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Court of Criminal Appeal 18 March 2002

Regina v Tapele

[2002] NSWCCA 111

Assault & violence
SENTENCE APPEAL AGAINST ALLEGED SEVERITY NO QUESTION OF PRINCIPLE

Citation: Regina v Tapele [2002] NSWCCA 111
Court: New South Wales Court of Criminal Appeal
Date: 18 March 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant, a Papua New Guinean national living in Australia on a visitor's visa, pleaded guilty in the Campbelltown District Court to two counts of malicious wounding with intent to do grievous bodily harm under s 33 of the Crimes Act 1900. Both offences occurred on separate dates in 2000 and involved two victims: his mother-in-law and his estranged partner.

The first offence involved the applicant entering his mother-in-law's home through a broken window and striking her repeatedly about the head and body with a hammer while she was holding their infant child. She suffered a depressed skull fracture and was hospitalised for five days. The second offence occurred approximately six weeks later while the applicant was on bail. He approached his estranged partner at a local RSL club and stabbed her multiple times with a screwdriver, causing 13 wounds including a punctured lung.

Sides DCJ sentenced the applicant to a total effective term involving four and a half years for the first offence and six years for the second, served cumulatively, with respective non-parole periods. The applicant, representing himself, sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including psychological distress, social isolation, financial hardship, and displacement from his home country.
  • Whether a 25 per cent discount for guilty pleas was appropriate in the circumstances.
  • Whether the overall sentencing structure was within the proper exercise of sentencing discretion.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. Sides DCJ had carefully considered and rejected the applicant's exculpatory accounts as inconsistent with the Crown case, and had methodically weighed the subjective circumstances against the objective seriousness of the offences.

On the question of the guilty plea discount, the sentencing judge had accepted that the pleas were entered at the earliest opportunity and applied a 25 per cent discount consistent with the approach in R v Thomson and Houlton. The Court found no fault with this assessment.

The Court acknowledged the genuine sympathy that could be felt for a relatively young man who had left a stable life in Papua New Guinea and found himself isolated, impoverished, and estranged from his child in Australia. However, it concluded that the sentencing judge had properly acknowledged those stressors without allowing sympathy to overwhelm the objective gravity of the offending, particularly the commission of the second offence while on bail for the first.

The Court was not persuaded that the sentences fell outside the range of the sentencing discretion available to Sides DCJ, and accordingly dismissed the appeal.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.
  • Sentences confirmed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sympathy for an offender's difficult personal circumstances does not, of itself, justify reducing sentences where the objective seriousness of the offences is high.
  • A 25 per cent discount for guilty pleas entered at the earliest opportunity was upheld as appropriate, with the sentencing court treating contrition as playing only a minor role consistent with the utilitarian value of the pleas.
  • Committing a serious offence while on bail is a significant aggravating factor that a sentencing court is entitled to weigh heavily in structuring cumulative sentences.
  • No error was established in the sentencing judge's rejection of exculpatory material where that material was inconsistent with the overwhelming weight of the Crown case.
  • In dismissing the appeal, the Court reaffirmed that an appellate court will not intervene in a sentence unless it falls outside the discretion properly available to the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27 and 33 (wounding with intent to inflict grievous bodily harm; malicious wounding with intent to do grievous bodily harm, each carrying a maximum of 25 years imprisonment)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383 (principles governing guilty plea discounts)