Citation: R v Tapine [2018] NSWDC 457
Court: District Court of New South Wales
Date: 24 August 2018
Judge(s): King SC DCJ
Background
The offender, a shearer working in the Cargo area of New South Wales, had been drinking at the Cargo Inn on the evening of 25 June 2016. After the pub closed around midnight, staff repeatedly asked him to leave. He refused despite multiple requests over an extended period.
When a woman helping behind the bar politely asked him to hand over his glass, he smashed it into her face without warning, causing multiple lacerations that required stitching and gluing, and later the surgical removal of embedded glass. He then hurled bar stools at a patron who reacted to the attack, striking the patron twice on the arm. When the publican tried to remove him, the offender grabbed him and a prolonged struggle ensued. The offender did not leave the premises until police arrived.
The matter proceeded to a jury trial at Orange District Court in May 2018. The jury returned guilty verdicts on all three counts after a three-day trial. The offender had been held in custody since the verdicts were returned.
Legal Issues
- The appropriate sentence for assault occasioning actual bodily harm (Count 1: glassing of a barmaid)
- The appropriate sentence for assault occasioning actual bodily harm (Count 2: throwing bar stools at a patron)
- The appropriate sentence for break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900, involving unlawful violence against the publican in circumstances of aggravation (Count 3)
- Whether special circumstances existed to justify departing from the standard non-parole period ratio
- The weight to be given to subjective factors including the absence of a prior criminal history, expressions of remorse, cultural background, and the likelihood of deportation
Decision
King SC DCJ described the glassing of the female bar worker as a serious and unprovoked act of violence. The victim had done nothing more than ask for the offender's glass, and the attack caused lasting physical injury requiring multiple medical procedures. His Honour treated the publican's break-and-enter charge (Count 3) as the principal offence given its 20-year maximum and the applicable standard non-parole period of five years.
On the break-and-enter charge, the offender had re-entered the licensed premises unlawfully after being told to leave and had used violence against the publican, knowing other persons were present. This attracted the aggravated form of the offence under s 112(2). His Honour found the objective seriousness of this count, combined with the violence of the surrounding conduct, warranted a substantial custodial term.
On subjective matters, the court accepted that the offender had no relevant prior criminal history, had expressed genuine remorse, and had behaved well in custody. His Honour also received evidence going to the offender's personal and cultural background. These factors were taken into account in mitigation but did not displace the need for a meaningful sentence given the seriousness of the offending.
His Honour found special circumstances existed, principally because the offender had a limited prior exposure to the criminal justice system and would benefit from structured supervision on release. This justified reducing the non-parole period below the statutory ratio by seven months and 15 days. His Honour also noted that the offender, as a New Zealand citizen, faced a high likelihood of deportation on release, but that the court was required to impose sentence without treating deportation as a mitigating or aggravating factor.
Orders Made
- Count 3 (break, enter and commit serious indictable offence): imprisonment of 4 years, with a non-parole period running to 19 May 2020
- Counts 1 and 2 (assault occasioning actual bodily harm): concurrent sentences imposed
- Three days of pre-sentence custody (2 to 4 July 2016) taken into account
- Special circumstances found; non-parole period reduced from the statutory relationship by 7 months and 15 days
- Matters on the s 166 certificate (Sequences 3 and 6) withdrawn and dismissed
Note: The full sentencing orders, including precise sentence lengths for Counts 1 and 2, were not reproduced in the portion of the judgment provided.
Key Takeaways
- The District Court treated the aggravated break, enter and commit a serious indictable offence charge under s 112(2) as the principal offence for sentencing purposes, given its 20-year maximum and the five-year standard non-parole period.
- A finding of special circumstances can justify departing from the statutory non-parole period ratio where an offender has limited prior exposure to custody and would benefit from supervised reintegration.
- Under NSW sentencing law, the prospect of deportation following release is not a factor the court may treat as mitigating or aggravating the sentence, even where practical consequences for the offender's family are evident.
- Absence of prior criminal history, genuine remorse, and good behaviour in custody are recognised mitigating factors, though their weight may be limited where the offending involves serious, unprovoked violence.
- The s 112(2) aggravated form of break and enter requires proof that the offender knew persons were present on the premises at the time of the offending, a circumstance the jury found established on the evidence here.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59 (assault occasioning actual bodily harm), 112(2) (aggravated break, enter and commit serious indictable offence), 166 (fail to leave licensed premises)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole period provisions; special circumstances)
Cases cited: No cases were cited in the judgment text provided.