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

v.

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 the applicant had left. The nurse ascertained that Mrs White’s nightdress was above her waist and she was not wearing any underwear.

The police came to interview the applicant 10 days later. He admitted having got into the War Veterans Home through a screen door, which he had forced open. As to Mrs Larsen, he first said that he was there to have a chat, but then said that he had mainly sex on his mind. When asked whether the fact that Mrs Larsen was 80 years of age deterred him from wanting to have sex, he replied that it did not. As to the second inmate the applicant encountered, Mrs White, the applicant told the police that he came back about half an hour after he had been evicted. He broke in and went to Mrs Larsen’s room but talking to her made him lose interest. He lay down on the floor in Mrs Larsen’s room for a while. He went to Mrs White’s room to, as he put it, "try this woman for sex". He accidently activated the alarm. He said that he pulled Mrs White’s nightdress up to have sex with her and was only in bed for about a minute. He said he would not have done anything if the male nurse had not come, as he had decided Mrs White was too old.

When sentencing the applicant, the judge said that the applicant had in the past regularly drunk to excess and, apart from one traffic matter arising out intoxication, he had no previous offences. The judge said he had some misgivings about the applicant’s intention on entering the home, which was said to be to steal. But he regarded the breaking and entering offences as being of minimal significance as compared with the attempted rape.

The judge had two psychiatric reports before him which indicate, unsurprisingly, that the applicant said he drank a great deal. Dr Reddan formed the view that the applicant had significant schizoid traits in his personality. The applicant told the doctor that he did not rape the second lady because he had already decided to stop; this is consistent with what he told the police. The other psychiatrist, Dr Donald Grant said, about that point, that the applicant "admitted that he had in his mind that he would like to have sex with the woman but he said that he couldn’t get an answer out of her. She didn’t seem to make a decision and he didn’t know what she wanted. He thought at first that she might have been interested in an offer". Dr Grant was also told by the applicant that he denied any form of sexual activity and denied being sexually aroused. He said that Mrs White was an old sick woman and he wanted to see if she was all right, so he hit the call button; that is inconsistent with the version recorded by the police. When Dr Grant asked if the applicant went to the home looking for sex, he replied, "if they were willing" but, "at that age I knew they probably wouldn’t be".

It will be recalled that the nurse said that the applicant was partly on top of Mrs White when the nurse came in. The relevant parts of the record are as follows.

"Mrs White was lying on her left-hand side under a sheet and the prisoner was lying on his right-hand side under the same sheet facing Mrs White. The prisoner seemed to be half on top of the complainant with his left leg and half his body over the complainant."

An important point is whether the applicant should have been sentenced on the basis that he had desisted in his attempt before the nurse entered. The judge said that, "in the light of the plea, I have to deal with it on the basis that he had the firm intention of having intercourse with her without her consent." His Honour did not specifically indicate whether he was sentencing on the basis that the intention to have intercourse persisted until the nurse intervened; as we have pointed out the applicant told the police in effect that it did not. Of course, the plea of guilty to an attempt was not inconsistent with the intention having ceased to exist, so that the attempt was not persisted in. In Williams [1965] Qd.R. 86, it is pointed out that the actus reus constituting an attempt is complete if the prisoner does an act which is a step towards the commission of the offence, which act cannot reasonably be regarded as having any purpose other than the commission of the offence. Here, the evidence showed that the old lady’s nightdress had been moved above her waist and that the applicant had his body partly across hers. These facts were sufficient to show attempt, as opposed to mere preparation.

The judge was not invited by the Crown to reject anything the applicant said to the police, but there were as we have pointed out some inconsistencies. One was that, whereas the police were told that Mrs White’s alarm was activated accidentally, by the time the applicant saw Dr Grant nine months later, he seemed to have persuaded himself that he pressed the call button deliberately; it seems to us plain that the earlier version should be accepted - i.e. the button was activated accidentally. A more difficult point is whether, as the applicant told the police, he "only touched Mrs White on the knee", or whether, as was the male nurse’s impression, "he seemed to be half on top of her". We assume that the judge took the male nurse’s version to be correct. But this is not necessarily inconsistent with the applicant’s story to the police that he was not sexually aroused, nor his statement that he had decided not to do anything as the lady was too old. Of course, it would seem surprising that a man should be in that position with a woman, intending to have intercourse and then decide not to; but the episodes with both women were on any view bizarre and we do not find the applicant’s assertion incredible.

It seems to us likely that the primary judge was influenced by the idea, with which we agree, that it is important to protect elderly and helpless women against sexual assault. But there are grades of seriousness in attempts at rape, the maximum grade being likely to be those in which the intended victim is severely beaten in an attempt to induce compliance. Factors in the applicant’s favour included that he had no significant criminal history, having on his record, according to the prosecutor, no offences; but according to what the applicant told Dr Grant, he committed a drink-driving offence in 1989. Mrs White appears to have suffered no harm, or at least none was suggested; the applicant readily confessed his wrong-doing when approached by the police, and pleaded guilty; there was no violence nor any threat of violence.

These circumstances suggest to us a case towards the lower rather than the upper end of the range of seriousness of attempted rape offences. Although a little ancient, Williams, referred to above, forms a useful comparison. There the appellant went to the complainant’s room where she was asleep on a bed. He pulled her off the bed, sat on her stomach and told her he was going to have her whether she liked it or not. He struck her several times and when she screamed, told her to shut up and repeated that he was going to have her. He inserted fingers into her vagina and she got her right hand free and scratched his face. She was found by doctors to have multiple bruising including a haematoma on the left side of the forehead and a black eye, a loosened tooth and a bleeding nose. He pleaded not guilty and when he was found guilty the judge admitted him to probation. On an Attorney’s appeal a sentence of 3 years was imposed. Williams’ case seems evidently worse than the present, although there the appellant was only 21. The attempt involved considerable violence.

We were referred by the Crown to Biddle (Court of Criminal Appeal, C.A. No. 317 of 1990, 25 March 1991); there the victim was a 13 year old school girl who was "virtually comatose" from drinking beer. She awoke to find the 28 year old applicant on top of her, apparently about to have intercourse. The complainant protested, but the applicant told her to be quiet and made a threat, and there was "some evidence" that he hit her. At that stage people apparently arrived and intervened. Biddle had a bad criminal history, having been a persistent offender who had shown "a complete disrespect for the law" and had two convictions of assault occasioning bodily harm. A sentence of 5 years was upheld, although described as being "on the high side" or "at the outer end of the range".

In our opinion the circumstances of the offence in Biddle were somewhat worse than in the present case, but more importantly, there the offender had a bad criminal history; the decision gives some support to the applicant’s claim that the penalty here was excessive.

In Kanaveilomani (C.A. No. 130 of 1993, 15 June 1994) were two offences: attempted rape and indecent assault. The complainant, who had had a considerable amount to drink, was offered a lift by the appellant who was driving a car containing two other men. When the two other men got out, the complainant did also, intending to travel by taxi, but the appellant induced her to continue with him, offering to take her home safely; he did not do so, however, but headed off in an "unexpected direction" and took her to an isolated spot. Her account of the matter included forceful handling and removal of items of clothing; two escapes by the complainant and re-capture by the appellant who "dragged her back to the car". This was on her uncontradicted account accompanied by a stream of vigorous abuse, punching and kicking. No evidence was called to refute this account, which was described by the court as having "nothing inherently improbable about it".

Kanaveilomani had no previous record and it was taken into account in his favour that he had not planned the episode, that no serious injury was inflicted and that "in the end, discouraged no doubt by her spirited resistance, he desisted of his own accord". Reference is then to be found in the reasons to the case of Bugmy (C.A. No. 246 of 1987, 14 October, 1987), where a sentence of 6 years imprisonment was imposed for a "particularly brutal" attempt at rape, causing a head injury, and where the applicant had a previous criminal history including convictions for assault.

The Chief Justice remarked:

"The sentence of six years imprisonment imposed upon Bugmy would hardly support the imposition of a sentence of almost equal length in the present case . . . "

In our respectful opinion the same applies here. In Kanaveilomani the court imposed a sentence of 3 years imprisonment.

In Kanaveilomani the circumstances seem to have been considerably worse than in the present case, but on the other hand the attempted rape sentence here presumably included recognition of the offences of breaking and entering.

We therefore grant the application, allow the appeal and 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. We recommend that the applicant be considered for release on parole after having served 15 months imprisonment.

REASONS FOR JUDGMENT - B. W. AMBROSE J.

Judgment delivered 13 December 1996

I have had the opportunity of reading the reasons for judgment of Pincus JA and Derrington J. which sufficiently set forth the facts canvassed upon this application.

I agree that in imposing sentence, the learned sentencing Judge ought, on the material before him, to have proceeded on the basis that the applicant desisted of his own volition from committing the offence which initially he had intended to commit. He was of course still guilty of attempting to commit the offence for the reasons expressed by Pincus JA and Derrington J.

Upon the facts of this case, the essence of the charge of attempted rape was an attempt by the applicant to have sexual intercourse with a woman who, because of her age-related dementia, was incapable of giving real or informed consent. It must have been quite apparent to the offender that she was so incapable.

The applicant's voluntary desisting from effecting his intent to have sexual intercourse with the elderly lady, in my view distinguishes this case from Biddle where the offender was prevented from fulfilling his intention to have sexual intercourse with the comatose schoolgirl by the arrival of other people on the scene. In my view, the offender in this case was significantly less culpable than Biddle.

Due allowance ought be made for a person pleading guilty to an attempt to commit an offence where prior to actually committing it, he has had a change of heart and voluntarily desisted from fulfilling his original intention.

On the other hand, it is a very serious matter for a person who has invaded the privacy and security of a retirement home which provides accommodation for elderly ladies, some of whom suffer from senile dementia, depriving them of the capacity to give informed consent to sexual intercourse, to then attempt to have sexual intercourse with one of them in fact incapable of consenting.

Had the applicant in this case not desisted of his own volition from commencing to have sexual intercourse with the aged lady, I take the view that even in the absence of violence, and even taking into account the absence of previous serious convictions, the penalty imposed could not have been described as manifestly excessive.

However because the applicant voluntarily desisted from fulfilling his intention before effecting penetration, I agree that the penalty imposed was manifestly excessive - particularly when one considers his cooperation with investigating police officers when approached a week or so later and his early plea of guilty.

I agree with the orders proposed by Pincus JA and Derrington J.