R v Houghton & Genrich - [1998] QCA 137

[1998] QCA 137

COURT OF APPEAL
FITZGERALD P
DAVIES JA
FRYBERG J

CA No 424 of 1997 CA No 425 of 1997

THE QUEEN
v.
DAVID BARRY HOUGHTON and

MARK WILLIAM GENRICH Applicants

BRISBANE

..DATE 26/02/98

JUDGMENT
130298 T22-23/SJ3 M/T COA26/98

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

2 JUDGMENT

130298 T22-23/SJ3 M/T COA26/98

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QCA 137
Decision Date: 26/02/1998

CaseChat Overview and Summary

The Court of Appeal in Queensland heard appeals from David Barry Houghton and Mark William Genrich, who were sentenced to a combined total of five years imprisonment for housebreaking and assault occasioning bodily harm in company while armed. Both applicants had pleaded guilty to their charges, with Houghton armed with a concealed wooden batten and Genrich accompanying Houghton, knowing he was armed. The applicants sought to appeal their sentences, arguing that the total term of imprisonment was manifestly excessive. The central legal issue was whether the sentences imposed were manifestly excessive, taking into account the circumstances of the offence, the degree of violence, and the personal circumstances of the applicants.

The Court examined the nature and severity of the offences, which involved a home invasion and a severe assault on the complainant. The Court noted the serious nature of home invasions, particularly when they involve multiple assailants and result in significant injuries. The Court compared the present case with previous cases involving home invasions and assaults, such as R v. Brelsford and R v. Frazer, to assess the appropriate sentencing range. The Court also considered the mitigating factors for each applicant, including Genrich's prior injuries and Houghton's lack of a criminal record. Despite these mitigating factors, the Court found that the applicants' sentences were not manifestly excessive, given the serious nature of the crimes and the need for deterrence.

The Court held that the sentences of four years imprisonment for each applicant, with a recommendation for parole after 15 months, were appropriate. The Court acknowledged the mitigating factors but concluded that they did not warrant a more lenient sentence. The appeals were therefore dismissed, and the original sentences were upheld.

Orders