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Supreme Court 10 November 2016

R v Tabalbag

[2016] NSWSC 1570

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER GUILTY PLEA

Citation: R v Tabalbag [2016] NSWSC 1570
Court: Supreme Court of New South Wales
Date: 10 November 2016
Judge(s): Mathews AJ

Background

The offender, a Filipino-born man aged 31 at the time of sentencing, was charged with the murder of a man who was his partner's workplace supervisor and secret lover. On 11 November 2013, having used a phone tracking app to find his partner at their shared Darling Point apartment when she should have been at cooking school, he returned home and discovered her in bed with the deceased. The offender retrieved a chef's knife and stabbed the deceased multiple times. The deceased died shortly afterwards from his wounds.

The offender pleaded not guilty to murder but guilty to manslaughter at the outset. The Crown declined to accept that plea, and the matter proceeded to trial. The sole defence raised was the partial defence of provocation.

A jury of 12 deliberated for more than two days before returning a majority verdict (11 to 1) of not guilty of murder but guilty of manslaughter. The offender came before the Supreme Court for sentencing on that verdict.

  • What was the appropriate sentence for the manslaughter conviction, having regard to the offender's personal circumstances, the objective seriousness of the offence, and the applicable sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What discount, if any, was warranted for the guilty plea to manslaughter, given that the plea was entered before trial but not accepted by the Crown?
  • Whether a related charge of assault occasioning actual bodily harm (arising from the same incident) should be taken into account on sentence pursuant to the Form 1 procedure.

Decision

Mathews AJ assessed the objective gravity of the offence as significant: the stabbing was repeated and sustained, causing death. However, her Honour accepted that the provocation finding by the jury was relevant context, and that the offender had no prior criminal history of any kind, either in Australia or the Philippines. Evidence from his employer, family, and friends painted a consistent picture of a calm, diligent, and non-aggressive person. His good character and the circumstances of the offending were treated as meaningful mitigating factors.

The offender's remorse was regarded as genuine, and he had engaged in rehabilitation programmes during his time in custody. His Honour also took into account that he had effectively isolated himself from his own family and support network by migrating to Australia specifically to support his partner's ambitions, and that he surrendered himself to police immediately after the offence.

Both parties agreed that a 25% reduction in sentence was appropriate to reflect the guilty plea to manslaughter, noting that the plea was entered at the first available opportunity even though the Crown declined to accept it and proceeded to trial on murder. The assault occasioning actual bodily harm charge, relating to a cut to the partner's finger during the same incident, was taken into account on a Form 1 basis.

Absent the plea discount, her Honour indicated a head sentence of 8 years with a non-parole period of 6 years would have been imposed. Applying the 25% reduction produced the final sentence outlined below.

Orders Made

  • The offender was sentenced to imprisonment comprising a non-parole period of 4 years and 6 months, commencing 11 November 2013 and expiring 10 May 2018.
  • An additional (parole) term of 18 months was imposed, commencing 11 May 2018 and expiring 10 November 2019.
  • The assault occasioning actual bodily harm charge was taken into account on a Form 1 basis and did not attract a separate sentence.

Key Takeaways

  • A guilty plea to a lesser offence entered before trial can attract a 25% discount even where the Crown declines to accept the plea and proceeds to trial on the more serious charge, provided the plea reflects genuine acceptance of responsibility from the earliest opportunity.
  • Provocation, while only a partial defence reducing murder to manslaughter rather than producing an acquittal, remained relevant context when the sentencing court assessed the moral culpability of the offender and calibrated the sentence within the manslaughter range.
  • Strong evidence of prior good character, including a complete absence of prior convictions and consistent testimony about non-aggressive temperament, carried significant mitigating weight in this sentencing exercise.
  • The maximum penalty for manslaughter under the Crimes Act 1900 (NSW) is 25 years imprisonment, and no standard non-parole period applies, leaving the sentencing court with considerable discretion to balance the s 3A purposes.
  • Where multiple offences arise from a single incident, the Form 1 procedure allows related charges to be taken into account on sentence without the imposition of separate penalties, provided it is appropriate in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (manslaughter; assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases cited: No cases were cited in the portions of the judgment provided.