Goundar, Diana v R

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].