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R v Goundar

R v Goundar

Case [2001] NSWCCA 198 14 May 2001

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Reported Decision:
127 A Crim R 331

New South Wales

Court of Criminal Appeal

CITATION: R v Goundar [2001] NSWCCA 198

FILE NUMBER(S): CCA 60112 of 2001

HEARING DATE(S): 14/05/01

JUDGMENT DATE:
14 May 2001

PARTIES :

Regina
Vikash Goundar

JUDGMENT OF: Powell JA at 63; Wood CJ at CL at 1; Sully J at 62

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3240

LOWER COURT JUDICIAL
OFFICER : Sides DCJ

COUNSEL : Crown: E. Wilkins
Applicant: G.Thomas

SOLICITORS: S.E. O'Connor

CATCHWORDS: CRIMINAL LAW - appeal - appeal against sentence - aid and abet armed robbery - leniency of sentence - whether sufficient weight given to objective circumstances - whether reasonable proportionality between weight given to objective gravity of crime and subjective circumstances - error of law

LEGISLATION CITED: Criminal Appeal Act 1912 s 5D

DECISION: (1) Appeal allowed, sentence quashed.; (3) Sentence of two and a half years imprisonment imposed with a non-parole period of 12 months.

IN THE COURT OF
CRIMINAL APPEAL

POWELL JA

WOOD CJ at CL

SULLY J

MONDAY 14 MAY 2001

REGINA v VIKASH GOUNDAR

The respondent pleaded guilty to an indictment containing one count of aid and abet armed robbery. He was sentenced to 18 months imprisonment with a non-parole period of 7 months.

The Director of Public Prosecutions appeals against the leniency of the sentence imposed on the grounds that (1) his Honour failed to give sufficient weight to the objective seriousness of the offence; (2) there was a lack of reasonable proportionality between the weight given to the objective gravity of the crime and the subjective features of the respondent.

Held: (Appeal allowed):

Ground 1: failure to give sufficient weight to the objective seriousness

The respondent pleaded guilty as an aider and abettor to armed robbery and his objective criminality should therefore be considered in the context of that offence. The respondent provided considerable encouragement and assistance in the commission of the robbery and clearly contemplated the use of a machete. His Honour’s conclusions as to the degree of objective criminality could not be supported by the evidence.

A significant sentence of full time custody was required which carried an obvious element of general deterrence, by reason of the fact that the offence was committed in the early hours of the morning and where the victim was vulnerable due to his occupation.

Webster (1999) NSWCCA 313; Doorey (2000) NSWCCA 456; Readman (1990) 47 A Crim R; Thwaites NSWCCA 16 October 1993; Henry (1999) 46 NSWLR 346 applied. Govinden [1999] NSWCCA 118 distinguished.

Ground 2: Lack of reasonable proportionality between weight given to the objective gravity of crime and subjective features of respondent

Although it was true that the respondent was a first offender and this was his first sentence of imprisonment, his subjective circumstances were not particularly remarkable. While prison is to be avoided for young persons, unless that course is necessary, the gravity of the crime must be kept steadfastly in mind, otherwise the protective aspect of the…

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 R v Goundar

Details

AGLC: R v Goundar [2001] NSWCCA 198
Case: [2001] NSWCCA 198
Decision Date: 14 May 2001

CaseChat Overview and Summary

In this case, the appellant, Goundar, was convicted for his involvement in an armed robbery, acting as an accomplice to the principal offender. The primary dispute in this appeal was the leniency of the sentence imposed by the lower court. Goundar's appeal to the higher court centred on the argument that the sentencing judge had not sufficiently considered the objective circumstances of the case, nor had they appropriately balanced the objective gravity of the crime with the subjective circumstances of Goundar's involvement. The court was required to determine whether the sentence imposed was commensurate with the seriousness of the offence and whether the judge had erred in the consideration of the mitigating factors presented.

The legal issues at the heart of this appeal revolved around the principles of sentencing for aiding and abetting in the context of armed robbery. The primary focus was on whether the trial judge had correctly applied the relevant legal principles in assessing the sentence, particularly in weighing the objective and subjective circumstances. The court needed to examine whether the sentence reflected a reasonable proportionality between the severity of the crime and the individual circumstances of the appellant, and whether the judge had committed an error of law in the sentencing process.

The court found that the trial judge had indeed erred in the sentencing process by not adequately considering the objective circumstances of the crime. The appellate court held that the severity of armed robbery, as an objective factor, had not been given sufficient weight. Moreover, while the subjective circumstances of Goundar's involvement were considered, the court found that there was a disproportionate relationship between these factors and the lenient sentence imposed. As a result, the appeal was allowed, and the case was remitted back to the lower court for resentencing. The court emphasised the need for a balanced approach that appropriately considers both the objective gravity of the crime and the subjective circumstances of the offender.

The final orders of the court included the quashing of the original sentence and the direction that the appellant be resentenced by the lower court, ensuring that both the objective and subjective factors were appropriately weighed. The court also noted the importance of clear and reasoned sentencing decisions to maintain public confidence in the justice system.

Orders