R v Goundar

[2010] NSWSC 1170

CITATION:	Regina v Munesh Goundar [2010] NSWSC 1170
HEARING DATE(S):	31/5/10 1/6/10-3/6/10 7/6/10-11/6/10 15/6/10 17/9/10
JUDGMENT DATE :	5 November 2010
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	Imprisonment with a non parole period of 8 years to date from 8 March 2007 and expire on 7 March 2015, with a total sentence of 10 years 8 months to date from 8 March 2007 and to expire on 7 November 2017. Eligible for release on parole on 7 March 2015.
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter verdict after trial for murder - provocation - confrontation planned without intention of gbh - knife used when provoked - objectively serious - some evidence mental illness - intoxicated - aggravated by disposal of body.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	R v Hill (1981) 3 A Crim R 397 R v Chhay (1994) 72 A Crim R 1 R v Morabito (1992) 62 A Crim R 82 R v Alexander (1994) 78 A Crim R 141 R v Khan (1996) 86 A Crim R 552 Knight v Regina [2006] NSWCCA 292; (2006) 164 A Crim R 126 R v Previtera (1997) 94 A Crim R 76 R v Green [1999] NSWCCA 97 R v Ibrahim [2009] NSWCCA 15
PARTIES:	Regina Munesh Pravin Goundar
FILE NUMBER(S):	SC 2007/16665
COUNSEL:	P E Barrett (Crown) W C Terracini SC / A Miller (Acc)
SOLICITORS:	K Buck - DPP (Crown) Accused unrepresented

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

KIRBY J

Friday 5 November 2010

2007/16665 REGINA v Munesh Pravin GOUNDAR

JUDGMENT ON SENTENCE

1 KIRBY J: Some time after 3.00 pm on Sunday 11 February 2007, Rajnesh Singh (“the deceased”) left home in his truck, telling his mother that he would purchase milk, which the family needed. When he failed to return that evening, his family began a search. When he could not be found, his absence was reported to the police. The family hired a helicopter in an endeavour to locate his truck, but without success. His truck was eventually found in Liverpool on 20 February 2007 by his brother. There was a carton of milk on the front seat.

2 In March 2007, in circumstances that I will shortly describe, Munesh Goundar (“the offender”) was arrested in New Zealand. He was charged with the murder of Rajnesh Singh and extradited to New South Wales. On 31 May 2010, he was arraigned before a jury. He pleaded not guilty to murder, but guilty of manslaughter. The Crown refused to accept that plea. The trial proceeded. There was really only one issue, that is, 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.

3 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.

Background.

4 Munesh Goundar was born in Fiji in September 1979. He is the second of three children of a Fijian Indian family. In 2003, his family made arrangements with the parents of a Fijian Indian family living in Sydney, that he should marry their daughter, Diana. In January 2003, Mr Goundar and Diana were introduced and formally married. On 19 July 2003, a wedding ceremony took place in accordance with Indian cultural traditions. After several months, Munesh Goundar came to Sydney.

5 Mr Goundar and his wife Diana lived for a time with her parents in Sydney. Before long, they purchased their own home in Plukavec Circuit, Prestons. In 2005 or thereabouts, Rajnesh Singh and his family rented the home next door. Munesh Goundar and Rajnesh Singh became friends. Indeed, Diana Goundar described Rajnesh Singh as her husband’s “best friend”. Rajnesh Singh was single, having recently divorced his wife.

6 By 2006, the marriage between Munesh and Diana Goundar had soured. Mr Goundar gave evidence that, by that time, he and his wife rarely slept together. They were always arguing. Alcohol, I infer, had already become a problem. On 13 July 2004, Mr Goundar had been charged with driving with low range prescribed content of alcohol. He was disqualified from driving for 3 months and fined. He was charged again on 1 April 2005 as a special category driver who had violated the PCA conditions. He was again fined and disqualified for 6 months. By September 2006, according to his brother Mukesh Goundar, he was drinking heavily.

7 On 15 October 2006, the police were called to Plukavec Circuit 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 towards the cost of obtaining a divorce (Ex J).

The Australia Day incident.

10 In January 2007 Diana Goundar formed a relationship with Rajnesh Singh. She also loaned him money. She gave evidence that it did not become a sexual relationship until February 2007. However, I think it likely that it was already a sexual relationship in January, before the incident which I am about to describe.

11 On 26 January 2007, Diana Goundar went to Plukavec Circuit. The Singh family was in the process of moving out of their home next door. At about 5.30 pm that day, Rajnesh Singh telephoned Diana Goundar. He made arrangements to meet her at the house. Diana Goundar said that the purpose of the meeting was to collect a DVD and pick up mail. According to her evidence, they spent ten or fifteen minutes together before leaving the house.

12 Mr Goundar went to the house at about the same time. He did so, notwithstanding the terms of the Apprehended Violence Order, because he wanted to see his wife. He did not telephone her beforehand. When he arrived, he saw a blue car, which he did not recognise, parked in the driveway. It was not his wife’s car. The house was shut up and the blinds were drawn. Not long after his arrival, he saw his wife and Rajnesh Singh emerge from the house. His wife was tying up her hair. When they saw him, they were both startled. To use Mr Goundar’s words, they “freaked out”.

13 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. According to Mr Goundar, his wife Diana said this: (T 279)

“What are you doing here? You know by law you’re not supposed to be here.”

14 Mr Goundar withdrew and made contact with his brother Mukesh. Together they went to the new house of the Singh family. Rajnesh Singh’s brother came outside. Munesh Goundar and his brother had parked their car on the other side of the road. They were calling out. They appeared to be upset and angry. They demanded to see Rajnesh. Rajnesh was inside, but his brother thought it unwise that he should come out. According to Mr Goundar, Rajnesh Singh’s mother came out. She asked Mr Goundar to forgive her son for what he had done (T 323). It was then that Mr Goundar realised that other members of the community were aware of his wife’s affair. Rajnesh Singh’s father, meanwhile, threatened to call the police. Mr Goundar and his brother withdrew.

15 Mr Goundar continued to drink heavily. On 28 January 2007, he began vomiting blood. He had not been eating properly and had lost a great deal of weight. His brother took him to the Liverpool Hospital. The notes of the hospital record the following history: (Ex 1)

“ ... the ... patient who presented with a 2 day history of burning epigastric pain and a 1 day history of coffee-ground vomiting. He also complained of nausea and retching ... He admits to drinking heavily recently due to emotional difficulties.”

16 He was described as having a “low mood”. Various medications were prescribed, including sleeping tablets. Mr Goundar was discharged and returned to live with his brother. He continued drinking heavily, taking the prescribed medication with alcohol. He regularly slept in his car.

17 On 1 February 2007, Mr Goundar again saw his solicitor about divorcing his wife. With the assistance of his brother, he paid a further $800 on account of costs. On 6 February 2007, he paid $485, being the filing fees for a divorce petition (Ex J).

The incident.

18 On 10 February 2007, Diana Goundar attended a family party. She wore traditional Indian dress. She asked her parents to drop her off at Plukavec Circuit, where she intended to stay the night and pick up the clothing she required. She arrived at the premises at about 11.30 pm.

19 Mrs Goundar, by this time, had been served with the divorce petition. 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 (Ex E). 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 (Ex E). The telephone records also reveal that, during the night, at about 4.20 am, Diana Goundar telephoned 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, he 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 circumstances which led to the attack. Neither was a satisfactory witness.

24 Mrs Diana Goundar said that she was directed by her husband to telephone Rajnesh Singh and invite him to her home. She was told not to disclose his presence at the home. Her husband said that he wished to speak to Rajnesh Singh. She recognised that he was drunk. However, she did not believe there would be a confrontation. She therefore did as her husband had directed. She spoke to Rajnesh Singh. He agreed to come to the house. Her husband then went upstairs to the master bedroom. Rajnesh Singh duly arrived at about 3.40 pm. He and Diana Goundar spoke for a time before he suggested that they go upstairs. They had previously made love in the master bedroom. Together they ascended the stairs and entered the master bedroom. As they entered, Diana Goundar said that she saw her husband hiding in the cupboard. He emerged with a knife and immediately attacked Rajnesh Singh, repeatedly stabbing him.

25 The account given by the offender was very different. He did not direct his wife to invite Rajnesh Singh to their home. Indeed, he was not aware of Rajnesh Singh’s presence in their home until his wife appeared in the doorway to the master bedroom with him. When he did appear, Rajnesh Singh’s hands were around his wife’s waist. As they entered the room, Diana Goundar said to Rajnesh Singh: “Tell Munesh that you raped me.” He then lost his self control. He began punching the victim and swearing. Diana Goundar was close by. She had a knife, which he grabbed from her. He then began stabbing the victim. The fight moved to the adjacent bathroom and toilet, where Rajnesh Singh ultimately died.

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 these 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 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.

31 After Rajnesh arrived, he parked his truck outside. She said they sat opposite, each talking for a time, about her impending divorce. Whilst they were talking, an incident occurred, which Mrs Goundar described in these terms: (T 135)

“Q. What happened then?
A. He heard a few noises; they were coming from upstairs, so (he) got off couch and he looked out the window and he asked me if anybody else here. I said, ‘No. It might be the neighbours watering the garden.’ So he walked into the kitchen and then he looked around and came back and he sat on the couch again.”

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. She gave the following evidence in answer to questions in cross examination: (T 201)

“Q. You certainly knew that if Mr Goundar and Mr Singh were to meet, it wasn't going to be a happy meeting; was it?
A. No.

Q. So why did you agree to go up into the bedroom with Mr Singh?
A. Because he wanted to go upstairs.

Q. Pardon?
A. Because he wanted to go upstairs.

Q. He wanted to go upstairs because he didn't know Mr Goundar was there; did he?
A. No.

Q. But you did?
A. I did.

Q. You knew that Mr Goundar was very, very drunk; didn't you?
A. I did.

Q. You knew that he had expressed feelings of anger towards Mr Singh; also correct?
A. Yep.

Q. And you say that you just had no idea, no idea what on earth might happen if Mr Singh just turns up in the bedroom of the family home with you; you have no idea, have you?
A. No, I don't. “

33 Counsel suggested that it was laughable to say that she had no idea what would happen. Mrs Goundar responded as follows: (T 202)

“A. It's not laughable. I didn't know what he would do.

TERRACINI

Q. I am not suggesting that you knew there would be a fight resulting in death, but I am suggesting that you knew there would be some kind of confrontation, didn't you?
A. No, I didn't.”

34 It is impossible to comprehend Mrs Goundar’s assertion that she did not appreciate that there would be a confrontation.

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 make no finding as to where Munesh Goundar was in the room, although I doubt that he was lying on the bed, as he suggested. I think it improbable that Mrs Goundar made the comment attributed to her by the offender in his evidence, that she had been raped by Rajnesh Singh. 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” (T 137). Rajnesh Singh responded by screaming: “I’m already dead. I’m already dead” (T 137). I reject Mr Goundar’s evidence that the knife was in his wife’s possession, and that he grabbed it from her. I agree with the Crown’s characterisation of that evidence as “fanciful”.

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.

37 Diana Goundar gave evidence that the offender then stomped on the deceased’s head, as he lay on the tiled floor of the bathroom, still alive. Munesh Goundar denied that allegation. On autopsy there was no fracture to the skull, nor evidence of bleeding within the brain. Dr Botterill, who conducted the examination, said that a blunt force injury to the skull does not always result in a skull fracture. Nonetheless, you would expect at least bruising and surface damage to the head. Here the body was so badly decomposed by the time of the autopsy, that it was impossible to say whether there had been such damage. I am therefore unable to be satisfied beyond reasonable doubt that Mr Goundar did stomp on the deceased’s head.

38 However, Rajnesh Singh, while still alive, was put in the bath, presumably because he was bleeding profusely. The bath was then filled. He was moaning and clearly in pain. It is plain that he took some time to die and it would have been an agonizing death.

39 The autopsy revealed multiple stab wounds (Ex G), which were the cause of death. Any one of the wounds may have been fatal. The wounds to the back, inflicted after Rajnesh Singh had been taken to the bathroom/toilet, penetrated the spine. On autopsy, it was apparent that there were defects in the spine, which would have rendered the victim incapable of walking almost immediately. I infer an intention to kill on the part of Mr Goundar.

40 Ultimately Mr Goundar and his wife carried the body of Rajnesh Singh to the offender’s car, where it was put in the boot. The body was then transported to bushland on the outskirts of Sydney. It was removed by Mr Goundar from the boot and carried through bushland to a rock ledge. It was then thrown over the ledge into a crevice below. Diana Goundar, meanwhile, was sitting in the car. Together they drove back to Sydney, where they then went their separate ways.

41 In the cross examination of Diana Goundar at the trial, it was suggested that, before the incident, she knew that Rajnesh Singh had had an affair with another woman within the Indian community whose husband worked for the same employer. Mrs Goundar acknowledged that the woman had told her of the affair six months before. It was further suggested that, before the incident, she knew that this woman was pregnant to Rajnesh Singh. Mrs Goundar denied having that knowledge at that time. She told the police, in the statement made on the day of her arrest, 23 February 2007, that she first learned of the pregnancy on 19 February 2007 in a phone conversation with the woman, that is, more than a week after the incident. I think her account to the police was probably accurate, and that knowledge of the pregnancy is not related to her puzzling conduct on this day.

42 Several days after the incident, Mr Goundar visited his wife at her place of work. She told him the police had contacted her and wished to conduct an interview. Mr Goundar told her not to say anything. On 20 February 2007, Mr Goundar made enquiries with a travel agent at Parramatta about a one way flight to New Zealand. A ticket was issued to him later that day. The address he identified in New Zealand was fictitious. He said nothing to his family about his departure. He abandoned his car in Abercrombie Street, Darlington, and then caught the flight.

43 Mr Goundar was subsequently located in New Zealand by the police and extradited, as I have described.

44 Before considering the objective seriousness of the offence, let me briefly describe the personal circumstances of the offender.

The subjective case.

45 Mr Goundar was educated in Fiji to the age of 16 years. He came from a close knit family. Having obtained his Leaving Certificate, he completed a four year electrical trade certificate and apprenticeship. He then worked in Fiji as an electrical contractor.

46 Having married and come to Australia in 2003, Mr Goundar was employed as an electrician for one year, before establishing himself as an electrical sub-contractor. He upgraded his qualifications by undertaking a TAFE course. He was in regular employment and earned good money.

47 I have made reference to his driving record in the years before the breakdown of the marriage in 2006. That record suggests that, even before 2006, drinking to excess was a problem. It was a problem that significantly increased as the marriage disintegrated. A report from Dr Martin, a forensic psychiatrist, suggests that at the time of the incident, Mr Goundar was experiencing an adjustment disorder with depressed mood. He was plainly drinking to excess. When seen by Dr Martin in May 2010, he was reported as no longer depressed. Indeed, Dr Martin described him as being optimistic. There was nothing in his history which suggested ongoing psychiatric problems.

48 There are, however, a number of outstanding charges, namely:

First, a charge that on 12 January 2007 he assaulted his wife occasioning actual bodily harm;
Secondly, that at the same day he knowingly contravened the restrictions of the apprehended violence order;
Thirdly, that, having been given bail and in breach of the Bail Act 1978, he failed to appear.

49 These charges are not likely to be heard by the Local Court until February 2011. Counsel for the Crown and the offender each submitted that the sentence in respect of manslaughter should not be postponed until these charges have been determined. I accept that, in the circumstances, I should proceed to sentence.

50 Mr Goundar was taken into custody, for the purposes of extradition, on the 8 March 2007. His sentence should begin from that date. Whilst in gaol he has behaved well. In submissions on his behalf, it was said that he had recently enrolled in a programme designed to address his problems with alcohol. He has no criminal convictions, apart from the driving offences to which I have referred, although as I have said, there are charges outstanding. He has the support of his family. I believe it is unlikely that he will reoffend. He has good prospects of rehabilitation.

51 Mr Goundar was interviewed by the Probation and Parole Service in September 2010, that is several months after his conviction. Whilst he acknowledged that his actions in stabbing Rajnesh Singh amounted to “a terrible thing” and his disposal of the body was “not right, not nice”, he endeavoured to shift the blame. The Probation and Parole report included the following: (report 2.9.10, p 4)

“Mr Goundar largely blamed his wife for creating the circumstances which led to the offence. For example he asserted ‘that bitch knew’ that he was upstairs in bed when she brought the victim into the bedroom. He also blamed his use of alcohol and prescription drugs and believed that he had taken his marriage too seriously. ...”

52 For the reasons I have stated, I have no doubt that Mr Goundar knew of Rajnesh Singh’s impending arrival and had planned to confront him. He plainly has not accepted responsibility for his actions.

53 It was submitted that he was remorseful. Attention was drawn to the following passage, again taken from the Probation and Parole report: (report 2.9.10, p 4)

“Mr Goundar displayed a reasonable understanding of the concept of victim empathy. He identified that the victim’s mother has ‘suffered the most’ and acknowledged that she may grieve for her son for the rest of her life.”

54 However, the failure of Mr Goundar to accept responsibility for his actions, and his complicity with Diana Goundar in the ambush of Rajnesh Singh, bears upon the depth of his remorse. Whilst he may recognise and regret the sorrow of the victim’s mother, I remain unconvinced that he is truly remorseful for the death of Rajnesh Singh. The plea of guilty to manslaughter is some evidence of remorse. However, in the circumstances, it is slight evidence, given the strength of the Crown case. On balance, I think there is little remorse in respect of the victim himself.

55 Mr Goundar’s plea of guilty was first foreshadowed by his lawyers in the course of the committal proceedings. The committal was conducted upon the basis that he had stabbed the victim, but had been provoked. A formal offer to plead guilty to manslaughter was made shortly after Mr Goundar had been committed for trial. His plea of guilty to manslaughter was repeated after he had been arraigned in the course of his trial for murder. In the circumstances, a discount of 17½ % is appropriate.

The sentence.

56 Here, I am called upon to sentence Mr Goundar for the crime of manslaughter. The maximum penalty for manslaughter is 25 years imprisonment. It is plainly a serious crime. It is timely to repeat the words of Street CJ in R v Hill (1981) 3 A Crim R 397 where he said this: (at 402)

“The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 (NSW) and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution.”

57 Here, the crime was committed in circumstances of provocation. The reduction of a charge of murder to manslaughter, by reason of provocation, is said to be a concession to human frailty (R v Chhay (1994) 72 A Crim R 1 at 11). Nonetheless, in R v Morabito (1992) 62 A Crim R 82, Wood J said this in the context of such a crime: (at 85)

“ ... Manslaughter, even though committed under provocation, is recognised as a major crime and is one which calls for a correspondingly grave measure of criminal justice being meted out to the guilty party.”

58 A number of factors have been identified as relevant to the moral culpability of the offender. They include the following: (R v Alexander (1994) 78 A Crim R 141 at 144)

“(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;
(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and
(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.”

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.

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.

67 Counsel for Mr Goundar acknowledged that there were a number of matters of aggravation. First, a knife had been used in the course of the attack (s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999) (“the Act”). Secondly, the offence had been committed in company, by reason of the complicity between the offender and Diana Goundar (Subs p 8). Thirdly, the offence was committed at a time when Mr Goundar was on bail (s 21A(2)(j) of the Act).

68 The Crown drew attention to a fourth matter, that is the circumstances in which the offender, in company with his wife, dumped the victim’s body in bushland, in an effort to conceal their crime. In Knight v Regina [2006] NSWCCA 292; (2006) 164 A Crim R 126, McClellan CJ at CL said this: (at [28])

“The applicant submitted that her mutilation of the deceased’s body following his death was not relevant to the objective seriousness of the offence. In my opinion this submission must be rejected. As this Court said in R v Yeo (2002) NSWSC 315 at [36] the offender’s treatment of the deceased’s body can be taken into account in assessing the seriousness of the offence (see also R v Garforth unreported, NSWCCA, 23 May 1994; DPP v England (1997) 186 A Crim R 99).”

69 I accept that the dumping of the body, in these circumstances, was a further matter of aggravation.

70 The crime committed by Mr Goundar was, in my view, well above the midrange. It was a serious case of manslaughter by provocation.

71 The Crown tendered a Victim Impact Statement from the brother of the deceased. The statement was written on behalf of the family. He was a much loved family member. I have described already the intensity of the search conducted once he went missing. The statement described the devastation to the family caused by the loss of Rajnesh Singh and the circumstances of his death. Their anguish continues unabated to this day. In the words of his brother, it “remains a scar on him and his family”. The Court extends its condolences in respect of the pain caused by this brutal and senseless crime. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at [85].

72 Each case of manslaughter is, to some extent, unique. Reference to other cases, where offenders have been sentenced in circumstances of provocation, may not be helpful (R v Green [1999] NSWCCA 97). Counsel for the offender provided statistics from the Judicial Commission, in respect of persons sentenced for manslaughter. It was acknowledged, however, that such statistics were of limited assistance (R v Ibrahim [2009] NSWCCA 15).

73 Counsel for Mr Goundar submitted that a finding should be made of special circumstances. Whilst there are circumstances which would justify such a finding, inevitably the sentence I must impose will be significant. Applying the statutory formula, I believe that the non parole period is appropriate.

74 In my view, the starting point should be 13 years. Applying a discount of 17½% for the plea of guilty and the statutory formula, the non parole period (with rounding) becomes 8 years. The total sentence is 10 years 8 months. The sentence should be back dated to the date of Mr Goundar’s arrest in New Zealand on 8 March 2007.

75 Munesh Pravin GOUNDAR, I sentence you to imprisonment with a non parole period of 8 years to date from 8 March 2007 and expire on 7 March 2015, with a total sentence of 10 years 8 months to date from 8 March 2007 and to expire on 7 November 2017. You will be eligible for release on parole on 7 March 2015.

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