R v Tabalbag [2015] NSWSC 1354

Supreme Court New South Wales

Medium Neutral Citation: R v Tabalbag [2015] NSWSC 1354 Hearing dates: 1 – 4, 9 – 12 June 2015 Decision date: 14 September 2015 Jurisdiction: Common Law Before: Adams J Decision: The offender, Roy Tabalbag, is sentenced to a term of imprisonment of 17 years to commence on 11 November 2013 and expiring on 10 November 2030 with a non-parole period of 12 years. The offender is first eligible for parole on 10 November 2025. Catchwords: CRIMINAL LAW – sentence – murder Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 21A(2)(eb), 21A(2)(f), 21A(3)(c) Category: Sentence Parties: Regina Roy Tabalbag Representation: Counsel: B Hughes SC (Crown) E Wilson SC (Offender)

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2013/340538

Judgment 1. Mr Tabalbag was convicted by a jury of the offence of murder on 12 June 2015. The trial commenced on 1 June 2015 when the accused, on arraignment, pleaded not guilty to murder but guilty to manslaughter and the prosecution did not accept that plea. Mr Tabalbag made formal admissions to all the physical elements of the offence and the trial essentially concerned the question whether Mr Tabalbag, because of the partial defence of provocation, was guilty of manslaughter rather than murder. On 9 June 2015 the jury retired to consider its verdict. For reasons that are not presently relevant, a juror was discharged late on 12 June 2015 and, shortly thereafter a verdict of guilty of murder was delivered by majority of 10 jurors to 1. The jury had been given the conventional directions on the issue of provocation to the effect that, if it found the accused's acts had caused the death of the victim with the intention either to kill him or cause grievous bodily harm (which, in substance, was not disputed), if it was reasonably possible that he had lost his self-control as a result of the deceased's conduct towards or affecting him and it was also reasonably possible that this conduct could or might (as distinct from would) induce or lead an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm upon the deceased, the correct verdict was that of manslaughter, not of murder. 2. Each of these elements was a live issue in the circumstances of the case. It is not possible to discern from the verdict whether the jury thought that one or other or even perhaps neither of the relevant elements was a reasonable possibility. It is entirely possible that some jurors found one of the elements not reasonably possible and others came to the same conclusion about the other element. Or, of course, they may have been unanimous as to the same element. It is clear that the Court must sentence Mr Tabalbag upon a basis that is consistent with the jury verdict, namely that he was guilty of murder and the partial defence of provocation was not available to him. More cannot be inferred from the verdict. One of the important factors to be taken into account when sentencing Mr Tabalbag is his state of mind at the time he committed the offence, both as to his intention and as to whether he had lost his self-control. As to the first of these issues, the question is whether he intended to kill the deceased or to inflict grievous bodily harm. The law does not permit me to find that Mr Tabalbag intended to kill Mr Sthapit unless I am satisfied beyond reasonable doubt that this was so. If I have a reasonable doubt about this then I must act on the basis that he intended to cause grievous bodily harm. However, although in some cases the difference between these two intentions will reflect significantly different levels of moral culpability, the circumstances here are such that the distinction is of slight moment. Of much greater significance is whether Mr Tabalbag had in fact lost his self-control or whether, as the prosecution submits, he had not done so. (The prosecution submitted that this issue is foreclosed by the verdict of the jury, contending that the jury must have found that it was not reasonably possible that Mr Tabalbag had lost his self-control. For reasons already given this submission cannot be accepted.)