R v Granato [2006] QCA 25

THE CHIEF JUSTICE: The applicant pleaded guilty in the District Court to burglary, and a malicious act committed with intent. The burglary involved his entering the complainant's dwelling with intent to do grievous bodily harm, and striking the complainant with a baton, a baseball bat, and Club Lock.

He was accompanied at the time by two other men. He personally wielded the baton. That was what amounted to the malicious act. He was sentenced to five years' imprisonment with a recommendation for post-prison community based release after he had served 21 months.

The applicant was 33 years of age when he committed the offences. He had no relevant prior criminal history. He seeks leave to appeal on the ground the sentence was manifestly excessive. The circumstances giving rise to the offences were as follows. The complainant was a promising amateur boxer. He had known the applicant for some time. The two of them fell out over some Rottweiler dogs. In a related confrontation, the complainant lost his temper and punched the applicant although there is no suggestion that the blow was particularly violent or damaging.

It was a week later that the burglary and the malicious act occurred. The complainant was asleep in bed in the early hours of the morning. He was woken by a blow to his jaw. Dazed and confused, he saw the applicant standing over him armed with a baton, and there were the two other men present.

The applicant proceeded to strike the complainant all over his body with the baton. Another of the men used the baseball bat in similar fashion, and the third used the Club Lock. After some time, the applicant said:

"Yeah mother fucker, this is for punching me in the mouth, and stealing the boat."

While the complainant knew nothing about the boat except that the applicant owned one, he believed that the applicant used to visit the Banditos but he did not know who "Paul" was, and did not understand the significance of the reference to the Banditos.

He was eventually able to make his escape running naked to a neighbour's residence. The applicant suffered substantial injuries including a fractured skull, a small pneumothorax and lung contusions, and a compound fracture of the little finger.

The incident and its injuries ended the complainant's amateur boxing career. He said that, at the time, he had been training for the Athens Olympics. He had a substantial view of his own capacities and of three amateur fights, he had won two and lost the other but he had not proceeded to the stage or State or National Title fights.

Mr Martin SC who appeared for the respondent in his written outline properly described the incident as a violent revenge motivated home invasion, the product of planning with the adverse features of there having been an attack in numbers with weapons on a sleeping man. Also, the injuries done to the complainant were of severe order but fortunately they have not resulted in significant residual disability.

The applicant did not name his co-offenders, no doubt fearing retribution. Planning to attack the complainant while asleep with the help of others and carrying out the plan with the use of weapons was devious, vicious, and cowardly. The sentence imposed was similar to that asked for by defence counsel in that defence counsel asked his Honour for a sentence in the range of four to five years suspended after one-third.

The Learned Judge was referred to R v Renata [2000] QCA 328; CA No 119 of 2000, 18 August 2000, who was convicted by a jury and sentenced to five years' imprisonment for roughly comparable offending. In August 2000, the Court of Appeal refused an application for leave to appeal against sentence. The decision is somewhat dated.

My sense is that court responses to serious home invasion type offending like this, in company, and armed, where substantial injuries visited on a defenceless victim, have probably strengthened somewhat over recent years with the apparent frequency of this sort of offending, and its very serious potential to cause immense person harm taken with the dramatic feature of the intrusion into the privacy of a dwelling.

Mr Farr who appeared for the applicant referred to two cases. One was R v Fatnowna; ex parte A-G (Qld) [1999] QCA 492; CA No 259 of 1999; 25 November 1999, where a home invasion led to a sentence of three years' imprisonment suspended after six months. On an Attorney-General's appeal, that was described by the Court as low and light, and not to be regarded as setting any standard. The injuries inflicted were described by the Court on Appeal as not particularly serious. Further, unlike the present applicant, Fatnowna was not the leader or organiser. Again the decision was given more than six years ago.

The other of Mr Farr's cases was R v Houghton and Genrich [1998] QCA 137; CA Nos 424 and 425 of 1997, 26 February 1998. The penalty there was four years' imprisonment with parole recommended after 15 months. That victim had not been sleeping. More significantly, there was some arguably provocative conduct on his part, and also that case was not characterised by the extent of planning evident here.

Having regard to contemporary conditions, considerations of denunciation and deterrence warrant substantial penalties for offending of this disturbing gravity. Notwithstanding the applicant's pleas of guilty, his lack of history, and the references in his favour, a term at least of the order of that imposed was, in my view, appropriate.

WILLIAMS JA: I agree with all that has been said by the Chief Justice. The critical factor, in my view, is the degree of planning which was involved in the criminal escapade. It was clearly the applicant who organised the presence of the other two persons who carried out attack in concert.

KEANE JA: I agree. Considerations of general deterrence are very strong in all cases of home invasion but they are particularly strong in cases involving the planned execution of a vendetta with accomplices and weapons. I am not persuaded that the sentence was manifestly excessive.

I would dismiss the application for leave to appeal against sentence.