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[2012] NSWCCA 154
Court of Criminal Appeal (NSW)
2012-07-02
Basten JA, Harrison J, Beech-Jones J, James J
Original judgment source is linked above.
T Edwards (Applicant) M M Cinque (Respondent) Solicitors:
Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): CCA 2008/6628 Decision under appeal Jurisdiction: 9111 Date of Decision: 2009-08-14 00:00:00 Before: James J File Number(s): SC 2008/6628
Judgment 1BASTEN JA: I agree with the orders proposed by Harrison J and with his reasons. While the later sentence imposed on Mr Goundar is not irrelevant, I agree with Harrison J that little assistance is gained from a discussion of "parity". In this respect my observations in R v Chandler; Chandler v R [2012] NSWCCA 135 at [3]-[8] are apposite. Sentencing for different offences may justify an outcome which does not reflect an abstract consideration of the degrees of moral culpability of each offender. The differential element in the present case arose not from the exercise of a prosecutorial decision as to the appropriate charges to be laid, but from the fact that Mr Goundar was convicted of a less serious offence than that to which the applicant entered a plea of guilty. 2HARRISON J: The applicant pleaded guilty to the murder of Rajnesh Singh on 11 February 2007. James J sentenced her on 14 August 2009 to imprisonment for 12 years with a non-parole period of 9 years commencing on 23 February 2007. She seeks leave to appeal to this Court against the severity of her sentence upon the ground that she has a justifiable sense of grievance arising from the disparity between her sentence and that imposed upon her co-offender Munesh Goundar and upon the further ground that the sentence imposed was otherwise manifestly excessive. The appeal is out of time. The Crown does not oppose the extension of time within which to bring the appeal. 3The applicant was sentenced upon the basis of agreed facts to which James J referred in detail. Those facts are relevantly as follows. 4The applicant and Munesh Goundar were married to each other but were separated before their respective offences were committed. The applicant was 26 years old when the deceased was killed. Her husband was 27. The deceased and the applicant had entered into a sexual relationship that had been discovered by her husband. 5The deceased was killed on 11 February 2007 at the residence formerly occupied by the applicant and her husband at Prestons in Sydney. Neither was residing at the premises at the time due to their separation. The house still contained their belongings. 6The deceased went to the premises. He was stabbed in the upstairs section of the house numerous times by the applicant's husband. He was forced into the bathroom where he was stabbed several more times. He was then placed in the bathtub where he later died. He was then dragged down the stairs and placed in the boot of Mr Goundar's car. The applicant and her husband then drove to Heathcote and disposed of the body. 7The following day the deceased was reported missing. An investigation commenced. On 20 February 2007 police attended the home of Mr Goundar looking for him. He was not there. On 21 February 2007 Mr Goundar left Australia for New Zealand. Two days later police attended the Prestons premises and discovered what appeared to be blood stains in the house. That evening the applicant was arrested and participated in an ERISP in which she made a series of admissions. These are referred to below. The applicant took police to the location at Heathcote where the deceased's body was later found. 8James J accepted the truth of the following admissions made by the applicant: "On Sunday 11 February 2007 [the applicant] and [her husband] were at their home address. At about 12.10pm [Mr Goundar] directed her to contact the deceased on his mobile phone. She spoke to the deceased and asked him to attend her house so they could talk. At about 3.40pm the deceased drove his white Pantech truck to [the Prestons premises]. Upon hearing his truck arrive [Mr Goundar] told her not to tell the deceased he was there and he ran upstairs. She answered the door and had a conversation with the deceased. Once inside the premises the deceased heard noises and asked if there was anybody else home. She told the deceased she was alone. The deceased sat on the downstairs couch opposite her and a short time later he suggested they go upstairs. They walked upstairs to the master bedroom. She entered the room first and the deceased followed. At this time she saw [Mr Goundar] crouched down inside the wardrobe holding a knife. [He] leapt from the wardrobe wielding the knife. [Mr Goundar] set upon the deceased pushing him down the hallway into the toilet. [Mr Goundar] pushed the deceased into a sitting position on the toilet and stabbed him in the back. The deceased started to scream and [Mr Goundar] covered his mouth with his hand. [Mr Goundar] told [the applicant] to close all the windows upstairs and down stairs and to turn the radio on loud to mask the noise of the attack. She complied. After doing this, she went back upstairs and saw the deceased lying with his head on the tiles. At this time [Mr Goundar] repeatedly stomped on his head with his foot. [He] also stabbed the deceased to the torso area a number of times. [Mr Goundar] dragged the deceased to the bathroom and placed him in the bath. [He] turned the cold water tap on. The bathtub was not plugged and the bath did not fill up. The deceased was moaning in pain. [Mr Goundar] instructed [the applicant] to start cleaning the blood from the toilet and carpet area. She obtained cleaning products and started to clean. [Mr Goundar] told her he was going to move the deceased's truck from outside the premises and he told her to continue cleaning. [Mr Goundar] returned a short time later and told her to put all the clothes in the washing machine, have a shower and go to her mother's house. He told her to return when it got dark. [The applicant] saw [Mr Goundar] go downstairs and return with a tea towel which he placed over the deceased's mouth to muffle the sound. She placed the clothes into the washing machine, had a shower and left the premises. The deceased was still alive in the bathtub at this time. A few hours later she returned. She noticed that [Mr Goundar] had cleaned the premises and had covered the deceased in a fitted blue bed sheet from one of the cupboards. He informed her that the deceased was dead. [The applicant] helped [Mr Goundar] move his vehicle into the garage of the house, which has internal access to the premises. She held the deceased's legs and he held his arms and they carried him downstairs and into the garage. She noticed that blood was dripping all over the stairs. [Mr Goundar] laid out another sheet in the boot of the vehicle and they placed the deceased onto the sheet, shut the boot and left the premises. [Mr Goundar] drove. They drove to Forum Drive, Heathcote where [Mr Goundar] removed the deceased from the boot and dragged him into bushland. He returned a short time later and obtained a petrol tin from the vehicle and walked away. He returned to the car and informed [the applicant] that he had dumped the deceased over a cliff where he would not be seen. He said he intended to set the body on fire, however it was raining and he did not have a lighter. The couple left the area and returned to the crime scene. [Mr Goundar] told her that he was going to dump the deceased's truck in Sydenham and he left the premises in the truck. That night [Mr Goundar] called her a number of times to see if she was alright. She slept the night at the premises alone and went to work the next day. During the day [Mr Goundar] returned to the premises and finished cleaning. He gathered all of the bloodstained items and disposed of them. Over the next few days [the applicant] and [Mr Goundar] had a number of conversations about the murder. During these conversations [he] told her that he had parked the truck at either Liverpool or Warwick Farm, he had disposed of the knife down a drain and he had placed the bloodstained items in a garbage bin." 9Mr Goundar was subsequently arrested in New Zealand. He was charged with the murder of the deceased. He pleaded not guilty to the murder but guilty of manslaughter. The Crown refused to accept that plea. The trial proceeded. The only real issue was whether the Crown had excluded beyond reasonable doubt the partial defence of provocation. On 15 June 2010 the jury returned a verdict of not guilty of murder but guilty of manslaughter. 10On 5 November 2010 Kirby J sentenced Mr Goundar to imprisonment with a non-parole period of 8 years to date from 8 March 2007 with a total sentence of 10 years and 8 months expiring on 7 November 2017. Mr Goundar will be eligible for release on parole on 7 March 2015. 11It will be apparent that Mr Goundar was convicted 10 months, and was sentenced 15 months, after the applicant had pleaded guilty to the murder of the deceased. The facts found by Kirby J for sentencing purposes were not altogether the same as the agreed facts upon which the applicant was sentenced: see Regina v Munesh Goundar [2010] NSWSC 1170 at [4] to [43].
Consideration 12The applicant contended that a reasonable person considering the circumstances of the offence and the respective roles played by her and her husband would consider that she was justified in feeling aggrieved at the length of her sentence when compared with that of her co-offender. She also submitted that despite the fact that the sentence was significantly less than the standard non-parole period for murder, the "extraordinary findings in respect of the objective criminality of the offence" demonstrate that the sentence is manifestly excessive. 13In order to understand these submissions it is important to have a full appreciation of the approach taken by James J in assessing the objective criminality of the applicant's conduct upon the basis of the facts that were before him for sentencing purposes. His Honour had this to say: "61 It is necessary to assess the level of objective seriousness of the prisoner's offence, for general sentencing purposes and also because murder is an offence for which a standard non-parole period has been set. 62 On the evidence before me in these proceedings for the sentencing of the prisoner, the offence committed by Munesh Goundar was of a high level of objective seriousness. As pointed out by the Crown, the victim was stabbed many times, his body was stomped on and he was subjected to a slow and painful death. 63 However, the function I have to perform in sentencing the prisoner is to assess the level of objective seriousness of the offence committed by the prisoner. It was common ground at the sentencing hearing that this conduct would include her conduct after the death of the victim, that is her conduct as an accessory after the fact. 64 As I have already noted, the Crown submitted that the prisoner's criminal liability was based on her having become a party to a joint criminal enterprise. Counsel for the prisoner submitted that it would be more appropriate to base the prisoner's criminal liability on her having been an accessory by aiding and abetting Munesh Goundar, by being present at the time when the crime of murder was being committed by Munesh Goundar and, knowing that that crime was being committed by Munesh Goundar, assisting [him] to commit that crime. At one stage counsel for the Crown suggested that the prisoner had been a principal in the first degree but, consistently with the Crown's concession that there had not been any pre-concert between Munesh Goundar and the prisoner to kill or even harm the victim, the prisoner could only have been a principal in the second degree. 65 I consider that it is preferable to classify the prisoner's criminal liability as being that of an aider and abetter but it would not appear to me to make any material difference whether her liability is regarded as based on her having been a party to a joint criminal enterprise or on her having been an aider and abetter. 66 It was accepted by the Crown that, notwithstanding occasional statements in the cases which might suggest the contrary, it is not the law that all parties to the same joint criminal enterprise should necessarily be regarded as having the same degree of objective criminality. 67 In GAS v The Queen... the High Court said... that while it is not a universal principle that the culpability of an aider and abetter is less than that of a principal offender, aiders and abetters can be less culpable and the degree of differentiation between the principal and the aider and abetter will depend upon circumstances of the particular case. 68 At the sentencing hearing the Crown conceded that the level of objective criminality of the prisoner was lower than the level of objective criminality of Munesh Goundar. 69 I consider that the objective criminality of the prisoner was not only much less than the objective criminality of Munesh Goundar but also below, and well below, the middle of the range of objective seriousness for offences of murder. There are a number of reasons for this conclusion. 70 The prisoner did not participate in any planning for the offence and there was no pre-meditation at all on her part. The Crown accepted, quite properly on the agreed facts and on the other evidence in the proceedings on sentence, that the prisoner had become a party to any joint criminal enterprise only at the point when the prisoner saw Munesh Goundar leap from the wardrobe in the upstairs bedroom, wielding a knife. 71 The prisoner did not know or intend that the victim should be harmed, when, at the direction of Munesh Goundar, she telephoned the victim and asked him to come to the house. The purpose of the invitation was, according to the statement of agreed facts, 'so they could talk'. The Crown accepted that the prisoner did not lure the victim to the house so that he could be attacked. 72 It is true that, after the victim had arrived at the house, the prisoner told him, falsely, that she was alone in the house but she did not then know or intend any harm to the victim. It was the victim's idea that he and the prisoner should go upstairs in the house. 73 The prisoner did not herself inflict any violence on the victim. According to answers in her interview by police, which were not challenged, she at times asked Munesh Goundar to stop assaulting the victim. 74 All that the prisoner did, prior to the death of the victim, was to close all the windows in the house upstairs and downstairs, to turn the radio on loud, to clean blood from the toilet and the carpet and to put bloodstained clothes in the washing machine. She did all these things in compliance with directions given to her by Munesh Goundar. 75 The prisoner did play a larger role after the death of the deceased in helping Munesh Goundar carry the body of the victim out of the house and place the body in the boot of the vehicle and in accompanying Munesh Goundar to Heathcote." 14James J went on at [113] to conclude that the combination of the objective criminality of the applicant, the combined discount of 40 percent for her guilty plea and her offer of assistance to authorities, as well as her voluntary disclosure of her previously undisclosed guilt and other favourable subjective circumstances made "this case truly extraordinary". In expressing that conclusion when he did, his Honour could also not have anticipated that Mr Goundar, who was clearly the principal offender, would in due course be acquitted of murder upon the basis of the partial defence of provocation, or that he would be sentenced in those circumstances to a term of imprisonment that was less than the sentence that his Honour was about to impose upon the applicant. 15It is true that there is a remarkable disconformity between the sentence imposed upon the applicant by James J and the sentence imposed upon Mr Goundar by Kirby J. The most significant basis for the differing sentences is probably to be found in the difference between the offences for which each offender was sentenced. The applicant pleaded guilty to murder. Her husband was convicted of manslaughter following a trial before a jury. Even though that difference does not operate as a matter of principle to disqualify a submission by the applicant based, or drawing upon, considerations of parity, it does not seem to me to be the most obvious or fruitful source of inquiry into the merit of the applicant's challenge to the appropriateness of her sentence. In the particular circumstances of this case a more fundamental consideration applies. 16In my opinion the sentence imposed by his Honour was manifestly excessive. His Honour's own careful analysis and characterisation of the applicant's role in these extraordinary events plainly speaks loudly in favour of a far more lenient sentence than the one he imposed. I note in this respect that no challenge is raised to his Honour's reasons or reasoning that led to his conclusion that the objective seriousness of the applicant's offending was considerably lower than that of Mr Goundar, whatever may have been the offence of which they were each ultimately convicted. Moreover, no challenge is raised to his Honour's quite unremarkable conclusion that the applicant's offending was not only below, but also well below, the middle of the range of objective seriousness for offences of murder. 17It seems to me that his Honour's notional starting point for the determination of the applicant's sentence was simply too high. It is accepted arithmetically, having regard to the sentence arrived at by his Honour, after applying the discounts and other matters that he so clearly indicated he would include, that the starting point was 20 years. That corresponded to the standard non-parole period for murder. In my view that starting point was too high and considerably higher than a proper starting point in light of all of his Honour's other findings. In my view this has produced a sentence that is manifestly excessive. I am of the view that some lesser sentence is warranted at law.
Conclusion and orders 18Having regard to the uncontroversial conclusions and findings arrived at by his Honour concerning the level of objective seriousness of the applicant's crime, hers was not a case in which an adoption of the standard non-parole period as a starting point for her sentence was proper. In my view, a proper starting point for the sentence to be imposed on the applicant in this case is 16 years. I propose to apply that starting point to all of his Honour's calculations and findings without further alteration or amendment. Doing so with (approximately) arithmetical precision produces a head sentence of 9 years 7 months and 3 days, with a non-parole period of 7 years 2 months and 12 days. It is appropriate to round these periods down to the nearest whole month. 19I consider in these circumstances that the following orders should be made:
Amendments 25 July 2012 - Amending arithmetical error in order (3) Amended paragraphs: Coversheet, [21] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2012
Goundar, Diana
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