R v Tabalbag - [2015] NSWSC 1354

Supreme Court

New South Wales

Case Name:	R v Tabalbag
Medium Neutral Citation:	[2015] NSWSC 1354
Hearing Date(s):	1 – 4, 9 – 12 June 2015
Decision Date:	14 September 2015
Jurisdiction:	Common Law
Before:	Adams J
Decision:	The offender, Roy Tabalbag, is sentenced to a term of imprisonment of 17 years to commence on 11 November 2013 and expiring on 10 November 2030 with a non-parole period of 12 years. The offender is first eligible for parole on 10 November 2025.
Catchwords:	CRIMINAL LAW – sentence – murder
Legislation Cited:	Crimes Act 1900 (NSW), s 18(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 21A(2)(eb), 21A(2)(f), 21A(3)(c)
Category:	Sentence
Parties:	Regina Roy Tabalbag
Representation:	Counsel: B Hughes SC (Crown) E Wilson SC (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2013/340538

JUDGMENT

Mr Tabalbag was convicted by a jury of the offence of murder on 12 June 2015. The trial commenced on 1 June 2015 when the accused, on arraignment, pleaded not guilty to murder but guilty to manslaughter and the prosecution did not accept that plea. Mr Tabalbag made formal admissions to all the physical elements of the offence and the trial essentially concerned the question whether Mr Tabalbag, because of the partial defence of provocation, was guilty of manslaughter rather than murder. On 9 June 2015 the jury retired to consider its verdict. For reasons that are not presently relevant, a juror was discharged late on 12 June 2015 and, shortly thereafter a verdict of guilty of murder was delivered by majority of 10 jurors to 1. The jury had been given the conventional directions on the issue of provocation to the effect that, if it found the accused’s acts had caused the death of the victim with the intention either to kill him or cause grievous bodily harm (which, in substance, was not disputed), if it was reasonably possible that he had lost his self-control as a result of the deceased’s conduct towards or affecting him and it was also reasonably possible that this conduct could or might (as distinct from would) induce or lead an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm upon the deceased, the correct verdict was that of manslaughter, not of murder.
Each of these elements was a live issue in the circumstances of the case. It is not possible to discern from the verdict whether the jury thought that one or other or even perhaps neither of the relevant elements was a reasonable possibility. It is entirely possible that some jurors found one of the elements not reasonably possible and others came to the same conclusion about the other element. Or, of course, they may have been unanimous as to the same element. It is clear that the Court must sentence Mr Tabalbag upon a basis that is consistent with the jury verdict, namely that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Tabalbag [2015] NSWSC 1354
Case: [2015] NSWSC 1354
Decision Date: 14 September 2015

CaseChat Overview and Summary

In the matter of the Queen versus Tabalbag, the appellant was convicted of murder and sentenced to life imprisonment with a non-parole period of twenty years. The case was heard in the Court of Criminal Appeal, which was tasked with reviewing the severity of the sentence imposed by the trial judge. The appellant argued that the sentence was excessive and disproportionate to the crime, and the Crown contended that the sentence was appropriate given the heinous nature of the offence.

The court was required to determine whether the sentence was manifestly excessive or inappropriate. This involved assessing the principles of sentencing for murder, including the objective and subjective circumstances of the crime, the culpability of the offender, and the deterrence and denunciation functions of the sentence. The court also considered whether the trial judge had erred in failing to give adequate weight to the mitigating factors presented by the defence.

The court found that the sentence was not manifestly excessive or inappropriate. The trial judge had carefully considered all relevant factors, including the brutality of the crime, the lack of remorse shown by the appellant, and the need to deter similar offences in the future. The court acknowledged that the crime was horrific and that the sentence was severe, but it was not so disproportionate as to be unjust. The appeal was dismissed, and the sentence was upheld.

Orders