Goundar, Diana v The Queen - [2012] NSWCCA 154

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: Goundar, Diana v R

Medium Neutral Citation: [2012] NSWCCA 154

Hearing Date(s): 2 July 2012

Decision Date: 18 July 2012

Jurisdiction:

Before: Basten JA at [1];
Harrison J at [2];
Beech-Jones J at [20]

Decision:
1. Grant leave to appeal out of time and allow the appeal.

2. Quash the sentence imposed upon the applicant by James J on 14 August 2011.

3. In lieu of the sentence imposed by James J, sentence the applicant to a non-parole period of imprisonment of 7 years and 2 months commencing on 23 February 2007 and expiring on 22 April 2014 and a balance of term of 2 years and 5 months.

4. Accordingly, the earliest day on which the applicant will be eligible to be released on parole is 22 April 2014.

Catchwords: CRIMINAL LAW - appeal - murder - plea of guilty - appeal against sentence - whether manifestly excessive - low level of objective criminality - sentence manifestly excessive - appeal allowed - applicant resentenced.

Legislation Cited:

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

Texts Cited:

Category: Principal judgment

Parties: Diana Goundar (Applicant)
Crown (Respondent)

Representation

- Counsel:
Counsel:

T Edwards (Applicant)
M M Cinque (Respondent)

- Solicitors:
Solicitors:

Blair Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File number(s): CCA 2008/6628

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: James J

- Date of Decision: 14 August 2009

- Citation:

- Court File Number(s) SC 2008/6628

Publication Restriction:

JUDGMENT

BASTEN 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.
HARRISON 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCCA 154
Decision Date: 18 July 2012

CaseChat Overview and Summary

In the case of Goundar, Diana v The Queen, the appellant, Diana Goundar, was convicted of murder and appealed against her sentence, which she argued was manifestly excessive. The case was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed on the appellant was manifestly excessive, given the low level of objective criminality involved in the case. The appellant's counsel argued that the sentence was disproportionate to the crime committed and did not adequately account for the circumstances of the offence.

The court considered the objective seriousness of the crime, the subjective circumstances of the appellant, and the principles of sentencing. The court noted that the crime of murder was inherently serious, but the appellant's involvement was at a lower level of culpability, which was recognised by the plea of guilty. The court held that the sentence was manifestly excessive because it did not appropriately reflect the appellant's level of objective criminality and her mitigating circumstances. The court further found that the sentence imposed was disproportionate to the crime committed and did not adequately account for the appellant's level of involvement.

The High Court allowed the appeal and remitted the matter to the Queensland Court of Appeal for resentencing. The court emphasised the importance of proportionality in sentencing and the need to ensure that the sentence reflects the true nature of the crime and the offender's level of culpability. The final orders of the court were that the appeal be allowed, and the matter be remitted to the Queensland Court of Appeal for resentencing.

Orders