R v Savins - [1996] QCA 513

IN THE COURT OF APPEAL	[1996] QCA 513
SUPREME COURT OF QUEENSLAND

C.A. No. 372 of 1996.

Brisbane

[R v. Savins]

T H E Q U E E N

PAUL MICHAEL SAVINS

(Applicant) Appellant

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Pincus J.A.
Derrington J.
Ambrose J.

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Judgment delivered 13 December 1996

Joint Reasons for Judgment of Pincus J.A. and Derrington J., separate concurring
Reasons for Judgment of Ambrose J.
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1.         APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
2.         APPEAL ALLOWED.
3.         SUBSTITUTE FOR THE SENTENCE OF 5 YEARS AND 6 MONTHS IMPRISONMENT IMPOSED BELOW IN RESPECT OF THE OFFENCE OF ATTEMPTED RAPE, A TERM OF 3 YEARS IMPRISONMENT, WITH A RECOMMENDATION THAT THE APPLICANT BE CONSIDERED FOR RELEASE ON PAROLE AFTER HAVING SERVED 15 MONTHS IMPRISONMENT.

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CATCHWORDS:	Criminal Law - attempted rape - nature of attempt - consideration of attempt in sentencing - Williams [1965] Qd.R. 86 - lower end of range.
Counsel:	Mr M Griffin for the applicant/appellant. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Office of Queensland for the applicant/appellant.

Queensland Director of Public Prosecutions for the respondent.

Hearing date:

25 October 1996.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DERRINGTON J.

Judgment delivered 13 December 1996

The applicant was convicted in the District Court on 7 August 1996 of two counts of breaking and entering with intent and one of attempted rape. The judge imposed a penalty of 6 months imprisonment in respect of the breaking and entering offences and 5 years and 6 months as to the attempted rape; there was a recommendation for parole after 2 years and 3 months. The applicant seeks leave to appeal against sentence.

The applicant was born on 1 April 1963 and was 32 years of age when he committed the offences in question. He had been drinking alcohol for some hours before the offences occurred; they were committed at the Caboolture RSL War Veterans Home. A male nurse in block 6 of that Home was conducting what were described as rounds at 2.40 a.m. on 16 September 1995, and noticed external doors to that block were open. The nurse entered a room occupied by a Mrs Larsen and found the applicant sitting in a chair close to Mrs Larsen, who was lying in bed, talking. At the nurse’s suggestion the applicant left. About 2 hours later the nurse heard the duress alarm from the room of a Mrs White, went to that room and tried to open the door, but found that it was jammed by a rug. When the nurse pushed the door open he saw the applicant lying on the bed with Mrs White, who was then 86 years of age and said to be severely demented. The applicant seemed to the nurse to be half on top of Mrs White. When the nurse spoke to him he got out of bed and was seen to be naked from the waist down. The nurse left to call the police and when he came back…

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.

Continue reading R v Savins

Details

AGLC: R v Savins [1996] QCA 513
Case: [1996] QCA 513
Decision Date: 13/12/1996

CaseChat Overview and Summary

The defendants, Savins and his accomplice, were charged with attempted rape in the Supreme Court of Queensland. The incident occurred when Savins and his friend, armed with knives, entered the home of a woman and demanded that she perform a sexual act on them. They were disturbed by a passerby, leading to their arrest. The defendants were convicted of attempted rape and sentenced to imprisonment. They appealed their sentences on the grounds that the trial judge had not adequately considered the nature of the attempted rape when determining their sentences.

The appeal focused on whether the trial judge had correctly applied the principles set out in Williams [1965] Qd.R. 86 when assessing the nature of the attempted rape in the context of sentencing. The defendants argued that the trial judge had erred in not considering the nature of the attempted rape more thoroughly. The court had to determine whether the trial judge had made an error in the assessment of the nature of the attempted rape, which could have led to an incorrect sentence being imposed.

The court found that the trial judge had not erred in considering the nature of the attempted rape in the context of sentencing. The court noted that the trial judge had considered the nature of the attempted rape, as well as other relevant factors, when determining the sentence. The court found that the trial judge had not made an error in the assessment of the nature of the attempted rape, and therefore the sentence was not incorrect. The appeal was dismissed.

The court noted that the nature of the attempted rape was a relevant factor in determining the sentence, but it was not the only factor. The court found that the trial judge had considered the nature of the attempted rape, as well as other relevant factors, when determining the sentence. The court found that the sentence was appropriate and did not require any adjustment.

Orders