Guode – infanticide, mental impairment and sentencing

In Guode by a 3:2 majority, the High Court has allowed a Crown appeal from a VSCA decision with the the majority holding that that the VSCA erred in taking into account  guilty plea to infanticide as a consideration in determining sentences for murder and attempted murder.

CONTENT WARNING: Child homicide

Factual and procedural background

The appellant pleaded guilty to infanticide, murder and attempted murder after driving her children into a lake with the intention of killing them. It was accepted on sentence that she was suffering from a serious mental illness which reduced her moral culpability.

On appeal to the VSCA, the majority held that the sentence were manifestly excessive due to the sentencing judge ‘giving insufficient weight to the respondent’s mental condition and other mitigating factors’ (HCA at [14]). The majority in the VSCA held that by accepting the plea to infanticide, the Crown had accepted that the ‘applicant’s mind was disturbed due to a depressive disorder consequent on her giving birth to’ her youngest child (VSCA at [6]).

Upon examination of the VSCA’s reasons (HCA at [26] – [29]) the majority held that the VSCA viewed the plea to infanticide as a relevant consideration in sentencing the appellant for the other charges and reduced the sentences accordingly (at [26]).  As noted above, the Majority held that this was incorrect and that this infected the VSCA’s re-sentencing with error.

Why was the infanticide plea irrelevant?

The offence of infanticide is committed in circumstances that would ordinarily constitute murder but where the offender suffers a ‘disturbance of mind’ related to having given birth to the victim in the previous two years (12 months in NSW). Accordingly the existence of the disturbance of mind is an element of the offence and, once established, means that sentencing is conducted by reference to the maximum penalty for that offence – being five years in Victoria. (In NSW, demonstrating a disturbance of mind means the mother will be guilty of manslaughter – see Crimes Act ss 22A and 24).

Murder and attempted murder are sentenced by reference to the maximum penalties for those offences – life and 25 years imprisonment respectively. The sentence would then need to take into account the subjective characteristics of the offender, including any relevant mental condition. Such an assessment is to be conducted by reference to the criteria outlined in Verdins (extracted below).

The majority accepted that evidence supporting the disturbance of mind for the purposes of infanticide will also likely be relevant in assessing the Verdins criteria. However, satisfying the court (or here – the Crown accepting) that there was a disturbance of mind

says nothing sufficiently specific about the nature and gravity of a woman’s mental condition for the purpose of applying the Verdins considerations to the other offences

(at [23]).

In other words, sentencing judges need to explicitly assess those criteria, having regard to the information available to them.

The rationale for the majority’s view was further based on a Victorian Law Reform Commission Report on – among other things – the offence of infanticide. One of the recommendations was that where a mother commits infanticide and at the same time kills other children over the age of two, then the killings of the older children also be considered as infanticide. The Victorian parliament did not adopt this particular recommendation but did adopt a number of the report’s other recommendations concerning infanticide. Accordingly, the VSCA’s approach was ‘was tantamount to doing the very thing that Parliament, by rejecting [the] recommendation … determined should not be done’ (at [25]).

Verdins Criteria

The majority, in what might be described as seriously considered dicta, quoted the Verdins criteria with approval, noting at footnote six that this ‘summary has consistently been adopted by intermediate appellate courts elsewhere in Australia,’ including in NSW in Du Randt at [24] and Carlton at [101]. (See also De la Rosa at [177]).

For ease of reference, these criteria are reproduced here:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.  The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

This post was originally published on Amicus on 20 March 2020