Regina v Tapele [2002] NSWCCA 111

New South Wales Court of Criminal Appeal

CITATION : Regina v Tapele [2002] NSWCCA 111 FILE NUMBER(S) : CCA 60414/01 HEARING DATE(S) : 18 March 2002 JUDGMENT DATE : 18 March 2002

PARTIES : Regina v Balos Tapele JUDGMENT OF : Dunford J at 29; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3234 LOWER COURT JUDICIAL His Honour Judge Sides OFFICER :

COUNSEL : Crown - R.A. Hulme Applicant - In person SOLICITORS : Crown - S.E. O'Connor Applicant - In person CATCHWORDS : Sentence - appeal against alleged severity - two counts of malicious wound with intent to do grievous bodily harm - no question of principle LEGISLATION CITED : Crimes Act 1900 - s 27, s 33, CASES CITED: R v Thompson and Houlton (2000) 49 NSWLR 383 DECISION : Application for leave to appeal allowed. Appeal dismissed and sentences confirmed.

IN THE COURT OF CRIMINAL APPEAL 60414/01

DUNFORDJ CARRUTHERSAJ

Monday, 18 March 2002 REGINA v Balos TAPELE Judgment 1 CARRUTHERS AJ: The applicant Balos John Tapele came before the Campbelltown District Court on 8 December 2000 upon an indictment containing one count of wound with intent to inflict grievous bodily harm under s 27 of the Crimes Act 1900, (hereinafter "the Act") with an alternative count of malicious wounding with intent to do grievous bodily harm under s 33 of the Act. Both offences carry a maximum penalty of 25 years imprisonment. The first offence was alleged to have been committed on 3 May 2000, the alleged victim being Ms Mugar Ammerman, who has been referred to as the applicant's mother-in-law. It is convenient to treat the applicant as having been married to the victim of the second offence. Although there was no marriage solemnised under Australian law, the applicant claims the relationship was recognised in Papua New Guinea as a marriage. 2 The indictment included a second count under s 27, again with an alternative count under s 33 of the Act. This offence was alleged to have occurred on 3 May 2000, the alleged victim being Ms Guma Ammerman, the estranged wife, as I shall call her, of the applicant. The Crown accepted a plea of guilty to the second count under s 33 in each case in full discharge of the indictment. 3 The matter ultimately came before Sides DCJ for sentence on 25 June 2001, by which time a pre-sentence report had been obtained, a report from Mr W. John Taylor, a clinical forensic psychologist dated 20 March 2001 and a report by Dr William E. Lucas, psychiatrist, dated 20 June 2001. 4 On 25 June 2001, Sides DCJ sentenced the applicant on the first count under s 33 to four and a half years imprisonment to date from 14 June 2000and to expire on 13 December 2004, with a non-parole period of two and a half years to expire on 13 December 2002. His Honour fixed the commencing date of 14 June 2000 to take into account pre-sentence custody. 5 In relation to the second offence under s 33, the applicant was sentenced to six years imprisonment to date from 14 December 2002 and to expire on 13 December 2008 with a non-parole period of three years to expire on 13 December 2005. 6 The applicant was born in Papua New Guinea on 18 August 1970 and raised in a tribal village in the highlands, his parents both having died when he was a young age. Upon leaving school, the applicant returned to his village for five years before his uncle took him to Port Moresby where he joined the Papua New Guinea Defence Force. He remained in that Force for about seven years. He stated that he eventually purchased a home in Lae, which he sold, prior to coming to Australia. The applicant has three children by a former relationship in Papua New Guinea. That relationship broke up and thereafter he developed a fresh relationship with Guma. The applicant contended that he gave up a good job as a police officer in Papua New Guinea to come to Australia with Guma. Her mother Mugar lived in Australia and was an Australian citizen as was Guma. 7 The applicant contended that he gave up a stable lifestyle to come to Australia in 1998 on a promise of something better and that he was pressured to do so by his wife and her mother. His life fell apart, however, to such a degree that he had no money and no friends and he was incapable of obtaining employment, as he was in Australia on a visitor's visa. He lived by getting scraps of food, he contends, from rubbish bins and picking up empty cans and selling them. A child, Sylvia, was born on 7 April 1999, and at some stage in 2000, Mugar took Sylvia and left the applicant. This separation and loss of contact with his daughter disturbed the applicant who, according to the reports before his Honour, became anxious and depressed. 8 As to the first offence, at about 11.30am on 4 May 2000, Mugar was at home with Sylvia and heard the sound of breaking glass coming from the kitchen. She grabbed the child and went into the kitchen to investigate. She saw the applicant climbing through the kitchen window holding a hammer. He asked her, "Where's my money?" She said, "If you want money, I give you later." Before she could leave the house, the applicant struck her with the hammer as she was holding the baby in her arms. She was hit about the head three times and she was also hit a number of times about the back and shoulders. The assault caused her to drop the child. In order to protect herself and the child, the victim ran at the applicant and pushed him with all her strength. 9 The applicant then left through the broken window and ran away. Neighbours provided assistance to Mugar and she was taken to Liverpool Hospital where she was operated on. She was in hospital for five days. X-rays and CT scans revealed a focal depressed right parietal fracture. There was, however, no extra-subdural haematoma. There was a three-centimetre laceration to the right temporo-parietal area as well as multiple bruising to the anterior chest wall and back, with multiple bruises over and above both arms and legs. 10 When interviewed by the police that day, the applicant sought to give an exculpatory version of the incident. He was, however, arrested and granted bail. Whilst the applicant was on bail, at about noon on 15 June 2000, Guma was playing poker machines at the Campbelltown RSL. The applicant approached her and asked her for money. In response she gave him $5 as she was aware he could not get unemployment benefits by reason of his visitor status in this country. 11 Shortly thereafter, she felt an arm reaching around her chest. She felt pain when a screwdriver was pulled from her chest and she screamed for help. He again stabbed her with a screwdriver and she recognised the applicant was the assailant. She screamed again and she was pushed in the chest and she fell over. When she tried to get up, the applicant stabbed her repeatedly about the back, shoulders and hands with the screwdriver. The screaming of the club patrons caused the applicant to stop and run off. He stopped, however, when called upon to do so and was arrested. 12 When Guma was admitted to hospital, doctors found a total of 13 wounds to her upper chest and lower limbs, nine of which were in the chest area and included a punctured lung. She was discharged from hospital on 18 June 2000. Again when interviewed by police, the applicant made exculpatory statements. He was charged and refused bail. 13 His Honour had before him two ERISPS, one of 4 May 2000 and one of 15 June 2000. Neither ERISP involved full admissions in relation to the offences and again significant attempts were made to reduce the applicant's culpability for the injuries occasioned by the victims. The applicant was represented at the sentence proceedings by Mr B J van Zuylen, solicitor, on instructions from the Legal Aid Commission. The applicant has, however, represented himself before this Court. 14 A large amount of documentary material was tendered at the sentence proceedings, but no oral evidence was called. In his remarks on sentence, his Honour carefully considered the alleged exculpatory matters raised by the applicant and rejected them one by one as being inconsistent with the overwhelming strength in all respects of the Crown case. 15 As to the question regarding the quantum of discount to be allowed for the pleas of guilty, his Honour accepted that the pleas had been entered at the earliest opportunity and took into consideration the utilitarian value of the pleas consistent with the terminology in R v Thomson and R v Houlton (2000) 49 NSWLR 383. His Honour accepted that "Contrition had a small part to play in the entry of the pleas of guilty". His Honour accordingly allowed a discount of 25 per cent for the pleas. 16 His Honour carefully took into account the subjective circumstances, particularly relating to the applicant's emotional state to be gleaned from the medical, psychological and pre-sentence reports before him. His Honour took into account the absence of prior convictions both in Papua New Guinea or Australia, together with the applicant's good work record before coming to this country. He had, to the satisfaction of his Honour, demonstrated that he has so diligently applied himself whilst in the Corrective Services system as to give sound reason to be optimistic insofar as his rehabilitation is concerned. 17 Nevertheless, his Honour regarded as a major concern the applicant's repeated attempts to minimise the criminality involved, bearing in mind the objective evidence. His Honour took into account that because of alleged threats made to the applicant by other inmates, he was required to spend some time in protective custody. 18 His Honour concluded, correctly in my respectful view, that because of the separate nature of the two offences, it was not appropriate to order that the sentences run entirely concurrently as that would not reflect the seriousness of the offences. 19 However, his Honour did find special circumstances, being the accumulation of the sentences, the fact that this was the applicant's first custodial sentence and that it would be served in a foreign country away from family support. The principle of totality was taken into account and the sentences adjusted accordingly. Stress, of course, was laid upon the fact that the second offence was aggravated by the fact that the applicant was on bail at the time. Further, that in his Honour's view this violence was within what could fairly be described as a "domestic situation". 20 The applicant has, at times, expressed the view that he had in mind seeking to withdraw his pleas of guilty and indeed for that reason the matter when it first came before this Court was adjourned to allow him to consider his position. There is no doubt, from the material before this Court, that prior to being sentenced and on each occasion that the matters came before the District Court, the applicant was fully advised by Mr van Zuylen with regard to his rights and the nature and seriousness of the charges explained to him. It is now clear, and the applicant has confirmed, when he appeared before this Court earlier today, that he does intend to proceed with the application for leave to appeal against the sentences and does not intend to seek leave to withdraw the pleas of guilty. 21 In written submissions to this Court, the applicant asserts that he was disadvantaged in the sentence proceedings because he did not have the services of an interpreter to explain the charges to him before pleading guilty. This assertion, however, does not stand with the material that has now been put before the Court. In any event, as I have indicated, the applicant clearly does not seek to challenge the convictions on this ground. However, it should be noted that as the Crown has pointed out, there was some evidence of a significant nature that the applicant's English was sufficient for him to understand the nature of the charges and proceedings and what was happening. In the circumstances, it is not open to the applicant to place reliance on this ground either, as a matter of fairness or otherwise. 22 The applicant further contends that he did not have the advantage of a lawyer who had an understanding of the cultural rules of Papua New Guinea, especially those relating to relations between husband and wife. The applicant has not specified what cultural values he asserts were relevant to these offences and the basis upon which any such cultural values should have been taken into account as a mitigating factor. As the Crown has pointed out, however, it is difficult to see how any cultural differences, whatever they may be, could affect the sentence in respect of the commission of serious crimes of personal violence such as those with which his Honour was required to deal. This ground, therefore, lacks substance. 23 It is further contended that his Honour erred in finding that the offences were premeditated. This ground could only apply to the second offence. Again, however, there was ample evidence upon which his Honour could find premeditation and his Honour clearly identified such circumstances. 24 The applicant claimed that the ratio between the parole and non-parole periods is unfair. However, having found special circumstances, his Honour, giving reasons therefor, reduced the non-parole period to 55 per cent of the head sentence on the first conviction and 50 per cent on the second. In the context of this case, that is a relationship which could not be challenged. Obviously a lengthy period of parole is essential for the applicant, if he is to be reintroduced into Australian society. It may well be, however, that upon his release to parole he will be deported to Papua New Guinea and it may well be that that is the course which he would find, from his point of view, most satisfactory. 25 I can find no error with respect to the way the learned judge structured the relevant sentences. 26 Finally, it is asserted that his Honour failed to take into account the alienation suffered by the applicant and the suffering associated with a lack of income as a result of finding himself alone with an expired visa and without financial or other support in Sydney. Indeed, in brief submissions which the applicant made to the Court today, he said that when one compares what he has suffered since he came to this country by way of isolation from other human beings and his family and the lack of income, the sentence overall must be looked upon as too severe. 27 In his own words he said, "I have lost everything including my child." He says that when he returns to Papua New Guinea, he will be treated as a criminal, whereas before he was a person of good character and this will cause him to lose face. These are significant matters and his Honour specifically referred to the severe psychological stressors identified by Dr Lucas which were directly related to this aspect of the case. His Honour said, having repeated the stressors, "I accept that before the offences the offender's general level of functioning was seriously compromised. He was not up to the task of dealing with such severe stressors, in my view." 28 His Honour then went on, "It is not unreasonable to feel sympathetic towards the offender as the result of the stressors", but concluded, "However, I do not allow the sympathy to overshadow the objective seriousness of these offences." 29 One cannot, of course, but feel a sense of sympathy towards this relatively young man, to have found himself in the circumstances in which he did in this country after having left what appeared to be a stable position in Papua New Guinea. What his relationship is with his wife and children from the first marriage one does not know. Perhaps they might provide some comfort to him when he returns. 30 However, as his Honour did weigh the important subjective considerations (which did attract his Honour's sympathy) against the extremely serious objective nature of the offences, particularly bearing in mind that the second offence was committed whilst the applicant was on bail, it is not possible to conclude, in my view, that his Honour's sentencing regime was outside the discretion available to him. I would accordingly allow the application for leave to appeal but dismiss the appeal and confirm the sentences.