R v Tuigamala - [2004] NSWSC 1254

CITATION: R v Tuigamala [2004] NSWSC 1254

HEARING DATE(S): 1/12/04 - 8/12/04, 17/12/04

JUDGMENT DATE:
17 December 2004

JUDGMENT OF: Wood CJatCL at 1

DECISION: Non-parole period of 20 years to date from 7 September 2003. A balance of term of six years. The overall sentence is one of imprisonment for 26 years to date from 7 September 2003, with a non-parole period 20 years to date from 7 September 2003 and to expire on 6 September 2023.

CATCHWORDS: Criminal law - sentencing - murder - plea of not guilty - offence occurring in hotel - issues pertaining to intention to cause grievous bodily harm and provocation - subjective circumstances - s 3A, s 21A, s 44, Division 1A of Part 4 Crimes (Sentencing Procedure) Act 1999.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A, s 44, Part 4 Division 1A

CASES CITED: R v Berg [2004] NSWCCA 300
R v Fidow [2004] NSWCCA 172
R v Previtera (1997) 94 A Crim R 76
R v Simpson (2001) 53 NSWLR 704
R v Way [2004] NSWCCA 131

PARTIES :
Regina
David TUIGAMALA

FILE NUMBER(S): SC 2004/37

COUNSEL: L Wells (Crown)
R Hoenig (Defence)

SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Defence)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Friday 17 December 2004

2004/37 Regina v David TUIGAMALA

SENTENCE

1 HIS HONOUR: The prisoner David Tuigamala was convicted after trial of the murder of Barry John Alexander. He now appears for sentence.

FACTS:

2 The offence occurred at about 5am on 6 December 2003 at the Club Hotel, Campbelltown, where the prisoner and some associates were drinking. He had earlier attended another hotel but, on his account, while he had been drinking beer and bourbon and Coke, he was not overly affected by alcohol. On his own estimate, he placed himself at 5 on a scale of 1 to 10 of intoxication.

3 The deceased, who was also drinking at the hotel, was, however, very much affected by alcohol, as was evidenced by his blood alcohol concentration of 0.285 grams of alcohol per 100 ml of blood, ascertained following the post-mortem examination.

4 He had been drinking with friends for about nine hours or so at various establishments, including Sweeneys, The City Hotel and the Club Hotel.

5 The offence occurred when the deceased walked from the toilet area of the hotel toward the table where the prisoner was sitting with some Islander friends. As he approached their table, some words were spoken which led to the prisoner striking the deceased once to the face with a heavy left hook. It landed with sufficient force to knock the deceased, who was a large 39 year old man, 176 centimetres tall and weighing 116 kgs, to the ground knocking him out.

6 Hotel security staff arrived at the scene and instructed the prisoner to move away. They lifted the deceased to a sitting position, where he sat,…

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 Tuigamala

Details

AGLC: R v Tuigamala [2004] NSWSC 1254
Case: [2004] NSWSC 1254
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the case of R v Tuigamala, the appellant faced a serious criminal charge following an incident that took place in a hotel. The prosecution alleged that the appellant had committed murder, while the defence maintained a plea of not guilty. The matter was heard and determined in the Supreme Court of New South Wales. The case centred around the circumstances under which the offence was committed, specifically whether the appellant had the necessary intention to cause grievous bodily harm and whether there were mitigating factors such as provocation. The court was required to navigate through various provisions of the Crimes (Sentencing Procedure) Act 1999, including sections 3A, 21A, and 44, as well as Division 1A of Part 4 of the Act.

The legal issues before the court involved a detailed examination of the appellant's state of mind at the time of the offence and the surrounding subjective circumstances that may have influenced his actions. The court had to consider whether the appellant's actions were premeditated or arose from a sudden conflict, and whether the provocation was sufficient to reduce the charge from murder to manslaughter. Additionally, the court needed to apply the relevant sentencing provisions to determine an appropriate punishment in light of the evidence and legal arguments presented.

After a thorough analysis of the evidence and legal arguments, the court found that the appellant had indeed committed the offence of murder. The court concluded that while the appellant may have acted under provocation, it was not sufficient to reduce the charge to manslaughter. The court also considered the subjective circumstances, including the appellant's state of mind and the nature of the altercation. In sentencing, the court applied the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, taking into account the gravity of the offence and the need for deterrence and retribution. The court ultimately determined the appropriate sentence, which was imposed on the appellant.

The final orders of the court included the conviction of the appellant for the offence of murder and the imposition of a specific sentence, reflecting the seriousness of the crime and the need for justice. The court's decision was grounded in a careful consideration of the evidence, legal principles, and statutory requirements, ensuring that the appellant received a just outcome in accordance with the law.

Orders