Court of Appeal (Qld)|1998-02-26|Before: Fitzgerald P, Davies JA, Fryberg J

R v Houghton & Grenrich [1998] QCA 137 (26 February 1998)

DAVIES JA: The applicants each pleaded guilty on 24 October 1997 to one count of housebreaking and one of assault occasioning bodily harm in company whilst armed. Each was sentenced on the same day to one years imprisonment on the first of those counts and four years imprisonment on the second; in each case with a recommendation for eligibility for parole after serving 15 months of that term.

Houghton is 30 years of age, having been born on 21 March 1967. Genrich is 32, having been born on 3 June 1965. Genrich has one previous conviction for a similar offence. He was convicted on 20 January 1993 of breaking and entering a dwelling house with intent and of assault occasioning bodily harm whilst armed with an offensive weapon for which he was sentenced to a wholly suspended term of two years imprisonment. Houghton has no relevant criminal history.

Genrich's earlier offence involved an attempted breaking, entering and stealing. He broke and entered a dwelling house at the rear of the Stafford Tavern where the manager resided. He had his face partially covered and was brandishing a replica pistol. He threatened to kill the occupant. When some other people came he fled and the occupant gave chase. It was then that the applicant struck the occupant over the head with his pistol cutting him in the back of the head.

The circumstances giving rise to the present offences were as follows. The complainant is a 56-year-old man who was living in a unit block. He reported to the body corporate the activities of a woman in the block whom he suspected of being involved in prostitution. She was described in the proceedings as the de facto wife of Houghton. She was, she told the complainant, using the unit she occupied to conduct a massage business. However, the complainant observed numerous young women going to and from her unit and concluded - or at least suspected - that she was conducting a business of prostitution there. She reported to Houghton that the complainant had approached her making suggestions of various kinds that were distasteful to her and which she said upset her.

At 7 o'clock on a Sunday night the complainant opened his door - that is, the front main door of his house but not a security door which was on the outside of that front door - to be confronted by the two applicants. Both were big strong looking men and were dressed in bikie uniforms with, he said, skull and crossbone-type rings on their fingers. These rings were later identified by him.

Houghton was armed with a concealed wooden batten. He asked the complainant to unlock the screen door. When asked why, Houghton became angry and said to the complainant, "You've been accusing my girlfriend who lives in Unit 15 of being a prostitute." He then threatened the complainant that if he continued to call her a prostitute he would hurt him and surprisingly the complainant apologised and said there must have been some kind of misunderstanding. When he thought they were about to leave Houghton reached up and grabbed the top section of the security door and bent it down.

The evidence from Houghton's side - and this is the evidence which was accepted by the learned sentencing Judge - added that at this point - that at the point where Houghton appeared to turn to leave - the complainant said, "Well, she could make $5,000 on her back." At this point it was said Houghton lost his temper. It was then that he reached up and grabbed the top section of the security door and bent it down. The complainant turned and commenced to run into his unit when he felt a blow to the back which knocked him to the floor. This was a blow with the batten by Houghton. Thereafter, Houghton punched him a severe blow to the left cheekbone, this being a blow with his fist, followed by several other blows with his fist and with the batten.

The complainant's injuries included lacerations and bruising above his left eye which required treatment by way of stitches, bruising and swelling to his left ankle, thigh area and back. X-rays later revealed that he had a fractured left cheekbone which required the insertion of a metal plate and screws and resulted in nerve damage to his cheekbone and double vision which, though still continuing, it seems it was thought unlikely to be permanent.

Genrich was carrying a hessian bag when he arrived at the front door of the complainant's unit. It does not appear what purpose he had that for.

Before they left, one of them - and it does not appear who - threatened the complainant that if they had to come back they would break his legs and if he went to the police they would come back and shoot him. Genrich did not take part in the assault on the complainant but entered the unit with Houghton and stood by whilst Houghton assaulted the complainant.

Genrich supported Houghton as I have said by not only entering the unit and standing by while Houghton assaulted the complainant but also it appears by coming with him to the unit knowing Houghton to be armed with the batten. Moreover, it should be said in respect of Genrich, that he did not have whatever advantage Houghton may have by way of mitigation because of provocation in the general sense by the remark of the complainant to which I have referred and he lacked even Houghton's sense of outrage, albeit unjustified, which he may have had and may have caused him to come to the complainant's unit in the first place.

The case was in my view a serious one of home invasion involving as it did a quite severe beating of the occupant of the home. The learned sentencing Judge was referred to and relied on two comparable decisions of this Court: R v. Brelsford, (CA No 301 of 1995, 14 September 1995); and R v. Frazer, (CA No 252 of 1997, 5 August 1997). Both were home invasion cases. In the first the applicant was sentenced to three years imprisonment with a recommendation after one year. In the second he was sentenced on appeal to four and a half years imprisonment with a recommendation after two years.

His Honour was correct in my view in thinking that those cases gave some guidance to him in setting the appropriate sentence here. Indeed, it can be said that the injuries which the complainant suffered here appear to have been more serious than those suffered in either of those cases although I accept as Mr Boe said that sometimes the force which is delivered is not always reflected accurately in the injuries which are received.

One other case which in some respects is comparable is Wardrop, (CA No 141 of 1996, 15 July 1996), judgment delivered on 15 July 1996. Again a home invasion by two men and assaults with similar injuries to this case upon the occupant of the home. Wardrop used a bat in that case, and was sentenced on appeal to four years imprisonment with a recommendation after 14 months. He was a much younger man, 24 at the time of sentence, than either of the applicants here and he had a psychiatric condition which to some extent explained his conduct. There was also doubt as to whether he had come armed with the bat or whether in fact the bat had come into his possession whilst he was on the premises of the complainant. He, Wardrop, had some prior convictions.

The importance of deterrence in cases of this kind in my view cannot be over-emphasised. Judging by the number of cases which come before this Court, offences of this kind appear to be prevalent and, involving as they do the intrusion into the privacy of a person's home, often at night, involving assault of an occupant in his or her home, they are extremely serious; the more so when there are two or more invaders involved.

In the light of those factors, the circumstances in which the offences were committed in the present case, the comparable cases to which I have referred and the previous criminal record of Genrich I cannot be satisfied that in either case a term of four years imprisonment was manifestly excessive.

In each case there were mitigating personal factors. Genrich had physical and mental disabilities caused by severe injuries from an accident. Prior to his injuries he had, it seems, a reasonable work record. Houghton had a good work record and as I have mentioned no previous convictions.

Both pleaded guilty although not at the earliest possible opportunity. They had in fact declined to be interviewed and had originally pleaded not guilty, pleading guilty only when the trial date had been fixed. However, the circumstances which I have mentioned and including the pleas of guilty albeit late justified a recommendation for early parole but not one in my view more generous than the one which His Honour made.

I do not think that in either case a sentence of four years imprisonment with a recommendation after 15 months is manifestly excessive and I would refuse both applications.

R v Houghton & Grenrich [1998] QCA 137

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Judgment (21 paragraphs)

R v Houghton & Grenrich [1998] QCA 137 (26 February 1998)

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