R v Goundar - [2013] NZHC 1097

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-000131 [2013] NZHC 1097

THE QUEEN

v

BENJAMIN NILESH GOUNDAR AND
ASHUMENDRA ROHIT PRASAD

Hearing: 9 May 2013

Counsel: L Dunn for the Crown
M H McIvor for the Prisoner, Goundar
B J Hesketh for the Prisoner, Prasad

Judgment: 9 May 2013

SENTENCE OF DUFFY J

Counsel: M H McIvor P O Box 78 Waikato Mail Centre Hamilton 3240 for the Prisoner, Goundar
B J Hesketh P O Box 19328 Hamilton 3244 for the Prisoner, Prasad

Solicitors: Almao Douch P O Box 19173 (DX GP20023) Hamilton 3244 for the Crown

R v GOUNDAR and PRASAD HC HAM CRI-2012-019-000131 [9 May 2013]

[1] Messrs Goundar and Prasad, you may remain seated until I come to the time where I formally pass sentence on you.

[2] Following trial by jury, you were each found guilty of the following charges:

(i)On the charge of male assaults female, being count 1 in the indictment, in relation to the complainant, L, Mr Prasad, you were found guilty as a principal; and Mr Goundar, you were found guilty as a party to this offence;

(ii)In relation to the victim, A, you were each found guilty as principals of the charge of abduction for the purposes of sexual connection on 29 December 2011 (count 2 in the indictment).

[3] In terms of the order in which the sexual offences that followed the abduction occurred, you were each found guilty as follows:

(i)Mr Goundar, you were found guilty as a principal of the offence of sexual violation by unlawful sexual connection, being oral sex committed by you in the back of the motor vehicle (count 3 in the indictment); and Mr Prasad, you were found guilty as a party to this offence;

(ii)Mr Prasad, you were found guilty as a principal to sexual violation by rape in the back of the motor vehicle (count 4 in the indictment); Mr Goundar, you were found guilty as a party to this offence;

(iii)Mr Goundar, you were found guilty as a principal to sexual violation by unlawful sexual connection, being oral sex committed by you while you were seated on the bonnet of the car, and the complainant was lying across the bonnet; Mr Prasad, you were found guilty as a party to that unlawful

sexual connection by Mr Goundar (that is count 7 in the indictment in relation to the two of you);

(iv)Mr Goundar, you were also found guilty of threatening to kill (count 8 in the indictment). That charge was not laid against you, Mr Prasad;

(v)Mr Goundar, you were found guilty of sexual violation by unlawful sexual connection, being oral sex committed by you at the Hamilton East carpark (count 9 in the indictment); Mr Prasad, you were found guilty as a party to that sexual violation by Mr Goundar at the Hamilton East carpark; and

(vi)Mr Goundar, you…

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 [2013] NZHC 1097
Case: [2013] NZHC 1097
Decision Date: 9 May 2013

CaseChat Overview and Summary

In the case of R v Goundar, the High Court of New Zealand considered the sentencing of two men, Benjamin Nilesh Goundar and Ashumeendra Rohit Prasad, who were convicted of multiple sexual offences against two teenage girls. The court heard that the defendants abducted the victims, restrained them, and subjected them to prolonged and brutal sexual assaults over a period of four hours. The court found that the offenders had embarked on a joint unlawful enterprise to commit the crimes of abduction and sexual violation. The court considered the purposes and principles of sentencing, including holding the offenders accountable for the harm done to the victims and the community, and denouncing their conduct. The court also considered the aggravating and mitigating factors of the offending, as well as the personal circumstances of the offenders. Based on the Court of Appeal's decision in R v AM, the court determined that the offending fell within band four of the tariff guidelines, which attract a sentence of between 16 and 20 years' imprisonment. The court sentenced Goundar to 16 years' imprisonment for the sexual violation offences, with a minimum period of imprisonment of six and a half years, and 12 years' imprisonment for the abduction offence. Prasad was sentenced to 15 years' imprisonment for the sexual violation offences, with a minimum period of imprisonment of five and a half years, and 12 years' imprisonment for the abduction offence. Both defendants were also sentenced to one year's imprisonment for the offence of male assaults female. All sentences were to be served concurrently.

The court's decision highlights the importance of considering the purposes and principles of sentencing in determining an appropriate sentence for serious sexual offences. The court also emphasised the need to hold offenders accountable for their actions and to protect the community from further harm. The court's imposition of minimum periods of imprisonment reflects the gravity of the offending and the need to ensure that the offenders serve a sufficient period of imprisonment to achieve the purposes of sentencing.

Orders