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Court of Criminal Appeal 18 July 2012

Goundar, Diana v R

[2012] NSWCCA 154

Homicide
CRIMINAL LAW APPEAL MURDER PLEA OF GUILTY APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: Goundar, Diana v R [2012] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 18 July 2012
Judges: Basten JA; Harrison J; Beech-Jones J

Background

The applicant pleaded guilty to the murder of the deceased, who was killed at a residential premises in Prestons, Sydney on 11 February 2007. The applicant's estranged husband was the principal offender: he stabbed the deceased multiple times and was responsible for the physical killing. The applicant's role involved luring the deceased to the premises, closing windows to mask noise during the attack, cleaning blood from the scene, and later assisting in transporting and disposing of the body.

The applicant was sentenced in August 2009 to 12 years' imprisonment with a non-parole period of 9 years. Her estranged husband was subsequently tried separately, acquitted of murder, convicted of manslaughter, and sentenced in November 2010 to a total term of 10 years and 8 months with a non-parole period of 8 years.

The applicant sought leave to appeal out of time against the severity of her sentence. The Crown did not oppose the extension of time.

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between her sentence and that imposed on her co-offender husband
  • Whether the sentence of 12 years with a 9-year non-parole period was otherwise manifestly excessive having regard to the applicant's level of objective criminality

Decision

Harrison J (with whom Basten JA and Beech-Jones J agreed) found that the disparity argument was of limited assistance. The husband was convicted of a different and less serious offence following a jury trial, and the factual bases for sentencing the two offenders were not identical. Basten JA noted, consistent with his observations in R v Chandler, that sentencing for different offences may produce outcomes that do not reflect an abstract comparison of moral culpability, and that differential outcomes stemming from prosecutorial charging decisions or jury verdicts are not straightforwardly addressed through parity reasoning.

However, Harrison J accepted the further ground that the sentence was manifestly excessive, finding that the sentencing judge had fixed too high a starting point for the offence given the applicant's objectively low level of criminality relative to the principal offender. The applicant did not inflict any of the physical violence; her role was to assist before and after the killing rather than to participate in it directly.

Applying adjusted arithmetic to the sentencing judge's own findings and calculations, Harrison J arrived at a revised head sentence of 9 years and 7 months, with a non-parole period of 7 years and 2 months. Beech-Jones J added that once the sentence was reduced on the manifest excess ground, any residual parity complaint fell away, given the different offences and different factual bases for sentencing each offender.

A corrigendum was issued on 23 July 2012 to correct an arithmetical error in order 3 as originally made, adjusting the balance of term from 2 years 4 months to 2 years and 5 months.

Orders Made

  • Leave to appeal out of time granted and appeal allowed
  • Sentence imposed by James J quashed
  • Applicant resentenced to a non-parole period of 7 years and 2 months commencing 23 February 2007 and expiring 22 April 2014, with a balance of term of 2 years and 5 months
  • Earliest parole eligibility date: 22 April 2014

Key Takeaways

  • The Court of Criminal Appeal confirmed that parity arguments have limited force where co-offenders were convicted of different offences on different factual bases, with Basten JA reiterating that differential sentencing outcomes in those circumstances do not necessarily reflect disproportionate treatment.
  • A sentence may be manifestly excessive where the starting point adopted by the sentencing judge does not adequately reflect the offender's objectively low level of criminality relative to the principal offender, even where the offender pleaded guilty to murder.
  • An accessorial role in a murder (luring the victim, concealing the attack, and assisting in body disposal, without inflicting violence) was treated as warranting a materially lower starting point than that adopted by the original sentencing judge.
  • In correcting the sentence, the Court of Criminal Appeal applied the sentencing judge's own findings and calculations rather than conducting a fresh sentencing exercise, adjusting only the starting point.
  • Post-judgment corrections to arithmetical errors in orders can be made pursuant to the Criminal Appeal Rules (r 50C(3)).

Legislation and Cases Referenced

Cases:
- R v Chandler; Chandler v R [2012] NSWCCA 135
- Regina v Munesh Goundar [2010] NSWSC 1170

Legislation:
- Criminal Appeal Rules, r 50C(3)