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Criminal law – sentence – irrelevant consideration

In The Queen v Guode [2020] HCA 8 (18 March 2020) the respondent, Ms Guode, deliberately drove into a lake in Wyndham Vale, Victoria, while four of her children were in the car. She was charged with infanticide (charge 1), murder (charges 2 and 3) and attempted murder (charge 4). She pleaded guilty to all counts in the Supreme Court of Victoria. The primary judge imposed a total effective sentence of 26 years and six months’ imprisonment with a non-parole period of 20 years.

The respondent applied for leave to appeal against her sentence on the ground that it was manifestly excessive. The Court of Appeal of the Supreme Court of Victoria allowed the appeal and resentenced her, imposing a total effective sentence of 18 years’ imprisonment with a non-parole period of 14 years.

The appellant appealed to the High Court on the sole ground that the Court of Appeal had erred by taking into account as a relevant consideration, in the determination of whether the sentences imposed on the charges of murder and attempted murder were manifestly excessive, that the appellant had accepted the respondent’s plea of guilty to the charge of infanticide.

The High Court confirmed that the appellant’s acceptance of the respondent’s plea to the charge of infanticide was irrelevant to the sentences to be imposed on the other charges. By majority, the High Court found that the Court of Appeal erred in taking that irrelevant consideration into account.

Kiefel CJ, Gageler and Nettle JJ jointly. Gordon and Edelman JJ jointly dissenting. Appeal from the Court of Appeal of the Supreme Court of Victoria allowed.

David Kelsey-Sugg is a Victorian barrister, ph (03) 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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