R v Grancourt[2008] QCA 239

COURT OF APPEAL

McMURDO P

FRASER JA

DOUGLAS J

THE QUEEN

v

 PATRICK LEONEL GRANCOURTApplicant

BRISBANE 

DATE 18/08/2008

JUDGMENT

THE PRESIDENT:  Justice Fraser will deliver his reasons first.

FRASER JA: On 25 February 2008 the applicant was convicted on his own pleas of guilty of one count of assault occasioning bodily harm and one count of stealing, both committed on 25 June 2005; one count of breaking and entering premises and stealing, on 4 December 2005; one count of doing grievous bodily harm and one count of stealing, both committed on 4 January 2007, and one count of stealing on 7 January 2007.  He also pleaded guilty to summary offences:  two charges of failing to take reasonable care in relation to a syringe, four charges of breaches of bail and one charge of possessing property suspected of being stolen.

The applicant was sentenced to five years imprisonment for the grievous bodily harm offence.  He was sentenced to three months imprisonment for the associated count of stealing (concerning alcohol); 20 months imprisonment for the offence of assault occasioning bodily harm and six months imprisonment for the associated offence of stealing (involving a wallet); 12 months imprisonment for the offence of breaking, entering and stealing; and nine months imprisonment for the offence of receiving stolen property.  Convictions were recorded on each of the summary offences but no further punishment was imposed.

The sentencing Judge also found proved breaches of a suspended sentence of one month imprisonment that had been imposed on 27 June 2005.

It was declared that 429 days which the applicant had spent in presentence custody in respect of the indictable offences was imprisonment already served under the sentences.  All of the sentences were ordered to be served concurrently, including the activated suspended sentence of imprisonment of one month.  The sentencing judge fixed the date upon which the applicant was eligible for release on parole as 25 August 2008.  Having regard to the presentence custody the applicant will be eligible for parole after having served about 20 months in custody.

Circumstances of the offences. 

On 25 June 2005 at a hotel the applicant punched the complainant in the face, causing him to fall onto bitumen, and then rubbed the complainant's face into the bitumen.  As a consequence of this assault the complainant suffered bruising around his left eye, a cut on his nose and bruises on his back.  The applicant then stole the complainant's wallet, which contained some cash and other items including credit cards.

There was a conflict in the evidence, as to the events preceding that offending which the sentencing judge found unnecessary to resolve because it would not affect the sentence he intended to impose.  The applicant's version was that the complainant had sold the applicant drugs, the quality of which was not to the applicant's satisfaction.  The complainant's version was that the applicant assaulted him merely because the complainant declined the applicant's request to give him money.

Whilst the applicant was on bail for those offences, and whilst he was subject to the wholly suspended sentence of one month imprisonment the applicant broke and entered a shop and stole property valued at $6,396.  The police apprehended the applicant the same evening and recovered much of the stolen property.

The applicant committed the most serious of these offences on 4 January 2007 whilst he was subject to two bail orders and to the wholly suspended sentence.  The applicant met the complainant at a hotel and, after drinking together, they went to the complainant's house.  There they consumed more alcohol and some cannabis.  The sentencing judge summarised the facts as follows:

"You picked up a ceramic oil burner and threw it at the complainant's head.  The object hit the complainant under his right eye, and it broke on impact.  You then punched the complainant five times in the face.  The complainant asked you to stop because his children were in the house.  You then picked up a bottle of bourbon and left the house."

It appears that the applicant's motivation for this serious assault was that the complainant was taking some time to arrange for the delivery of drugs sought by the applicant. 

The complainant was taken to hospital.  He was found to have bilateral fractures of his nasal bones and maxillary sinuses and a depressed fracture of the left cheek bone and of the left eye socket.  Plates and splints were inserted in the complainant's face.  But for that treatment the complainant would have been left with permanent facial deformities.  The victim impact statement by the complainant confirms, as one would expect, that this violent attack has caused him ongoing serious problems.

On 7 January 2007 the applicant received property stolen from a church at Strathpine, which included CD players, a keyboard, amplifier and microphone. 

Applicant's personal circumstances. 

The applicant was born on 23 March 1972, and was thus 33 to 34 years old at the time of these offences and 35 years old when he was sentenced.  He had a bad criminal history, including previous convictions for violence:  the applicant was fined for common assault in August 1991; he was fined for an aggravated assault on a female and stealing in February 1992;  he was imprisoned for five years for grievous bodily harm and for one year for common assault in June 1993, this Court later adding a recommendation for parole after the applicant had served 18 months; whilst the applicant was on parole he committed a further assault occasioning bodily harm and stealing for which he was placed on an 18 month bond in February 1997; whilst on parole the applicant was sentenced to six months imprisonment for two counts of assault occasioning bodily harm, for property offences and for serious assault;  in June 2005, he was given 12 months probation for serious assault and possessing tainted property. 

In July 2005, he was sentenced, as I have mentioned, to one month imprisonment wholly suspended for two years, for three counts of entering a dwelling house and committing an indictable offence, two counts of stealing and eight counts of fraud.

Sentencing remarks. 

In addition to the matters to which I have referred, the sentencing Judge observed that the applicant had repeatedly shown disregard for the orders of the court.  His Honour took into account that the applicant had pleaded guilty to all the charges, thereby saving the State time and money.  His Honour also observed that nothing had been put before the court to suggest that the applicant was genuinely remorseful for his conduct; and that despite a long history of alcohol and drug abuse the applicant had done little to confront that problem.

The sentencing Judge acted on the submission made by both counsel that his Honour might impose a sentence in respect of the most serious offence, grievous bodily harm, to reflect the applicant's overall criminality in all of the offences.  The crown prosecutor submitted that the appropriate dominant sentence ought to be five years imprisonment.  The applicant's counsel submitted that a sentence of four to five years imprisonment was within range.

The sentencing Judge observed that both personal and general deterrence were important considerations.

This application. 

The applicant seeks leave to appeal against sentence on the ground that it was "manifestly excessive in all the circumstances." 

The applicant takes issue with the finding of the sentencing Judge in relation to the grievous bodily harm offence to which I have referred that the applicant "picked up a ceramic oil burner and threw it at the complainant's head."  Whilst the applicant does not dispute that he repeatedly punched the complainant in the face, causing the complainant the injuries I have described, the applicant now contends that he did not throw the ceramic oil burner at the complainant.

This contention is not reconcilable with the transcript of argument at the sentence hearing.  When the Prosecutor referred to the applicant having assault the complainant with a series of blows "including the use of an instrument", the transcript records the applicant objecting "That's lies."

The applicant's counsel initially submitted that the applicant denied throwing the ceramic dish although the applicant readily accepted that he physically assaulted the complainant, causing his injuries.  The applicant's counsel indicated that he simply wished to place that on the record.  In response, the sentencing judge pointed out that the prosecutor had made a "robust submission in relation to the use of the instrument" and had invited his Honour to determine the penalty accordingly.  Subsequently the applicant's counsel spoke to the applicant and relayed his instructions that "in respect of the issue about the throwing of a ceramic plate, my client wishes the sentence to proceed on the basis of the Crown's version."  As a result, the prosecutor indicated that it was unnecessary to take that matter any further. 

It is apparent that the applicant through his counsel invited the sentencing judge to accept the version of events put forward by the prosecutor in circumstances in which it was made plain that the sentencing judge was entitled to treat the throwing of the ceramic plate as bearing upon the sentence.  I would add, however, that the question whether the ceramic plate was thrown does not seem to have had any significant effect upon the sentence.  On any view the applicant committed a serious, vicious assault, taking the complainant completely by surprise and causing him serious injuries, with entirely predictable and severe consequences.

The applicant contends that the sentencing judge erred in remarking that nothing had been placed before his Honour which would suggest that the applicant had any genuine remorse for his conduct.  There was, however, nothing in the material put before the sentencing Judge to indicate genuine remorse.

The applicant contends that his sentence should have been less severe on account of the character of the complainant as a person who lied during the day of the applicant's assault and as a supplier of a dangerous drug.  However, the sentencing judge expressly referred to the confrontation in which the applicant committed this offence related to a drug deal between the complainant and the applicant.  The applicant's claims that the complainant lied to his de facto and to police about the particular sort of drug that was supplied and other peripheral matters do not raise any issue of significance in relation to the sentence.

The applicant emphasises in his written and oral submissions that he was not involved in any offence from 1999 until 2005.  Unfortunately though, these offences occurred after he had been placed on probation for 12 months and later sentenced to one month imprisonment for two separate series of offending.

The applicant then contends that the sentence of five years imprisonment was manifestly excessive for the offence of causing grievous bodily harm.  However, it is apparent that the term of five years was imposed after taking into account all of the applicant's offences, a course which was urged upon the sentencing judge by both counsel.  His Honour did not err by taking that approach (see R v Nagy [2004] 1 Qd R 63 at [39].

The sentencing Judge was right to emphasise the importance of general deterrence for offending of this kind, and also the importance of personal deterrence in view of the applicant's bad criminal history:  unfortunately a term of five years imprisonment for earlier offending had not been sufficient to deter the applicant from these offences.  In addition, the protection of the community was a material consideration in view of the applicant's repeated offending and disregard of court orders.

The sentence of three years imprisonment suspended after 15 months for an operational period of three years imposed in R v Tupou; ex parte A-G (Qld) [2005] QCA 179 for a broadly similar grievous bodily harm offence was said by the Chief Justice in that case to be intended to reflect the moderate approach appropriate to an Attorney-General's appeal.  Putting to one side the use of the ceramic dish as a "weapon" here, were the grievous bodily harm offence the only offence for which the applicant was sentenced it is clear enough from the Chief Justice's analysis in R v Tupou at pages 11 to 14 that a head sentence of three to four years imprisonment could not have been regarded as excessive.  Taking into account the other offending there is, in my opinion, no basis for thinking that the sentence was excessive.

The decisions cited by the applicant do not point to any error in the sentencing discretion.  The applicant's reliance on the Court's decision in R v Bryan; ex parte A-G (Qld) [2003] QCA 18 is misplaced:  In R v Tupou, the Chief Justice observed that the decisions including Bryan, which established a bench mark in cases of this kind that might be higher or more severe than had been common in the past were not confined to cases involving weapons.  The applicant's contention is also not supported by decisions in which this Court has held that particular sentences were not manifestly excessive, such as R v Timoti [2003] QCA 96 and R v Bain [2000] QCA 121; nor is it supported by reference to decisions involving assault occasioning bodily harm, such as R v Burnham [1999] QCA 99, R v Mackenzie [2002] QCA 279 and R v Bell [2000] QCA 485.

The applicant submits that the sentence should have been suspended after 12 or 18 months, or, in his oral submissions, after 20 months of it had been served.  However, it was a relevant feature of the applicant's record that he had not taken advantage of similar leniency earlier shown him by the courts.  The sentencing judge was entitled to form the view that parole was a better sentencing option than suspension in view of the applicant's criminal history.

I am not persuaded that there was any error in the decision of the sentencing judge to recognise the applicant's cooperation in the administration of justice by fixing a parole eligibility date some 10 months before the mid-point of the term at which the applicant otherwise would have been eligible for parole.

The applicant submitted that he is determined to look after his son, to obtain employment and to become a useful member of society.  If he is to achieve these commendable aims, it is to be hoped that he will be assisted by the guidance offered to him on parole.

In my opinion, the sentence was not manifestly excessive.

I would refuse the application.

THE PRESIDENT:  I agree.

DOUGLAS J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.

Mr Grancourt, the Court wishes you well in your efforts to stay out of trouble and get your life in order when you're released from prison.