R v Sauvao[2006] QCA 331

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence protection order.  He seeks leave to appeal against a sentence of nine years imprisonment with a serious violence offence declaration in respect of the attempted murder.

The applicant and the complainant had lived together, on and off for about four years, and they had three small children.  In 2003, the complainant obtained an apprehended violence order against the applicant in New South Wales and, moving to Queensland, had the order registered here, but they still had a good deal to do with each other because of their children.

On 22nd of May 2005 they and the children spent some time together at Southbank.  The applicant tried to persuade the complainant to come with him to meet the couple with whom he was living but she insisted on taking the children home instead.  The applicant became aggressive, accusing her of having a boyfriend.  He accompanied her and the children to the railway station where he sat down with her, continuing to make jealous accusations.  Then, apparently about to give her a cuddle, he put his left arm around her neck and put her in a headlock.  Meanwhile, as emerged from his own later account, with his right hand he tried to stab her in the heart with a small, serrated kitchen knife about 20 centimetres in total length.  In fact, the blade of the knife snapped on the complainant's denim jacket, causing her no harm at all. But the applicant continued to punch her, kick her and hit her head into a chair and a pole.  Some bystanders intervened and stopped him.  He stayed at the scene a short while before leaving, but the following day he contacted the complainant and told her that he would hand himself into the police for attempted murder.

The applicant did just that; he went to a police station and gave a full record of interview in which he explained what he had done and what he had meant to do.  His account is remarkable, both in its consistency with that of other witnesses including the complainant, and in its addition of other details to his own disadvantage.  He said that he had got very angry with the complainant at the station and stabbed her with the knife in the region of her heart with the purpose of killing her.  The knife, as the Crown accepted, was one which he had in his bag for use when he ate lunch.  He told the police that he had previously had thoughts of doing something similar a couple of weeks earlier which he had not acted on.  On this occasion though, his attempt to stab the complainant having failed when the knife blade snapped, he was at a loss as to what to do, so he thought he might manage to kill her by banging her head on the post.  He would have persevered, he said, had he not been pulled off her.

No-one else saw the knife during the assault and it was not found afterwards.  The complainant herself does not seem to have been quite sure what happened to her.  It seems unlikely, without the applicant's interview, that anyone would have known of his use of the knife or indeed of his intention to kill, as opposed to assault, the complainant.

The applicant was 43 at sentence.  His only relevant criminal history consisted of a breach in October 2004 of the domestic violence order, the circumstances of which were outlined to the Court.  The applicant had gone to a unit where the complainant lived with her mother and children, insisting that she resume their relationship.  She, being afraid to refuse him, went instead to the police station and he was charged with breaching the order.

The learned sentencing Judge observed, correctly, with respect, that sentences for attempted murder will generally fall within a range from 10 to 17 years imprisonment.  He said also that he had some difficulty in accepting that the applicant's case ought to be regarded as materially outside that range. The matters in the applicant's favour - his plea of guilty, his admissions and his remorse - would be recognised, the learned Judge said, by a reduction in the head sentence to nine years.  The prosecutor had conceded that the case fell at the bottom of the range.  Nonetheless, the learned sentencing Judge said, it was a case that ought to be categorised as a serious violent offence, although he did not expand on his reasons for reaching that conclusion. 

The applicant's counsel argues that although that head sentence of nine years imprisonment is unassailable, the declaration of a serious violent offence ought not to have been made.

Cases in more recent years broadly bear out the range already mentioned for attempted murder.  In R v. Jursic [2001] QCA 390 the appellant went to trial on a charge of attempted murder.  He had attacked a prostitute with a knife, stabbing her eight times on her body and twice on her hand, because he believed she had given him a minor sexually transmitted disease which he had passed on to his wife.  The attack ended when the knife broke and the complainant escaped.  The complainant made a good physical recovery.  The appellant had no criminal history for offences of violence.  A sentence of nine years imprisonment without any declaration was not disturbed.

R v. Forster [2002] QCA 495 was an instance of an estranged husband attempting to carry out a planned killing of his wife, in that case, with a .22 calibre rifle.  The applicant there had pleaded guilty to attempted murder.  He went to his wife's workplace and fired the rifle at her, hitting her in the chest.  He straddled her body and pointed the rifle at her again, clearly intending to fire once more, and it was only by the intervention of a stranger that he was stopped.  He was sentenced to 12 years imprisonment.

In Rochester [2003] QCA 326, the appellant again was convicted after a trial, in that case of the attempted murder of his wife from whom he was separated.  She had obtained a domestic violence order.  After a number of episodes of harassment, he ended by attacking her with a knife at her workplace, stabbing her in the abdomen and chest.  The abdominal wound was severe enough to lacerate the diaphragm so that the stomach contents spilled into the chest.  The injury was, plainly enough, life threatening.  Rochester was sentenced to 10 years imprisonment which meant, of course, an automatic declaration.  He had what was described as a very extensive criminal record.  A sentence of ten years was upheld on appeals by both the Attorney-General and Rochester himself.  This Court observed that any lower sentence would have been manifestly inadequate in that case.

In R v. Lester [2004] QCA 34, the appellant had been convicted of attempted murder after a trial.  He had attacked his wife's new partner, punching and kicking him and then stabbing at him with a knife.  When the complainant fell onto his back he continued to stab at him, lacerating his face, and was only stopped by the complainant's kicking out at him and the knife breaking.  He proceeded then to hit him about the head and shoulders with a steel pole.  It was accepted that the use of the knife was not premeditated.  Lester had a substantial criminal history including offences of assault.  The trial Judge reached the view that the appropriate sentence was one of ten years imprisonment, but making allowance for 12 months in custody which could not be declared, he sentenced the applicant to nine years with a serious violent offender declaration.  The Court described the sentence as high, but not so high as to be manifestly excessive.  The declaration was supportable because of the appellant's ferocious and persistent attack with the knife when he was in a dominant position and because it was a case in which a sentence of ten years would ordinarily have been imposed but for the pre-sentence custody.

In R v. Kerwin [2005] QCA 259, the applicant broke into his estranged wife's house at night and made a sustained attempt to strangle her.  Neighbours were unable to stop him; they called the police who pulled him off her.  He had a number of convictions for assaults upon her and for breaches of domestic violence orders, and was on a suspended sentence for assault occasioning bodily harm at the time of this incident.  He was convicted after a trial and was sentenced to 12 years imprisonment which was upheld on appeal.

Each of these cases has aggravating features commonly found in attempted murder cases, particularly where marital breakdown is involved.  But the applicant's case lacks a number of those features and has, to boot, some unusual mitigating features.  This attack had no element of the premeditated; he could not have carried it out in a much more public place; there was no element of taking a victim by surprise, alone.  Unlike Rochester, Kerwin and Lester, who had substantial records for violence, he had almost no criminal history.  Very fortunately, there was no significant physical injury to his wife.  Distressing though the events were to both her and the children, her injuries consisted of bruises and abrasions which were described as such as to cause “moderate pain and discomfort”.  Unlike all of the appellants I have referred to other than Forster, the applicant did not at any stage of the proceedings dispute his guilt or require anyone to give evidence.  His remorse was profound and could not have been doubted as sincere: his admissions to the police formed the basis of the attempted murder charge. 

A head sentence of nine years was, taken against the background in the other cases I have outlined, unremarkable.  But I do not think, for two reasons, that this was a case in which a serious violent offence declaration should have been made. Firstly, there was nothing about the offence itself in terms of its duration, its force or its consequences which took it out of the ordinary run of cases, nor was there anything in the applicant's background which pointed to the need to make such an order.  It does not seem to me that a declaration was, as it is put in R v. Bojovic [2000] 2 Qd R 183 at 192, “reasonably consistent with attaining the normal objectives of punishment”.  There was no element of community protection;  the danger of any repetition was remote.

Secondly, the applicant had co-operated as utterly as was possible.  On ordinary principles he was entitled to a significant discount in his sentence to recognise co-operation and remorse.  In this case, however, the only actual discount received was that on a nine year sentence with a declaration he was eligible for parole some nine and a half months earlier than on a 10 year sentence.  That minor reduction in the time he had to serve was not, in my view, an adequate recognition of his cooperation.  In short, it seems to me that the addition of a serious violent offender declaration made the sentence manifestly excessive.

I would allow the application for leave to appeal, allow the appeal and substitute a sentence of nine years imprisonment without the serious violent offence declaration.  The 366 days served in pre-sentence custody declared by the learned sentencing Judge should, once again, be declared.

McPHERSON JA:  I agree with everything that Justice Holmes has said and I would take the same view of the order we should make in this case.

DOUGLAS J:  I agree also. 

McPHERSON JA:  The order is as Justice Holmes has stated it.  That is to say the appeal is allowed and a sentence of nine years imprisonment, without the serious violent offence declaration, will prevail, there being a declaration that 366 days as pre-sentence custody be declared.