Tamamovich v The Queen

[2011] VSCA 330

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0367

CHRISTOPHER TAMAMOVICH	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	NEAVE, HANSEN JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 October 2011
DATE OF JUDGMENT	28 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 330
JUDGMENT APPEALED FROM	DPP v Tamamovich (Unreported, County Court of Victoria, Judge Patrick, 22 March 2010)

---

CRIIMINAL LAW – Sentence – Rape – Attempted rape – Burglary – Intentionally causing injury – Guilty plea – Total effective sentence of eight years’ imprisonment with non-parole period of five years and six months – Offences committed in 1993 – Appellant apprehended in 2008 – Delay – Rehabilitation – Sentencing practice at time of offence – Individual sentences within range – Cumulation orders open – Total effective sentence and non-parole period not manifestly excessive – Appeal dismissed. 

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Tait Lawyers
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
HANSEN JA
BEACH AJA:

1. The appellant, who is now aged 44, pleaded guilty in the County Court to four counts, namely burglary, attempted rape, rape and intentionally causing injury, the offences occurring in the early hours of the morning on 8 August 1993 and involving the one complainant.

1. After a plea in mitigation, on 22 March 2010 the appellant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Burglary with intent to commit an offence involving an assault to a person	12.5 years	18 months	6 months
2	Attempted rape	15 years	18 months	6 months
3	Rape	25 years	5.5 years	Base sentence
4	Intentionally Cause Injury	7.5 years	2.5 years	18 months
Total Effective Sentence:		8 years’ imprisonment
Non-Parole Period:		5 years and 6 months
s 6AAA Statement:		10 years and 6 months’ imprisonment, with non-parole period of 8 years

Grounds of appeal

1. The appellant appeals, by leave, on two grounds, namely:

(a)       the sentence imposed on counts 3 and 4, the total effective sentence and non-parole period are manifestly excessive;

(b)      the judge erred in failing properly to take into account in mitigation the delay that had occurred between the date of offending and the date of sentence.

Circumstances of offending

1. At the time of the offending both the complainant and the appellant were aged 26 years.  They lived in the same street but were unknown to each other.  The complainant lived in a unit about 500 metres from the house where the appellant lived with his parents.  Shortly before the offending occurred the appellant, while working as a painter with his father, saw the complainant when they were painting in a neighbouring flat.

1. During the night of 7-8 August 1993 the appellant gained access to the complainant’s unit by climbing through the toilet window using the downpipe to do so and removing glass louvre panels (count 1, burglary).  Having gained entry the appellant waited inside the rear of the unit for the complainant…