District Court New South Wales Medium Neutral Citation: R v Tapine [2018] NSWDC 457 Hearing dates: 17 August 2018 Decision date: 24 August 2018 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted on each count. Indicative sentences: Count 2 – AOABH - 6 months Count 1 – AOABH - 2 years Count 3 – Break and enter and commit serious indictable offence – 3 years with a NPP of 1 year and 6 months (Special circumstances found – need for anger management and alcohol consumption counselling and/or treatment, and assistance with returning to a law-abiding life in the community) Aggregate sentence: Sentenced to a term of imprisonment for 3 years and 6 months, comprising of a NPP of 2 years to commence on 20 May 2018 and to expire on 19 May 2020, and a balance of term of 1 year and 6 months to commence on 20 May 2020 and to expire on 19 November 2021. Backup charges SEQ 3 & 6 are withdrawn and dismissed. Back up charge SEQ 1 – s10A conviction, no further action taken Catchwords: CRIMINAL – sentence – violent offences - assault occasioning actual bodily harm – break, enter and commit serious indictable offence, use unlawful violence - conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety - aggravated - people there – common assault – fail to leave licensed premises - subjective matters Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act Category: Sentence Parties: Regina Corey Tapine Representation: Counsel: Defence: Mr D Brakell Solicitors: Crown: Mr J Gibson Defence: Mr M Moran File Number(s): 2016/200365 Judgment 1. HIS HONOUR: In this matter, Corey Tapine appears for sentence in relation to three offences subsequent to a trial which commenced at the Orange District Court on 21 May 2018 and concluded with verdicts of guilty in respect of each of the three counts on 23 May 2018. 2. The offences are as follows. 3. Count 1 was an offence contrary to s 59, being assault occasioning actual bodily harm in relation to Erin Cramer. The maximum penalty provided for such an offence is five years imprisonment. 4. Count 2 was a further charge of assault occasioning actual bodily harm in respect of Paul Breen, again with a maximum penalty of five years. 5. The third count on the indictment was an offence contrary to s 112(2) of the Crimes Act 1900, being break and enter and commit a serious indictable offence, namely, use unlawful violence towards Michael Donelly by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety, in circumstances of aggravation, namely, he knew there were persons present within the said licensed premises, being the Cargo Inn in Cargo, New South Wales. The maximum penalty provided in respect of Count 3 is a period of imprisonment of 20 years and there is a relevant standard non-parole period of five years. 6. In addition to those three offences, the offender has asked the Court to also deal with an offence contained on a s 166 certificate, being not leave premises, in respect of which there is only a fine available, being 50 penalty units. 7. At the conclusion of the trial on 23 May 2018, bail was refused and the offender has been in custody in respect of these matters only since that time. He had, however, spent a previous period in custody between 2 July and 4 July 2016, a period of three days custody which needs to be taken into account when determining the sentence. 8. There is no transcript available of the trial and I have relied on the Crown Case Statement, my own notes during the course of the trial and my memory. In short, the offender, on Friday, 25 June 2016, had finished work that day as a shearer at about 10.30am and attended a friend's house in Cargo in the near vicinity of the Cargo Inn where, together with others, he consumed some alcohol. He later attended the Cargo Inn with his employer, a Mr Watson, Donna Barwick and another male. They consumed some alcohol. 9. Sometime after 6.10pm, the offender and Mr Watson and Donna Barwick left the hotel and subsequently returned some time before 9.15pm. Also in the intervening period, Erin Cramer had attended at the hotel to meet with some friends. From time to time, she worked at the hotel but was not in fact employed on that day. 10. At about 12am, the publican's wife, Donna Donelly, and another member of the bar staff began the process of closing the bar, which involved pulling the blinds down and calling out "Last drinks!" They went out the back and locked the back door. When they returned, they noted that the offender's employer and Donna Barwick had left, leaving the offender on his own. Mrs Donelly went up to the offender and informed him, "Sorry, mate, you have to finish up, we are closed". The offender had a full schooner of beer sitting in front of him. The beer appeared to be flat as though it had been sitting there for a while. Mrs Donelly then bolted the front door and turned the front light off and asked the offender on three more occasions to leave. She was ignored. 11. At about 12.30am, the publican, Michael Donelly, and Paul Breen returned to the hotel from a trip to Orange. Mrs Donelly continued cleaning up and spoke to her husband about the offender refusing to leave. Mr Donelly then began walking through the bar, clapping his hands and telling people it was time to go. Mrs Donelly walked up to the offender and said, "Come on, it's time to go. You've got two choices, quickly drink it or leave". The offender then turned around and said to another male at the bar words to the effect of, "Come on bro, let's go out the back for a smoke". Mrs Donelly told the offender he did not have time for that and the offender turned around to her and said words to the effect of, "Fuck off", and also, "Fuck that". The offender and the other male then went to the back area of the pub and began smoking cigarettes. 12. Mr Donelly spoke to both men, telling them they were not allowed to smoke and began escorting the other male out of the front of the pub. In the meantime, the offender returned to his drink at the bar. Mrs Donelly told him, "You have to leave, it's time to go. Finish it or leave it, but you're going now". The offender replied words to the effect, "If I leave my beer, are you going to give me my money back?", to which Mrs Donelly replied words to the effect, "No, you've had it over half an hour to drink that, finish it or leave". The offender replied to the effect, "I can't finish it in two seconds". As the offender was talking to Mrs Donelly he began tipping over the beer, slightly pouring it over the bar. Mrs Donelly reached over and tried to steady the glass to stop it spilling. She then walked around the bar and said to the offender, "Come on, please, can I have the beer, it's time to go". She tried to take the glass out of his hand but he yanked the glass back, spilling some beer on himself. He then stood up and threw the rest of the contents of the schooner over Mrs Donelly. She then said to the offender, "That's enough, go. You're banned". At that stage, he still had the schooner glass in his hand. She began walking away. ASSAULT OCCASIONING ACTUAL BODILY HARM - COUNT 1 1. Erin Cramer, who had attended with her friends, had in fact decided to help during the closing period and was behind the bar. She leaned over and said to the offender, "Can I have your glass please, mate?" The offender got an angry look on his face and stood up and, without warning, he slammed the schooner glass into Erin Cramer's face, the glass smashing on impact. She reeled backwards, feeling as though she had been heavily punched. She cupped her face and noticed that she was bleeding. Mrs Donelly approached her and gave her a tea towel which she used to place over her face. Ms Cramer then went to the back office and pulled the towel away from her face and, as she did, a chunk of glass fell from her face onto the ground. She looked into a mirror and saw large cuts across her face. 2. As a result of the glassing, she sustained a number of cuts and lacerations. She sustained a 2 centimetre laceration above her top lip, a 1 centimetre laceration on her right cheek and several smaller lacerations around her mouth. She required two stitches to the right side of her upper lip and nose area. The wounds directly under her nose and above her upper lip were glued, as was a laceration on the left side of her nose, to prevent scarring. She sustained a small number of lacerations on her chin and around her lips, which were also touched up with glue. 3. Subsequently, in July 2016, Ms Cramer attended a doctor as one of her wounds had come apart and she required further stitches. Later that month, she returned to the doctor for a further procedure to remove a piece of glass that was still imbedded in the wound on the right side of her face. ASSAULT OCCASIONING ACTUAL BODILY HARM - COUNT 2 1. Paul Breen had returned with Mr Donelly, the publican, from Orange and observed part of what occurred. After seeing Erin Cramer struck, he said words to the effect, "You fucking dog", and moved towards Ms Cramer. As he did so, the offender advanced towards him, saying, "Call me a dog". Breen, at that stage, moved to the end of the bar and was blocking the entrance to the service side of the bar. The offender began picking up bar stools and hurling them in the direction of Mr Breen. A number of bar stools were thrown, two of which struck Mr Breen. He had held up his arms, covering his face to protect himself. Two of the chairs struck him on the right forearm while his hands were attempting to cover his face. He sustained a number of injuries to his right arm, including bruising and a small cut. FAIL TO LEAVE LICENSED PREMISES - S 166 CERTIFICATE 1. At that point, Michael Donelly came back into the bar, having heard the commotion from outside. He could see the offender was agitated and aggressive and said to him, "Mate, you're out". The offender turned and grabbed Donelly around the collar of the t-shirt with both hands. Donelly grabbed the offender with both hands and attempted to pull him out of the pub. The offender was very strong and Donelly could not, in effect, get him to move. They struggled with each other for some 30 to 40 minutes. During the initial stages of the struggle, Mrs Donelly came out from the back room and the offender called out some abuse to her. She tried to settle him down and tried to tell him that all he had to do was leave. Mr Donelly and the offender were still in a wrestle. 2. Eventually, Mr Donelly managed to move the accused to the front alcove in one of the rooms, and called out for help for someone to open the door. He managed to expel the offender through the door and, as soon as he was outside, he shut the door and locked it. AGGRAVATED BREAK AND ENTER - COUNT 3 COMMON ASSAULT - S 166 CERTIFICATE 1. Almost immediately, there were two or three loud bangs on the front door. The door flew open and the offender forced his way inside. The offender grabbed Donelly and Donelly tried to get him outside again, however, the offender punched him twice to the face. He tried to punch Mr Donelly a third time, though Mr Donelly managed to partially duck it and avoid the full force of impact. It glanced off his chin and neck. I note, in respect of that assault, that the charge is to be withdrawn. I simply refer to it as part of the surrounding circumstances of the events that night. 2. Mr Donelly in fact managed to get the accused out of the hotel, at which time there were some associates of the offender present. He told them to get into their car, which he entered, and they then left the scene with the offender. 3. On 1 July 2016, the offender attended the Orange Police Station voluntarily, and was placed under arrest. He agreed to participate in an electronically recorded interview. During the interview, he told police that he had consumed about one and a half cartons of beer at his friend's house around the corner from the Cargo Inn before going to the pub. He said he had a shot of something and that after that he could not remember anything until he was falling. He denied deliberately breaking a glass in Erin Cramer's face but conceded he may have accidentally thrown it as he was falling inside the pub. He also told police that he remembered booting the door down. 4. I note that his assertion of not being able to remember the actual event of striking Ms Cramer with the glass is highly implausible in the circumstances of what else he eventually conceded he could remember about the evening in question and the incident: that is, he appeared to be able to remember most of the surrounding circumstances except for perhaps the most crucial event. 5. Count 1 involved an entirely unprovoked assault on a female who was simply endeavouring to obtain his beer glass from him after a time at which he had been directed on a number of occasions to leave the hotel. Whatever effect alcohol may have been having on the offender, it does not excuse such violent conduct. Ms Cramer received a serious injury because she was simply trying to assist her friends, the publicans. It is fortunate that the injury was not more serious. Had the offender connected with her face at a slightly higher point, it may well have involved the engagement of injury to her eye or eyes. I regard the objective seriousness of the unprovoked assault and injury caused to Erin Cramer as falling at least to the point approaching the mid‑range, if not the mid‑range, of objective seriousness. 6. As to the second count on the indictment involving the throwing of bar stools at Paul Breen, I note that the injuries caused to him were bruising and abrasions to his right forearm and wrist and a small cut. In respect of Count 2, I find that the offence is at the lowest end of the range of objective seriousness for such an offence. 7. In respect of Count 3, it involved the offender having been ejected from the pub, kicking down the door, causing damage to it and then engaging in a protracted struggle with the publican as the publican tried to eject him for the second time. There was clearly unlawful violence used towards Michael Donnelly during that period which would have caused a person of reasonable firmness present at the scene to fear for his personal safety, and clearly, the circumstance of aggravation, namely, that the offender knew there were persons present within the said licensed premises, was proved. He had just been ejected from the premises and was fully aware of other persons being present. 8. However, there is no evidence before the Court as to the value of any damage to the hotel door. I note, at trial, the evidence was that the publican using a power tool prior to the police arriving, had managed to secure the premises for the night, including somehow re-affixing the door. Whether it required any more attention than what he was able to give it that night is unknown. In the circumstances, it would seem that I could only find that the damage was minimal and easily restored, and in my view, the unlawful violence used towards Michael Donnelly also falls at the lower end of the range relevant to this offence. I am of the view that the objective seriousness in relation to this particular offence falls towards the lower end of the range of objective seriousness, although not at the lowest range. 9. The s 166 certificate offence of not leave premises, in my view, is reasonably taken into account by way of the sentences to be imposed in respect of the other offences. 10. As to the subjective matters before the Court, there is the offender's New South Wales criminal history which indicates that he has not previously been convicted of any offence in New South Wales. In addition, there is a New Zealand criminal history provided which indicates that in 2003 he was sentenced for an offence of unlicensed driver, fail to comply with prohibition. In respect of which he was convicted and discharged. I note that I do not regard the unlicensed driver offence as having any adverse significance whatsoever in relation to the sentencing of the offender in relation to these matters. 11. There is also a Pre-Sentence Report under the hand of Kayla Cox, Community Corrections Officer at Bathurst, dated 10 August 2018, and tendered on behalf of the offender, a number of references, firstly from his aunt, Maraea Karaitiana, being an aunt on his mother's side. That reference is dated 20 May 2018, which indicates that it was in fact written prior to the conclusion of the trial. In addition, there is a letter from the Bathurst Correctional Centre Chaplain, dated 3 August 2018, and an unsigned, undated reference from Andrew Hunt, being the pastor of the Generocity Church at Forbes and a further unsigned, undated letter to the Court from Jason Reilly, being the venue supervisor at the Forbes Olympic Swimming Pool. Subjective matters are drawn from that material. 12. The offender did not give evidence on sentence. 13. The offender is one of 14 children born to his parents. He was born in New Zealand and relocated to Australia in 2012 with his partner and their then three children. His upbringing is referred to as having been supportive but to some extent turbulent, with his parents' relationship having some difficulties as a result of his father's constant drinking and carousing. Due to his parents' unstable relationship, he spent the majority of his time in his junior and teenage years living with his grandmother. The offender's father passed away in 2001 and his mother passed away in 2005. 14. His relationship with his partner has existed for approximately 23 years and a further child was born to that relationship after coming to Australia. His eldest child resides in New Zealand. Mr Tapine's partner continues to support him. 15. Since being placed into custody on 23 May 2018, he has been at the Bathurst Correctional Centre and has not incurred any institutional misconducts. I note that in Father Greg Walsh's reference of 3 August 2018, he refers to the offender as having always been polite to him and being a regular attender at chapel. 16. Andrew Hunt, the pastor of the Generocity Church, indicates that prior to being incarcerated the offender had been a regular attendant at that Forbes church over a period of some 12 months. He refers to him as being a person to whom the younger men, as part of the congregation, looked up to, and that, although he did not realise it, he carried some influence and had leadership qualities. In Pastor Hunt's letter, he states, "He has displayed remorse and regret over his past lifestyle and spoke to me on several occasions of his desire to get involved in youth programs that bring change and prevention to people so they may make right choices for their life." 1. He believes the offender to be a man of good character. 2. There is nothing in Pastor Hunt's letter which indicates that he has visited the offender on any occasion since he has been placed in custody, and it is unknown what remorse and regret he may have been expressing in respect of his past lifestyle, but it does not appear to be remorse and regret in relation to the current matter. 3. The letter from Jason Reilly, being the venue supervisor at the Forbes Olympic Swimming Pool, and apparently also a member of the same church, indicates that his interaction with the offender was only during the summer of 2017 to 2018 when the offender regularly brought his children to the pool to swim and otherwise if they met at church or church-associated meetings. I note that his reference contains the following, "Talking one day, we got on to the subject of him needing to go to a court hearing and why. He acknowledged that he was actively turning a new page in his life. This is when I said that I would write this character reference." 1. The letter, as I have indicated previously, is undated and unsigned but it would seem that if the offender was talking about a need to go to a court hearing and why, he was talking about his prospective trial, as he had been in custody and, so far as I am aware, there were no other matters before the Court nor have there been any. Mr Reilly, in my view, had limited connection with the offender and there is no evidence that he has had any connection with the offender since he has gone into custody. That diminishes the value of his reference, in my view, although I note that he believed that he was a big influence in the church, and a good influence at that, and, in his belief, a man of good character. That would, of course, have more weight were it that he was aware of the circumstances of the offending conduct. 2. From what I have said, it would be evident that the only material placed before the Court that would appear to have post-dated the jury verdict and his conviction is the letter from Father Greg Walsh and the Pre-Sentence Report. 3. I note that his aunt indicates that the offender's partner is not employed and has been reliant on the offender's income, that the younger children attend the public Forbes Primary School and are engaged in sporting activities and the local church. It is evident from her letter, where she states that she asked him, "What is going to happen? Will you get deported to New Zealand?" and that his reply was, "I want to stay here in Australia. The family has settled here, they love their school, their friends and the vast opportunity in education, sports, their church and variety of family activities. The work is plentiful, the pay a lot more than what New Zealand has to offer and Australia has also become my home", 1. That would appear to be while Mrs Karaitiana was residing in New Zealand, her letter being dated 20 May 2018, a conversation prior to the trial. 2. The Pre-Sentence Report indicates that he ceased his high school education at the equivalent of Year 11 and then entered into the workforce as a drover. He has apparently maintained full employment consistently up to his incarceration. He had commenced working for Mr Watson as a shearer in 2016, and was a well-regarded employee. Although his employer indicated to the presentence officer that he was willing to support Mr Tapine when he was available to work, he also indicated that the offender's attitude changed when he had consumed alcohol, and that he would then exhibit aggressive behaviour. 3. During the period of his incarceration, he has been employed as a sweeper within the correctional centre and staff made positive observations of his conduct. 4. He commenced drinking alcohol at the age of 14. He recalled drinking two beers a week from the age of 20 and up to 12 bottles of beer a week; however, he stated that between the ages of 20 and 30 he binge drank regularly on weekends but slowed down around the age of 30. Contact with his sister and partner, however, did not disclose the same information as provided by Mr Tapine. They advised that his consumption was minimal and that they were not aware of any binge drinking. Contact with Mr Tapine's employer revealed similar information although, as previously referred to, his employer noted attitude changes when he consumed alcohol and the exhibition of aggressive behaviour when he did. 5. Perhaps the most remarkable matter in this particular offending is that Mr Tapine was 34 years of age at the time of the offence and he has no prior convictions. I accept that he was a person of good character. It is extraordinary, in my view, that a man who has reached the age of 34, is in a long-term partnership with a number of children, and who is a regular attender at church and participant in community activities, would engage in conduct such as this. 6. I accept that the alcohol was a contributing factor. It would seem, in the circumstances, that he had consumed a significant amount of alcohol either at the hotel or at his friend's place around the corner; however, the consumption of alcohol does not excuse the behaviour although I note that it may well be that in the absence of the over-consumption of alcohol this offending would not have occurred. It is somewhat bizarre in the circumstances that I have referred to of his past good character that he committed these offences which involved significant violence and aggression, as well as significant injury at least to Ms Cramer. 7. I note that under "Attitude to offending", the Pre-Sentence Report contains the following, "In discussing the facts, Mr Tapine disputed some sequences of events, stating the information was incorrect. He further disputed all physical altercations initiated by him, stating he did not remember. He was able to recall events up to the occurrence of physical violence and acknowledged he had consumed a large amount of alcohol, however, relayed he did not believe he committed the assaults stated in the facts." Under "Assessment" is recorded the following, "While Mr Tapine appears to recognise the detrimental impact his offending has had on his own circumstances, he presented with limited insight into the impact his offending behaviour may have had on the victims and the wider community." 1. In the circumstances of this having been a defended trial and what is stated in relation to his "Attitude to the Offending" and "Assessment", that I have just referred to, I am unable to find that there is any acceptable evidence of genuine remorse or contrition. 2. I note that he has been assessed as having a low risk of re-offending by the presentence officer and, in my view, considering his past lack of offending, I accept that even in the absence of remorse and contrition, that that is a correct assessment. I would also assess him as having a reasonable to good prospect of rehabilitation. 3. I have had regard to s 3A of the Crimes (Sentencing Procedure) Act as to the purposes of sentencing. I am of the view, in relation to this matter, that both general and specific deterrence are important factors to take into account. 4. I am of the view that the s 5 threshold has been passed. No submission to the contrary was made on behalf of the offender and it was appropriate that no such submission was made. 5. I have taken all of the matters that I have referred to into account in determining an appropriate sentence and I intend to proceed by way of an aggregate sentence, in which case I am required to specify the individual indicative sentences. 6. I will first deal with the s 166 matter of not leave premises when directed. In the circumstances of this matter, s 10A will apply, that is he is convicted and no further penalty is imposed. 7. In relation to the three counts on the indictment, the indicative sentence in relation to Count 2, being the assault occasioning actual bodily harm in respect of Mr Breen, is a sentence of six months. 8. In respect of Count 1, being the assault occasioning actual bodily harm in respect of Erin Cramer, the indicative sentence is two years. 9. In respect of Count 3, being the break and enter and commit serious indictable offence in the aggravating circumstance of knowing people were inside, the indicative sentence is a head sentence of three years. As there is a standard non-parole period, I am required to state the non‑parole period that would have applied if I had dealt with that matter separately. I would find special circumstances in relation to the fact that it is the offender's first time in custody and, as I perceive it, he needs assistance in relation to anger management and the consumption of alcohol in particular, and that he will be likely to need some assistance in returning to a law‑abiding lifestyle when released from prison. Accordingly, I would have reduced the statutory relationship between the non-parole period and the balance of term. So while the head sentence would have been three years, I would have reduced the non‑parole period from the statutory relationship to a non-parole period of one and a half years. 10. Taking all of those matters into account in relation to Counts 1, 2 and 3, the aggregate sentence, and taking into account that there is one sequence of offending on the one occasion, I would, in relation to the aggregate sentence, impose a sentence with a non-parole of two years and a balance of term of one and a half years. In my view, the potential parole period of one and a half years would assist the offender in relation to rehabilitation and returning to a lawful life in the community as well as dealing with what I perceive to be a problem in relation to the consumption of alcohol. 11. I note, as previously referred to, that he has been in custody since 23 May 2018 and that there was a period of three days of custody prior to that time. Accordingly, the sentence will commence on 20 May 2018. He will be first eligible for parole on the expiry of the non-parole period, 19 May 2020. The balance of term is one year and six months, giving a full term of sentence of three years, six months. The full term of the sentence will expire on 19 November 2021. 12. Mr Tapine, you are convicted in relation to each of Counts 1, 2 and 3. I note that when released on parole you will be subject to supervision and, if you are in breach of the conditions of your release, you can anticipate that you will be returned to custody. 13. I note that you will not necessarily be released on 19 May 2020 as the sentence I have imposed is more than three years and I cannot order that you be released on that date. Whether you are released on that date or not will be a matter for the authorities to determine. I would be reasonably confident that in the view of your lack of past criminal history and your otherwise so far good behaviour while in custody, that you are highly likely to be released on that date but I cannot guarantee it. It is a matter for you and the authorities. If you misconduct yourself in gaol then you may find you spend longer than the non‑parole period in gaol before being released. 14. I note that I am fully aware that, in the absence of Australian citizenship, it is entirely likely, if not inevitable, that you will be deported from Australia. I acknowledge that that may indeed create some problems in respect of your family unless they follow you back to New Zealand, but the Court is required not to have regard to the fact that an offender may be deported as a result of the sentence imposed. That, of course, would no doubt, if you are deported when released, affect the ability for any official supervision for the balance of the term but I have had to deal with the matter on the basis that if you were to remain in Australia I would have found special circumstances, so I am required to apply that to you even though there is a high prospect that you will be deported. 15. I note that the matters on the s 166 certificate, being Sequences 3 and 6, are withdrawn and dismissed. HIS HONOUR: I think the position, Mr Tapine, is that your wife and aunt or friend will not be able to speak to you once you go downstairs, they will probably have to speak to you at the prison. But could he remain for a moment to speak with them if I stay on the bench? SPEAKER: Yes, your Honour. HIS HONOUR: All right. If you'd like to just quickly speak with them. That is no physical contact, but you can come around the front here of the dock and speak to him. Thank you, Corrective Services. Mr Tapine, for your information, the non-parole period was in fact reduced from the statutory relationship by a period of seven months and 15 days. OFFENDER: Thank you. HIS HONOUR: If I had applied the statutory relationship you would have received a further seven months and 15 days by way of the non-parole period. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2019