Court of Appeal (Vic)|2011-10-28|Before: Neave JA, Hansen JA

Tamamovich v The Queen [2011] VSCA 330 (28 October 2011)

DPP v Tamamovich (Unreported, County Court of Victoria, Judge Patrick, 22 March 2010)

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.

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

Burglary with intent to commit an offence involving an assault to a person

10 years and 6 months' imprisonment, with non-parole period of 8 years

3 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.

4 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.

5 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 to come home; he undressed himself from the waist down.

6 The complainant, who had been working, arrived home at approximately 4.30 am and went to bed. Soon afterwards, she heard noise in another part of the unit and got up to investigate. She walked towards the door of her bedroom and turned on the light, to be confronted by the appellant in his semi-naked state.

7 The appellant turned off the light and pushed the complainant back into the room and onto her bed, throwing himself on top of her and trying to kiss her and force his tongue into her mouth. The complainant began screaming and struggling and they fell to the floor, the complainant being so terrified she urinated. The appellant punched the complainant to the face and side of the head a number of times. The complainant was screaming for help and when the appellant placed his hand on her mouth to muffle her screams, she bit his hand and finger. The appellant then punched her forcefully to the face, releasing her bite. He took hold of her hair and banged her head against the wall several times. While the complainant was dazed the appellant forced her legs apart and penetrated her vagina with his penis (count 3, rape). While he was doing this he pinned her wrists to the floor with his hands.

8 The appellant also straddled the complainant and attempted to penetrate the victim's mouth with his penis (count 2, attempted rape).

9 At some stage the complainant, regaining her strength, pushed the appellant off her. She squeezed and pulled his testicles in an attempt to escape from his attack. The appellant attempted to protect his genitals and eye gouged her (count 4, intentionally cause injury). This count covers the violent attack against the complainant. After being eye gouged, the complainant bit the appellant's hand, causing it to bleed.

10 The complainant managed to free herself and escaped by jumping through a closed glass window. She ran to neighbouring units, banging on their doors and screaming for help. The police arrived a short time later. The appellant, however, made his escape.

11 The complainant was found to have blood on her face and right nostril, tenderness over the temporomandibular joint, grazes to her neck and right ear and a four centimetre linear cut to the back of her upper right thigh. The judge considered that the cut to the complainant's thigh may have occurred as she escaped out the window.

12 Blood stains were found in the complainant's unit, and there were blood trails leading away from the scene. A shoe and socks were left in the complainant's unit and underpants were located in the street opposite the unit. Fingerprints were located on the downpipe and toilet louvres. But no person was identified as the offender.

13 In September 2008 the matter was reopened as a cold case. It was then found that the fingerprints from the scene matched those of the appellant, which had been placed on the police database in 2000 following his being dealt with for the offence of stalking.

14 On 6 November 2008 the police interviewed the appellant about the matter; he made no comment. On 7 November 2008 the police obtained an order for a compulsory test of the appellant, which was duly taken. On 14 November 2008 DNA analysis confirmed that the blood left at the complainant's premises came from the appellant.

15 The appellant was duly charged and at the committal hearing on 15 June 2009 pleaded guilty to the counts of burglary and intentionally causing injury, but not guilty to all other charges. He was committed for trial.

16 On 13 October 2009, at the fourth directions hearing in the County Court, the appellant pleaded guilty to the four counts mentioned above and a plea was heard on 17 February 2010 and concluded on 22 March 2010.

17 The judge recorded that the appellant had a good relationship with his parents, who were elderly, and with whom he lived, and that they were in court to support him. He also had an older brother who he saw occasionally. It appears that the appellant left school in Year 10 to find work and after some minor jobs began working in his father's painting business when he was about 20, also doing other work, until he suffered a back injury in 2007 when he fell from a ladder. It was suggested his recovery was likely to be slow. A report from a radiologist, Dr Saddik, to whom the appellant was referred in relation to chronic lower back pain, advised that he had a mild multi-level disc degeneration with a suggestion of pseudoarticulation between the right L5 transverse process and the right superior sacral alia. The appellant was prescribed medication by his local doctor who stated that the appellant was in constant severe pain. It is to be noted that in the course of the plea the appellant's counsel stated that there would be 'little difficulty' in his back condition being treated in custody.

18 In addition, the appellant had been seeing a psychologist to whom he was referred in July 2009. The psychologist, Mr Alarcon, diagnosed the appellant as having depression and a generalised anxiety disorder, being directly related, as the judge found, to the situation in which the appellant found himself with this matter and its possible repercussions. The psychologist reported that the appellant had not suffered depression or anxiety prior to this matter and was otherwise free of anxiety in his personal life. He considered that ongoing psychological therapy was required.

19 The appellant had no prior offences and the only subsequent matter was the stalking charge for which the appellant received a two year adjourned undertaking without conviction in the Heidelberg Magistrates' Court in 2000.

20 In the course of her sentencing remarks the judge noted that the delay in matching the appellant's fingerprints was not due to any conduct of the appellant. Rather, it was the consequence of changes in the administrative arrangements concerning the management of fingerprints, and that the case had apparently been considered as one of attempted rape that led to the fingerprints not being matched.

21 Her Honour referred to the complainant's victim impact statement, which bears testament to the devastating and continuing effect of the offending upon her and her family. Her Honour also noted the contention of the prosecutor that the appellant's delay in pleading guilty had caused the complainant considerable anxiety; that would hardly be surprising.

22 Her Honour referred to what the appellant's counsel had stated to be the appellant's instructions as to the circumstances of the offending. Working nearby with his father he borrowed some masking tape from the complainant, which he returned; he thought she was a nice person. On the night of the offending he had been out drinking, was intoxicated and walking home thought he would like to see the complainant and have coffee with her. He broke into her unit and waited until she came home, and went to sleep. He then moved, wanting to get out but also was aroused by the thought of sexual activity with her. The offending followed. The judge was satisfied beyond reasonable doubt that from the time the appellant broke into the unit the appellant intended to have some form of sexual intimacy with the complainant.

23 Her Honour recorded counsel's instructions that the appellant felt ashamed, remorseful and sorry for the complainant and what he had done to her. Counsel said that the appellant understood that he had frightened her terribly.

24 The judge described the offending in the following terms:

This was clearly appalling and sickening offending. You entered a woman's home at night. You waited for her. You had planned to have some form of sexual intimacy with her. You waited until she had gone to bed and was alone and vulnerable. She had no idea who you were and you were a stranger to her. You forcibly assaulted her and continued despite her vigorous protests, both verbal and physical. You had turned off the light and this continuing attack occurred in some form of darkness. You only stopped when she escaped by breaking though the window. These offences of course had an immediate impact in terms of pain and horror on the complainant. Since then, the consequences for her have been sustained and terrible. They have severely compromised her ability to lead a life free of fear, anger and anxiety. She described the circumstances as being a nightmare. That would be the description that any person would apply to this situation.

25 The judge stated that the offending warranted a significant term of imprisonment for the purposes of denunciation, general deterrence and just punishment. Her Honour accepted that the appellant was, effectively, rehabilitated with many years having passed since the offending with no further offending of this type. The stalking offending was disturbing but from the penalty imposed it appeared to have been a relatively minor matter. Then, the psychologist's report did not suggest problems of a type likely to lead to re-offending, the issues the appellant faced appearing to be related to having been charged with the offending and did not suggest that in past years he had suffered from anxiety or depression. There was no suggestion that he suffered from those matters to a degree that would warrant any reduction in sentence.

26 Nor was there any current, ongoing or past drug and alcohol issue.

27 In these circumstances the judge considered that specific deterrence was not a sentencing consideration to be given weight. Her Honour was satisfied that the appellant did not pose a risk to the community and there was no need for community protection to be given weight in the sentence. Nor was her Honour satisfied that a sex offender registration order was warranted and the prosecutor's application for such an order was refused.

As a result of the delay which was not due to your fault, it has become clear that generally, you are not engaging in any type of sexual violent offending. That has been the situation for many years. Generally you have worked and been supported by your parents. You have had difficulties at working, particularly after your back injury. I am satisfied that your current treatment can be continued in custody and that [your] back injury is not such that would lead to any reduction in sentence.

29 Her Honour stated that the appellant was entitled to a significant discount because of his plea of guilty which, although not made at the earliest opportunity, had saved the trauma and cost of a trial. Her Honour also accepted that the appellant was genuinely remorseful and understood the harm he had caused. In concluding her sentencing remarks, and after stating that some cumulation of sentences was warranted, her Honour observed that:

Given the lengthy period of time during which there has [been] no further offending and the consideration that your rehabilitation has essentially been achieved, then I consider that a somewhat shorter non-parole period than would otherwise be warranted is appropriate.

30 It is to be noted that the appellant's submissions refer to the matter of delay under both grounds. Initially the appellant relied only on the one ground of manifest excess. But Maxwell P also gave leave to rely on ground 2 in view of the failure of the judge to refer to the principles concerning the mitigating effect of delay on the grounds of rehabilitation and fairness.[1] Counsel for the appellant frankly stated at the outset of his submissions that the main point was the matter of delay. Indeed, absent that aspect he could not complain. In these circumstances it is convenient to commence with ground 2.

31 As Maxwell P noted in granting leave to appeal, during the plea the judge raised with counsel how the matter of delay ought be dealt with in the sentencing process. Her Honour did not receive the assistance which she ought to have received, in particular she was not referred to the cases cited above. In R v Merrett[2] Maxwell P identified that:

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular, it focuses attention on issues of rehabilitation and fairness.[3]

Her Honour did not refer to this principle, doubtless because counsel did not refer to it.

32 In the present case there was the period from the offending in August 1993 to 2000 when the appellant's fingerprints were taken. Then followed the period until September 2008 when the fingerprints were matched and November 2008 when the DNA was matched and the appellant was interviewed.

33 Counsel for the appellant submitted that it was open to rely on the whole period from 1993 in relation to rehabilitation. But, he conceded, not on the basis of any anxiety occasioned by reason of the matter hanging over his head. Further, the period subsequent to the interview in 2008 to sentence was 'not extreme', it was not a case of a slow moving prosecution. In short, the appellant could not rely on the factor of anxiety occasioned by the matter hanging over his head. There was, in that respect, no element of a lack of fairness that he could rely upon.

34 As to rehabilitation, it is clear that the passage of time has worked to the appellant's advantage. For, by the time the appellant came to be sentenced he could be seen to have rehabilitated himself. That is what the judge found, and the appellant had the full benefit of that finding. Suppose, however, that the appellant's fingerprints had been matched in 2000 or shortly after having committed the stalking offence? Would such a finding of rehabilitation then have been made? In other words, the appellant has had the benefit of the years from 1993 to 2000 and then to the time of sentence, with only the one stalking offence, to build up a record that warranted the rehabilitation finding, and the further findings that specific deterrence had no role in the sentencing process and that a sex offender registration order was not warranted.

35 Hence, although her Honour did not expressly refer to the principles concerning delay, in fact she dealt with the matter of rehabilitation and gave the appellant the fullest benefit on that account. As to the consideration of fairness to the appellant, for the reasons indicated by counsel, this was not a matter on account of which the fact of delay was to be considered as a mitigating factor. In short, the delay worked to the appellant's benefit.

36 In submitting that the sentences on counts 3 and 4 were manifestly excessive, together with the total effective sentence and non-parole period, the appellant's written submission referred particularly to the following matters:

(a) failure to take into account sentencing practice at the time of the offending;

(d) the appellant's back injury and depression; and

(e) that no weight was to be given to specific deterrence and community protection.

37 In his oral submissions, counsel focussed particularly upon (a) and (b). For the reasons stated there is no substance in (b). We turn then to the matter of sentencing practice in 1993.

38 It is apparent from R v AMP,[4] and counsel addressed on this basis, that the appellant was to be sentenced in accordance with sentencing practice at the time of the offending. Unfortunately, however, while the judge sentenced on the basis of the maximum sentence applicable at the time of the offending, she was not assisted as to sentencing practice at that time. It is evident that she sentenced as she considered was just in the circumstances.

39 Counsel for the appellant did not have statistics for 1993, and referred to R v O'Rourke[5] as a similar case. There a sentence of five years was imposed for rape, along with other sentences for offences committed in the same episode. Counsel pointed out that the accused had pleaded not guilty, there was not full rehabilitation and specific deterrence was relevant.

40 Furthermore, counsel submitted, the latest Sentencing Snapshot records that the median sentence for rape is five years, which is less than the subject sentence by six months. He submitted that while this was an imperfect way of analysing the matter, it indicated that the sentence - being for a 1993 offence - was too high. Counsel sought support for this approach in the statement in R v AMP[6] that where the Court was unlikely to obtain much assistance in ascertaining past sentencing practice - in that case as long as 50 years prior - a judge could regard 'the fact that the range of sentences imposed for this offence were generally lower than the present range'.

41 Counsel for the Crown helpfully referred the Court to the following. In the period of the offending sentencing law was undergoing significant change to cater for the abolition of remissions on sentence. The changes are discussed in R v Boucher.[7] Hence, it is not easy to apply sentencing standards that then applied. However, counsel provided the Court with 'Sentencing Statistics, Higher Criminal Courts, Victoria' for 1991, 1992 and 1996. These statistics and those for 1993, 1994 and 1995 are kept in the Supreme Court library.[8]

42 The statistics disclose the following in relation to persons imprisoned:

43 Of course these are bare statistics, and there is much not revealed. For instance, there is no distinction between cases of pleas of guilty and not guilty, allowance for the effect of the change in sentencing practice, and an allowance for individual circumstances. All one has is the bare statistics, the limitations in the use of which are well recognised.[9] But, even then, they would not establish let alone indicate that the sentences imposed on counts 3 and 4 were out of the range for this case at the time of offending.

44 O'Rourke also has its difficulties for the appellant. There were more offences than here, as well as issues concerning cumulation, and it was a Director's appeal where the question was manifest inadequacy of sentence. The case is evidently of limited assistance.

45 In these circumstances it is not established that the failure to have regard to sentencing practice in 1993 led to the imposition of a sentence that was outside the range that might properly have been imposed in the circumstances. Indeed, the contrary is more the case. And, certainly, when the question is one of alleged manifest excess in relation to sentencing at that time.

46 In the appellant's written submission concerning the mitigatory effect of the plea of guilty, it was stated that the sentence on the rape could not be aggravated by reference to the surrounding circumstances which were covered by the other offences. That is, there must not be double punishment. The suggestion in this submission seemed to be that the sentence on count 3 was increased by including allowance for the offending covered by count 4, and perhaps the other counts. The careful reasons of the judge disclose no basis for the suggestion. Nor, likewise, do the orders for cumulation warrant the suggestion. Each count was a separate and distinct offence, the rape being the most serious.

47 More specifically in this respect, counsel for the appellant submitted that the cumulation of more than 50 per cent of the sentence on count 4 was very high and such as to indicate error. It is high but count 4 comprehended extremely serious assaults carried out by the appellant for the purpose of achieving domination over his victim, in terrifying circumstances.

48 Further consideration of the ground is not necessary. In the first place, the appellant's counsel stated that had there been no delay he could not have complained of the sentence; with the delay the sentence looked stern. In the second place there is no substance in the contentions. Her Honour evidently gave careful consideration to the matters relevant to the appellant's sentencing and no error is to be observed.

49 In particular we consider that it was open to the judge to conclude, as she did, that imprisonment would not be more burdensome on the appellant by reason of his mental and physical difficulties. As to the latter, it is to be borne in mind that on the plea the appellant's counsel accepted that as being the position. As to the former, counsel made no such concession, but left it to her Honour to decide whether imprisonment would in fact be more burdensome on him by reason of that matter.

50 The offending in this case was of the most serious kind. And, while the appellant had rehabilitated himself, the same cannot be said of the complainant who continues to suffer. This aspect, of the social rehabilitation of the victim, is an important consideration which the judge properly took into account.[10]

51 The sentences imposed on counts 3 and 4 were within the range open to her Honour to impose. Further, the total effective sentence was not manifestly excessive. Nor in our view could the period of eligibility before parole be considered as being manifestly excessive. The ground of manifest excess must thus fail.

[1] See R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447; R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [35].

[8] They were formerly published by the Attorney-General's Department, then by the Department of Justice.

[9] Hudson v The Queen [2010] VSCA 32; (2010) 205 A Crim R 199; FD v The Queen [2011] VSCA 8; Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465.

[10] Director of Public Prosecutions v DJK [2003] VSCA 109, [18]; Director of Public Prosecutions v Toomey [2006] VSCA 90, [21]-[24].

Tamamovich v The Queen [2011] VSCA 330

At a glance

Court

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Judgment (75 paragraphs)

Tamamovich v The Queen [2011] VSCA 330 (28 October 2011)

Parties

Cases Cited (2)