Goundar v R

[2012] NSWCCA 87

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GOUNDAR v R [2012] NSWCCA 87

Hearing dates:

Thursday 23 February 2012

Decision date:

09 May 2012

Before:

Macfarlan JA at [1]
RS Hulme J at [2]
RA Hulme J at [39]

Decision:

Leave to appeal granted.

Appeal dismissed.

Catchwords:

Criminal law - sentencing - provocation - finding as to seriousness

Appeal - limits on usefulness of statistics and past cases

Cases Cited:

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

Category:

Principal judgment

Parties:

Munesh GOUNDAR (Applicant)
REGINA (Respondent)

Representation:

C: Ms S Dowling
A: Mr P Strickland SC
C: S Kavanagh
A: Legal Aid Commission

File Number(s):

2007/16665

 Decision under appeal 

Citation:

[2010] NSWSC 1170

Date of Decision:

2010-11-05 00:00:00

Before:

Kirby J

File Number(s):

2007/16665

Judgment

1. MACFARLAN JA: I agree with RS Hulme J and also the additional reasons of RA Hulme J. In relation to the utility of examining previous decisions to establish a range of sentences, I refer to the following remarks of Barrett JA (made with the concurrence of myself and Tobias AJA) in Lee v Health Care Complaints Commission [2012] NSWCA 80 concerning a submission that disciplinary orders made in one case can and should indicate what disciplinary orders might appropriately be made in another case:

"24 For several reasons, this proposition must be approached with extreme care. Some of the reasons are suggested by discussion of sentencing in criminal cases. In that context, the point is made that, in most instances, a maximum penalty is prescribed by legislation so that there is some fixed starting point from which to consider the exercise of discretion: see, for example, R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 at 251. As regards suspension from practice as a medical practitioner, the applicable legislation prescribes no starting point of this kind. If there is a suspension, its duration is entirely a matter for the exercise of the Tribunal's discretion.

25 The dangers inherent in comparisons, even when such a starting point is available, have been identified in many cases in the sentencing field. In Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, for example, it was noted by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (at [54]) that, while a history of sentencing can establish a range of sentences that have in fact been imposed, such a history "does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits". The range is, however, of significance as a reflection of "the accumulated experience and wisdom" of those making sentencing decisions.

26 Their Honours repeated with approval a statement of Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64: (2001) 207 CLR 584 at [59] that a record of sentences imposed in earlier cases 'is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal' and that the production of bare statistics 'tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'

1. RS HULME J: On 5 November 2010, this Applicant for leave to appeal was sentenced by Kirby J to imprisonment for 10 years and 8 months, including a non-parole period of 8 years after a jury had found him guilty of manslaughter of Rajnesh Singh. He had been charged with murder and the Crown had refused to accept a plea to the lesser charge.

1. The circumstances leading up to, and of, the killing of which the Applicant was convicted were described by Kirby J, in terms which were not the subject of challenge, as follows:-

7 On 15 October 2006, the police were called to Plukavec Circuit (where the matrimonial home of the Applicant and his wife Diana was situate) as a result of a domestic argument between Mr Goundar and his wife. They were called again in November 2006, as a result of a further argument. On the latter occasion, Mrs Goundar took out an Apprehended Violence Order against her husband. The order was made on an interim basis by consent. Mr Goundar moved out of the matrimonial home. By the terms of the order he was not to approach within 100 metres of the matrimonial home at Plukavec Circuit, nor contact his wife.

8 However, in the months that followed, there was contact between them. Mr Goundar said that he was still in love with his wife. She described how he would come to the station before she went to work and often after work. Occasionally, they spoke on the telephone.

9 By January 2007, according to the offender's brother Mukesh, Mr Goundar appeared to be distressed, withdrawn and "shattered". He was drinking heavily. Indeed, his brother told him to "lift his game". By mid January, according to Mrs Goundar, both regarded the marriage as over. Munesh Goundar certainly regarded his marriage as a disaster, but still loved his wife. Nonetheless, on 22 January 2007, he saw solicitors concerning a divorce and paid $500 toward the cost of obtaining a divorce.

1. Prior to the separation of the Applicant and his wife, Mr Singh had been a next door neighbour and a close friend of the Applicant. On 26 January 2007, the Applicant attended at the former matrimonial home and surprised his wife and, it may be inferred, the deceased as they emerged from that house. In the words of Kirby J:-

Mr Goundar immediately confronted Rajnesh Singh. He said words to the effect:-

I'm not stupid. I know something's going on between the two of you.

Rajnesh Singh denied the accusation. They began shouting at each other. Rajnesh Singh accused Mr Goundar of being drunk, and he had been drinking ...

Mr Goundar withdrew and made contact with his brother Mukesh. Together they went to the new house of the Singh family ... They appeared to be upset and angry. They demanded to see Rajnesh ... According to Mr Goundar, Rajnesh Singh's mother came out. She asked Mr Goundar to forgive her son for what he had done. It was then that Mr Goundar realised that other members of the community were aware of his wife's affair.

1. On the evening of the day before the killing, the Applicant's wife went out to some function. His parents were there too and after it concluded, they dropped her at the former matrimonial home at about 11.30 pm. Kirby J's remarks continued:-

19 Mrs Goundar, by this time, had been served with the divorce petition (the Applicant had instigated). According to telephone records, Mr Goundar attempted to speak with his wife on Saturday 10 February 2007 during the day. He phoned her again late at night and early the next morning, by which time she was at Plukavec Circuit. Either at his request, or on her suggestion, he went to the house some time after midnight. He had been drinking before he arrived. According to Diana Goundar, they spoke about their divorce. They agreed that any surplus from the sale of the house, after the repayment of the mortgage, should be evenly divided between them. On her account, he remained at the house, but slept downstairs.

20 Mr Goundar, however, said that, at some point, he left the house in search of alcohol and cigarettes. He drove around, but nothing was open, he then took a sleeping tablet and slept in his car. The sleeping pill had well and truly worn off by the time of the incident and has no relevance to Mr Goundar's state of mind.

21 I accept as more likely Mr Goundar's account of his movements. At about 5.30 am, he telephoned his wife when he was at Liverpool. The telephone records also reveal that, during the night, at about 4.20 am, Diana Goundar telephone Rajnesh Singh on three occasions. The calls were not answered. At about 4.30 am, she sent a text message to him. When cross-examined, she said she had no recollection of having made the calls. She said she had no idea why she would have been attempting to contact Rajnesh Singh at that hour.

22 On the morning of Sunday 11 February 2007, Mr Goundar returned to the house. According to his wife, the spent the morning and part of the afternoon smoking and drinking in the garage.

23 Rajnesh Singh came to the house at Plukavec Circuit at about 3.40 pm. The incident which led to his death occurred a short time after his arrival. Both Diana Goundar and the offender gave evidence concerning the circumstance which led to the attack. Neither was a satisfactory witness.

1. His Honour then summarised some largely conflicting evidence of the Applicant and his wife. It is sufficient for me to record that it was common ground that the Applicant was in the master bedroom and that Rajnesh Singh and Dianna Goundar went upstairs and entered the bedroom. The Applicant then attacked Mr Singh with a knife. The fight moved to an adjacent bathroom and toilet, where Mr Singh ultimately died. His Honour then continued:-

26 Based on this account, Counsel for the offender urged a finding that, as a matter of probability, Mr Goundar knew nothing of Rajnesh Singh's presence in his home until his wife entered the master bedroom with him. However, I have no doubt that the offender was aware of the imminent arrival of Rajnesh Singh. Indeed, two matters, one more compelling than the other, point to a degree of planning in respect of a confrontation which he had in mind.

27 The first was that Munesh Goundar's car was not parked outside the house, as you would expect in a suburban street. It was out of view. The offender acknowledged that his car was well known to Rajnesh Singh. It was damaged and easily recognisable. He also acknowledged that, had it been parked outside, Rajnesh Singh would not have entered the house.

28 Whilst that evidence is persuasive, compelling evidence was provided by a neighbour, Mr Malcolm Banks, of his observations that afternoon. It was a rainy day. Mr Banks was at home watching the cricket. The cricket was periodically interrupted because of the rain. From time to time, Mr Banks went outside to smoke a cigarette. Whilst he was outside, at about 3.15 pm, that is about 20 minutes before Rajnesh Singh's arrival at the house, he noticed a male in the kitchen of the premises next door, that is the Goundar home. He had previously seen Mrs Goundar, but never a male. The male was wearing a blue shirt with white pinstripes. The male reached across to shut the window and pulled down the blinds. Mr Goundar owned such a shirt. Indeed, according to the travel agent who booked his airfare to New Zealand on 20 February 2007, he was then wearing a shirt that matched that description. In contrast, the offender said that he remained upstairs in the master bedroom, drinking and smoking. He did not go downstairs. Shutting the window and drawing the blinds was conduct consistent with knowledge of the confrontation which was about to take place.

29 The telephone records disclosed a number of communications between Diana Goundar and Rajnesh Singh on Sunday 11 February 2007, beginning at about 11.00 am (Ex E). They spoke for some minutes at about 12.30 pm. They spoke again at 3.22 pm for about four minutes, a conversation which one infers was shortly before the deceased drove his truck from his brother's home to Plukavec Circuit. Diana Goundar, in her evidence, acknowledged that she had invited Rajnesh Singh to her home. She also acknowledged that she had not disclosed that her husband was present within the home.

30 I have no doubt that Diana Goundar was asked by her husband to make at least the last of those phone calls and not disclose his presence. But, was she directed to do so, as she maintained? I accept that probably she was given such a direction. Assuming such a direction, the puzzle is why she complied with it. There was, of course, a history of domestic violence. An Apprehended Violence Order was in place. However, whatever the violence, it did not inhibit either party from periodically communicating with each other and seeing each other. Indeed, as I have described, Diana Goundar permitted her husband to come to the house in the early hours of Sunday 11 February 2007, when she was alone. Intimidation is therefore not a satisfying [sic] explanation for her conduct. Was she either culturally or by nature, submissive? Again, the history of the relationship does not suggest unquestioning submission. Mrs Goundar acknowledged at least one conversation with Rajnesh Singh that took place at a time when the offender was absent from the home, obtaining a newspaper. Why then, at least when he was not present, did she not deflect Rajnesh Singh or dissuade him from coming to the home, or at least warn him of Munesh Goundar's presence? Her conduct was the more extraordinary because she knew that the offender was very drunk. The puzzle, moreover, does not end there.

1. His Honour did not suggest that he found an answer to the puzzle nor why, after Mr Singh arrived and heard noises that emanated from upstairs, Mrs Goundar suggested they came from the neighbours. His Honour continued:-

32 That statement by Mrs Goundar was, of course, a lie. The noise was an opportunity for her to apprise Rajnesh Singh of the presence of Munesh Goundar upstairs, to enable him to withdraw. She failed to take advantage of that opportunity. Instead, when Rajnesh Singh suggested that they should go upstairs, plainly with a view to making love, she got up and ascended the stairs with him, entering the main bedroom, where she knew her husband was waiting ...

1. His Honour then referred to some evidence of Mrs Goundar denying that she knew there would be a confrontation, saying that such evidence was impossible to comprehend and continued:-

35 Mr Goundar suggested that Rajnesh Singh had his hands on Diana Goundar's waist as they entered the bedroom. I accept that was likely ... I accept that, consistent with the jury verdict, the confrontation planned by the offender did not include the use of a knife, or the infliction of grievous bodily harm. Indeed, it appears the confrontation began with a fight. The police, when they subsequently searched the bedroom, found a number of knives. I accept that Munesh Goundar, in the course of the fight, lost his self control. He took hold of a knife from within the room, which he used to repeatedly stab Rajnesh Singh. As he did so, he said words to the effect: 'You betrayed me. I was your friend. I was your brother.' Rajnesh Singh responded by screaming 'I'm already dead. I'm already dead' ...

36 Having stabbed Rajnesh Singh repeatedly in the stomach whilst in the bedroom, the offender took him to the bathroom/toilet which was adjacent. He then stabbed him again a number of times in the back.

1. When his Honour came to deal with the issue of provocation he said:-

59 Counsel for Mr Goundar pointed to a number of circumstances relevant to the degree of provocation. The offender regarded Rajnesh Singh as a friend, probably his best friend. Immediately before the confrontation, Rajnesh Singh entered the matrimonial bedroom with his hands on the waist of Mr Goundar's wife. I accept that the offender believed that Rajnesh Singh intended to have sexual intercourse with his wife. I also accept that the provocation was probably magnified by cultural factors. The victim's brother gave the following evidence: (T 65)

"Q. Because it's considered to be, and one can assume it is considered to be insulting in anybody's culture, but in the Fijian community, the Fijian/Indian community, sleeping with somebody's (wife) is considered to be very, very insulting; isn't it?

A. Yes."

60 Mr Goundar's mental state at the time of these events is also material. I accept that probably he was suffering from an adjustment disorder and depression. He certainly was significantly affected by alcohol and these matters, in combination, no doubt coloured his perception.

61 It was submitted, in these circumstances, that the provocation was "very high". I accept that the circumstances identified were certainly provocative. Nonetheless, it must also be recognised that the victim was unaware of the presence of Mr Goundar within the bedroom. Mr Goundar, on the other hand, was aware of the imminent arrival of Rajnesh Singh. This was not an attack at the time that Mr Goundar first suspected his wife's infidelity. It will be remembered that he had confronted his wife and Rajnesh Singh some weeks before, on 26 January 2007, when they emerged together from the matrimonial home. The incident leading to the loss of self control occurred some weeks later, in the course of a planned confrontation. In that context, the words of Allen J in R v Khan (1996) 86 A Crim R 552 are apposite. His Honour said this, in a case where a husband, suspecting his wife of adultery, lay in wait and ultimately stabbed her lover: (at 557)

'... Nevertheless the respondent had far more time than often is the case in tragedies of this type within which to prepare himself to cope with the provocation without resorting to the taking of human life. That is relevant to sentencing.'

62 The second issue arising under provocation, concerned the time between the provocative conduct and the loss of self control. Here, I accept that there was very little time between Rajnesh Singh entering the bedroom and the attack. In that short interval, Mr Goundar lost his self control, that is, his power to think rationally and sensibly, took up the knife and began stabbing the victim.

63 The third matter concerns the degree of violence or aggression, after the loss of self control. Dr Botterill identified three definite stab wounds to the front of the victim. There were two further wounds, which he believed were stab wounds because there were boney defects to the spine. Dr Bennett, an expert in textiles and fibres, examined the clothing of the deceased. She identified damage to the front and back of his T-shirt, consistent with the penetration of a knife in five areas (T 91/3). There can be no question that he was stabbed at least five times.

64 On any view, this was a ferocious and sustained attack. I have inferred an intention to kill. A number of the wounds were inflicted in the bedroom. The deceased cried out: 'I'm already dead. I'm already dead' (T137). Still the attack continued. The victim was moved to the toilet/bathroom, where he was stabbed again in the back by deep penetrating wounds.

1. His Honour then referred to four matters that he regarded as circumstances of aggravation, viz. the use of a knife, the fact that the offence had been committed in company by reason of the complicity of Diana Goudar, the fact that at the time of the offence the Applicant was on bail, and the circumstances of the dumping of the deceased's body. His Honour concluded that the Applicant's offence "was well above the midrange" and "was a serious case of manslaughter by provocation". His Honour arrived at the sentence he imposed by adopting a starting point of 13 years and discounting this by 17½% for the Applicant's plea. As has been said, the sentence imposed was imprisonment for 10 years and 8 months, including a non-parole period of 8 years. The maximum penalty prescribed for manslaughter is 25 years.

1. The grounds of appeal are:-

1. His Honour erred in finding that the Applicant planned the confrontation with the victim, which led to his death.

2. His Honour erred in that he failed to make that finding beyond reasonable doubt.

3. His Honour erred in-

(a) failing to make a finding about the degree of provocation caused by the conduct of the victim towards or affecting the Applicant; or

(b) failing to find that the degree of provocation was high.

4. His Honour erred in finding that the offence was well above the midrange.

5. The sentence was manifestly excessive.

Ground 1

1. In support of this ground, counsel for the Applicant attacked both of the matters which his Honour said at [26] pointed to a degree of planning in respect of a confrontation. In respect of the location in which the Applicant parked the car, reference was made to evidence from the Applicant that "(t)here were heaps of cars there (Plukavec Circuit) so I left it there" and "in full view of Mr Singh". It was pointed out that there was no evidence about the number of cars parked in Plukavec Circuit at the relevant time, that the street may have been filled with cars, that there was evidence that the Applicant had drunk considerable quantities of alcohol and a sleeping pill before he parked his car and thus the Applicant may have parked in a side street for reasons entirely unrelated to the deceased.

1. However, the Applicant's evidence just referred to that, "there was heaps of cars there so I parked it there" (emphasis added) is inconsistent with the proposition that the street was so full that there was no room to park in Plukavec Circuit and justifies the rejection of the first of these theories. The second submission suffers from the disadvantage that the Applicant, who was in the best position to know, provided no support for it. Furthermore, there was uncontradicted evidence from a Dr Martin, called on behalf of the Applicant, to the effect that the sleeping pill that had been prescribed for the Applicant could be expected to work within half an hour and its effects should have worn off within 4 hours.

1. The Applicant gave evidence that, after leaving the matrimonial home during the evening of 10 February to acquire some cigarettes and more beer, drinking some he had taken with him, then taking a sleeping pill during the hours of darkness, he went to sleep and later bought more beer and was drinking it in his car before he returned to the former matrimonial home in daylight - T281.9, T295.2, T313.8. Certainly, his evidence indicated that he had ingested a considerable quantity of alcohol but provides no basis for concluding that he parked in the side street for a reason other than that which Kirby J inferred.

1. A further submission made on behalf of the Applicant in this connection was that the parking of the car in a side street could not be used to support a conclusion that the confrontation was planned, unless his Honour concluded that at the time of parking the Applicant knew that the victim was coming to the home and in fact this was not arranged until later. The submission is fallacious. The fact that the victim was not contacted until later does not mean that there was not, earlier, a plan to have him attend if he would. After all, some of Mrs Goundar's calls to the victim, calls which she did not explain, were prior to the Applicant parking his car.

1. So far as the second matter to which his Honour referred is concerned, attention was directed to the terms of Mr Banks' evidence of an observation he made at about 3.15 which was:-

On the occasion I was outside having a cigarette again, and I had actually - I was still looking at the windows and the actual door to the laundry where I was standing banged against the brickwork. Then I grabbed the door handle and as I did, I say (sic) a male person come across and put his hand to the window to shut the window and also to shut the blinds.

1. It was submitted that this was not unequivocal evidence that the Applicant actually shut the windows and blinds and in any event reasonable explanations for any shutting of the windows were that it was raining, that the Applicant was in the habit of shutting the windows and blinds, and that Mrs Goundar might have asked him to. There was evidence from the Applicant and his wife that it was raining at times that day and before the evidence just quoted, Mr Banks had said that when he went outside for an earlier cigarette, it had been raining. Mr Banks also said that the windows of the former matrimonial home were normally closed.

1. What Mr Banks said may not be unequivocal evidence that the Applicant actually shut the windows and blinds but Kirby J was entitled to rely on common experience that when people put their hands to windows or blinds in order to shut them, they normally complete the task. So far as the other suggested explanations are concerned, the Applicant said that he closed no windows that day and it was implicit in Mr Banks' evidence that, on the earlier occasion when he had observed the Applicant and at a time when Mr Banks' evidence makes clear that it was raining, the Applicant had not closed the windows.

1. Relevant to his Honour's conclusion was also the evidence of Diana Goundar about which his Honour had "no doubt", that the Applicant had requested her to ring the deceased. It was submitted that, in view of his Honour's remark that Mrs Goundar was not a satisfactory witness and many of her answers supported this view, her evidence on the contested issue of whether the Applicant had requested her to ring the deceased was not a sound basis upon which to make a finding that the Applicant had planned the confrontation.

1. Certainly his Honour does not make clear whether his absence of doubt was induced in part by the earlier matters to which he had referred but when regard is had to the totality of evidence available to his Honour, I am not persuaded that he was not entitled to come to the conclusion beyond reasonable doubt that the Applicant sought the attendance of the deceased and in due course was aware that the he was coming, i.e. that the Applicant planned a confrontation. In this connection it is not irrelevant that the evidence of Mr Banks was quite inconsistent with that of the Applicant that he had remained upstairs during the afternoon and tended to show that the Applicant was downstairs about 5 minutes after his wife's last call to the deceased

1. It was also submitted that the issue of whether the confrontation was planned was a central issue between the parties and the Applicant's trial for murder and the jury had acquitted the Applicant of that charge. However while the acquittal argues strongly against there being any planned murder or use of a knife, it is not necessarily inconsistent with the planning of a lesser confrontation such as his Honour found.

Ground 2

1. In the third paragraph of his Remarks on Sentence, his Honour said:-

It remains for me to pass sentence. Before I do so, I must determine the facts relevant to the sentencing discretion, in a manner consistent with the jury verdict. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mr Goundar, it is enough that they should be established on the balance of probabilities.

1. Although when making his finding that the Applicant planned the confrontation with the deceased his Honour did not again expressly advert to the standard required, it cannot reasonably be supposed that he did not remain conscious of it. This ground fails.

Ground 3

His Honour erred in-

(a) failing to make a finding about the degree of provocation caused by the conduct of the victim towards or affecting the Applicant; or

(b) failing to find that the degree of provocation was high.

1. Under the rubric of this ground, counsel for the Applicant submitted that Kirby J failed to properly take into account the gravity of the provocation.

1. His Honour's remarks, when directing attention specifically to the topic of provocation, are set out in paragraphs [59]-[61] which I have quoted. The only other matters which it was suggested his Honour should have taken into account were statements by the Applicant during the course of events in the bedroom, "you betrayed me, I was your friend, I was your brother", statements of the Applicant reported in a Pre-Sentence Report to the effect that "he felt like a laughing stock amongst the Fijian Indian community as he felt that a lot of people knew about (his wife's) affair, but didn't tell him" and evidence of the Applicant's brother that, at the time he took the Applicant to hospital on 28 January, the Applicant was "distressed, withdrawn, shattered, broken down, he was like a living dead". Counsel also referred to a further passage from Allen J's judgment in Khan (1996) 86 A Crim R 552 at 557-8, viz:-

For many men adultery committed with his wife is an intolerable insult to his manhood and an act of gross betrayal. Violent reaction to adultery is no new phenomenon. It has existed as long as men have been men and doubtless it will continue for as long as men are men.

1. His Honour referred to the first of these matters at [35] of his remarks. He quoted from the paragraph immediately before that which I have just quoted from Khan and although he did not expressly refer to the balance of the matters mentioned in the immediately preceding paragraph, there are no grounds for concluding that his Honour was not conscious of them. Thus the questions that remain are whether in the respects stated in this ground of appeal and the first paragraph in this part of these reasons his Honour erred.

1. In my view he did not. In the first place, it is clear from what his Honour did say that he was conscious of the factors that argued for the provocation being regarded as of high order. Secondly, there is no obligation on a judge in dealing with the topic to express in quantitative terms - high, medium-high, medium, low or the like - his assessment of the degree of provocation in a particular case. Thirdly, in the circumstances here, whether his Honour properly took into account the gravity of the provocation is best left until grounds 4 and 5 are considered.

Grounds 4 and 5

4. His Honour erred in finding that the offence was well above the midrange.

5. The sentence was manifestly excessive.

1. These grounds were argued together and it is appropriate to deal with them similarly here.

1. I have no doubt that the provocation, particularly when one takes into account the fact that, as his Honour accepted, his wife walked into their bedroom with the deceased's arms around her, might fairly be described as significant. However, as his Honour also pointed out, the Applicant had had some two weeks to accept that his wife and the deceased were having an affair and the Applicant planned, or at least was privy to the planning of, the confrontation - a confrontation that was certainly not unlikely to result in some violence.

1. And there are some other matters to take into account. Firstly, on the Applicant's own evidence his marriage, if not completely over, started "getting bad" in the beginning of 2006 and was "a disaster". Although he was still in love with his wife, he wanted to divorce her as quickly as possible. He had been drunk every day "since she kicked (him) out of the house" which might be inferred to have been the date of the AVO and which preceded 26 January. Furthermore, once one accepts his Honour's conclusion that the Applicant was involved in the deceased coming to the house and his own evidence that he remained in the bedroom (at least while the deceased was at the house), that the provocation occurred there is something for which he is not without responsibility.

1. Relevant also are his Honour's findings contained in [64] which I have quoted and in the following:-

65 The Crown, in its submissions, said this:

'20. ... There is evidence that the defendant ... moved him into the bath and he was heard to be moaning, obviously in pain for some time. No attempt was made to assist him, or obtain assistance for him and he ultimately died. The defendant allowed him to suffer until he ultimately passed away.'

66 I accept that submission.

1. His Honour accepted that the confrontation planned by the Applicant did not include the use of a knife (and if it had, it is difficult to see how the Applicant would not have been guilty of murder). However, when all of the facts are taken into account, I find no error in his Honour's characterisation of the offence.

1. Turning to the fifth ground of appeal, it may be accepted that, as revealed by the Judicial Commission statistics covering the period April 2004 to March 2011 (the latest available), the sentence imposed on the Applicant was relatively high. The full term and non-parole period of the sentence imposed on the Applicant fall respectively within the top 9% and top 3% of sentences and non-parole periods imposed on persons who pleaded guilty to manslaughter. Furthermore, his Honour accepted that the Applicant had been in regular employment, had no criminal convictions (though was facing charges of, on 12 January, assaulting his wife and knowingly breach an apprehended violence order and, having been given bail, failing to appear) and had good prospects of rehabilitation. On the other hand, his Honour regarded the Applicant as having little remorse in relation to the victim.

1. In the course of submissions, both counsel referred the Court to a number of previous cases in aid of arguments that the sentence was or was not manifestly excessive. Having regard to the fact that the sentence is high by comparison with others reflected in the statistics, I have included as an appendix to these reasons a summary of most of the cases to which the Court was referred and also reference to a few others. A number of features stand out.

1. Firstly, it is apparent that sentences have tended to increase over the last decade or so. This is no doubt a reflection of the view that sentences in this area were too lenient. Secondly, Kirby J's starting point of 13 years is higher than that in any of the cases referred to. In R v Williams [2005] NSWCCA 99, it was 12 years. In R v Marlow [2003] NSWSC 1130, R v Hammoui (No 4) [2005] NSWSC 279 and R v Stevens [2008] NSWSC 1370, it was 11 years. In R v Lovett [2009] NSWSC 1427, it was 10 years and 8 months. In the other cases it was less. Thirdly, undoubtedly within these cases there are features - less provocation or greater criminality in response - that argue for the starting point in the determination of the Applicant's sentence being lighter than in one or more of those cases.

1. Since writing the above, I have had the advantage of reading the reasons of RA Hulme J. I agree with them.

1. However, the differences between those cases and this preclude any exact comparison and in any event, sentencing involves a degree of discretion and there is not in any particular case, only one right sentence. The sentence imposed on the Applicant was undoubtedly a heavy one but I remain unpersuaded that it was so high as to be manifestly excessive. In that connection it must also be remembered that the primary comparison that must be made is not with statistics or previous cases but the statutory provision. The maximum penalty for manslaughter is 25 years and Kirby J's starting point was only marginally above half of that figure.

1. Given the issues raised, I would grant leave to appeal but I would dismiss the appeal.

1. RA HULME J: I have had the advantage of reading in draft the judgment of RS Hulme J. I agree with what has been said, and the conclusions that have been reached, in relation to grounds 1 to 3. I also agree that grounds 4 and 5 should not be upheld but wish to provide my own reasons.

1. I agree with the observation by RS Hulme J that the sentence was "undoubtedly a heavy one". The fact that the starting point of 13 years was higher than in any of the cases to which we were referred strongly supports that observation, as do the Judicial Commission sentencing statistics.

1. It is important to observe that intervention by this Court on a ground that the sentence is manifestly excessive is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538 [59].

1. The cases to which the Court was referred were confined to those in which murder was reduced to manslaughter by virtue of provocation. That is understandable as undoubtedly counsel were seeking to identify the most comparable cases. Sight should not be lost, however, of the fact that manslaughter in all of its various forms, is subject to the maximum penalty of imprisonment of 25 years. Further, this Court has said on a number of occasions that it is not the variety or legal basis of manslaughter but the facts which determine the objective gravity of a particular case: see, for example, R v Isaacs (1997) 41 NSWLR 374 at 381; R v Dally [2000] NSWCCA 162; (2000) 115 A Crim R 582 per Smart AJ at [64]; and R v Hoerler (2004) 147 A Crim R 520 per Spigelman CJ at [29].

1. The sentencing statistics to which we were referred show that there are relatively few cases in which higher sentences have been imposed. The limitations of such statistics have been the subject of frequent comment in judgments of this Court (for example, R v Lao at [2003] NSWCCA 315 per Spigelman CJ at [32]; R v Nikolovska [2010] NSWCCA 169; (2010) 209 A Crim R 218 per Kirby J at [70]; and Windle v R [2011] NSWCCA 277 per Hoeben J at [62] - [65]) and of the High Court of Australia (Hili v The Queen; Jones v The Queen, supra, at [48]).

1. In R v BW [2011] NSWCCA 176, Whealy JA had the following to say about the relevance of statistics and decisions in other cases in the context of a manslaughter sentence:

[61] ... In relation to the graphs and statistics argument, it is necessary to bear in mind that, in the case of manslaughter especially, neither a consideration of statistical information, nor, for that matter, an examination of the results in other decided cases, illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly, because of variations in the circumstances of the individual instances of the offence: Taber v R; Styman v R (2007) 170 A Crim R 427 at [102]; R v Forbes (2005) 160 A Crim R 1 [133] - [134]; R v Green [1999] NSWCCA 97 at [24]; see also R v Vongsouvanh [2004] NSWCCA 158 at [38] where reliance on data was described as "unhelpful and even dangerous"; R v Alexander (1994) 78 A Crim R 141 at 144; R v McGuire (Unreported, NSWCCA, 30 August 1995); R v Troja (Unreported, NSWCCA, 16 July 1991).

1. There are other cases in which remarks have been made about the limited utility of comparing sentences imposed in other cases. The correct position was comprehensively described by Grove J in Stephens v R [2009] NSWCCA 240:

[28] In support of argument on this ground counsel provided the Court with a table of sentencing outcomes together with copies of various judgments and remarks on sentence pertaining thereto. In R v Trevenna (2004) 149 A Crim R 505, where an extensive examination of manslaughter sentences was undertaken Barr J commented that "so variable is the crime of manslaughter both in its legal formulation and range of culpability which it contemplates, that the identification of the available range of sentence in any case is notoriously difficult." That difficulty does not disappear by seeking to collect cases where liability is incurred in a particular fashion. In Ward v R (2006) 166 A Crim R 273 the Court (Tobias JA, Howie and Rothman JJ) stated the position to be (at pars 70-74):

"....the position is this. First, the offence of manslaughter is almost unique in its protean character as an offence and consequently, the identification of an available range of sentences in any individual case is notoriously difficult, if not impossible. It is thus rare for there to be any real comparison between facts.

Second, matters of fact and degree arise in all categories of manslaughter with the consequence that it is impossible to establish a pattern or tariff. This applies not only to manslaughter generally, but also to cases of manslaughter by reason of excessive self-defence.

Third, in order for an appellate court to intervene with respect to a sentence imposed upon the ground that it is manifestly excessive, it is necessary for an appellant to establish that the sentencing judge's discretion has miscarried in the House v The King sense and, relevantly to a case such as the present, that the sentence imposed was so disproportionate to the circumstances in which the offence occurred as to afford the foundation for concluding that the sentencing judge's exercise of his sentencing discretion had miscarried.

Fourth, such disproportion must result in the sentence imposed being unreasonable or plainly unjust.

Fifth, such a result cannot follow merely because a member of the appellate court may have exercised their discretion, had they been the first instance judge in a manner different from that of the sentencing judge."

[29] Similar consideration was articulated by Spigelman CJ in R v Forbes (2005) 160 A Crim R 1 (pars 133-134):

"As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, NSW, No 60510 of 1995, 12 December 1995), esp at 2-3). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R at [39]).

It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter."

[30] Examination of individual cases should not cause sight to be lost of the guidepost provided by Parliament in prescribing an available maximum penalty of imprisonment for twenty five years. It is not suggested that the present case approached a worst case category nor that the applicant is in the worst category of offenders so as to consider imposition of that maximum but it is a guide to any assessment and, where manifest excess is asserted comparison of the actual sentence and the parliamentary prescription can assist in revealing whether or not error is demonstrated.

[31] The Crown Prosecutor drew attention to the recent decision in Stewart v R [2009] NSWCCA 5 where the circumstances might be considered to portray a culpability of the offender with some parallels to those of the applicant. Again, a comparative exercise does not necessarily provoke a conclusion and the error of such an approach was remarked upon by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371:

"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar offences. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range."

[32] The applicant points to no specific error by the learned sentencing judge. As was observed in the joint judgment, (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2006) 228 CLR 357 (at par 27) it should be remembered:

"As has been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."

1. The real question posed by Ground 5 is not whether the sentence is out of keeping with sentences imposed in the other cases to which the Court was referred, or with those in the Judicial Commission's statistical database. It is whether the sentence is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25].

1. I am not persuaded that there is any merit in Grounds 4 or 5. I am satisfied that it was open to Kirby J to find that the offence was "well above midrange" and that this was "a serious case of manslaughter by provocation". Matters which underpinned those findings included that there was "a ferocious and sustained attack"; an intention to kill; and that the applicant allowed the deceased to suffer until he ultimately passed away. Aggravating features concerning the objective seriousness of the offence were that the offence was committed in company; a knife was used; and that the deceased's body was dumped in bushland. There was the further aggravating feature that the applicant was on bail.

1. Notwithstanding the undoubted severity of the sentence, I am not of the view that it was unreasonable or plainly unjust.

1. I agree with the orders proposed by R S Hulme J.

APPENDIX

All of the cases referred to are ones where the sentence imposed was for manslaughter, provocation being the rationale for the offence not being murder. Some of the offenders were charged with murder and acquitted of that charge. Some had pleaded guilty to manslaughter when arraigned.

In R v See [2001] NSWSC 776, I imposed a sentence of imprisonment for 7 years including a non-parole period of 4½ years. A deal of the provocation was puerile teasing, although, on at least two occasions, the deceased talked about killing the offender. One of those occasions was shortly before the offence and introduced a degree of fear in the prisoner. Teasing continued, the deceased remarked he wanted to hit the prisoner and invited the latter "if you dare, you come over to chop me". The offender who was using a pointed carving knife in a kitchen at the time charged at the deceased, stabbed him a number of times, and then grabbed a meat cleaver with which he also struck the deceased who suffered 30 stab or incised wounds. I regarded the degree of provocation as no more than moderate and the degree of violence as extreme.

At the time, the offender was under a degree of strain trying to avoid immigration officials because he and the deceased were in Australia on tourist visas but were working. The offender had no criminal record and seemed to have worked hard to assist his parents. He had also suffered bullying and teasing at school, sometimes returning home in tears. He was remorseful. No discount on account of a plea was allowed.

In arriving at the sentence in that case, I considered a number of prior decisions and included a summary of them as a schedule to my reasons. The full terms of the sentences so referred to varied between 6 and 8 years and averaged about 6.75 years. I noted that in one of the cases I referred to, R v Alexander (1995) 78 A Crim R 141, Hunt CJ at CL had appended a similar schedule and the median full term of the sentences included in that schedule was 6 years. It should however also be noted that in 2 of the cases referred to by Hunt CJ where the offender had pleaded guilty, total sentences of 8 years and 8½ years had been imposed.

In R v Marlow [2003] NSW SC 1130, Studdert J sentenced an offender to imprisonment for 9 years, including a non-parole period of 6 years and 9 months. In arriving at this sentence his Honour allowed a discount "approaching 20%", using as a starting point 11 years.

Studdert J found that the offender had indulged in a "most violent and sustained attack" and had an intent to kill. There were nine potentially fatal knife wounds and nine other wounds. The provocation was found to be a sexual assault 11 years earlier when the offender was 16 and a further sexual assault on the night of the killing. His Honour found that the degree of provocation was of real significance notwithstanding that it tended to be lower because, before visiting the deceased's home, the offender had contemplated that some form of sexual advance might occur.

The offender had an unimpressive employment history, had developed an alcohol abuse disorder in early adult life, was regarded as having had a depressed mood at the time of the offence, and had no prior convictions. His prospects of rehabilitation were considered to be reasonable.

In R v Williams [2005] NSWCCA 99 this Court allowed an appeal and reduced the offender's sentence to one of 12 years including a non-parole period of 9 years. He had hit the deceased with a weight bar and then repeatedly in the head with the weight bar or a dumb bell. He later demonstrated a callousness in dealing with the victim's body that was regarded as inconsistent with any remorse.

The provocation that led to the conviction being for manslaughter lay in part in the deceased's conduct during a relationship of some standing, including her use of a knife on more than one occasion and her cutting the offender's young son. Shortly prior to the killing there had been another disagreement during which the victim had inflicted an injury on the offender causing him to bleed. However the report and that of the proceedings at first instance - [2004] NSWSC 189 - indicate disbelief of at least parts of the offender's account, do not make clear the extent of the provocation at that stage. The offender was found to have had an intent to kill and his criminality was regarded as "very high". The reports do not indicate that there was any discount for a plea.

The offender was 35 at the time of his offence. He had a lengthy criminal history, and was found to have a propensity for violence when crossed or thwarted. His prospects of rehabilitation were regarded as bleak.

In R v Bullock [2005] NSW 1071 Buddin J imposed a sentence of 8 years including a non-parole period of 5 years on an offender who pleaded guilty. Although he did not quantity it, Buddin J indicated that he would allow the offender a discount appropriate to his plea. It may be inferred the allowance was in the range of 10 to 15%.

The offender had had a substantial amount to drink. He was in a hotel where, without justification, the deceased accused him of hitting the deceased and punched the offender several times in the face, breaking his nose and inflicting other injuries. The victim then left the hotel with friends. Outside the offender said to him, "You're going to die tonight", went to his father's house nearby, procured 2 knives and returned to the group at the hotel. He asked the victim, "Why did you hit me?" to which the victim responded with another attempt to punch the offender. The latter then stabbed the victim inflicting 6 stab wounds and 4 superficial cuts. Buddin J was not prepared to find that the offender had an intention to kill.

The offender was 25 at the time of the offence. He had had a troubled upbringing, had been in steady employment for the previous 5 or 6 years and was regarded as a dedicated and industrious worker. He had good prospects of rehabilitation provided he addressed drug and alcohol usage, anger management and possibly unresolved issues from his childhood.

In R v Hammoui (No 4) [2005] NSWSC 279, Kirby J imposed a sentence of imprisonment of 11 years including a non-parole period of 8 years. The report does not suggest there was any discount for a plea. It appeared that after the offender and the deceased met pursuant to some arrangement, the offender bound her wrists with sticky tape and then strangled her. His Honour found that the offender had an intention to kill and had been guilty of gratuitous cruelty, although the report does not suggest this extended beyond the binding of the wrists and strangulation. At the time of the offence, the applicant was on bail for possession of a firearm. He had a history which included serious criminal offences, many involving violence. A psychologist assessed him as evidencing a markedly paranoid disposition and Kirby J was unable to say that his prospects of rehabilitation were good. His Honour found there was no contrition. The offender was 27 at the time of offending.

During a number of periods in the four years or so prior to her death, the offender and the deceased had been in an intimate relationship, though from time to time the deceased seems to have formed similar relationships with other people and, for a time, worked as a prostitute. In the period immediately prior to her death, the deceased was in an intimate relationship with both the offender and another male. The offender was clearly jealous but his Honour said that it was not possible to say which particular aspect of the provocation suggested it was that the Crown had not eliminated beyond reasonable doubt.

In R v Frost [2008] NSWSC 220, Barr J imposed a sentence of 6 years including a non-parole period of 3½ years on an offender who pleaded guilty to manslaughter. Although he did not quantify it, his Honour said that the offender was entitled to a substantial discount for his plea. He had killed his wife by an unlawful and dangerous act in "a sudden and unexpected burst of anger, precipitated by the deceased's abhorrent proposal ...". He had not intended to kill her. The offender was of good character and judged unlikely to re-offend. The report does not record the offender's age.

In R v Mitchell [2008] NSWSC 320, Howie J imposed a sentence of imprisonment for 8 years and 3 months, including a non-parole period of 4½ years. His Honour's commencing point was 10 years from which he allowed a discount of 17½% for the offender's plea. A sentence for another offence imposed at the same time can be ignored.

The basis for the charge of manslaughter rather than murder was provocation. It seems to have been accepted that the offender woke from sleep to find the deceased fellating him, provocation that Howie J regarded as not of an extremely gross nature. The offender then attacked the deceased with a hammer, something Howie J described as very greatly out of proportion to the provocation. His Honour also accepted the opinion of a psychiatrist that the offender, who had a history of mental health problems and serious alcohol abuse since age 13, had personality traits that would have made it more difficult to cope with the provocative conduct. His Honour said that the nature of the offender's response was largely due to his personality problems and to him being under the influence of alcohol. Prior to sentence the offender had been on protection because of difficulties interacting with the general prison population and his Honour backdated the sentence on that account. The offender who was aged about 22 at the time of the offence had a significant criminal record. Howie J had reservations about the offender's prospects of rehabilitation in view of the fact that a number of assisted attempts in the past had been unsuccessful.

In R v Stevens [2008] NSWSC 1370 Hall J sentenced the offender to imprisonment for 8 years and 9 months including a non-parole period of 6 years and 7 months after allowing a discount of 20% for a plea. These figures indicate that his Honour's starting point must have been 11 years.

The offender and deceased were in a domestic relationship at the time of the offence. Both were addicted to drugs. Hall J accepted a submission from the Crown that the degree of violence and the gravity of the offence were extreme and the provocation was low. The violence seemed to have been blunt trauma such as punching or kicking and which resulted in intra-abdominal bleeding from an injured spleen and in acute subdural bleeding. Blood stains were found on floors, furniture and other items in 4 separate areas of a house. The provocation seems to have been mainly the deceased's disabled and dysfunctional condition including failure to look after a new baby and, to a lesser extent, some infidelity which was the subject of discussion on the evening of her death.

The offender, aged about 40 at the time of offending, had a history of offences of assault and breaching apprehended violence orders though none in the 4 years prior to the subject offence. After his arrest he was diagnosed as having an adjustment disorder with depressed mood or a clinically significant level of depression. Hall J found that the offender had some degree of remorse but that there was little evidence as to his prospects of rehabilitation.

In Berrier v R [2009] NSWCCA 40 this Court dismissed an appeal against a sentence of imprisonment for 9 years including a non-parole period of 6 years. There seems to have been no plea discount. At first instance - [2006] NSWSC 1421 - Hidden J said that there was a significant measure of provocation. It was found to exist in a background of animosity, a fight earlier in the afternoon and aggression displayed by the victim chasing the offender with a piece of wood and attempting to secure another immediately before being stabbed. There was but one stab wound although there may have been another one attempted. It was also found that the offender may have been disinhibited to some extent by alcohol and his intention was to cause merely grievous bodily harm.

The offender was 22 at the time of the offence, he had no significant criminal record and a very low level of intellectual functioning and Hidden J at first instance remarked that the "personality profile and those intellectual deficits may provide some explanation for the crime. His Honour said that his prospects of rehabilitation were good.

In R v Lovett [2009] NSWSC 1427 Barr J imposed a sentence of 10 years and 8 months, including a non-parole period of 8 years. The offender had come to suspect that the deceased was having an affair with the offender's previous partner from whom he was separated. Taking a knife from the place where he was living the offender went to his partner's residence and came upon the deceased and his partner in the act of sexual intercourse. He stuck a single, and fatal, blow to the deceased's chest. He then attacked the deceased with a garden stake, kicked him in the genitals, dragged him out to the front lawn and then kicked him in the jaw, fracturing it in 2 places. Barr J said that at most the events of the day earlier than the sexual intercourse and which aroused the offender's suspicions, if provocative at all, were only mildly so. Barr J said that he was not satisfied that the offender had an intent to kill but observed nevertheless that the facts called for a strongly deterrent sentence.

The offender was 21 at the time of the offence. He had been in trouble with the law for the preceding 7 years committing a number of offences of violence. He was addicted to drugs. His Honour doubted if the offender was remorseful and said that he did not think that the offender's prospects of rehabilitation were good. The report contains no mention of a plea discount.

In R v Gabriel [2010] NSWSC 13, Price J imposed a sentence of 9 years and 3 months including a non-parole period of 6 years and 3 months. A plea of guilty to manslaughter had not been accepted by the Crown but resulted in Price J giving a discount of 10% on account of it. His Honour's starting point was 10 years and 4 months.

The offender's actions involved striking his wife on the head 7 times with a large hammer and with a very large amount of force, a degree of violence his Honour characterised as extreme and administered with an intent to kill. There had been a variety of problems in the offender's marriage although his Honour found that the degree of provocation offered to the offender over the years was not of a high order. There was a final straw when, in the course of an argument, the deceased held a knife at the offender's throat. His Honour also found that there was some impairment in the offender's capacity to understand events and to control himself arising from an abnormality of mind due to dementia and depression, but the impairment was not substantial.

At the time of offending the offender was 62. He had no prior convictions. Price J was satisfied that he was remorseful and was unlikely to re-offend. Special circumstances were found in part because of the potential for the offender's mental state to deteriorate in prison.

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Decision last updated: 09 May 2012