R v Tjami - [2000] SASC 311

R v TJAMI
[2000] SASC 311

Court of Criminal Appeal: Prior, Duggan and Nyland JJ

PRIOR J: I agree with the reasons given by Justice Nyland. The appeal should be allowed, the sentence imposed set aside and that proposed by Her Honour substituted.
DUGGAN J: I agree that this appeal should be allowed for the reasons given by Justice Nyland and that the sentence proposed by her should be substituted for that imposed by the learned sentencing judge.
NYLAND J: This is an appeal against sentence. The appellant was charged on information with the murder of his wife, Carol Yaltjanki. Upon his arraignment, he pleaded not guilty to the crime of murder but guilty to manslaughter. That plea was accepted by the Crown. On 16 November 1999 he was sentenced in the Supreme Court to imprisonment for a period of 12 years with a non-parole period of ten years. The appellant now appeals against that sentence on the ground that, in all of the circumstances, it was manifestly excessive.
The appellant and most of the witnesses were intoxicated at the time of the commission of this offence, as a result of which the circumstances relating thereto are not entirely clear. The learned sentencing judge, however, described these events in the following way:
“You were in prison for three weeks in December and early January, and so was Carol. She was released before you and a bus ticket was arranged for her to go back to Blue Hills. The idea was that you would follow as soon as you were released. Indeed, you were waiting for the bus to go home when you found out that Carol was still here in Port Augusta. She was drinking and, you suspected, had taken up with another man. You found her and spent a week trying to make her go home. She refused and hid from you. You found her at Davenport or in the fringe dwellers camp there. She was drunk. You were drunk. It was night. You had a row. You hit her. She defied you. You kept hitting her.”
The judge went on to describe the injuries inflicted upon the victim which included 18 lacerations to the scalp inflicted by a piece of metal chair leg, cut and bruised limbs and the loss of three teeth. The metal chair leg had been jammed against her body at least nine times, causing bruising. There were 14 slash marks to various parts of her body caused by a piece of broken glass and the appellant had violated her in the anus with a stick.
The judge, understandably, therefore described this as a “most horrible cruel crime ... committed out of rage at her defiance and out of your jealousy”. In the course of sentencing submissions, the Crown prosecutor submitted that this was a crime of manslaughter at the upper end of the range of seriousness, and counsel appearing for the appellant did not dispute that was the case. In 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 Tjami

Details

AGLC: R v Tjami [2000] SASC 311
Case: [2000] SASC 311
Decision Date: 13 September 2000

CaseChat Overview and Summary

In the case of R v Tjami, the appellant was appealing against a sentence of imprisonment imposed for the manslaughter of his wife, Carol Yaltjanki. The appellant had pleaded guilty to the charge of manslaughter. The primary issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive. The Court of Criminal Appeal considered the sentencing principles applicable to Aboriginal offenders, particularly the propositions set out by Wood J in R v Fernando, and the mitigating factors relevant to the appellant's personal circumstances. The appellant, a tribal Aborigine, had limited education, spoke little English, and had grown up in a traditional Aboriginal setting. The Court found that the sentencing judge had failed to adequately consider these mitigating factors and the impact of imprisonment on the appellant. The Court concluded that the sentence imposed was manifestly excessive and allowed the appeal, substituting a sentence of 10 years imprisonment with a non-parole period of six years.

The Court of Criminal Appeal, consisting of Prior, Duggan, and Nyland JJ, unanimously allowed the appeal against sentence. They found that the sentencing judge had erred in not giving sufficient weight to the appellant's personal circumstances and the effect of imprisonment on him as a tribal Aborigine. The Court considered the principles set out in R v Fernando, which highlight the need for sentencing judges to be sensitive to the socio-economic and cultural circumstances of Aboriginal offenders, particularly when considering the impact of imprisonment. The Court also noted the significant role that alcohol abuse played in the commission of the offence. Given the appellant's background and the harsh impact of imprisonment on him, the Court determined that the sentence imposed was manifestly excessive. The Court substituted a sentence of 10 years imprisonment with a non-parole period of six years, to commence from 15 November 1999.

Orders