R v Tevita[2006] QCA 131

SUPREME COURT OF QUEENSLAND

1. THE COURT: Sifa Tevita pleaded guilty to a charge of attempting to kill on 12 May 2004 (count 1) and to a charge of stealing the victim’s video camera (count 3). He was sentenced in the Supreme Court to imprisonment for 18 years and on count 3 for five years to be served concurrently.  His Honour also declared him to have been convicted of a serious violent offence, although that appears to be an automatic consequence under the Penalties and Sentences Act 1992 (Qld) of his being sentenced to imprisonment for ten years or more for the offence charged in count 1.

2. The victim of these offences is Michael Birch. Since birth he has suffered from cerebral palsy and has been confined to a wheelchair, being unable to walk and capable of only restricted movements of his arms and hands. He was consequently unable to defend himself against attack. The applicant came from behind him, held his head back and cut his throat inflicting a 15 cm wound and severing the jugular vein. The applicant then returned and stabbed him three times in the back, and callously stole his video camera, which he later sold, leaving him to die. Mr Birch telephoned 000 but was unable to speak; but he succeeded in moving himself in his wheelchair outside his flat, where neighbours saw him and called the ambulance. He was taken to hospital where he was placed in intensive care and remained in hospital for a week or more.

3. The result for Mr Birch has been tragic. Despite his disability he had previously been able to live an independent life. He was a disc jockey for Rainbow Entertainment, which is a broadcasting system that serves the Children’s Hospital. Remarkably, he was also learning to fly an aeroplane. Now he can do neither of these things. Because of injuries to his larynx, he is unable to speak above a whisper. He is at constant risk of choking and has to have his food cut up for him to eat. It is painful to cough; he is vulnerable to colds, flu and throat infections; and he suffers continuous back pain from the stabbing inflicted on him. He now requires a full time carer and his mother has had to resume living with him to look after him. Needless to say, he has become sleepless and depressed. The quality of his life as it was before has been greatly diminished by what the applicant did to him.

4. The applicant was born in New Zealand in January 1987 of Samoan and Maori parentage. He was raised there by his extended family after his parents returned to Samoa for some time. His early years of schooling were not remarkable but, even before he accompanied family members to Australia in 1999, he had been expelled from school for fighting and, since then, he has been expelled from two high schools in Brisbane. He appears then to have ceased attending school and at age 17 he moved for a while into a house with friends. With them, he engaged in stealing to pay for drugs and alcohol to which he is addicted.

5. Mr Hatzipetrou, who provided a thorough and detailed account of his examination of the applicant, assesses him as having a low average range of intellectual functioning, with particular difficulties in the area of literacy. Some of his problems may be due to the culture of violence for problem-solving that prevailed in his family environment, and to his alcoholism and drug abuse in early adolescence. He considered that the applicant should be referred to a structured drug and alcohol rehabilitation programme, without which there is a risk of a repetition of violence on his part.

6. The first question is why the applicant committed this terrible crime. He formed an association with a Luke Janz, the co-accused with the applicant on this indictment, who has yet to be tried. Janz is also a cerebral palsy sufferer, although his condition is better than was that of Mr Birch before the applicant's attack on him. About two months before it, Janz had moved into Mr Birch’s flat at Alderley and began to share it with him. Through Janz, whom he had known at school, the applicant himself became acquainted with Mr Birch. On the day of the offence, Mr Birch came back to his flat at 4.30 pm to find that the other two were already there. They left, or pretended to leave, after which Mr Birch heard someone running into his bedroom. It was the applicant. A hand came across his face pulling his head back, and he felt his throat being cut. After that the applicant came back and stabbed him.

7. The applicant had renewed his acquaintance with Janz at about the same time as Janz moved in with Mr Birch, and he met him socially on one or more occasions before the offence was committed. Janz represented to the applicant that he was very wealthy and owned a number of houses and one or more cars. He persuaded the applicant to believe that he Janz had some $19 million in the bank. There is a suggestion in the applicant's police interview that Janz had had an argument with Birch about money matters, which can only have been minor in terms of amount. Despite this, Janz promised to pay the applicant $500,000 to kill Birch, and the applicant believed he would do so. It may be that because of his own disability Janz was unable to carry out the killing himself and so engaged the applicant to do it for him.

8. According to the applicant, Janz was present with the applicant at the victim’s flat on the afternoon of 12 May 2004 when Mr Birch arrived. Janz gave him the knife with which to kill Mr Birch. It was a folding knife with a 10 cm blade. He asked the applicant “Are you right to use this?”, and said “Do it now”. It seems obvious that, although of about the same age as Janz, the applicant was to some extent under his influence. It is reasonable to infer that Janz was the more intelligent of the two. The applicant believed his promises about money and a few days later, on 17 May 2004, which was in fact the day of the police interview, he asked Janz for payment. There is a suggestion in the psychologist’s report that the applicant had already been paid $3,000 of the amount promised.

9. There is obviously not much to be said in mitigation of the applicant’s terrible deed. It was cruel and merciless and was carried out for money, leaving Mr Birch with a severely reduced quality of life, at a time when he was making courageous and determined efforts to offset the effects of his disability. There are only a few matters that might be thought to operate in the applicant’s favour. One is his youth. He was 17 years plus a few months old at the time of the offence. However, it does not require much maturity to know not to commit such an awful offence, even though it is clear from the psychologist’s report that the applicant is lacking in ordinary intelligence and insight. He continues to enjoy a full-bodied existence after having physically disabled someone who was trying to overcome the disadvantages that life had already inflicted on him. He pleaded guilty at the earliest opportunity. Apart from his plea of guilty, the applicant appears to have shown only a little remorse for his deed or its consequences. Perhaps he is not really capable of doing so.

10. An attempt to kill is, like other forms of attempt, a crime of intention. To that extent all attempts are alike. However, the severity of the sentence imposed necessarily varies with the seriousness of the injuries inflicted on the person targeted; and the extent to which the intention was put into effect by the accused’s acts. The contrast is between a single blow, or stroke or shot, and a repetition of the acts intended to cause death. It follows that punishments differ greatly from one case to another. It is even possible to locate instances in which only a bond has been imposed for an attempted murder. In some cases, two of which we mention later, the maximum sentence of life imprisonment has been imposed. On the other hand, Williams JA in R v Rochester [2003] QCA 326, referring to past sentences in this field, recently reiterated that the approximate range for attempts to kill was generally from 10 years to about 17 years imprisonment. In R v Hewitt, unreported, CA 405 of 1993, 3 December 1993 the range submitted was said to be 12 to 18 years.  It does not seem to have been the practice for the Crown to charge an accused who is indicted for attempted murder with other separate offences of doing grievous bodily harm and the like, as might have been done in the present case. To that extent, courts do not seem in this area to apply the ruling in The Queen v De Simoni (1981) 147 CLR 383, 389, that no one should be punished for an offence of which he has not been convicted.  Instead, the consequences for the victim have been used in determining the scale of the sentence to be imposed for the major offence. That may be because the maximum sentence for attempted murder being life imprisonment, the wrongdoer is in any event faced potentially with a sentence of the longest duration allowed by law.

11. Here the consequences for the victim were, for reasons we have explained, very serious indeed. To repeat them will do little to resolve the question whether or not the sentence imposed here of 18 years imprisonment, of which 80% must be served before being considered for parole, is so heavy as to be manifestly excessive. It is right to point out that the experienced Crown prosecutor who appeared at sentence hearing suggested a figure of 16 years, but it may have been thought to be constrained by the decision in R v Bird & Schipper (2000) 110 A Crim R 394.

12. In these circumstances, it seems to us that we should begin this appeal against sentence with a comparison of the sentences imposed for offences of a similar kind. One such is R v Hardie [1999] QCA 352, which is another instance in which the accused cut his victim’s throat with a knife and stabbed her in the back and the head. Like the applicant here, he was of below average intelligence and drug dependent, but somewhat older than the applicant and he did not plead guilty. He was 23 years of age, and was sentenced to 14 years imprisonment.

13. In R v Lepp [1998] QCA 411, the accused, who was convicted after a trial, stabbed an officer of the Department of Families against whom she had an obsessive and irrational grievance.  She had an extensive criminal history and was said to constitute a threat to society. Her sentence of 16 years was not disturbed. In R v Schaefer [2001] QCA 327, the accused stabbed his mother (against whom he had a long standing resentment) seven or eight times, leaving her for dead in the bush and taking her car. He showed no remorse and was psychiatrically diagnosed as having an anti-social personality disorder involving paranoid delusions. He was 22 years old and pleaded guilty. His motivation was financial and was related to the inheritance by his mother of some $300,000, which he perceived himself as entitled to part of. He was sentenced to 15 years for “a ferocious and pre-meditated attack”.

14. These and other sentences were reviewed by McMurdo P in Bird & Schipper. It was an appeal against a sentence by a 17 year old woman (who was nearly 18) who, in company with her companion, engaged in repeated stabbing of an older women in the head, neck and side, taunting her before or as she did so. They took what little money she had with her.  The victim suffered slashes to the skull, a pierced right lung, and slashed vocal cords, leaving her with substantial permanent physical and psychological consequences. She was a complete stranger to the offenders, who were walking on a  forest track at Noosa National Park when they attacked her. Like one or more of the accused in R v Jervis [1993] 1 Qd R 643, Bird had been indulging in some form of satanic self-delusion, although while in prison awaiting trial she became a Christian and renounced her former lifestyle. Until then, she had shown no remorse for her actions. She pleaded guilty at an early stage. The Court by a majority (McMurdo P and Pincus JA, with Thomas JA dissenting persuasively) reduced the sentence from 20 to 16 years. In this, and indeed each of the other sentences mentioned here, the statutory provisions would have postponed the advent of consideration for parole until 80 per cent of the sentences had been served.

15. In R v Witchard [2005] 1 Qd R 428, the sentence was one of 12 years imprisonment for the attempted murder of Matt Wallace that was carried out with the assistance of one or more others.  The motivation arose from differences that had arisen among them over the conduct of a nightclub business. The planning was devised by Witchard and involved a false claim that Wallace had raped her.  She stabbed Wallace in the chest and elsewhere and persuaded the others to do so, or to assist her in doing so. She then taunted him for some time with threats that they were going to “finish him off”, and ultimately left him bleeding on the floor. In the end, the victim seems to have made a complete physical recovery.  Witchard was 34 years old and the sentencing judge expressed the view that he did not think she was a particularly dangerous criminal.  She had convictions for fraud and, at her sentencing for those offences, she relied on a letter from a hospital which she had forged, saying that she had leukaemia. The Court of Appeal allowed an appeal by the Attorney-General and substituted a sentence of 15 years imprisonment.

16. There are two appeals in each of which sentences of life imprisonment have been upheld. In one of them R v Streeton [1997] QCA 178, the appellant poured petrol over a six year old child (who was a complete stranger to him and who was playing in the school grounds at the time), and set fire to him with a cigarette lighter causing burns over 70 per cent of his body.  In the other R v Day (CA 364 of 1990) the appellant befriended a newly arrived tourist before taking him to the bush on a pretext. There he attempted to kill him by hitting him on the head and then tried to drown him.  Despite his severe wounds the young tourist managed to break free and fled. The motive in that instance was robbery and the appellant, who was 37 years old, had a substantial record of serious offending, and was said to be psychopathic.

17. The result of this survey of sentences for attempts to kill involving repeated stabbings of a similar kind suggests a range of sentences of imprisonment for 14 to 16 years; and of life imprisonment in the last two cases referred to. Here it is evident that his Honour in sentencing made allowance for the applicant’s plea of guilty. The main factor advanced in favour of the applicant is his youth coupled with his lack of insight into the seriousness of his crime, which was committed for money. Plainly his Honour was greatly influenced by the crushing personal consequences for his doubly unfortunate victim. There was some debate about whether this example of the offence was worse than that in Bird & Schipper.  His Honour considered it was, and sentenced accordingly. Whether or not that is so, it is not possible to say that in reaching that conclusion his Honour committed any error of judgment or discretion that would justify this Court in setting aside the sentence.

18. The overall sentence was arrived at after a thorough review of all the factors involved, including the applicant’s youth, and a consideration of the question whether the statutory maximum of life imprisonment was warranted. It is our opinion that his Honour’s discretion did not miscarry, and that the sentence imposed was not excessive having regard to all the circumstances involved. We would accordingly dismiss the application for leave to appeal against these sentences.