" Lb 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 1unformation as to sentences imposed for similar offences. Parole of Prisoners Act (N.T.) s.4(1) DARRYL STEVEN TAMBLING v. THE QUEEN No. NTG 38 of 1983 FORSTER, TOOHEY, MCGREGOR JJ. DARWIN 13 April 1994." IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY No. NTG 38 of 1983 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY BETWEEN : DARRYL STEVEN TAMBLING Appellant AND: THE QUEEN Respondent REASONS FOR JUDGMENT Cofram: Forster, Toohey, McGregor JJ. Date : 13 April 1984. THE COURT: DARRYL STEVEN TAMBLING (appellant) has appealed against a sentence of imprisonment with hard labour for 9 years with a non-parole period of 4% 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 w . 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 1t 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, @ 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." . 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 1s 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. t 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% 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. Disha ener eke aire ee WO Pte the range which could be discerned from those statistics; that his Honour should have imposed a sentence in keeping witn 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: Rv. 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 wnich 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. ta —_ 9. "The judge, in fixing a non-parole period, must, we bellreve, 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 1n 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 1S 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 vwwolence with which the appellant had treated the prosecutrix and the terrifying exper1rence 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 Y Lice ee ee o ll. 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. I certify that this and the ten preceding pages are a true copy of the Reasons for Judgment herein of The Court. Associate ' Dated: 13 April 1984 - od nm eo eee mee ofat ovwensen |