R v Tabalbag

The Facts

1. The starting point, as objective evidence of the degree of violence used by Mr Tabalbag, must be the post-mortem examination. The cause of death was multiple stab wounds. The pathologist found five stab wounds to the front, nine to the back. Many of the wounds overlapped. Where their depth could be ascertained, they were about 15cm, thus less than the length of the blade of the knife which was found to have been used. There was also a 10cm deep wound to the side of the upper left arm. No defence type injury was noted. There were other inconsequential scratches and abrasions.
2. Mr Tabalbag and Ms Rebucas were both born in the Philippines and had known each other since high school. He had done well at high school and graduated from university with a degree in information technology. He was employed in the Philippines after he graduated. The couple had lost contact for a time and then met up again in 2007 when an intimate relationship commenced between them. In about 2011 they moved together to Australia. Although Mr Tabalbag had no relatives here, he was welcomed as a part of Ms Rebucas' family. At first they lived with her relatives and then moved to a small one bedroom apartment on the fourth floor of a building in the city near Darling Point. Mr Tabalbag had obtained employment about a month after their arrival. Ms Rebucas commenced a cookery course. In 2013, she obtained employment as a trainee in a hotel in Double Bay, where she met Mr Sthapit, who was her boss. Mr Tabalbag had met Mr Sthapit on one occasion when both of them happened to be visiting Ms Rebucas in hospital at the same time. Ms Rebucas and Mr Sthapit started a relationship in about August 2013, meeting at the Darling Point apartment.
3. Ms Rebucas gave evidence about her relationship with Mr Tabalbag and said that, in the last month or so before the incident, she had "sort of lost interest in him" and their relationship was not as close as it had been. He asked on occasions if anything was wrong and whether there was anyone else, both of which she untruthfully denied. She was asked about what happened when Mr Tabalbag came to the apartment on the day in question. At the outset, she pointed out that everything had happened very quickly. She said that the knife grabbed by Mr Tabalbag shortly after he entered had always been kept in the same place in clear sight and was inside its box at the time. She had had it for a couple of months. When Mr Tabalbag entered she thought he said, "Why, why did you do this?", or words to this effect. She responded to the effect, "This is my fault, don't do anything to him". Mr Sthapit ran to the bathroom, which was the only other room in the apartment. Mr Tabalbag grabbed the knife and followed him, managed to open the door and then stabbed Mr Sthapit. He managed to get out of the bathroom and was followed by Mr Tabalbag who continued to stab at him. Ms Rebucas kept saying it was her fault and he should stop but he just kept asking, "Why?" He essentially ignored her. She saw further stabs to Mr Sthapit's back. He staggered on the other side of the bed with Mr Tabalbag continuing to stab at his back. When he lay on the ground, Mr Tabalbag stabbed him to his stomach. Ms Rebucas tried to push him away by grabbing his jacket. He had the knife behind his back and, as she tried to grab it with her left hand, her thumb was cut, although she did not realise it at the time. Mr Tabalbag brought the knife back around and continued his attack on Mr Sthapit. Ms Rebucas tried to push him away and, she thought, he might have hit her on the head a couple of times. At one point he said, "Don't try to stop me or I'll stab you". However, she did not believe him and, although she did try to stop him, he did not attempt to stab her. She said that she managed to push him outside the room and he dropped the knife in the hallway, where she picked it up. He kept asking, "Why? Why did you do this?" She said, "Go and run" and he left using the stairway going down to the entrance. She said he was never violent or aggressive in their relationship or showed any form of aggression towards her. Although there was one occasion when they had an argument and he became really angry and stabbed her favourite toy.
4. Mr Tabalbag became suspicious after a time that perhaps Ms Rebucas was having an affair but, when he asked her about it, she denied it. Over the weekend before the incident Ms Rebucas' unusual behaviour seemed to become more intense and his suspicions increased. He had previously activated on their phones an application which enabled them to be tracked. He had used it to track her location both on the Friday and on the weekend and discovered nothing suspicious. On the Sunday night he had also tried to check her mobile phone messages using a computer program but did not see anything suspicious. When he went to work on the next day, that is the Monday of the incident, they exchanged text messages as they usually did. He understood that she was going to school and asked her about the assignment which he had been correcting the previous night. He was suspicious about where she was and sent her a text asking her where she was. After several exchanges she said she was at school, but the location application on his mobile phone showed that she was at home. This confirmed his suspicions about her, although he was not entirely certain. He decided he would go to see what was happening. He made up a story to his boss about needing to go home for an inspection and was given permission to leave work. As he drove home, he could not exactly remember what he was thinking: "It's like a million thoughts processing in one time". He parked close and walked to the building, wearing a hoodie because it was raining hard. He entered at 10.58am, recorded by CCTV in the vestibule. He decided to walk up the four flights of stairs because the lift was slow. He recalled seeing someone on the stairs on the phone and greeted him briefly. He then went to the door of his apartment. (The apartment was tiny with only one room and a bathroom. There was a kitchenette against the wall opposite the bed.) He said that he was scared about what he might find, whether his suspicions were right and he was angry. He said that this was the first time he felt like this. He said - "It's like your heartbeat pumping. It's like at the same time your brain is - like it's just floating with anger or, you know, if it's 50% not true when you open the door or if she's with someone when you open the door. It's like stepping into the like -- into the unknown. I don't know. It's hard to tell. I'm really sorry, your Honour. It's a whole --yeah, I would say -- it's a whole ball of negative feelings, anger."
5. He said that, as he walked towards the door, he heard the TV was on so he knew there were people there. He opened the door with his key but the safety chain was on. Through the gap he saw his partner and a man, naked, having sex on the bed. He was asked - "Q. At that moment what did you think? A. As a matter of thought, I don't know what I was thinking at that time. It's like, just you're overwhelmed with rage, anger. It's - it's like - it's, I would say it's - you're like a demon possessed or someone controlling you. Yeah, it's - I would say it's a very terrible rage. Q. Is it anything like this that you felt before? Have you ever felt this before? A. No."
6. Mr Tabalbag said that he put his arm inside and released the chain. The door opened wide and he stepped into the room. He could not remember exactly what he saw. He thought he was screaming at Ms Rebucas and then he saw the box with the chef's knife on top of the tall boy about two arms' lengths away. (This had been a present to Ms Rebucas. It had not been used and was in its box on the tall boy next to the door. Although Ms Rebucas said the lid was on, Mr Tabalbag was uncertain.) He said he was "not really sure what was running in my mind at that time, but I can remember the chills on my body, the emotions. It's like - yeah, it's a raging feeling, I would say it's pretty much because of anger." He thought Ms Rebucas was near the kitchenette. The man ran into the bathroom and closed the door. Mr Tabalbag noticed that he was bigger than he was with a muscular build. Although he had the knife when he went to the door, Mr Tabalbag is not sure when he picked it up. He did not know why he picked it up. He tried to open the door. He said he might have been screaming something at Ms Rebucas but did not recall. There was a struggle at the door as Mr Tabalbag tried to open it. He managed to do so. A photograph taken after the police arrived showed the door had been ripped from one of its hinges and there was damage to the door frame and the lock. Since Mr Tabalbag was pulling at the door, this shows the use of very considerable force. When he opened the door he said he recognised Mr Sthapit. He said he was "overpowered with rage… overwhelmed with rage at that time" and "might have swung the knife at him". He said that he did not exactly remember doing this as he only remembered bits of what occurred. He said that Mr Sthapit might have said something but he doesn't remember that. Aside from knowing he was naked he didn't recall anything about how he looked. He said he could not remember what Mr Sthapit did. "I think all hell broke loose because of my anger, and then I might have swung the knife several times, and there was a whole lot of commotion, I would say." He was not sure whether he entered the bathroom. He "can vaguely remember, I was just swinging the knife but I can't remember - I can't tell you if, you know, if it hit him or it hit something else". But he agreed that it was fair to say that the blows with the knife were aimed at Mr Sthapit. He could not remember what Ms Rebucas was doing at this time. She may have been screaming and he may have responded. He said that he did not recall Mr Sthapit falling to the ground. He said that when he got out he was not "100% sure if he was on the ground". He was asked - "Q. What led you to leave? What led you to stop? A. Well, because Gee Cy [Rebucas] was trying to push me out of the unit." He thought she took the knife when she pushed him out because when he left he was not carrying it. She said something like, "Go and I'll talk to you later". He may have slapped her but did not recall doing so. He had never hit her or tried to hit her before.
7. In substance, his evidence was that he had not realised, when he was in the room, how many times he had stabbed Mr Sthapit. This came to him later, when he arrived at the house of Lawry (one of Ms Rebucas' cousins) at St Marys about an hour later. He left the apartment and walked down the stairs. The CCTV recorded him leaving the building at 11.08am. He was therefore only in the building for a total of 10 minutes. He was asked about his feelings at this time. He said - "It's - it's - I don't know, it's different, it's like - it's like you - it's like you're not in control of your body, it's like you're floating, it's - yeah. You're not even sure if you're walking or you're running or yeah. It's like a floating sensation of blankness in your mind".
8. He said that he did not actually think about calling an ambulance until shortly after he arrived at St Marys, when he recovered his composure. (I interpolate that Ms Rebucas called 000 on two occasions: once during the attack, once shortly after.) He drove, as it were, on automatic. He told Lawry something about what happened. Lawry called his father and suggested they go to St Marys Police Station. Mr Tabalbag agreed. They arrived at the station about 2pm. He told the officer at the desk that he wanted to hand himself in. He was asked why and replied that he had stabbed someone. The officer who observed him noted that he appeared to be very sad and remorseful. In an ensuing conversation, he said he stabbed his "partner's boyfriend because I caught her cheating with him". He said he stabbed him "many times". He drove out to St Marys after it happened because he had family there. He was arrested shortly after and taken to Penrith Police Station. During the formalities he asked if his partner was okay. The custody officer asked if there was any reason why she shouldn't be and he responded, "No, I didn't stab her, just him. I only slapped her once".
9. Mr Tabalbag was asked - "Q. What did you think, when you've got to that point when you've handed yourself in, what did you think about what had happened? A. Well, pretty much I made a mistake, I've pretty much hurt someone, and that would be the right thing to do, hand myself in. Q. When did you learn that Amin had passed away? A. That's at the Penrith station when I spoke to Detective Mangan. Q. When you heard that, what did you feel? A. It was devastating, it was like, it was like a whole block of heavy stuff, you know, struck my shoulders like … Q. What did you feel about Amin? A. Well, pretty much, I mean, people make mistakes and no one deserves to get hurt, like - and I'm - it's - it was, I mean, it's hard to lose someone, you know, especially dear to you, especially someone you love. And for families as well, it's hard to lose someone, you know, a son, maybe a brother or a girlfriend or boyfriend or a fiancée. Q. How did you feel about what you done? A. Sorry would be an understatement. Its - it's a really terrible thing. As I said, people make mistakes, whatever mistakes they are. But, yeah, under any circumstances no one deserves to get hurt, let alone die. Q. Why do you think that you behaved in that way to take his life? A. It's pretty much because - because of anger. I would say it wasn't me. It's pure rage, you know, hatred, I would say, betrayal, all packed into one, all of the - all of the anger, angst, emotions, I would say. Q. When you say "it wasn't me", what you mean by that? A. Well pretty much if I was in my right state of mind, I mean, I would definitely not do that."
10. Mr Tabalbag was cross-examined, essentially to demonstrate that he had been dwelling on Ms Rebucas' likely unfaithfulness, and about the sequence of events that brought him to the apartment, in particular, the repeated use of the location application, the use (though ineffective) of the program attempting to check her messages, the messages between him and Ms Rebucas on the morning of the offence, the lie told by him to his boss to enable him to leave work and his being able to drive to the apartment. None of these facts are inconsistent with his evidence about his emotional turmoil at the time, nor do they suggest that he had planned to attack, let alone kill, whomever was with his partner if indeed she was with someone. He was also cross-examined about going up the stairs rather than using the lift, using his key instead of knocking, manipulating the door chain, forcing the deceased out of the bathroom and holding the knife behind his back so as not to injure Ms Rebucas. Going up the stairs rather than waiting, to my mind, is suggestive of agitation and impatience, which is consistent with Mr Tabalbag's evidence about his feelings at the time. Using his key rather than knocking, again, is consistent with his desire to find out the truth so that he could walk in as it were without warning. Certainly, this shows that he was thinking at this point about what he was doing but, again, it is not inconsistent with the extreme turmoil of his emotions at the time. To discover, in the most graphic way, that his worst fears were true would, to my mind, be liable to lead to what Mr Tabalbag described as the overwhelming feelings of rage which overcame him and led him to grab the nearby knife and attack Mr Sthapit. Forcing the victim out of the bathroom, which required the application of great force, resulting in the broken hinge and damage to the door frame at the lock, is also consistent, to my mind, with these feelings. As to holding the knife behind his back, the fact that he did not wish to hurt the woman he loved does not suggest, as I see it, that he was in control of his rage towards the deceased. His admitting at the police station to stabbing the deceased and inquiring only as to the well-being of Ms Rebucas certainly indicates that he was, at that point, not thinking about Mr Sthapit's fate but, rather, about the woman he loved. It is obvious that, when he attacked her lover, he was filled with rage and hatred for him. It is not inconsistent with these feelings that he did not ask about his welfare. I do not understand how this suggests that, at the time of the attack, he had not lost his self-control. As Mr Tabalbag left the stairwell, the static CCTV record of that part of the building shows that he turned back slightly and appeared to be rubbing something with his hoodie. He said he did not know what he was rubbing. It was suggested to him that he was rubbing his hand print off the wall. He agreed that he rubbed something but he was unable to say what he was thinking at the time. I have carefully examined this evidence. I do not think that any sensible inference can be drawn in the circumstances about what Mr Tabalbag was doing at this point, or that it sheds any light on his frame of mind, either then or earlier, when he was in the apartment. It is obvious that the circumstances themselves would have led, in the mind of most persons, to considerable agitation and it is not at all surprising, on any view, that he might well not have been thinking entirely rationally. The assumption underlying the prosecutor's question, namely that his hand print was on the wall, is speculative. In conclusion, although the prosecutor's cross-examination rightly explored what might, on one view, appear to have been important aspects of the evidence possibly telling against Mr Tabalbag's account about his loss of self-control, in the result it left his evidence substantially intact.
11. I have set out much of Mr Tabalbag's evidence in an attempt to convey some of its flavour. It is fair to say, I think, that he was wary about making concessions and was somewhat defensive. However, this is not surprising in an accused person who gives evidence. Part of his problem, I accept, is that he does not have an entirely clear or coherent recollection of what he did and relied on what he has been told for much of the detail. In the circumstances, this is not surprising. (Indeed, a detailed psychological report which was tendered on the sentence proceedings - briefly discussed below - refers to research about how the brain functions when someone is greatly distressed. This report was obtained after conviction and Mr Tabalbag would not have known about it when he gave his evidence, which was consistent with the research including, for example, about feeling hot and cold which, to the lay mind, seems somewhat odd.) My own layperson's common sense assessment of his evidence is that it is not surprising that he has no entirely clear or coherent recollection of what he did. One is much more likely, as I think, to recall one's emotions than particular reasoning at the time. Nor is English his first language and, on a number of occasions, he found it difficult to find the right words to describe his feelings. This also indicated to me that he was making a genuine effort to recall the events - instead of some story he had constructed - and still found it not only difficult but, I think, painful to do so. It is not easy to gather from the transcript the way in which Mr Tabalbag presented as a witness. At several points, when describing what happened and his turmoil of mind, I thought he was affected with genuine emotion. It is enough for me to say that I concluded he was being as honest as he could be.
12. It is important also to bear in mind the evidence of the post-mortem examination which strongly bespeaks a frenzied attack. Furthermore, there is not the slightest suggestion that Mr Tabalbag has resorted to violence in the past. In the result, so far from having to give Mr Tabalbag the benefit of the doubt on the issue of his loss of self-control when he attacked Mr Sthapit, I am positively satisfied that he had lost his self-control at the time. When he said, at the close of his evidence in chief, that "it wasn't me" and, had he been in his right mind, he would not have done what he did, it seems to me this was the all too tragic truth.
13. Furthermore, although I have no doubt that, in his frenzy, Mr Tabalbag intended to inflict as much hurt as he could, it is reasonably possible, indeed likely, that he did not actually form an intent to kill Mr Sthapit. Accordingly, it is necessary to sentence him on the basis that he intended to cause grievous bodily harm.
14. So far as the jury's verdict is concerned, of course, I am unable to say whether, and to what extent, the members of the jury were of the same mind, as I have stated. However, their verdict is entirely explicable on the basis that they were satisfied beyond reasonable doubt that an ordinary person in Mr Tabalbag's position could not have so lost his self-control as to have formed the intention to kill or cause grievous bodily harm. This, of course, is an objective test.

Subjective features

1. Mr Tabalbag was born on 13 July 1985. I have no doubt that his expressions of remorse made at the time he gave evidence in the trial were genuine. This view is confirmed by the expert reports of Ms Robilliard and Dr Furst which were tendered on the sentence proceedings without objection. Also of importance is their opinion that he does not have any psychiatric or psychological condition which might suggest that he is a danger to the community. Nor was there anything in his background that might have suggested he could or might commit this terrible crime. He grew up in relatively happy circumstances, attended school and university with significant success and worked at worthwhile employment though, in Australia, he was overqualified for his job and, no doubt, looked forward to improvement in that regard. He was in what he believed to be - and mostly correctly - was a loving and secure relationship with his partner. As I have mentioned, Ms Robilliard detailed some significant research on cases like the present dealing with brain organisation and functioning in circumstances of great distress that provides some explanation for what occurred and which supports my own common sense conclusions about Mr Tabalbag's loss of self-control. The account he gave to the experts was, in substance, the same as that which he gave in evidence. Ms Robilliard concluded - "This man impressed as willing to give a detailed and intelligent account of his offence and did so to the best of his ability. His descriptions of feelings, emotions and perceptions were intense and insightful. He made no attempt to avoid responsibility for his actions or to shift blame for his offence. His expressions of regret and remorse appeared to be genuine and transparent … The type of offence this man has committed, his previous organised and purposeful lifestyle and behaviour, the profile he produced on the personality test administered and the similarity his history has to the emerging profile research studies are producing in relation to those who commit similar offences, places him into a low risk of reoffending category as these offences are highly situation specific and contextual." These conclusions reflect my own views about the matter.
2. In addition a significant number of testimonials to Mr Tabalbag's character and attributes were tendered. They come from people with a wide range of different backgrounds, all of whom knew him well. None understates the seriousness of his offence but their consistent theme is how completely out of character it was. Several also emphasise how much he was in love with Ms Rebucas and that he gave up good employment with excellent prospects to come to Australia to remain with her.

Victim Impact Statement

1. It is inevitable that, in sentencing proceedings, the court concentrates its attention on the circumstances of the offence and the circumstances of the offender. However, it must be remembered that the context is the unlawful and inexcusable taking of an innocent life. It is appropriate and, indeed, the law requires the court to listen to the voice or voices of those who knew and loved the deceased and whose grief and sense of loss is part of that which the community suffers whenever one of its number is unlawfully killed. Of course, as all persons are equal before the law, so all lives must be equally valued by the law. The harmful impact on the immediate family of the victim is necessarily a part of the harm done to the community.
2. A victim impact statement was read to the Court by Ms Yonzon, who was the partner and fiancé of the deceased. They had dated each other since school and came to Australia in 2002 or 2003 to make a new life together. Ms Yonzon eloquently describes his loving, generous and nurturing character. She tells not only of her painful loss and grief but that of his parents and brother. As she rightly says, Mr Sthapit did not deserve to die as he did and the fact of his death remains a terrible and continuing experience for all those who loved him. Nothing that I say should be understood as in any way diminishing the importance of his life or the impact of his death.

Evaluation

1. The Crimes Act 1900 (NSW) provides that, for the crime of murder, the maximum sentence is life imprisonment with a standard non-parole period prescribed of 20 years applicable to cases where life imprisonment is not imposed. It has, rightly, not been suggested in this case that life imprisonment, which is reserved for cases falling into the worst category of murder, is appropriate. Nevertheless, murder is a very serious crime requiring the imposition of a lengthy sentence of imprisonment, not only to deter others from committing it but also to mark the abhorrence of the community for the felonious killing of a human being. In some cases personal deterrence is also important. However, as I am satisfied that it is extremely unlikely that Mr Tabalbag will ever again offend in this, or in any other serious way, this aspect of the purpose of punishment is not presently significant. That the non-parole period for cases falling in the middle of the range of objective seriousness is 20 years is a guideline or benchmark to be borne in mind also for those offences the objective circumstances of which are not in the middle of the range. This is one of those cases. The most critical factors which, to my mind, establish that this case is significantly less than the middle of the range of objective circumstances are that the crime was not only not premeditated but was impulsively committed when Mr Tabalbag's powers of reasoning, judgment and self-control were temporarily but significantly disordered.
2. The punishment imposed by the courts must be reasonably proportionate to the circumstances of the offence and take into account the particular circumstances of the offender. Of course these factors can and do vary very greatly from case to case. As I have mentioned, generally speaking when a person kills another intending to do so, that is regarded as more blameworthy than where death is caused by the intention to inflict really grievous injury. In this case, for the reasons already given, I have concluded that Mr Tabalbag should be sentenced on the basis that he intended to inflict grievous bodily harm and had not actually formed an intention to kill. However, the fact that his intention was to cause as much harm as he was able up to the time he was induced to desist by Ms Rebucas, by which time he had inflicted 15 very serious wounds, means that this factor renders his offence only slightly less culpable than if he had intended to kill. Accordingly, I have not accorded this factor much significance.
3. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the use of a weapon may be an aggravating feature of an offence. However, here the use of the knife is so integral a part of the offence, as it inflicted the injuries that caused death, that to take this factor into account as an additional aggravating feature would be, in effect, to double count. In assessing the appropriate objective seriousness of the offence I have, of course, taken into account the whole of the circumstances of its commission. The same considerations apply to s 21A(2)(eb) (offence occurring in the victim's home) and s 21A(2)(f) (gratuitous cruelty). Section 21A(3)(c) also provides that if the "offender was provoked by the victim", this is to be taken into account as a mitigating feature. It is not for me to judge the morality of the conduct of either Ms Rebucas or Mr Sthapit but it is plain that it gave rise to Mr Tabalbag's violent and uncontrolled response. Of course, the law does not, and cannot, allow or excuse violent attacks that are not in self-defence and there is nothing about the conduct of Ms Rebucas and Mr Sthapit that could justify, in any sense or to any degree, the attack upon Mr Sthapit. In accepting that Mr Tabalbag's attack was unpremeditated and resulted from his loss of self-control caused by what he saw, the mitigating requirement of s 21A(3)(c) has to my mind already been taken into account.
4. Mr Tabalbag's good character is a matter that justifies a measure of leniency. He was a worthwhile member of the community and, I am sure, will continue to make a contribution after he has been released. This is his first offence, which was not only unpremeditated but, I am satisfied, completely out of character and should be regarded as a surprising, though terrible, aberration.
5. The Crown has conceded that the admissions made by Mr Tabalbag at the outset of and during the trial facilitated the efficient administration of justice and submitted that this should be taken into account in his sentence. I agree.

The assault on Ms Rebucas

1. As will already be apparent, the relatively minor injury to Ms Rebucas was caused as she attempted to take the knife from Mr Tabalbag and was plainly unintentional. Though the wielding of a knife in the circumstances was fraught with a risk of injury, it seems to me that this offence does not materially increase Mr Tabalbag's criminal culpability.

Sentence

1. The sentence must be backdated to the date Mr Tabalbag came into custody, namely to commence on 11 November 2013. As to special circumstances, the lengthy term of imprisonment it is necessary to impose carries with it a serious risk of institutionalisation and, although there is much in Mr Tabalbag's character, attributes and background that suggests he will be able to function reasonably well on his release, I consider that more time than the statutory calculus prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is desirable to ensure his appropriate reintegration into society which, of course, is also in the public interest.
2. Accordingly, taking into account the offence in the Form 1, the sentence imposed is an overall one of 17 years imprisonment, comprising a non-parole period of 12 years, commencing on 11 November 2013 and ending on 10 November 2025, with a balance of term of 5 years ending on 10 November 2030. He will be eligible to be considered for release on parole on 10 November 2025.

Amendments 03 September 2018 - publication restriction removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2018