Re Darryl Steven Tambling v R [1984] FCA 99 (13 April 1984)

FEDERAL COURT OF AUSTRALIA

Re: DARRYL STEVEN TAMBLING
And: THE QUEEN
No. NTG 38 of 1983
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.
Toohey J.
McGregor J.

CATCHWORDS

Criminal Law - Sentence - Rape - Factors to be taken into account in fixing head sentence and non-parole period - Relevance of effect of crime on prosecutrix - Physical and psychological hurt - Mitigating circumstances - Relevance of plea of guilty and stage of trial at which offered - Use of statistical information as to sentences imposed for similar offences.

Parole of Prisoners Act (N.T.) s.4(1)

HEARING

DARWIN
13:4:1984

ORDER

The appeal is dismissed.

DECISION

DARRYL STEVEN TAMBLING (appellant) has appealed against a sentence of imprisonment with hard labour for 9 years with a non-parole period of 4 1/2 years imposed upon him by the Supreme Court of the Northern Territory on 7 November 1983.

The appellant had pleaded not guilty to offences of having sexual intercourse with the prosecutrix without her consent and of indecent assault. The trial commenced on 25 October 1983 and proceeded until 28 October 1983. When the prosecution case was substantially completed the appellant changed his plea to guilty of the first of these offences. This was accepted in full discharge of the indictment.

On the night of 10 December 1982, in circumstances which are not necessary to discuss here, the prosecutrix, a young woman of 25 years, was seated at a bus stop on the Stuart Highway, no other persons being present. The appellant who passed by in a car approached her and tried to engage her in conversation. She indicated she did not want his company. Nevertheless he pressed his attention on her. She got up, asked him to go away and to leave her alone. He grabbed her by the wrist, threw her against the wall of the shelter, punched her in the stomach and in the left eye. She was doubled over from the punch in the stomach. The appellant pushed her from behind despite the fact that she was calling out and screaming. She was forced to move into some long grass in a ditch near the shelter, and fell flat on the ground on her face. Thereupon, as she was still screaming, he said -

"If you don't shut up, I'll kill you."

He forcibly removed her pants, laid on top of her, and tried unsuccessfully to have intercourse with her. He committed various acts of indecency though strenuously resisted by the prosecutrix. Eventually, and against her struggles, he succeeded in having intercourse with her. She lapsed into unconsciousness. When she reached a state of awareness again he had left her and was across the road getting into a car which was driven off. She was able to walk to the house where she was staying which was some 300-400 yards away. By this time it was quite early in the morning. She was there attended by a medical practitioner who described her condition -

"Could you indicate to the court on examining the patient what injuries you found?----I attended (prosecutrix) at 2.55 am about. Initially I found her to be distressed and crying. She had very extensive bruising on her neck, left side of the face. She was unable to open her left eye due to swelling. She was bleeding - had some bleeding from the left - left nostril, abrasions, right forearm, a bruise on her left upper arm, a small cut on her left forearm, a haematoma over the back of her head, which was about 5 or 6 centimetres in diameter.

What is a haematoma, doctor?----That's a - a bruise. Extensive abrasions over most of her back, or the upper half of her back anyway, and that was embedded with dirt, and there was some dirt around her introitus and slight bruising of both her labia majora and introitus, and that was also slightly tender."

He referred to the treatment he gave her thus -

"She was admitted to hospital for observation of her head injury and also for treatment to her abrasions - the ones on her back were particularly painful and were bathed for a couple of days. They also had quite a lot of dirt in them. That's basically why she was initially admitted to hospital. She was discharged from hospital after two days and that evening she had some bleeding from the bladder or from the urinary tract and she was re-admitted to hospital for investigation of that. That proved to be due to a urinary tract infection, or a bladder infection as it's commonly known, and that is probably resultant from violent sexual activity, occurring about 48 hours after the injury. She then had an x-ray of her kidneys and bladder to make sure it wasn't the result of any trauma and that x-ray proved to be normal.

Did you give any other treatment, doctor?---- She was treated with antibiotics for her urinary tract infection and recovered fairly uneventfully from that."

She remained in the hospital three or four days.

The police interviewed the appellant on or about 14 April 1983 in connection with another matter which it is not necessary to discuss here. After some questioning in respect of it he volunteered information indicating that he had committed the crime which is the subject of this appeal. Thereafter he made a record of interview on 16 April 1983 which amounted, in effect, to a full confession.

At the trial, admissibility of the record of interview was contested on the basis that it had been obtained by improper methods including threats of violence by police officers. However, his Honour admitted the record into evidence. Some time after that the appellant changed his plea to one of guilty of the first charge.

It is noted that during the course of the trial the prosecutrix who was the first witness was obliged to give the details of the crime charged and was cross examined about particulars of the individual actions of the appellant. From her point of view she was saved no embarrassment or discomfort by the entry of the plea at the late stage in the hearing.

The learned trial Judge, having heard further evidence, passed sentence on 7 November 1983 stating his reasons therefor in some detail.

Counsel for the appellant offered various criticisms of the process by which the trial Judge arrived at the sentence and non-parole period. He submitted that he had erred in the fixing of the non-parole period, apparently assuming that the appellant would be released at the expiration of 4 1/2 years; whereas in this Territory there was no provision for such automatic release at the expiry of the non-parole period. He submitted that the trial Judge apparently had fixed the head sentence first and moved on then to deal with the non-parole period. He submitted that the learned trial Judge had not disregarded, as he should have done, provisions relating to remissions for good conduct; and that the non-parole period should have been fixed without regard to any reductions which might result from remissions. He analysed what he described as the methodology adopted by the trial Judge in calculating the sentence and the non-parole period. He referred to the Parole of Prisoners Act s. 4(1): Power v. The Queen [1974] HCA 26; (1974) 131 C.L.R. 623 at p.627. He submitted that his Honour was in error in not considering the time which the appellant would or could remain in confinement. He criticised his Honour's comments as to period of remissions granted to prisoners. He contended that any determination or policy that remissions would be applied could be changed overnight; the Minister could reduce or increase it; that it was purely an administrative matter.

He submitted further, even allowing for the fact that the plea of guilty was made at a late stage in the trial, that the learned trial Judge had failed to give adequate weight to the plea which itself was indicative of contrition by the appellant. He referred to the cross examination of the prosecutrix and pointed out that it was not in his words "aggressive". He referred to some statistics of sentences by judges of the Northern Territory for this offence. He submitted that a consideration of them indicated that the sentence in this case exceeded the range which could be discerned from those statistics; that his Honour should have imposed a sentence in keeping with the bracket of sentences which had been adopted for this type of offence; the Court should keep in perspective sentences that have been passed on other occasions for similar offences: R. v. Ladd (1975) Crim. L.R. 50. He referred to the accused's state of mind consequent upon the death of his father and the evidence which showed his grief had been such that he had tried to commit suicide.

The appellant's good character and his steady employment record were, he said, matters which should have been given more weight. He noted that the appellant lost his employment after the death of his father which had occurred some three weeks before this crime. He submitted that the appellant was neither a dangerous nor persistent offender and was entitled to a more individualised sentence than had been passed here particularly having regard to his youth.

Counsel for the respondent submitted that there was no indication from the reasons of the learned trial Judge that he had acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence. He referred to R. v. Tait and Bartley (1979) 24 ALR 473. He submitted that the sentence was a proper exercise of the trial Judge's discretion and not manifestly excessive or unreasonable. He pointed out that the victim was subjected to violence of a serious nature, accosted and molested when she was alone and degraded by the appellant in his treatment of her. The interests of the community, he said, demanded that a severe sentence be imposed as a deterrent to the appellant and others; The Queen v. Hill [1982] FCA 95; (1982) 60 F.L.R. 302; R. v. Prindable (1979) 23 ALR 665. He submitted that little effect should be attached to the fact that the appellant changed his plea to one of guilty. This was done, he said, at a time when the conviction appeared to be inevitable; the Crown had been put to the expense of a long and contested trial involving an attack upon the integrity of the police force. He submitted that the non-parole period was within the proper exercise of discretion and would give the appellant opportunity for rehabilitation. He submitted that this case called for a substantial custodial sentence to mark the gravity of the offence, to emphasise public disapproval and serve as a warning to others as well as to punish the offender.

The fixing of a non-parole period was referred to by the High Court in Power v. The Queen (supra) at p. 627 where the majority judgment stated -

"The judge, in fixing a non-parole period, must, we believe, have regard not to the time within which the paroling authority must consider the prisoner's case but to the time for which the prisoner must remain in confinement."

In our opinion, the remarks of the trial Judge in this connection do not show that he fell into any error; rather they reveal that he may have taken a more generous view of the non-parole period that he fixed than he might otherwise have done. What his Honour was concerned to do was avoid a non-parole period that might continue beyond the date on which the appellant was entitled to be discharged from prison after remissions had been taken into account.

It is correct to say, as Counsel has reminded us, that there were mitigating circumstances in this matter including the youth of the appellant, his previous work record and perhaps that he had recently suffered a grievous personal loss. The learned trial Judge did advert to these. On the other hand, he was impressed by the violence with which the appellant had treated the prosecutrix and the terrifying experience which she had undergone; and the consequences to the prosecutrix of the conduct of the appellant. In addition to those matters referred to by the medical practitioner who gave evidence at the trial, she also suffered, as the learned trial Judge noted, a broken tooth and broken nose. She stated that she slept with a light on every night, and that she had nightmares. He referred to other interference with bodily functions which she had experienced since the crime. Her own evidence was that her relationship with a man with whom she was very friendly at that time had finished and she had stopped associating with male friends.

It does appear, having regard to the statistical information to which we were referred, that the sentence imposed by the learned trial Judge was at the higher level of sentences which have been imposed in this Territory for some years. By far the greater number of these sentences were passed when accused had pleaded guilty to the offence. However, the crime which his Honour was considering was a serious one of its kind involving possibly lasting consequences to the victim and with no truly mitigating circumstances. We are not persuaded that his Honour gave insufficient weight to the appellant's plea of guilty. We note that his plea was accepted in full discharge of the indictment. Thus the appellant was no longer at risk on the second charge; so, quite apart from what happened at the trial or before this Court, the appellant gained an advantage from his plea.

We are mindful of those matters which have been put to us on behalf of the appellant including his youth, his record of employment and his family bereavement. Nevertheless, we are not persuaded that there has been shown to be any error by the learned trial Judge in his reference to the evidence, his assessment of facts or the application of principle to those facts or the exercise of his discretion.

We have reached the conclusion that no ground has been made out calling for intervention of this Court.

The appeal is dismissed.