R v Gritt
[1993] QCA 199
•3 June 1993
IN THE COURT OF APPEAL [1993] QCA 199
SUPREME COURT OF QUEENSLAND
C.A. No. 95 of 1993
Brisbane
[R. v. Gritt]
BETWEEN
THE QUEEN
Respondent
v.
STEVEN JOHN GRITT
Appellant
The President
Mr. Justice Davies
Mr. Justice Thomas
Judgment delivered 03/06/93.
LEAVE TO APPEAL REFUSED.
Counsel:P. Alcorn for appellant
P. Callaghan for respondent
Solicitors:Legal Aid Office for appellant
Director of Prosecutions for respondent
Hearing Date: 2 June 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 95 of 1993
Brisbane
[R. v. Gritt]
BETWEEN:
THE QUEEN
v.
STEVEN JOHN GRITT
Appellant
The President
Mr Justice Davies
Mr Justice Thomas
Judgment delivered 03.06.93
Separate reasons for judgment of The President and Davies JA., Thomas J. dissenting.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SUBSTITUTE A SENTENCE OF IMPRISONMENT FOR TWO YEARS ON THE FIRST CHARGE. THE SENTENCE ON THE SECOND CHARGE IS NOT DISTURBED.
Counsel:Mr P. Alcorn for the applicant
Mr P. Callaghan for the respondent
Solicitors:Legal Aid Office for the applicant
Director of Prosecutions for the Crown
Hearing Date(s): 02.06.93
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 95 of 1993
Brisbane
BeforeThe President
Mr Justice Davies
Mr Justice Thomas
[R. v. Gritt]
BETWEEN:
THE QUEEN
v.
STEVEN JOHN GRITT
Appellant
JUDGMENT - THE PRESIDENT and DAVIES JA.
Judgment delivered - 03.06.93
The applicant has applied for leave to appeal against the sentence imposed on him on 2nd March 1993 in respect of offences of assault occasioning bodily harm whilst in company and assault occasioning bodily harm. The applicant was sentenced to three years imprisonment on the first charge and two years imprisonment on the second charge, with a recommendation in each case that he be considered for parole after serving twelve months imprisonment.
The offences took place on 29 April 1992. At that time, the applicant, who was born on 10 March 1969, was 23 years of age. At about 7.00 p.m. on 29 April 1992, the complainant, who was unknown to the applicant, refused a request by the applicant for a cigarette. Later that evening, at about 10.00 p.m., the complainant, who was walking home alone, was approached by the applicant's co-accused, one D (who was a child at the time of the offence). D hit the complainant in the head, after which the applicant put the complainant in a head lock and took him to the applicant's room in the Atcherley Hotel. An attempt was made to encourage the complainant to fight. The complainant was made to sit on the floor and was struck in the face. The complainant was then taken outside and down the fire escape, where he was seen by the hotel manager who noticed blood on the complainant. The applicant assured the hotel manager that the complainant had been beaten up by somebody else and that he and D were assisting the complainant.
The complainant was then taken in a headlock by the applicant to a garage at the rear of the hotel where he was subjected to further kicks, pushes, punches and elbowing. Again, he was encouraged to fight and he struck D in the face. D then produced firstly an iron bar and then a syringe which the applicant removed from him. D then withdrew from the fight. The applicant took the complainant to another garage next door in an attempt to clean some of the blood from him. Police arrived and removed D from the scene. The applicant then resumed his attack on the complainant, kicking and punching him. The applicant blamed the complainant for D’s arrest and inflicted further blows on the complainant, whom he finally left lying on the floor of the garage.
The complainant suffered numerous facial injuries which required extensive treatment, including a two centimetre cut above his left eye, a deep laceration to his upper lip, a broken tooth and considerable bruising.
The applicant who is a powerfully built man who had engaged in the sport of kickboxing had a number of prior criminal offences, none of which materially involved violence. At the time of the offences, he was on probation in respect of an earlier offence of stealing.
The sentencing judge referred to a number of matters, including that the complainant had given no cause for the protracted assaults which occurred causing him serious harm. Reference was also made to the applicant's criminal history, that he was older than D and that the assaults which he committed were more extensive than those committed by D. In his favour, it was noted that the applicant had pleaded guilty.
Before this Court, the applicant contended that his involvement was no worse than that of D and has drawn attention to the state of his intoxication at the time of the offences and to references given on his behalf. His employment history included work as a barman, doorman and security guard and a number of persons gave references in his favour. It was argued that the sentence which should have been imposed for the more serious of the two offences committed by the applicant was two years, not three years.
On the other hand, it was submitted for the respondent that, although at the top of the range, imprisonment for three years was justified and that due weight had been given to all that could be said in favour of the applicant when the sentencing judge made a recommendation for consideration for parole after twelve months imprisonment.
Both counsel relied on R. v. Jason John Lucas (C.A. No. 286 of 1991; unreported judgment delivered 25 February 1992). There is very little material distinction between the circumstances of that case and the offences committed by the applicant. At page 4, McPherson JA. with whom Pincus JA. and Thomas J. agreed, said:
"Turning to the sentence of three years in the case of Lucas, we were referred to a few comparative sentences, and I have refreshed my memory of those matters to some extent by looking at the Court of Criminal appeal sentencing book. Both sources tend to confirm the impression I had that a sentence of three years is certainly at the upper end, if not above, the highest point of the range for an offence of this kind, involving infliction of injuries of the nature and extent to those we see here.
The assault was an unprovoked and cowardly one, and that is a proper matter to take into account in relation to sentence. It may be that on one view the prevailing `tariff' is not sufficiently high for offences of this kind; but that does not detract from the impression that a penalty of three years is at, or perhaps beyond, the upper end of the range for this offence, where the use of weapon was not involved."
The applicant's offences were serious and, like those the subject of Lucas, unprovoked and cowardly. However, I do not consider that it can be concluded that they merit sentences "at the upper end, if not above, the highest point of the range for an offence of this kind." In Lucas the sentence was reduced to two years' imprisonment, and that is the course which I consider should be followed here.
Accordingly, I would grant the application for leave to appeal, allow the appeal and substitute a sentence of imprisonment for three years on the first charge. The sentence on the second charge should not be disturbed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 95 of 1993
Brisbane
BeforeThe President
Mr. Justice Davies
Mr. Justice Thomas
[The Queen v. Gritt]
BETWEEN
THE QUEEN
Respondent
v.
STEVEN JOHN GRITT
Appellant
REASONS FOR JUDGMENT - THOMAS J.
Judgment delivered 03/06/93.
I am unable to regard the present sentences as manifestly excessive, particularly when the early recommendation for parole (after twelve months) is recognised. I say this because in summary form -
The incidents were part of a protracted sadistic exercise.
Both incidents occurred in the course of an abduction of an innocent young man from the street.
The first count comprises an extended incident carried out in company. During the second part of the incident, the young complainant, already injured from earlier punching, was detained in a garage for half an hour and used as a punching bag. His face was made barely recognisable.
The second offence occurred after the exercise had been interrupted by the police, and the co-offender had been removed from the scene.
During the second assault, the applicant, a large powerful man aged 24, broke the complainant's nose.
The extent of injuries caused does not fall far short of grievous bodily harm. In other words the extent of the injuries was at the upper range for offences under s. 339 of the Code. The maximum penalty for such an offence committed in company is seven years' imprisonment.
The applicant was taken to hospital the following day. His injuries are described in the transcript as follows:
He had gross facial swelling.
His left eye was completely closed.
He had a 2 centimetre cut above his left eyebrow.
There was a deep laceration to his upper lip.
There was one broken tooth which had to be capped and another which subsequently had to be removed because the nerves had been killed.
He had a broken nose.
He had bruising to his back and chest and grazes to his arms.
One eye was red for two months following the assault.
He required three visits to a dentist for the dental work the first of which took approximately two hours.
Stitching was required internally along one side of his cheek where ... the teeth had almost severed through to the outside of his cheek.
He thought he was going to die.
There was evidence that his eyesight has degenerated since the incident, but in the absence of medical evidence this allegation should be ignored.I regard the present case as on the whole worse than that of Lucas (R. v. Lucas and Restrepo C.A. 252 of 1992). The observations which speak of three years as being at or above the upper end of the range were expressly posited in relation to cases "involving infliction of injuries of the nature and extent to those we see here". Those injuries were limited to a split lip, a broken tooth and a fractured cheekbone. A question of degree is involved in a comparison of this kind, but I cannot help regarding the present injuries as substantially more serious than those in Lucas.
If a comparison is made between the present case and Lucas on other aspects, on all but one the present applicant is in a worse position than Lucas. Lucas was 19 while the applicant was 24. Both had previous convictions and neither had previously been imprisoned. Both were on probation at the time of committing the offence. However Lucas' previous convictions included some offences of violence whereas the applicant's did not. Lucas had a psychiatric report that was influential in the result, linking the reasonable prospect of rehabilitation with the minimisation of a prison sentence. No appraisal of that kind is present in the instant matter. The injuries inflicted on the victim in the present matter are worse than those in the Lucas, and so are the circumstances of the assaults.
I do not regard Lucas as precluding the imposition of a head sentence of three years in circumstances such as those in the present case. The sentence on the first count of three years' imprisonment with a recommendation for parole after twelve months was in my view an appropriate sentence. I would refuse leave to appeal against it.
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