R v Granato

[2006] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

R v Granato [2006] QCA 25

PARTIES:

R
v
GRANATO, Thomas Alan
(applicant)

FILE NO/S:

CA No 285 of 2005
DC No 1969 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2006

JUDGES:

de Jersey CJ, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENETNCE – where applicant pleaded guilty to one count of burglary and one count of a malicious act committed with intent – where applicant entered a dwelling with intent to do grievous bodily harm – where applicant originally sentenced to five years imprisonment, with a recommendation for post prison community based release after 21 months – whether sentence was manifestly excessive

R v Fatnowna [1999] QCA 492; CA No 259 of 1999, 25 November 1999, not followed
R v Houghton & Genrich [1998] QCA 137; CA No 424 of 1997, 26 February 1998, not followed
R v Renata [2000] QCA 328; CA No 1119 of 2000, 18 August 2000, not followed

COUNSEL:

B W Farr for the applicant
R G Martin SC for the respondent

SOLICITORS:

Rostron Carlyle Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

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…