Tambling, Darryl Steven v The Queen - [1984] FCA 106

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

#DATE 13:4:1984

ORDER

The appeal is dismissed.

JUDGE1

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1984] FCA 106
Decision Date: 13 APRIL 1984

CaseChat Overview and Summary

Darryl Steven Tambling appealed against his conviction and sentence for rape. The court was required to determine the appropriate sentence for the offence of rape, considering the effect of the crime on the victim, both physically and psychologically, and any mitigating factors. The court also needed to assess the relevance of the plea of guilty and the stage at which it was offered in determining the sentence. Additionally, the court had to consider the use of statistical information about sentences imposed for similar offences.

The court found that the trial judge had appropriately considered the victim's impact statement, which detailed the profound physical and psychological harm caused by the crime. The court also considered the mitigating factors presented, such as the defendant's plea of guilty and the fact that it was offered at an early stage of the trial. However, the court determined that the statistical information provided by the prosecution was not relevant in the sentencing process. Despite these considerations, the court upheld the original sentence imposed by the trial judge, finding that it was appropriate given the gravity of the offence. The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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