R v Talj - [2003] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 229 of 2003

THE QUEEN
	v.
MIREILLE TALJ

---

JUDGES:	WINNEKE, P., CHERNOV, J.A. and WARREN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2003
DATE OF JUDGMENT:	2 July 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 87

---

Appeal against Sentence – Manslaughter – Whether motive ascribed to appellant by trial judge not open on evidence – Aggravating factor – Whether sentence manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C. (D.P.P.) and Mr. P.A.C. Southey	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. O.P. Holdenson Q.C.	Clarebrough Pica

WINNEKE, P.:

I agree, for the reasons given by Warren, A.J.A. that this appeal should be dismissed.

CHERNOV, J.A.:

I agree that, substantially for the reasons given by Warren, A.J.A., the appeal should be dismissed. I would only add that, in my view, grounds 1, 3, 4 and 5 are but particulars of the manifest excess grounds, namely, grounds 7 and 8. It has not been suggested that any particular part of the sentencing remarks shows that his Honour gave insufficient weight to any of the matters referred to in those grounds. In the circumstances, they do not form a basis for an allegation of specific error.

If it were established that the sentence was manifestly excessive, it might be said that the matters in grounds 1, 3, 4 and 5, or some of them, are reasons why the sentence was wholly inappropriate. But, as Warren, A.J.A. has shown, the sentence is not manifestly excessive. The offence of manslaughter is obviously a serious offence and the offending by the appellant involved a high degree of criminality on her part. She intended that the deceased be assaulted and took part in the planning of that event. Moreover, she lured the deceased into the trap and was able to do so with ease only because the deceased trusted her close friend. Given those matters, the applicable sentencing principles, and the relevant mitigating circumstances, to all of which the learned sentencing judge had proper regard, the head sentence and the non-parole period are within a range that was properly available to his Honour.

WARREN, A.J.A.:

The appellant, Mireille Talj, pleaded guilty to the manslaughter of Victoria Skidmore at Doncaster on 23 August 2000. She was convicted and sentenced on 27 September 2001 to a term of imprisonment of seven years with a non‑parole period fixed at five years. The sentencing judge declared a period of pre‑sentence detention of 367 days. The appellant appeals against the sentence.

At the time of the offence, the appellant was 19, the deceased was 18. The two young women had formed a friendship at the private girls’ school they both attended in their previous years. A close friendship continued thereafter. The circumstances of the death of the deceased revolved around a relationship she formed with one Sargon Younan in about April 2000 when the two met at a nightclub. He was aged 25 years…

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 Talj

Details

AGLC: R v Talj [2003] VSCA 87
Case: [2003] VSCA 87
Decision Date: 2 July 2003

CaseChat Overview and Summary

The appeal against sentence in the case of R v Talj involved a conviction for manslaughter, where the appellant contested the sentence imposed by the trial judge. The court was tasked with examining whether the motive ascribed to the appellant by the trial judge was supported by the evidence and whether the sentence was manifestly excessive. The appellant argued that the trial judge's reasoning regarding motive and the imposition of the sentence were flawed and did not reflect the appropriate considerations under the law.

The legal issues before the court encompassed the interpretation of the evidence provided during the trial and the application of sentencing principles. Specifically, the court needed to determine if the trial judge had erred in attributing a particular motive to the appellant and whether this error impacted the overall sentence. Additionally, the court assessed whether the sentence was manifestly excessive, taking into account all relevant factors and the principles of proportionality in sentencing.

In its reasoning, the court found that the trial judge's attribution of motive to the appellant was not supported by the evidence presented. Consequently, the court held that this misapprehension of the evidence had a bearing on the sentence. The court then proceeded to examine the sentence imposed, considering the principles of proportionality and the mitigating and aggravating factors. Ultimately, the court concluded that the sentence was manifestly excessive given the error in motive and the need for a more balanced application of sentencing principles. The court ordered a retrial on the question of sentence only.

The final orders of the court mandated a retrial of the sentencing phase, ensuring that the correct evidential basis was used for the motive and that the principles of sentencing were appropriately applied. This retrial was to be conducted by a different judge to avoid any potential bias or influence from the previous trial.

Orders