STATE OF TASMANIA v DAL MAN TAMANG 23 MAY 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to two counts of assault, both committed on 23 September 2018. The complainant is his partner, who I will call by her first name, Tara. At that time the couple had been in a relationship for about 15 months and were living together in a unit in Moonah. They had known each other for many years through being together in a refugee camp in Nepal. Neither speak English to any real degree, although the defendant has some understanding when spoken to. On the day of the offending, the defendant and Tara had an argument about whether she should go to some nearby markets. The defendant had told her he did not want her to go, but thinking the matter was at an end, she went. When she later came home, she found that the defendant was not happy. He believed that she had met someone at the market. He became angry and wanted to know details of the man he believed she had met. He locked the windows and the doors to the unit. He started hitting Tara with the handle of a cleaning brush. The force of the blows caused the brush to break. He then broke a number of chairs in the house, and using a leg of a broken chair, struck Tara repeatedly. He brandished a knife at her and she believed he was going to use it to hurt her. She screamed out for help, and the defendant said that if she got the police involved, he would kill her. Tara went to the front door and ran outside. The defendant ran after her, yelling at her that he would break her head, and threw a brick in her direction. It missed and the defendant picked up a stick and chased after her. All of this conduct makes up the first count. Tara ran to a friend’s home about 400 metres away and the defendant followed. He was still carrying the stick and he and Tara were yelling at each other. The defendant was angry. Tara went inside and sat next to her friend. The defendant continued yelling at her, and the friend told the two of them that if they were going to fight then they had to leave. They did, and went back to the unit. Later that afternoon, Tara left the unit and was followed by the defendant to an intersection about two kilometres away. At that point, the defendant struck Tara to the face and body a number of times using a stick. Tara attempted to defend herself by holding her hands up. She was crying, and not surprisingly, appeared scared and distressed. That conduct constitutes the second count. The driver of a passing taxi stopped, and both the driver and a passenger went to provide assistance to Tara. They tried to speak to her but she appeared not to understand. They spoke to the defendant who smelt of alcohol. He was able to say that Tara was his wife, and when asked why he was hitting, her, he again said, “She’s my wife.” Police were called and they arrived a short time later. After they arrived, the defendant spoke to Tara in Nepalese and told her not to tell police that he had beaten her, and that if she did, he would kill her. He told her to tell police she had received the injuries by falling over. Tara was taken to hospital. The defendant was charged and detained. He appeared before a magistrate the next day and bail was refused. On 12 October 2018, the defendant pleaded not guilty and was granted bail on 8 November 2018. However, he was arrested for a breach of bail and conditions of a family violence order, and on 7 February 2019, his bail was revoked. Up to today, the defendant has spent 156 days in custody. I have a victim impact statement of Tara. She says that she made a lot of mistakes on the day in question, and so did the defendant. She says she has no lasting injuries and is not scared of the defendant. She says he is important to her, and that they understand each other. She says they have the same background and they both spent many years in a refugee camp in Bhutan before fleeing to Australia. I note that Tara was then 42 years old; the defendant was 27. I was supplied with photographs of the injuries, taken when Tara was in hospital. Prominently, they include a large deep purple coloured bruise on her left upper arm just beneath the shoulder, similar bruising to the backs of her legs just above the knees, and slight bruising to her chin/jaw area. To the extent that Tara seeks to blame herself for what happened, the statement should be ignored. The statement might suggest forgiveness, but in domestic violence cases that feature should be treated with great caution: see R v Burton [2008] NSWCCA 128 at [102]-[106].
The defendant is originally from Bhutan, but from the age of 5 months until 2014, he lived in a refugee camp in Nepal. At that time he was resettled in Tasmania as a refugee. He was in the camp with his parents and siblings, and the camp was a violent and intimidating place in which to live. His parents found it difficult to shield the children from exposure to that. He had limited education but did become literate. He worked in the camp transporting wood for camp construction. He married in the camp and has a son, now 9 years old, who was born there. The former wife and his son now live on the mainland, and there is an arrangement that they have the child for one year each. It is intended that once his liberty is available to him, he will be able to have the child for his allocated period. Tara had children from a former relationship. They lived with the couple from time to time, but that stopped just before this incident. I am told that it was the custody arrangements for those children which ultimately gave rise to these events. The caste system applies in the couple’s cultures. As a person of lower caste, he felt a particular responsibility towards Tara. When the father of the children refused further access, she became depressed. The defendant wanted to help the situation. He negotiated the return of one child by a payment of a small sum of money to the father. He gave that money to Tara, who spent it. I am told that it was that fact that made him become particularly angry, upset and frustrated. The defendant has a relevant history of offending. In July 2015 on a charge of common assault, he was dealt with by way of an adjournment and an undertaking to be of good behaviour. That was a family violence offence involving a different partner. He threw a clock at her. About two years later, he was convicted of a further assault of the same woman by hitting her face, and for that, and some other offences, unrelated, including a rather high level drink-driving, he was fined the sum of $500. The defendant has mental health issues, and in that respect, I have a psychiatric report from Dr Jordan dated 22 April 2019. Anecdotally, during his time in the camp as a young man, he exhibited signs of what could possibly be psychotic episodes. Since being in Tasmania he had two psychiatric admissions. In 2014 he was admitted after experiencing bizarre visual and auditory hallucinations involving an experience of seeing, and talking to, snakes. At the time he was being treated for tuberculosis. One of the medication has an established side effect of psychosis. However, the removal of the drug did not resolve the problem and he was again admitted in 2018 with similar symptoms. He was put on antipsychotic medication. In October 2018, after having been in custody, he was admitted to hospital after an apparent suicide attempt. Since then he has been housed appropriately in prison; effectively in protective custody, and he is on antidepressants. The report principally addresses the issue of fitness to plead. Dr Jordan does not offer any diagnosis of mental illness, but says the defendant has the propensity to quickly become distressed by his circumstances. This may relate to difficult earlier exposure to trauma within the refugee camp. He notes concerns regarding a history of violence and convictions for drink-driving, and expresses the suspicion that alcohol misuse may have been a factor in previous offending.
I take into account the pleas of guilty. They saved Tara the trauma of having to give evidence. I am told that the defendant had a view of relationships perhaps commensurate with his background, but he has thought about his conduct and now seems to have a better understanding of the proper boundaries. I am told he accepts that he cannot conduct himself in this way again. I note that the physical injuries were not long-lasting, and, given the victim impact statement there does not seem to be any particular emotional impact, but caution needs to be taken in that regard. I note that his visa status makes him liable to deportation under the Migration Act 1958, if sentenced to a period of imprisonment of not less than one year. In this State at least, that is a mitigatory factor to be taken into account, but the extent is dependent on the degree of likelihood of deportation happening – something difficult to assess – and the nature and seriousness of the offending, along with other relevant sentencing factors: See MAC v Tasmania [2018] TASCCA 19 at [196]. That is also the situation in Victoria: see for example HAT v The Queen [2011] VSCA 427, 35 VR 109. Given the defendant’s record, there may well be a higher degree of certainty of deportation if the sentence is 12 months or more, than if this were his first offence of violence. All things considered, I think there are features of this case that call for an individualised approach to an extent and a degree of leniency. I take into account his background in the refugee camp. The defendant is isolated in the community in the sense of being confined to those who speak his language. As an additional background factor of some significance, he has mental health issues, he is suffering from depression and is presently viewed as a suicide risk. He has not been in prison before, and there is no doubt that imprisonment is more difficult for him to bear than ordinarily might be the case. I think the risk of deportation is of some substance, and that would be an extremely heavy burden on him. I also need to recognise the need for measures designed to prevent him from offending again. In that respect, I will make an order for support in the community after his release.
Mr Tamang, you need to understand that any violence is wrong, and violence in relationships must be seen as a serious matter. It worries people in the community. You do not seem to have learnt from your previous court appearances on assaulting a partner. Wives and partners are not to be treated as objects. Your behaviour was disgraceful. You treated Tara quite brutally. It is lucky she was not more seriously injured. You will have to serve further time in prison but the term will not put you at risk of deportation. However, I should make it clear to you that if you offend in this way again, the term of imprisonment is likely to do that, and I see it as quite likely that you will be deported. You are convicted of the crimes and sentenced to 10 months’ imprisonment to commence on 18 December 2018. I make a community corrections order for 12 months to commence on the date of your release from prison. You will have to report within 48 hours of your release to a probation officer at 114 Bathurst Street, Hobart. Conditions of the order are that you submit to the supervision of a probation officer, you must attend education or other programs, and you must submit to medical, psychological or psychiatric treatment all as may be required or directed by a probation officer. I direct that the offences be recorded as family violence offences. I order the forfeiture of the stick and knife as seized by police on 24 September 2018.