the wrongfulness of her conduct, we think that both general deterrence and specific deterrence should be significantly moderated as sentencing considerations.[40]

70 Additional to those factors, of course, are the other matters in mitigation, including the plea of guilty and the applicant's extremely difficult life. Further, it might be expected that the applicant will do her time 'hard', given that protective custody will be necessary and she will likely spend her time incarcerated in the expectation that she will ultimately be deported (obliterating any hope of building a life in this country and forcing a separation from her surviving children).

71 Mindful of the Director's submissions on this aspect, we should say that we fail to see that any lack of remorse may legitimately be read into the applicant's supposed lies in the aftermath of the killing; the fact that Dr Sullivan had documented no expressions of remorse; or in her participation in a contested committal. It must be an intensely difficult thing for any parent to face up to the fact that they have killed their child, let alone somebody afflicted with the applicant's mental disturbance. We consider her 'lies', and her failure to acknowledge to Dr Sullivan that she had an intention to kill, to be wholly consistent with her compromised mental condition, rather than exhibiting any lack of remorse. Further, we consider that it was legitimate for there to be a committal, if for no other reason to gauge whether the applicant's mental condition could go so far as to establish a defence of mental impairment. The applicant, who is somewhat unsophisticated, no doubt placed her trust in that regard in the hands of her legal advisors.

72 In our view, there is substance in the submissions of the applicant's counsel that sentences of 22 years' imprisonment on each of the two charges of murder are of the order of sentences generally reserved for cases unattended by the powerful mitigating features of this case. Had adequate weight been given to the applicant's mental condition and other factors in mitigation, we consider that significantly more lenient sentences would have been imposed on each of those charges. 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 (as is the sentence on the charge of attempted murder).

73 Moreover, although it must be recognised that the applicant owed a separate obligation to each victim not to cause them harm,[41] it must also be recognised that there is a commonality between the four offences embraced by the indictment, in that it was the single act of driving the motor vehicle into the lake which constituted the criminal act common to each offence. Therefore, despite there being a necessity for there to be some cumulation between the sentences on each charge,[42] that cumulation should be moderate. In our opinion, in light of the sentences imposed by the judge on charges 2 and 3, the orders for cumulation on the other charges were also manifestly excessive.

74 It should not be thought that, in reaching these conclusions, we have lost sight of the fact that three vulnerable children lost their lives (and that a fourth nearly did). Adjectives such as 'tragic' are inadequate to convey the depth of emotional response provoked by the destruction of such innocent lives. Each of the applicant's children had a right to expect that she would protect them and keep them safe from harm. The applicant fatefully and irredeemably, however, breached their trust. But it must also be remembered that, when she did so, her capacity to make calm and rational decisions was severely compromised by a mental condition which was not of her own making. Her situation is pitiable. And although the Court must avoid being weakly merciful,[43] principle nonetheless demands that the punishment inflicted upon the applicant must be mitigated by, and justly reflect, her diminished moral culpability.

75 For the foregoing reasons, we would grant the application for leave to appeal against sentence and allow the appeal. Although we would not disturb the sentence on the charge of infanticide (charge 1), we would substitute sentences of 16 years' imprisonment on each charge of murder (charges 2 and 3), and four years' imprisonment on the charge of attempted murder (charge 4). The applicant is sentenced as a serious offender on charges 3 and 4. We would order that 12 months of the sentence on charge 3, and six months each of the sentences on charges 1 and 4, be served cumulatively with the sentence on charge 2,[44] thereby producing a total effective sentence of 18 years' imprisonment.

76 In our opinion, justice requires that the applicant serve at least 14 years of that sentence before she may be considered eligible for release on parole. We will thus fix a non-parole period of 14 years, and will make an appropriate declaration concerning pre-sentence detention.

77 All other orders of the sentencing judge are confirmed.

78 Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the applicant's guilty pleas, we would have sentenced her to 33 years' imprisonment, with a non-parole period of 27 years.

[2] Their date of birth was 25 December 2010.

[3] His date of birth was 21 December 2013.

[5] Crimes Act 1958, s 6(1). The maximum penalty is five years' imprisonment.

[6] Common law. By virtue of s 3 of the Crimes Act 1958, the maximum penalty is life imprisonment.

[7] Crimes Act 1958, s 321M. By virtue of ss 321P(1) and (1A), the maximum penalty is 25 years' imprisonment.

[8] R v Guode [2017] VSC 285 (Lasry J) ('Reasons').

[10] Guode v The Queen [2017] VSCA 311.

[11] Originally, the ground as formulated related only to the sentences on charges 2 and 3. Leave was given during the hearing in this Court to amend the ground so as to include the sentence on charge 4.

[12] See [5] above.

[13] Ballan Road runs roughly north-south, whilst both Bolton Road and Manor Lakes Boulevard run roughly east-west. Bolton Road runs from the east into Ballan Road, southerly of Manor Lakes Boulevard, which runs westerly off Ballan Road.

[15] See [62] et seq. below.

[19] The Director of Public Prosecutions, who appeared on the plea hearing, cited R v Quarry [2005] VSCA 65; (2005) 11 VR 337, 344 [25] (Warren CJ), 347 [35] (Batt JA); R v Fitchett [2010] VSC 393, [14] (Curtain J) ('Fitchett'); R v Farquharson [2010] VSC 462, [2] and [43] (Lasry J).

[20] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[21] Counsel cited Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294 [25] (Maxwell P, Bongiorno JA and Beach AJA).

[23] Ibid, [26]. See also [74], [76].

[27] Ibid, [56]-[58] (citation omitted). See also [77].

[29] See Crimes Act 1949, s 4, which adopted, without material alteration, the English Infanticide Act 1938. See also R v Hutty [1953] VicLawRp 48; [1953] VLR 338, 342 (Note).

[30] An entry by Kathy Laster in The Encyclopedia of Melbourne (2005 Cambridge University Press, editors Andrew Brown-May and Shurlee Swain), at [366], would suggest that, at the end of the nineteenth century and beginning of the twentieth century in Victoria, it was not uncommon for women to be charged with murdering their infant children:

Infanticide was rife well into the 20th century. ...

Between 1885 and 1914, 125 women, mainly poor domestic servants, were charged with murder of an infant and 85 with the lesser crime of concealment of birth in Victoria. Sympathetic juries convicted less than half despite regular discoveries of babies' bodies floating in the Yarra River or abandoned in public places.'

[31] JWC Turner, Kenny's Outlines of Criminal Law, (12th ed, 1926), 138. For an historical discussion of the legal position prior to the English Infanticide Act 1938, see D. Seaborne Davies, Child Killing in English Law, (1937) 1 Modern Law Review, 203, 216-20.

[32] R v O'Donoghue (1927) 20 Cr App R 132.

[33] See footnote 29 above.

[34] Crimes Act 1958, s 6(2).

[35] See Victorian Law Reform Commission ('VLRC'), Defences to Homicide: Final Report, 254 [6.5].

[36] For a person to be found not guilty because of mental impairment, it must be established that, at the time of engaging in conduct constituting the offence, the person charged was suffering from a mental impairment that had the effect that he or she did not know the nature and quality of the conduct; or he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20.

[37] Defences to Homicide: Final Report, 266-7 [6.41].

[38] DPP v QPX [2014] VSC 189 ('QPX').

[40] Verdins, 276 [32] (propositions 1, 3 and 4).

[41] R v Bekhazi [2001] VSCA 178; (2001) 3 VR 321, 330 [14] (Winneke P).

[42] In another context, see DPP v Solomon [2002] VSCA 106; (2002) 36 MVR 425, 429-30 [19] (Winneke P); DPP v Whittaker [2002] VSCA 162; (2002) 5 VR 508, 514 [25] (O'Bryan AJA); R v Izzard [2003] VSCA 152; (2003) 7 VR 480, 485 [23] (Callaway JA); Towle v The Queen [2009] VSCA 280; (2009) 54 MVR 543, 571-2 [95]-[97] (Maxwell P); Vasilevski v The Queen (2018) 83 MVR 351, 362 [25], [45] (Priest and Santamaria JJA).

[43] See R v Radich [1954] NZLR 86, 87; R v Williscroft [1975] VicRp 27; [1975] VR 292, 298 (Adam and Crockett JJ). See also R v Miceli [I998] 4 VR 588; Richard G Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing[1999] MonashULawRw 1; , (1999) 25 Monash University Law Review 1, 3.

[44] Strictly speaking, on those charges upon which the applicant is to be sentenced as a serious offender, cumulation is to be achieved by orders for concurrency. See Sentencing Act 1991, s 6E. see also Reid (a pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 323 [119] (Priest JA).