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11
Court of Criminal Appeal 9 May 2012

GOUNDAR v R

[2012] NSWCCA 87

Homicide
CRIMINAL LAW SENTENCING PROVOCATION FINDING AS TO SERIOUSNESS APPEAL

Citation: GOUNDAR v R [2012] NSWCCA 87
Court: Court of Criminal Appeal
Date: 09 May 2012
Judges: Macfarlan JA; RS Hulme J; RA Hulme J

Background

The appellant was convicted by a jury of the manslaughter of a man who had been both his next-door neighbour and close friend. The victim had been having an affair with the appellant's wife. The conviction for manslaughter, rather than murder, rested on the defence of provocation: the jury accepted that the appellant lost self-control when the victim entered the master bedroom with the appellant's wife.

Kirby J sentenced the appellant to 10 years and 8 months imprisonment, with a non-parole period of 8 years. His Honour used a starting point of 13 years and applied a 17.5 percent discount for the appellant's plea. The maximum penalty for manslaughter in NSW is 25 years.

The appellant sought leave to appeal against that sentence on five grounds, arguing that the sentencing judge had made factual errors regarding planning and provocation, and that the sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred in finding the appellant had planned the confrontation with the victim
  • Whether that finding was made to the required standard of proof (beyond reasonable doubt)
  • Whether the sentencing judge failed to make an adequate finding about the degree of provocation, or erred in not finding it to be "high"
  • Whether the sentencing judge erred in characterising the offence as "well above the midrange"
  • Whether the sentence was manifestly excessive

Decision

Ground 1: The finding of a planned confrontation

RS Hulme J rejected the challenge to this finding. The sentencing judge had relied on two matters: the appellant's car was parked out of view of the victim's sight, and a neighbour observed someone matching the appellant's description closing a window and drawing blinds shortly before the victim arrived. The appellant's own evidence undermined the alternative explanations he proposed. The jury's acquittal of murder was not necessarily inconsistent with a finding that a lesser, non-lethal confrontation had been planned.

Ground 2: Standard of proof for the planning finding

This ground also failed. The sentencing judge had expressly directed himself at the outset of sentencing that adverse facts required proof beyond reasonable doubt. The Court declined to infer that he had abandoned that standard when making the planning finding.

Ground 3(a) and (b): Adequacy of the provocation finding

RS Hulme J held there was no obligation on a sentencing judge to express an assessment of provocation in quantitative terms such as "high", "medium" or "low". The sentencing judge had clearly identified and weighed the relevant provocative factors, including cultural dimensions, the appellant's mental state, and the close friendship with the victim. No error was established.

Grounds 4 and 5: Characterisation of the offence and manifest excess

The Court acknowledged the sentence was "undoubtedly a heavy one". The starting point of 13 years exceeded any case to which the Court was referred. Judicial Commission statistics placed the sentence in the top 9 percent (by full term) and top 3 percent (by non-parole period) for manslaughter convictions. However, both RS Hulme J and RA Hulme J found no manifest excess. The attack was ferocious, sustained, and fatal; the appellant had intended to kill; he allowed the deceased to suffer without seeking assistance; and the offence was committed in company, with a knife, while the appellant was on bail. The appellant had also had weeks to come to terms with the affair before planning the confrontation.

RA Hulme J wrote separately to emphasise that appellate intervention on grounds of manifest excess requires the sentence to be unreasonable or plainly unjust, not merely out of step with other cases. He reiterated established authority that manslaughter is almost unique in its protean character, making comparison between cases of limited utility. The primary reference point is the statutory maximum of 25 years, not sentencing statistics or outcomes in other cases. The Court found no error in the sentencing judge's characterisation of the offence and dismissed both grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing statistics and comparable cases have limited utility in manslaughter sentencing because the offence varies so greatly in its circumstances; as both the Court of Criminal Appeal and the High Court have confirmed, a statistical range does not establish the correct range, and bare figures without explanation of why sentences were fixed as they were tell a sentencing court very little.
  • In dismissing the appeal, the Court confirmed that a sentencing judge is not required to express an assessment of provocation in quantitative terms; what matters is that the relevant factors have been identified and weighed.
  • Appellate intervention on the ground of manifest excess requires more than a demonstration that the sentence is markedly different from those in other cases; the sentence must be unreasonable or plainly unjust in the House v The King sense.
  • The primary sentencing yardstick for manslaughter remains the statutory maximum of 25 years, not the distribution of past sentences, and a starting point materially above the median is not itself an error where the facts support it.
  • A finding that a defendant planned a confrontation (though not the lethal outcome) is a legitimate sentencing fact even where the jury has acquitted of murder; the acquittal does not preclude a finding of planning directed at a lesser form of violence.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Lee v Health Care Complaints Commission [2012] NSWCA 80
- Markarian v The Queen (2005) 228 CLR 357
- R v BW [2011] NSWCCA 176
- R v Dally [2000] NSWCCA 162; (2000) 115 A Crim R 582
- R v Hammoui (No 4) [2005] NSWSC 279
- R v Hoerler (2004) 147 A Crim R 520
- R v Isaacs (1997) 41 NSWLR 374
- R v Lao at [2003] NSWCCA 315
- R v Lovett [2009] NSWSC 1427
- R v Marlow [2003] NSWSC 1130
- R v Nikolovska [2010] NSWCCA 169 (2010) 209 A Crim R 218
- R v Stevens [2008] NSWSC 1370
- R v Williams [2005] NSWCCA 99
- Stephens v R [2009] NSWCCA 240
- Windle v R [2011] NSWCCA 277
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584