The Queen v Guode [2017] VSC 285

2 The children who died were Bol Manyang aged 17 months, Madit Manyang and Hangar Manyang both aged four years. The child Aluel Chabiet, then aged five years, survived and is the subject of the charge of attempted murder.

3 Notwithstanding the various personal, historical and psychological pressures you were under at the time which I acknowledge were significant, the real reason for your actions on this day are, in many respects, a tragic mystery and have not been explained by you. As in other similar cases, this case tests the sympathy and compassion of the community. People want to understand why you did what you did because, particularly for parents of young children, such action is foreign and unthinkable. In my opinion, your actions were a product of extreme desperation rather than any form of vengeance of a kind that has arisen in other cases of parents killing their children.[1]

4 You were not charged in relation to these matters until 10 August 2015 some four months after the offences were committed. It was not until almost a year later that a committal hearing was held in the Magistrates Court in June 2016. The matter stood as a contested trial as at a final directions hearing before me in December 2016. Dr Sullivan's report was prepared in January 2017 and, as I said, you pleaded guilty on 16 January 2017.

5 On 8 and 9 March 2017, I heard a prosecution opening from Ms Kerri Judd SC and a plea presented on your behalf by Mr Marcus Dempsey and his junior counsel Mr Sam Tovey.

6 The maximum penalty for murder is life imprisonment. The maximum penalty for attempted murder is 25 years imprisonment. The maximum penalty for infanticide is 5 years imprisonment. It is now my duty to sentence you for these offences.

7 In 2006 you came to Australia from Sudan. You brought your three eldest children with you. That followed a personal disaster in the early 2000s when your husband was murdered in the context of the developing civil war in South Sudan. It appears that that may have happened at least in part because he was defending you. I will return to your background circumstances.

8 In 2008 in Australia, you began a relationship with Joseph Manyang who was at the time married with three children. In May 2009 Alual was born - the child of you and Manyang. In 2010 you fell pregnant to Manyang again, this time with twins. They were born in December 2010. In 2013 the child Bol was born which a later test proved was the child of Manyang. All told therefore, as at 8 April 2015 you had seven children.

9 By this point your life was in turmoil and you were experiencing a degree of social isolation the source of which appears to have been your relationship with Manyang which itself was encountering difficulties. You planned to move away to Morwell. Unsurprisingly you were also experiencing financial problems and were being pursued by debt collectors. I will return shortly to your personal circumstances.

10 In relation to these offences, on Wednesday 8 April 2015 at about 1:00pm you left your house with your four youngest children in a Toyota Kluger SUV. You told Akoi Chabiet, your eldest child, that you were going to visit a grandparent, but that visit never actually occurred.

11 In fact you drove to Wyndham Vale and spent a significant amount of time driving in and around Manor Lakes Boulevard. The various records assembled during the investigation demonstrate that between 1:00pm and 3:30pm you made five trips in the vicinity of the lake into which you later drove your car. On four of those trips you went directly past the lake. During that time you made a number of phone calls including an attempt by you to speak to Joseph Manyang but he did not answer the call.

12 According to the observations of a witness who observed your vehicle shortly before you drove into the lake, you and your children were clearly distressed. She reported seeing you huddled over the steering wheel of the stationary vehicle with your face in your hands.

13 Shortly after 3:40pm on that day your vehicle was seen driving on Manor Lakes Boulevard, performing a U turn, pulling to the side of the road, pulling out again and then driving over the nature strip to the edge of the lake.

14 As the prosecutor said in opening the case, in order to drive your car into the lake from Manor Lakes Boulevard you had to make at least three deliberate turns. You had to turn the steering wheel left to mount the kerb and then turn towards the right to guide the vehicle through the trees to an access point on the lake. You then turned into the access point towards the lake and then turned left again. The point at which your car entered the lake was the only realistic point of entry, illustrating not only your intention at the time but some level of planning and contemplation.

15 The vehicle ended up in the water. Initially water only came up to the bottom of the door seal. Not long after the car was seen 10 to 20 metres further into the lake and facing the opposite direction.

16 To witnesses, it appeared you drove into the lake deliberately and thus calls to 000 were made. One witness, Alexandra Colston-Ing, then saw you leaning out of the driver's window screaming while the other windows of the vehicle were closed. The witness saw a baby lying on its back floating and trying to keep its head out of the water.

17 The vehicle ultimately moved some 20 metres into the lake and turned facing the direction it had come from. You were then seen attempting to get out of the car through the driver's side window. Several people who were nearby tried to help CFA members who by then were involved in the rescue attempt. They attempted to get the children out of the car as you stood next to the car not assisting. You were seen by witnesses standing outside your vehicle next to the driver's door. According to them you were making a wailing or moaning type noise but you were not attempting to get the children out of the car. You were asked how many people were in the car but initially you did not respond.

18 Alual was rescued first by CFA members and was taken to the edge of the lake. Ultimately the child Bol was removed from the car but he was not breathing and died later at hospital. Between the vehicle and the shore Hangar was found beneath the water and was pronounced deceased on the bank.

19 There appeared to have been some confusion amongst those who were trying to help as to how many children had been in the car. When it was realised there had been four a foot sweep was done of the lake and the body of the child, Madit, was found lifeless on the bottom. His body was removed to the bank.

20 At the scene, after being removed from the water, you were attended to by a number of paramedics and later taken to the Royal Melbourne Hospital. At 4:19pm you were initially attended to by paramedic David Hammond, who placed you in an ambulance with himself and First Constable Hannah Sinnott. You told Hammond you felt dizzy whilst driving to the Manor Lakes shops and could not remember anything until you were in the back of the ambulance. However a neurological assessment found no abnormalities. During a conversation with a police officer you said you were out shopping at Coles with the four children and became dizzy and wanted to go home.

21 Later at the hospital you spoke with medical staff and said that you had been feeling dizzy for a month and that you had seen your doctors about this.

22 Whilst being treated it appears you stated that you were travelling at 50 kilometres an hour and became dizzy and failed to make the turn.

23 On 9 April 2015, commencing at 11.06am, the police conducted a record of interview with you. During that interview you were asked what happened during the course of the day. You said you had wanted to go shopping but the children asked to go to the park so you took them to the park. You said your daughter Akoi called and you told her that you were coming home. You said that whilst on the way you felt dizzy and could not remember where you were going. You said 'My eyes sometimes close and my heart doing not good, yeah, and then I lost control'. Later you said, 'I was not feeling well and I feel like I'm going to faint'.

24 You told the police that you had a history of feeling dizzy which commenced after you received an injection in your neck whilst giving birth to your youngest child Bol. Whilst there is some issue about whether you had spoken to doctors about suffering from dizziness, it is clear that you lost a significant amount of blood during the birth of Bol on 21 December 2013. The consultant psychiatrist Dr Sullivan, who gave evidence on your plea, has more say about the effect of this birth on your mental state and I will return to that evidence shortly.

25 The important point is that there was nothing involuntary about your actions and your pleas of guilty to the four offences charged acknowledge that.

26 It also appears that for some time at least you had thought about what you were going to do - at least in the two hours or so before you did and possible for longer than that.

27 I bear in mind the comments of Dr Sullivan about the difficulty of drawing inferences from your conduct after this terrible incident. Having considered the circumstances, I am not prepared to treat your conduct in the immediate aftermath of your vehicle entering the water as an aggravating circumstance in that I could not be satisfied beyond reasonable doubt that your conduct represented a continuing intention by you to kill your children. Whilst you obviously had such an intention on entering the water in your vehicle, in my opinion by this stage you were shocked by what you had done and had no real ability to deal with it.

28 A more difficult issue is that, as Dr Sullivan noted, you have denied having an intention to kill your children. Despite that, you have pleaded guilty to offences that require proof of intent yet that denial seems to continue. I will return to this issue.

29 The prosecution case was that what you did was a deliberate course of driving during which you executed all the necessary manoeuvres to eventually drive into the water. By your pleas and through your counsel, you do not dispute that and I will sentence you accordingly.

30 Before leaving the factual description of what occurred, I want to again pay tribute to the civilians and the emergency service members including police, ambulance and CFA members who were confronted with this scene and who were called upon to deal with it by offering whatever help they could. Such a task is almost incomprehensible. I have said before that we too often take the essential services these people provide for granted. They are to be thoroughly commended for the professionalism of their response to this incident, and indeed others.

31 A victim impact statement was received during the plea hearing from Joseph Manyang, the man with whom you had four children. He is the father of the three children you killed. His words are understated and lacking in anger or vengeance. But he has lost three of his four children whom he says he misses. That loss is unimaginable. I have taken his statement into account in deciding what sentence I should impose on you.

32 You have had an extraordinarily difficult life - a life that most of us can hardly imagine. You were born on 20 June 1979 and are therefore now 37 years of age. As I earlier noted you are from the town of Wau in South Sudan. As a child, in accordance with the accepted practice of your religion, you lived in a family where your father had children from three wives including your mother. All told there were 16 children.

33 Your early life was settled and positive however the civil war in south Sudan unsurprisingly had a serious impact on your life and that of your family. The effects of that event on you seemed to begin in 2003 when you were 24 years of age. Members of your family were killed and, as your counsel put it, life for you and your family became chaotic.

34 Your education finished at something equivalent to year 10 level and although you speak more than one language your reading and writing skills are limited. In 1996 you established a relationship with your husband who was soldier in the rebel army of South Sudan and he is the father of your daughters. In 2001 you took the children to Eritrea. As I understand it, your husband was killed sometime afterwards and there was at least the suggestion that his death occurred in front of you and your children though your account was that it occurred while you were in Eritrea. Consistent with your approach to dealing with issues in your life, you seemed reluctant to in any way rely on this incident preferring to say that you were not present.

35 In a later report from Dr Sullivan on 28 March 2017, you confirmed that, during a militia raid on your village you saw your husband shot dead and his body burnt and that following that you were raped until you were unconscious. Dr Sullivan thus reported that, understandably, you have symptoms of post-traumatic stress disorder the severity of which is mild and overlaps with other features of a mood disorder from which you also suffer and which I will shortly come to.

36 After the death of your husband, in accordance with custom you then became the wife to your husband's younger brother and that union produced a daughter Elei now aged 13 years. The relationship did not go well and there was conflict.

37 During 2003 you left your second husband and Sudan, and for 18 days with three children you walked to Uganda, foraging for food as you went. You and your children survived attacks by hiding in bushes. When you arrived, you lived for a time in a refugee camp and then for security reasons you had to move to another camp in Kampala.

38 You were registered as a refugee with the United Nations and you applied for refugee status in Australia where you were accepted becoming a permanent resident in this country. The visa issued to you was a Global Special Humanitarian visa. You and your children arrived in Australia in 2005, having been interviewed by an officer of the relevant Commonwealth government department and having had your claims expressly accepted.

39 In Australia you began in Sydney then moved to Melbourne and lived in Sunshine. In 2009 you met Joseph Manyang. There were problems because of conflict with Manyang's wife but nonetheless, commencing in 2010 you and he had four children between then and 2013.

40 Your life in Melbourne was difficult and you seem to have been burdened with debt incurred form every day expenses.

41 The birth of the last child Bol apparently resulted in a significant postpartum haemorrhage which required a blood transfusion and also involved the doctors and nurses who were treating you having difficulty in getting your agreement to procedures that would save your life.

42 The birth of that child also appeared to mark increasing depression which Dr Sullivan described as a major depressive disorder. You told your close relative Abouk Kon that you did not recover after the birth and that you were always sick with migraine headaches and dizziness. You said you were seeing the family doctor.

43 Abouk Kon described an occasion a year or so before this incident where you rang her and said you felt like you were dying. Abouk Kon drove to Melbourne and found you lying on the floor. She and a neighbour assisted you and you recovered. Your eldest child Akoi confirmed that after the birth of Bol you were often tired and would sleep all day.

44 In 2013 you considered moving to Morwell to get away from some of the problems you were experiencing in Melbourne and you discussed this with Abouk Kon. In late 2014 you again began to think about a move to Morwell. You complained that you were lonely in Melbourne and there were rumours about you in the Sudanese community. By this time Akoi had almost finished secondary school. Joseph Manyang was always aware of your intention to move to Morwell and you and he discussed it not long before these offences were committed. Indeed some arrangements had been made for you to go Morwell by train with the children on 8 April 2015.

45 Thus the pressures on you included the difficulties arising from your relationship with Joseph Manyang, a degree of ostracism from your community and very severe financial problems.

46 You having committed these offences and being presently in custody, the task of caring for your surviving children has now fallen to your eldest child Akoi. You are well aware of the burden that places on her. Akoi has described her predicament in a letter to me dated 6 March 2017.

47 In custody you have been classified as a protection prisoner and consequently live in an atmosphere of isolation.

48 It is important to recognise that despite this very difficult background there is nothing to indicate that you have ever been involved in any form of criminal activity; certainly not here in Australia. It is not suggested that you have any propensity for violence or other anti-social conduct.

49 In relation to the child Bol, you had originally been charged with murder but that charge was replaced with one of infanticide.

50 The offence of infanticide is defined in s 6 of the Crimes Act 1958, which provides that 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 her not having fully recovered from the effect of giving birth to that child within the preceding two years or a disorder consequent on her giving birth to that child within the preceding two years she is guilty of infanticide.

51 Dr Danny Sullivan to whom I've already referred is a consultant psychiatrist. He has assessed you several times beginning in early January 2017. He gave evidence and was cross-examined during the plea.

52 In his evidence, as in his reports, he described a variety of pressures that were on you as a result of having the care of seven children, having inconsistent support from Joseph Manyang and having significant financial problems together with the trauma of your history in Sudan that culminating in his last conversation with you on 24 March 2017.

53 In his assessments, Dr Sullivan diagnosed you as suffering from a major depressive disorder which is mild to moderate in severity. This disorder, he said, involved some degree of impairment in functioning. Dr Sullivan links this condition with the birth of Bol in December 2013. However, what specifically led you to do what you did on 8 April 2015 is not within Dr Sullivan's ability to identify, as he accepted. However, importantly your condition remained at the time of these offences and in his opinion impaired your ability to exercise appropriate judgements, think clearly, make calm and rational choices and appreciate the wrongfulness of your conduct.

54 As I have mentioned, in his last report of 28 March 2017 Dr Sullivan reported another conversation with you in which you acknowledged that you did see your husband killed and that you had been raped. Dr Sullivan offered the opinion that there is evidence of post-traumatic stress disorder. What happened to you in South Sudan may have contributed to the mood disorder he diagnosed.

55 On your behalf, your counsel made the submission that the charge of infanticide to which you have pleaded guilty was significant and it was through that prism that the charges of murder and the charge of attempted murder should be viewed.

56 That, he argued, was because the offence of infanticide contains within it a legal recognition that your conduct in causing the death of your child Bol occurred in circumstances that would have constituted murder but at the time of carrying out the conduct on 8 April 2015, the balance of your mind was disturbed because of a disorder consequent on you giving birth to that child within the preceding two years. 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.

57 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[2] 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.

58 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.

59 I am also of the view that subject to the treatment that may be offered to you in custody and your willingness to accept it, your imprisonment is likely to have an adverse effect on your mental health. Having said that I bear in mind Dr Sullivan's evidence that your mental state would not make your imprisonment more burdensome.

Plea of guilty, remorse, intent and prospects of rehabilitation

60 You pleaded guilty to these charges which are different to those with which you were originally charged. The difference being, as I have already described, that the charge of murder concerning the death of Bol was replaced with the charge of infanticide. That was appropriate.

61 Your plea of guilty has, as your counsel has submitted, facilitated the course of justice and saved considerable time and resources that would have otherwise been devoted to a trial.

62 To the extent that you feel remorse for what you have done, I am by no means sure about that. Certainly you are suffering significant grief and you have accepted criminal responsibility for your actions. However as I have already mentioned, a complication in this case is that though you have pleaded guilty to these offences, you do not accept that you intended to kill them. That's what you told Dr Sullivan. It seems clear enough that you know that by pleading guilty to these offences it is implicit that you admit your intention to kill. To actually say that in terms is, I suspect, too painful for you.

63 In making an assessment of the degree of remorse I accept that your life has been one where out of an instinct of self-preservation you have not dwelt on the misfortune that has happened to you. I agree with your counsel that your reaction does not make you irredeemable.

64 Indeed, the issue arises as to your prospects of rehabilitation. Your rehabilitation during and after your time in custody will be complicated. You will have deal with the pressures within the prison in which you are held. On your release you may have to cope with deportation, the loss of the rest of your family and the difficulties of somehow re-establishing your life. How that will all turn out is beyond my ability to estimate. All I can conclude is that there is no real prospect of you becoming involved in any further criminal activity. I do not believe that in the future you are a person from whom the community will need to be protected. I hope you will be treated with compassion.

65 On your behalf an affidavit was produced from Ms Carina Ford, who is an immigration lawyer.

66 As I understand it, at some point, whilst serving the sentence I impose on you, your visa will be cancelled assuming the sentence exceeds 12 months imprisonment, which of course it will.

67 You are apparently able to apply for revocation of that cancellation but the fact remains that you face the prospect of being deported from Australia at the conclusion of your sentence. I assume that deportation would result in you being sent back to South Sudan. Such an action would compound the tragedy of this case. If it occurs, as I understand is highly likely, it is a relevant consideration to take into account as affecting the hardship of your sentence. Apart from the loss of the opportunity to remain in Australia it, of course, involves the prospect of permanent separation from your family.

68 The Court of Appeal in Guden v DPP[3] said:

In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender's deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.

69 In relation to the total effective sentence to be imposed on you, your counsel urges me not to impose a sentence of life imprisonment as the head sentence. The prosecutor did not contend that such a sentence should be imposed. I accept the submission and agree that in the particular circumstances of your case something less than a life sentence should be imposed.

70 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.

71 Sentencing principle requires me to impose a sentence on you that is the product of what is described as an intuitive 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.

72 On your behalf I was reminded by Mr Dempsey that all of these offences arise out of one incident. It occurred, he argued, because of your deteriorating mental state and a combination of pressures that were on you.

73 True as that is, these are obviously grave offences. Offending against children, particularly where a homicide occurs, shocks the public consciousness because invariably the victims are very young and innocent of any wrong doing or contribution to their fate. These children trusted you as their mother as they were entitled to do. Your betrayal of that trust was catastrophic in its consequences whatever the true reasons were for your actions.

74 It was also put on your behalf that there was no level of planning or contemplation of this prior to 8 April 2015. That also seems to be true though, as I have described, there was a period of contemplation by you for some time as you drove in the vicinity of the lake.

75 This case is an all-encompassing tragedy. It is a tragedy for your family with three children deceased through your actions. It is a tragedy for you because you have destroyed the life you had started here in Australia and it is a tragedy for the community. But above all, your actions amounted to an horrendous crime on innocent children and a gross breach of trust and a betrayal by you of your obligation to protect your children.

76 The prosecutor also argued during the course of submissions, there was a degree of thought about doing this on your part illustrated by your numerous circuits around the lake and selection of a point of entry. Because of your sheer inability to cope with what you had done, you did nothing to assist in the rescue of your children and then concealed the deliberateness of your actions behind an explanation of unintended dizziness.

77 Normally considerations of denunciation, punishment and general deterrence would be very significant. However, having come to the conclusions I have about your mental state, I am of the view that the significance of general deterrence and denunciation are lessened, though not eliminated, in your case.

78 As to the first charge of infanticide, I have concluded that a sentence of imprisonment must be imposed.

1. On charge 1, the charge of infanticide in relation to Bol Manyang, you will be sentenced to 12 months' imprisonment.
2. On charge 2, that you murdered Madit Manyang, you will be sentenced to 22 years' imprisonment.
3. On charge 3, that you murdered Hanger Manyang, you will be sentenced to 22 years' imprisonment
4. On charge 4, that you attempted to murder Aluel Chabiet, you will be sentenced to be imprisoned for six years.

79 I direct that six months of the sentence on charge 1, three years of the sentence on charge 3 and one year of the sentence on charge 4 be served cumulatively with the sentence on charge 2.

80 That results in a total effective sentence of 26 years and 6 months.

81 I direct that you serve a minimum of 20 years before you become eligible to apply to be released on parole.

82 The period of pre-sentence detention is 660 days and I direct that that period be counted as time already served and entered in the records of the Court.

83 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to these charges, the total effective sentence I would have imposed would have been one of life imprisonment and I would have fixed a period of 30 years before you would have become eligible to apply for release on parole.

84 I note I have already made the disposal orders and forensic sample retention orders sought by the prosecution and not opposed on your behalf.

[1] See R v Mihayo [2014] VSC 652; R v Acar [2011] VSC 310; R v Freeman [2011[ VSC 139; R v Farquharson [2010] 462; R v Liao [2015] VSC 730.

[2] [2007] VSCA 102; (2007) 16 VR 269.

[3] [2010] VSCA 196.