R v Tabalbag

[2016] NSWSC 1570

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tabalbag [2016] NSWSC 1570
Hearing dates:	26 October 2016 – 2 November 20164 November 2016
Date of orders:	10 November 2016
Decision date:	10 November 2016
Jurisdiction:	Common Law
Before:	Mathews AJ
Decision:	Imprisonment consisting of a non-parole of 4 years and 6 months, commencing on 11 November 2013 and expiring on 10 May 2018, with an additional term of 18 months, commencing on 11 May 2018 and expiring on 10 November 2019.
Catchwords:	Criminal law – sentence – manslaughter – guilty plea
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Category:	Sentence
Parties:	Regina Roy Tabalbag
Representation:	Counsel: B Hughes SC (Crown) Ms B Rigg SC (Offender)   Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2013/340538
Publication restriction:	No

Judgment

Introduction

1. On 26 October 2016 Roy Tabalbag was indicted on a charge that on 11 November 2013 he murdered Amin Sthapit. Mr Tabalbag pleaded not guilty of murder but guilty of manslaughter. The Crown declined to accept that plea. Accordingly, a jury was empanelled and a trial proceeded. The sole defence relied upon was the partial defence of provocation. On 2 November the jury, by a majority of 11 to 1, entered a verdict of not guilty of murder but guilty of manslaughter. Mr Tabalbag now comes to be sentenced for that offence.

Circumstances of the Offence

2. At the time of the offence Mr Tabalbag was living with his long term partner, Geecy Rebucas, in a small studio apartment at 2B Mona Road, Darling Point. She was working as a chef at the Golden Sheaf Hotel in Double Bay, as well as doing a cooking course at the TAFE at Ryde. He was working with Aussie Whitegoods, which at that time was stationed at Riverwood. They both came from the Philippines, where they had known each other since high school. When they were still at school they had had a short liaison, of about 6 months. Then, in 2007, they met up again and commenced an intimate relationship. They were living in Manila at the time. Ms Rebucas had a long term ambition to become a chef, and for that purpose she wanted to come to Australia in order to study commercial cookery. Mr Tabalbag agreed with that course, and the two of them came to Australia in 2012. At first they lived with Ms Rebucas’s relatives in the western suburbs of Sydney, and then moved to the Darling Point apartment, which was close to Ms Rebucas’s workplace. Mr Tabalbag had no relatives in Australia, but he forged a close relationship with Ms Rebucas’s Australian relatives.

3. Unknown to Mr Tabalbag, in June or July of 2013 Ms Rebucas commenced an intimate relationship with Mr Sthapit, who was the head chef at the Golden Sheaf Hotel. In the month or so before the offence Mr Tabalbag sensed that there was something wrong. He asked Ms Rebucas on a number of occasions if she was all right, and if anything was wrong. He said in evidence that he was concerned for her health, as she had previously had lung surgery. She reassured him on each occasion that there was nothing wrong.

4. An additional event occurred on the Friday evening immediately before the killing which might have ignited Mr Tabalbag’s suspicions. It is unnecessary for present purposes to go through the details here, but it involved an intense argument between Mr Sthapit and his fiancé outside the Golden Sheaf, which Mr Tabalbag observed when he came to collect Ms Rebucas after work.

5. Mr Tabalbag and Ms Rebucas each had an iPhone operating on the same account, with a “Where’s my iPhone?” App. Mr Tabalbag had used it a couple of times a day in the week preceding 11 November in order to check Ms Rebucas’s whereabouts. On each occasion the response he obtained from the app was consistent with where she said she was.

6. On the morning of Monday 11 November, Mr Tabalbag got up early, and left for work a little before 7 o’clock, as was his habit. Ms Rebucas was still asleep. Later in the morning there was an exchange of sms messages between them, largely concerning relatively trivial matters. On all accounts, this was a regular routine they had. During the morning Mr Tabalbag checked the location of Ms Rebucas’s iPhone. Given their previous messages, there was no doubt that she had it with her. Yet the app showed that the phone was still at the Darling Point apartment at a time when Ms Rebucas should have been at her cooking school. This raised Mr Tabalbag’s suspicions, so he gave his employer an excuse as to why he had to go home, and he drove back to the apartment building, parking his car nearby.

7. When Mr Tabalbag reached the apartment itself he heard some noises inside. He opened the door and saw Ms Rebucas and Mr Sthapit, both naked, in bed having sexual intercourse. When they realised that Mr Tabalbag was there, Mr Sthapit ran into the bathroom and closed the door. Mr Tabalbag grabbed a chef’s knife, which was lying on top of a cupboard near the door. He broke open the bathroom door, and stabbed Mr Sthapit many times, to various parts of his body. The attacks continued after Mr Sthapit ran into the bedroom. As a result Mr Sthapit died shortly afterwards.

8. As to Mr Tabalbag, he went back to his car and drove to St Mary’s, to the home of Ms Rebucas’s cousin with whom he had formed a close friendship. He told the cousin that he had stabbed somebody and that he should hand himself into the police. Accordingly, the two of them went to St Mary’s Police Station, where Mr Tabalbag told police what had happened. In due course it was realised that Mr Sthapit had died of his wounds. Mr Tabalbag was taken to Penrith Police Station where he was arrested and charged with murder. He has been in custody ever since.

The Course of the Trial

9. The trial was a very brief one, as none of the essential elements in the Crown case was in dispute. The whole of the evidence occupied less than two days. The single factual issue related to Mr Tabalbag’s state of mind when he inflicted the fatal injuries, and in particular whether he had lost his self-control as a result of the actions of Mr Sthapit. Mr Tabalbag gave evidence in which he said that he had little memory of the stabbing itself – he could see his actions in the second or third person, but that was about all. He became extremely upset during the course of his evidence.

10. The evidence indicated that Mr Tabalbag was a person of previous good character. He had no criminal convictions of any nature, and several witnesses spoke highly of him, saying that he had never previously displayed any signs of aggression. Accordingly, there was little issue as to the second requirement of the defence of provocation, namely that the conduct of the deceased was such that it could have caused an ordinary person in the position of the accused to lose control and act, in effect, as Mr Tabalbag did.

11. The jury was out considering its verdict for a considerable time, given the relative brevity of the evidence. Eventually, after more than 2 days of deliberations, the foreman came into the witness box and swore that it was not possible for them to reach a unanimous verdict. I accordingly directed them that the stage had been reached when they could return with a majority verdict of 11 to 1. A very short time later the jury returned with its majority verdict of not guilty of murder but guilty of manslaughter.

12. At this stage I turn to say something about Mr Tabalbag’s background.

Mr Tabalbag’s Background

13. Mr Tabalbag was born in Pagadian in the Philippines on 13 July 1985 and is now 31 years old. His parents separated when he was at preschool, and he and his three siblings were brought up by their mother, with support from her extended family. He had little contact with his father, who died when he was 16. His mother taught chemistry at high school. She is now retired.

14. After finishing his schooling, Mr Tabalbag went to Mindanao State University where he undertook a four year degree course in information technology. He graduated in 2006, after which he moved to Manila where he obtained employment. He remained with his principal employer for 6 years, and was promoted from technical support to supervisor and trainer.

15. As already mentioned, in 2007 he commenced a relationship with Ms Rebucas. In 2012 they moved to Australia because of her desire to study cookery. She already had extended family here. He had no family here, but he quickly forged close relationships with Ms Rebucas's family members. At the same time he maintained contact with his own family and friends in the Philippines, as indicated by written references provided by a number of them.

16. Mr Tabalbag already spoke English, and within a very short time of arriving in Australia he obtained a job with Aussie Whitegoods. He was still working there at the time of this offence. His employer, Liam Bartels, gave evidence at the trial. Mr Tabalbag's job was to field incoming calls from customers, book service jobs and arrange for contractors to go out and fix appliances. Mr Bartels spoke extremely highly of him, describing him as being very intelligent and having a "terrific work ethic". He was always at work on time, and was a very calm and non-aggressive person. This was an important trait for his work, Mr Bartels said, as he sometimes received difficult calls.

17. Mr Tabalbag's relationship with Ms Rebucas remained a close, intimate and loving one, even after she had commenced her relationship with Mr Sthapit. As far as Mr Tabalbag was concerned, they were planning to get married and have children.

18. As already mentioned, Mr Tabalbag has no previous convictions of any kind, either here or in the Philippines. Since his incarceration for this offence, he has undertaken a number of courses in prison, some of them of a religious nature: he has always been a committed Catholic. He has received extremely positive reports from Corrective Services staff members, and enthusiastic references from friends.

19. I now turn to discuss the objective seriousness of this offence.

Seriousness of this Offence

20. The range of seriousness for manslaughter is arguably greater than for any other offence. It can range from a foolish joke which went disastrously wrong, on the one hand, to something only a little short of murder on the other. By definition it involves the taking of a human life, and is therefore regarded as an extremely serious offence.

21. The only aggravating factor relating to this offence which was suggested by the Crown, is that it involved the use of a knife, pursuant to s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, 1999 ("the Act"). However, as Ms Rigg SC, who appeared for Mr Tabalbag, pointed out, this was an inherent part of the offence. Without it, there would have been no killing. In addition, the fact that a knife was used is in any event to be taken into account when assessing the extent of the violence involved in this offence. Accordingly, I decline to take it into account as an additional aggravating factor.

22. The one mitigating factor, pursuant to s 21A(3)(b) of the Act, is that the offence was not part of a planned or organised criminal activity.

23. The Crown submitted that this case falls slightly above the mid-line of seriousness for offences of this nature, given the sustained nature of the attack on the deceased, and the number of stab wounds inflicted. Ms Rigg conceded that, given the degree of violence inflicted on the deceased, who was entirely defenceless at the time, it is a serious offence. However the nature of the provocation itself and the immediacy of the response, are also relevant factors, which in this case serve to reduce Mr Tabalbag's objective culpability. This being the case, Ms Rigg submits that this is less serious than a mid-range offence.

24. Taking all these factors into account, I consider that this offence falls slightly below the midline of objective seriousness for offences of manslaughter by reason of provocation. Certainly the violence involved was of a very serious and sustained nature. On the other hand, although Mr Tabalbag undoubtedly had his suspicions about his partner at that stage, it remained a close, loving relationship - at least as far as he was concerned. It was clearly a huge shock when he opened the door to reveal what was happening inside the apartment. A report of the psychologist, Anna Robilliard, was tendered on sentence. She said that Mr Tabalbag's account of his feelings at the time were consistent with his having undergone an autonomic limbic response to a perceived threat, with a defensive (fight) response of aggressive action. In other words, he truly had no control over his actions. In the present case, it is probable that the extent of the violence Mr Tabalbag exhibited, was indicative of the extent of his loss of self-control, rather than of any innate tendency to violence. In addition, the knife - a large, sharp-pointed weapon - just happened to be in easy reach immediately after he opened the door.

Other Aggravating and Mitigating Factors

25. I turn to discuss the aggravating and mitigating factors relating to Mr Tabalbag personally.

26. There are no aggravating factors under s 21A(2) of the Act.

27. There are a number of mitigating factors under s 21A(3). First, Mr Tabalbag was a person of good character and had no previous convictions, under paragraphs 3(e) and (f). He has good prospects of rehabilitation and is unlikely to re-offend, under paragraphs 3(g) and (h). He has shown remorse for his actions, and has accepted responsibility for those actions by pleading guilty to manslaughter, pursuant to paragraphs 3(i) and (k). That last factor, his plea of guilty, is particularly significant. Both counsel agree that, in all the circumstances of this case, Mr Tabalbag should be given a 25% reduction in his sentence by reason of his plea of guilty.

The Appropriate Sentence

28. The purposes of sentencing are set out in s 3A of the Act. Very briefly, they are: to punish the offender, to deter the offender and others, to protect the community, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce his conduct, and to recognise the harm done to the community. A number of these purposes point in opposite directions, and the sentencing process requires a delicate balancing of them, according to the facts of the immediate case.

29. In relation to the harm done to the community, a very moving victim impact statement was tendered by Mr Sthapit’s long term partner. On behalf of the Court, I extend my deep condolences for her loss.

30. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period.

31. Mr Tabalbag has also been charged with assault occasioning actual bodily harm in relation to a cut to Ms Rebucas’s finger which she suffered during the encounter which led to Mr Sthapit’s death. He has requested that this be taken into account when sentencing him for the present offence. Given that both offences arise out of the same circumstances, it is, in my view, highly appropriate that I do so. Accordingly, in sentencing Mr Tabalbag for the offence of manslaughter, I am taking that further offence into account.

32. Mr Tabalbag has been in custody since 11 November 2013, and his sentence will commence on that date.

33. Were it not for the plea of guilty, I would have imposed a head sentence of 8 years with a non-parole period of 6 years. Applying a 25% reduction for his plea of guilty, I reach the following sentence:

34. Roy Tabalbag, for the manslaughter of Amin Sthapit, and taking into account the offence on Form One, I sentence you to imprisonment consisting of a non-parole of 4 years and 6 months, commencing on 11 November 2013 and expiring on 10 May 2018, with an additional term of 18 months, commencing on 11 May 2018 and expiring on 10 November 2019.

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Decision last updated: 23 April 2018