The Queen v Mihayo [2014] VSC 652

2 The maximum penalty for murder is life imprisonment. It is now my duty to sentence you for these crimes.

3 The victims of your actions were your two daughters, Savannah aged 4 years and Indianna aged 3 years. You murdered your children on Sunday 20 April 2014 at Watsonia.

4 I have been actively involved in the practice of the criminal law since 1973. I believe I largely understand why serious crimes occur, no matter how vicious, but I admit, I am at a loss to understand these terrible crimes.

5 I simply do not understand why, when the continuing argument was between you and your ex-wife about these children, you made them pay with their lives in order to inflict pain and loss on your ex-wife. In my view that motivated your actions.

6 Killings like this are subject to regular public discussion, and so they should be, because they are hideous crimes devoid of any form of justification or proper explanation. To the extent that by enquiry and analysis, there can be identified an understandable pattern of reasons why parents, usually men, murder their children in circumstances of marital conflict, that pattern needs to be understood so that such events can be stopped or substantially reduced in number.

7 You are of Tanzanian origin and you are a permanent resident of Australia. In 2000 you went from Tanzania to China and worked in languages, becoming a translator for visitors to China who were doing business there. In 2003 in that country you met the woman who was to become the mother of your children. You and she came to Australia in 2007 and became engaged. You were married on 12 April 2008.

8 The child Savannah was born on 30 October 2009 and Indianna was born on 6 January 2011.

9 Your marriage was problematic and in September 2011 you and your ex-wife separated. You were divorced in April 2012. Once the separation occurred there was a continuing issue between you and your ex-wife over the two children and the arrangements that would be established concerning your access to them. Certainly, the arrangements varied and you felt wronged and unfairly treated by your ex-wife.

10 Initially in your marriage you and your ex-wife had lived in Sunbury. You moved back to the Greensborough area and, finally, in September 2012 after the separation and divorce, you moved into the premises in Watsonia where these murders were committed. Also in September 2012 you learned that your mother had died in Tanzania.

11 In addition, during some of those difficult times there were various incidents where you became angry with your ex-wife and some threats were made by you to her. In December 2012 you were heard to threaten to "slit" your ex-wife's throat and in the course of doing so pushed her up against a motor vehicle.

12 From July 2013, after some months of casual work you were employed on a full time basis at Kathmandu Distribution Centre. By April 2014 your fellow workers were noticing that your mood was negative and you told one of your co-workers that you were not sleeping.

13 However, during April 2014 you began to convey to your ex-wife that you were proposing to relinquish your entitlement to see your children. You were clearly hostile towards your ex-wife and the evidence indicates that a computer search you conducted began with the terms "how can I kill my ex-wife". You also apparently told a work colleague that you had been thinking about ways to kill her and get away with it. I do not treat that as the beginning of any plan to do such a thing but nonetheless it is a significant indicator of the hostility you had towards her.

14 In February 2014 both you and your ex-wife engaged lawyers and then went to the Greensborough Family Relationship Centre seeking resolution of the dispute over the children.

15 As I will shortly describe, four weeks before you killed these children you claim to have made a decision to, as it were, step back and not see your children.

16 On 18 April 2014 you returned several items belonging to the children to your ex-wife's premises.

17 On 19 April 2014, you sent text messages to your ex-wife in which you expressed the desire to see your daughters one last time for the purpose of saying goodbye to them. In those messages you again conveyed the impression that you were intending to relinquish altogether any rights you had to contact with your daughters. An issue arose as to where this last meeting between you and your children would take place. After the alternative of the children being taken to your ex-wife's father's place for that purpose was not agreed to by you, she agreed to bring them to your premises at 3:00 pm on 20 April 2014.

18 Also, on 19 April 2014, you last modified a note on your phone in the form of a letter to your ex-wife. It would seem you first wrote this document on 2 April 2014. The note announced that you were never going to see your ex-wife again. You then set out a series of incidents which you relied on to demonstrate her unreasonableness in dealings over the children. You wrote that your ex-wife never acknowledged the efforts you had made for your children. You accused her of being heartless and selfish and willing to hurt the children by excluding you from their lives. You made it clear that you resented what you regarded as her decision as to the children's future. Your writing demonstrates that you were angry and upset by the way you saw the arrangements for the children's future going.

19 On 20 April 2014, prior to your children's arrival at your premises, you went shopping and went to the movies. Later, you purchased clothing, shoes and bags for your daughters. Just after 2:00 pm on that day your ex-wife and daughters arrived.

20 You had known since the previous day that your ex-wife would bring the children to your premises rather than her father's place but after their arrival you were, perhaps surprisingly to you, left alone with your children. That gave you the opportunity and it is obvious to me you immediately began to think about doing what you did. It was an opportunity you immediately took advantage of.

21 You escorted your children inside while your ex-wife waited nearby at an adjacent house. You dressed them in the clothes you had purchased and they went outside to show their mother. They then went back into the house. You took a video of them and then, during a game you were playing with them, you simultaneously murdered both of them by suffocating them with pillows. As you described it, after you had done that you took their bodies to the bathroom, washed them and then laid them out in the living area of your premises with one of them on the floor and one on the couch. You rang 000 at 2:35 pm and told the operator that you wanted to report a double murder. Nine minutes later, their mother also rang 000 expressing concern that something had happened to her daughters whilst visiting you.

22 Police arrived a minute after your ex-wife's call and when they entered your premises you said to them "It's done - I've killed them. I've killed my kids". Asked by police why you did that you said, "You have to ask her" referring to your ex-wife who was nearby. Those statements by you, perhaps above all else demonstrate that these killings were strongly motivated by your hostility to your ex-wife.

23 I pause here to note and sympathise with the confronting scene with which Leading Senior Constables Jones and Moriarty from the Heidelberg Crime Scene Unit and Constables Jessa and Smith from the Heidelberg Police Station were faced with. They are all to be commended for the professionalism they applied to what was, by any standard, a most difficult situation. I request that these comments be conveyed to the Chief Commissioner of Police.

24 Attempts were made to revive these children but that achieved no success and by 3:35 pm declarations were made that they were deceased. A post mortem carried out by Dr Baber identified the cause of death as being consistent with suffocation.

25 Victim Impact Statements were filed on behalf of the mother of the children and also their maternal grandparents. In addition, there is also a great grandmother who has not filed a statement but who is referred to in the statement of the mother of your ex-wife and who is also devastated by what you have done.

26 It is not necessary to read these statements to know that the impact on these people is dramatic and life-long, but I have read them. It is equally obvious that you paid no attention to the effect of your actions on this family.

27 I have taken these statements into account in determining the sentence I will pass on you.

28 In an effort to try to understand why you did what you did, I have carefully watched the entire record of interview the police had with you. The interview lasted for several hours. It was largely occupied with your narrative of the conflict between you and your ex-wife over the arrangements for these children after the separation and divorce. Your overall position was to emphasise the unfairness of those arrangements, for which you blamed your ex-wife.

29 You began the interview in what appeared to be a calm state of mind and immediately informed the police that you did not propose to explain to them why you did what you did. You said you did "...what I had to do".[1] You said you had your reasons but you considered the police did not need to know what they were.

30 After delays at the start of the interview for forensic procedures you were again asked for a description of what you did and, again, you gave it, quite calmly. During the giving of that description you once again informed police that you would not be giving them the reason for killing your children, though you wanted it understood that you took full responsibility for their deaths. You said you were "very conscious" of what you were doing.[2]

31 You told police you had not planned to do what you did. You said that what you did was not premeditated. The Chief Crown Prosecutor takes issue with that. You said you had your reasons but once more said you would not share them with the police. I have trouble, I must say, reconciling your statement that you had your reasons with your suggestion that it "just happened". If you had reasons for doing this then it means you had thought about and contemplated these actions to some degree.

32 You then described in significant and horrifying detail[3] the procedure you followed in killing your daughters. You were able to recall all the detail of the lead-up to your act of causing their deaths. You recalled the games you and they were playing. You recalled that they were hiding and then, when you lifted the pillow to reveal where one of them was hiding, something happened to you which you would not describe.

33 You recalled that your ex-wife, who was outside, became concerned. You requested her to let you know when "they" arrived, referring to the police. She wanted to know who would be arriving and your response was that she would know when they got there.

34 You appeared to link the reason you committed these crimes to what you had experienced and been through since you had been in Australia. The significant feature of that was your marriage, its failure and the effects on you.

35 In the rest of the interview you described at length your marital history. It is apparent from watching the record of interview, in which you explained in extraordinary detail the failure of your marriage and what followed, that you were angry about what had happened. You clearly concluded that your ex-wife wanted to stop you from having a relationship with your children despite having initially agreed at the time of separation that the children would be shared equally between the two of you. Again, you gave a very detailed history of the hostility between you and your ex-wife and your perception of the unfairness visited on you by her so far as your contact with your children was concerned. You traced the entire history, quoting conversations and describing the minutiae of the dealings you and she had with each other. You described how in 2012, your ex-wife wanted to limit your access to the children to the weekends only and later to only half a day on Saturdays. At around this time you discovered that your ex-wife had had a long relationship with her new partner and never intended to work on the relationship with you.

36 Ultimately you told the police that you decided you would back down in the continuing dispute and announce to her that you would simply not see the children anymore. What is not at all clear to me is why, when you had difficulties in agreeing with your ex-wife about the arrangements for the children, you did not resort to having the matter dealt with in a court. A judge might very well have imposed an access regime on your ex-wife that suited you provided he or she considered it was in the best interests of the children. Instead, those children are dead.

37 You did say in your interview with police that you were told by your lawyer that to go to court would have cost $50,000 which you did not have. Whether that be so or not, measured against what you did, it is an extremely small price to pay.

38 Significantly, you said your ex-wife was not important to you but your daughters were and, as some insight into your thinking, you told the police that you murdered your girls because they were important to you.

39 You also told police that the idea of the visit to you on 20 April 2014 was to enable you to say goodbye to your daughters because you were not going to be seeing them each weekend any more. You said that was something you did not get around to doing on that day.

40 Towards the end of your record of interview, in a moment of improved candour, you conceded that what you did may have been, in part, driven by vindictiveness and selfishness. You said, however, that was not the tipping point. You conceded that you were hurt on the day you killed your children. You accepted that ultimately what you did was selfish.

41 So, the question remains - why did you commit these horrendous crimes? You told the police that the reason does not really matter and is not important. You suggested to the police that the courts do not care why you did what you did.[4] You are as wrong as you could be about that. The reason why you committed these crimes does, of course, matter.

42 You are part of the broader community and when a crime as horrendous as yours is committed that community is entitled to ask why such a thing happened. You told the police that the unstated reason you had at the time justified what you did, though it did not make it right. I do not understand how a reason can justify what you did but not make it right. There are no reasons that could justify what you did, or make it right.

43 During the plea on your behalf, your counsel told me you did not wish to offer any justification for your offending, which might be regarded as avoiding full responsibility.

44 To the extent that it is necessary for me to isolate the explanation for your conduct that you were unwilling to provide, I am of the opinion that your actions in murdering your daughters were inextricably linked to the long and sorry history that has occurred since you and your ex-wife separated. How long before the killings you actually determined to carry them out is difficult to say. You say your actions were spontaneous - I reject that. It is clear that you considered doing harm to your ex-wife and certainly felt sufficiently angry to think about that.

45 You claim now that you are resigned to your fate and that you have desisted from attempting to kill yourself in order to ensure that your daughters have what you describe as justice.

46 There can be no justice for your daughters because they were murdered by you in circumstances where they were young, vulnerable, trusting of you, and in no way responsible for the difficulties you faced. To suggest that you now have undertaken some responsibility to ensure they receive justice is fanciful. You murdered them. Nothing that has happened or will happen from that point on can bring them justice.

47 Your counsel acknowledged that your crimes of murdering your children are grave and serious such as to shock the public consciousness. Our community continues to be shocked by the actions of fathers like you killing their children in an atmosphere of marital discord. As I have already said I am unable to understand why it is that those who are so undeniably innocent of any wrongdoing pay with their lives so often.

48 It is difficult to think of more serious murders. Vulnerable and trusting children being killed by someone who professes to love them. It is a terrible breach of trust.

49 You are now aged 36 years having been born on 10 August 1978 and you have no siblings. You remain a citizen of Tanzania and hold permanent resident status in Australia. You were raised by your mother who had worked as a doctor, and you never knew your father. You had a step-father with whom you had a poor relationship.

50 You completed your primary education and won a scholarship. You completed your secondary education and then started a science degree at university. For a time you worked and then at the suggestion of a friend you eventually went to China at the end of 1999. You studied Mandarin and then became a translator. You then became involved in an English training school. Your ex-wife became a teacher at that school and that is how you met in 2003. You and she then had a relationship leading to your marriage.

51 In 2006 your ex-wife wished to leave China and the only realistic option as you saw it was for the two of you to come to Australia and you did that in 2007. In 2008 you were married. You purchased a house in Sunbury and had planned to later buy a house in the Greensborough area. For a time you worked at Visy in Reservoir but because your ex-wife miscarried a pregnancy and you took time off to be with her your job was no longer available. In 2009 you began working for your father-in-law in Tullamarine and remained there until 2012.

52 You have a prior conviction for violence which occurred while you were employed at Tullamarine. On 7 December 2010, you pleaded guilty to a charge of recklessly causing serious injury for which you received a Community Based Order. You referred to this in your record of interview and it concerned a fellow worker when you were working for your then father-in-law. You pointed out that apart from the events which occurred between you and that man there were several other events going on in your life which contributed to the anger you felt that day.

53 In early 2011 you were referred to a psychologist to deal with anger management issues as required by the Community Based Order that had been imposed on you in 2010.

54 Once you and your ex-wife had two children, the marriage became unhappy and ultimately you separated and divorced.

55 I will return to your personal circumstances shortly when I deal with your mental state and the evidence of Dr Danny Sullivan.

56 On your behalf Mr Marsh relied on a number of mitigating circumstances. He first referred to your plea of guilty which he said was made at the first available opportunity. There can be no debate about that, as such an emotional and difficult trial has been avoided. There is therefore utilitarian benefit in that plea, which is significant. Your plea of guilty is able to be relied on by you as indicating an immediate willingness to take responsibility for what you had done. I am required to quantify the sentence I would have imposed had you not pleaded guilty and I will shortly do so.

57 Mr Marsh next submitted that your remorse for what you have done is profound and that you have a desire to atone for what you have done. In part he relied on what has been observed about you since you have been in custody. It is this that has caused me the most difficulty and I will deal with it now.

58 As I have earlier explained I have paid careful attention to your record of interview. Much of that interview is spent explaining the unfairness that you felt had been imposed on you by your ex-wife. In addition, since being in custody you have had several clinical sessions in which you have continued a somewhat fixated narrative about your ex-wife and the difficulties you faced. Summaries of those conversations were tendered during the plea and I have read them.

59 So, against that background I have no hesitation in accepting that you willingly take responsibility for what you have done. Indeed, you claim that subsequent to your arrest you have resisted the temptation to kill yourself because you felt that to take that course would be a cowardly approach.

60 However, you do not seem to me to be remorseful in the way that I understand that feeling. Remorse normally is represented by the expression of a deep regret for a wrong committed. You acknowledge what you did was wrong but I am not at all sure that you actually regret what you have done.

61 The law has something to say about remorse. In the case of Barbaro v R; Zirilli v R,[5] the Victorian Court of Appeal emphasised the distinction between true remorse and regret over one's position:

A distinction must be drawn between the anguish of being caught and punished, on the one hand, and - on the other - the determination to change one's behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is...

62 To pause at this stage, I do not believe that anguish at you being caught and punished is a reason that explains your present state of mind, though I allow for the possibility that it is a factor. You were not caught because you made no effort to avoid to detection - indeed you rang 000 and immediately submitted yourself to arrest by the police. In your record of interview, you co-operated and answered questions at length though with the qualification about revealing the reason for your actions. So, there is no question that you have taken responsibility for your actions. But are you remorseful?

...'Remorse' is defined in, respectively, the New Shorter Oxford Dictionary and the Macquarie Dictionary as 'deep regret and repentance for a wrong committed' and 'deep and painful regret for wrongdoing; compunction'. The word 'compunction' in turn is defined in those two works, again respectively, as 'pricking or stinging of conscience or the heart; uneasiness of mind after wrongdoing; remorse' and 'uneasiness of conscience or feelings; regret for wrongdoing or giving pain to another; contrition'.

For its part, 'contrition' bears the following respective definitions: 'The condition of being distressed in mind for some fault or injury done' and 'sincere penitence'; while 'contrite' is defined, again respectively, as 'crushed or broken in spirit by a sense of wrongdoing; sincerely penitent' and 'broken in spirit by a sense of guilt; penitent'. Finally, 'penitence' and 'penitent' are defined, respectively, as 'the fact or state of being penitent' and 'that repents, with serious desire and intention to amend the sin or wrongdoing; repentant, contrite' (New Shorter Oxford Dictionary) and 'the state of being penitent; repentance; contrition' and 'repentant; contrite; sorry for sin and fault and disposed to atonement and amendment' (Macquarie Dictionary) [6].

64 What, then, is your present state of mind? Whilst you have taken responsibility for what you have done, accepted the wrongfulness of it and declared your own guilt, I am not at all sure that you have a genuine sense or desire to amend the "sin or wrongdoing" such as to enable me to conclude you are remorseful. You do not appear to me to be "crushed or broken in spirit" by your wrongdoing. In my opinion, your present state of mind is that you committed a wrongful and unlawful act, but that in the circumstances in which you found yourself it made sense to you to do it. In your record of interview, you did not utter the word "regret" in any of your answers. Nowhere in that record of interview did you express sorrow or regret for what you have done, or say that you now wish it had not happened. Instead, you focused on you, and in particular, the alleged unfairness brought about by your ex-wife. I do not understand how, after doing what you did, you could still be bound up in the hostility toward your ex-wife. There was, and is now, no expression of a desire to atone to your ex-wife or family for your actions.

65 I acknowledge that Dr Danny Sullivan noted that on 18 July and 31 October 2014 you expressed what he described as "profound regret". He did not use the word remorse. In that context I will now deal with the issue of your mental state.

66 As I followed the submissions made on your behalf, it is put that you have a clinically significant condition of depression that was operating at the time of the offending. It was also put that there is an ongoing mood disturbance from which you suffer in custody.

67 On 31 October 2014, Dr Danny Sullivan, Consultant Psychiatrist, prepared a report after having spoken to you in July and October 2014. In that report he described you now having clear features of depression which he labelled as an adjustment disorder with moderate severity. He described a history you gave of two suicide attempts by you in October 2011 and April 2012.

68 With legal authority in mind Dr Sullivan suggested that you were suffering from depression at the time of the offences which would have impaired your ability to think clearly or make calm and rational choices. He also expressed the view that your present mental state is such that custody will weigh more heavily on you. I accept that you will undergo a very onerous sentence indeed.

69 Dr Sullivan gave evidence during the plea and his evidence was that your depression, as he diagnosed it, was of a kind that would normally have resulted in the prescription of medication. That did not happen in your case. As to the effects of your depressive condition on your conduct, Dr Sullivan accepted that he was speculating but contended that you were not able to think through the consequences of your actions clearly. For you to have acted in the way that you did, Dr Sullivan concluded that there was some impairment in your judgement.

70 Dr Sullivan also accepted that in coming to such conclusions as he came to he was entirely dependent on you for your medical history. He also examined the interview with police as I have done. There was no independent evidence available to Dr Sullivan.

71 Further, in the course of cross examining Dr Sullivan, the Chief Crown Prosecutor put to him that your killing of these children fell into the category of filicide referred to as spousal revenge. Dr Sullivan did not accept that. When asked by me whether he understood why you did what you did, Dr Sullivan said he did not.

72 So, I am willing to accept that you were suffering from depression at the time of this offending and that your mood was directly linked to the difficulties between you and your ex-wife concerning your relationship with your children. In turn, there is no question in my mind that your act of killing them was directly linked to those difficulties. That was at the core of the problem. In my view, and as best as I can ascertain, your depressed mood was not, in any sense, independent of your marital issues but rather a consequence of it.

73 I am not persuaded that you were unable to think through the consequences of your actions clearly. You may now understand that your children did not deserve to be murdered but your description of the events and the history leading to them does not demonstrate to me a lack of clarity of thought, however misguided it was. You considered what you were doing at the time you did it, and it seemed the right thing to do though now you realise it was not.

74 As to your mental state at the time of these offences, in my opinion the observations of the sentencing judge in R v Freeman[7] are apposite. In that case Coghlan J said:

"Given the relative lack of seriousness of your condition and the grave seriousness of the offending, I have given weight to your condition, but not significant weight as it relates to moral culpability, denunciation and general deterrence."[8]

75 That applies to you and in the manner in which your counsel raised the issue, I do not consider he was asking me to put any more weight on these matters than that.

76 Further, I accept that your mental state, as Dr Sullivan described it, will make your long time in custody somewhat more onerous depending on how you adapt to your conditions and the treatment that you may receive.

77 In sentencing you I am required to consider current sentencing practices. You have pleaded guilty to two counts of the most serious offence that can be committed in this country.

78 I have been referred to a number of similar cases where children have been murdered. There is no dispute between the prosecution and your counsel that cases like this do routinely attract a head sentence of life imprisonment.

79 The prosecutor submitted that these murders were motivated by spousal revenge against your ex-wife. Contrary to the submissions made on your behalf it is clear to me what role your hostility towards your ex-wife played in these offences.

80 I am persuaded that was the motivation and that you harboured very strong antagonism against her for a significant period of time. That was the primary factor in your decision to take the lives of your two children.

81 The issue of premeditation is more difficult. In order for me to conclude that you planned to kill your children for some time before they were brought to you, I would have to be satisfied about that beyond reasonable doubt. I am not so satisfied. In my opinion your decision to kill your children was made by you some time after they arrived at your premises though I consider you must have previously contemplated such an action.

82 What is absolutely clear to me is that your act of killing them was inextricably connected with what you saw as your ex-wife's unfair treatment of you and the hostility you felt as a result. You determined that she would pay a price and inevitably so would your children - with their lives. No matter how you felt about what had gone before, what you did was a despicable act of killing and nothing that you described could even logically explain it. You gave in to the basest of instincts - revenge.

83 You decided to demonstrate to your ex-wife that she did not have the control over the children and their relationship with you that she thought she had. Your breach of parental trust is almost beyond belief.

84 The sentence which you will have to serve will be very onerous given your circumstances and given the mental state about which Dr Sullivan has reported and given evidence. It is difficult to assess your prospects of rehabilitation. That may never occur. It will not occur unless and until you recognise that what you did were appalling crimes and you express genuine regret and remorse for your actions.

85 General deterrence is significant in determining your sentence. Other men in a situation similar to yours must know that if they succumb to the utterly incomprehensible temptation to harm their children to take revenge against their ex-wives, the punishment that will follow will be very heavy. You are now 36 years of age. You will be in custody at least until sometime in your mid-60s.

86 I have come to the conclusion that the sentence I must impose on you is a sentence of life imprisonment. On the first charge that you did murder the child Savannah you will be sentenced to be imprisoned for life. On the second charge that you did murder the child Indianna you will also be sentenced to be imprisoned for life.

87 There remains the question of whether or not a period should be fixed upon the conclusion of which you will become eligible for release on parole. During the plea there was no argument about this. The Crown do not submit that I should decline to fix a minimum term. I will fix such a term. You will be eligible to apply for release on parole when you have served a period of 31 years' imprisonment.

88 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty I would have fixed the minimum to be served before eligibility for release on parole at 35 years.

89 I note that I have already made the disposal order which was sought by the Crown, and unopposed by you.

90 I declare that the period of pre-sentence detention is 242 days not including this day and pursuant to s 18(1) of the Sentencing Act 1991 (Vic), I direct that period be reckoned as a period of imprisonment or detention already served under the sentence I have just announced and be entered in the appropriate record.

[5] (2012) 226 A Crim R 354, [36].

[7] [2011] VSC 139.