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Goundar v R

Goundar v R

Case [2012] NSWCCA 87 9 May 2012

Criminal Liability

Sentencing

Criminal Law

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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

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,…

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.

Continue reading Goundar v R

Details

AGLC: Goundar v R [2012] NSWCCA 87
Case: [2012] NSWCCA 87
Decision Date: 09 May 2012

CaseChat Overview and Summary

The case of Goundar v R involved the appellant, who was convicted of murder and sentenced to life imprisonment. The appeal centred around the sentencing process, particularly in relation to the consideration of provocation and the seriousness of the crime. The High Court of Australia was tasked with examining the trial judge's approach in determining the appropriate sentence.

The central legal issues before the court were whether the trial judge had erred in the way they assessed the impact of provocation on the severity of the sentence and whether the use of statistics and past cases in sentencing was appropriate and within acceptable limits. The court needed to determine if the trial judge's reliance on these factors constituted a significant error that warranted a new sentencing hearing.

The court concluded that while the trial judge had considered relevant factors, there was an error in the way the seriousness of the crime was assessed. The judge had not properly distinguished between the objective seriousness of the crime and the subjective response of the accused. Furthermore, the court found that the use of statistics and past cases, while useful, should not be determinative and should be balanced with the specific circumstances of the case. The court held that these errors were significant enough to warrant a new sentencing hearing. The appeal was allowed, and the case was remitted to the trial court for reconsideration of the sentence.

Orders