The Queen v Maguire[1997] QCA 38

THE PRESIDENT:  This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 1 November 1996. The applicant was convicted on one count of unlawful wounding which was committed on 25 May 1996 on her own plea of guilty. The applicant was sentenced to two years imprisonment. She has applied for leave to appeal against that sentence and submits that it is manifestly excessive.

The applicant is 28 years old, born on 15 October 1968. She has a minor criminal history, primarily of drug offences and which includes a conviction for driving under the influence of alcohol, but none of her previous offences are of particular significance for present purposes.

The offence occurred at the Treasury Hotel in Brisbane. Both the complainant and the applicant attended the hotel but were strangers. The complainant was watching the band inside the hotel. The applicant was intoxicated and, after an incident when she fell onto the drum of the band, she was escorted from the hotel by security officers.

A short time later she returned and was served more alcohol. She was holding two full glasses, apparently beer glasses, when she was asked by the complainant if she was all right. The applicant then threw the alcohol, the beer, in one of the glasses onto the complainant and struck the complainant on the left side of her face with the hand which was holding an empty beer glass - or at least a beer glass, full or empty.

The complainant suffered multiple facial lacerations which have caused permanent scarring. The applicant's submission at sentencing was that she was "paralytic drunk" at the time and had no recollection of the incident. She demonstrated remorse by an early plea of guilty and by apologising to the complainant shortly after the incident in writing in terms which I accept were indicative that she had not foreseen the consequences of what she did, but I do not accept that she was unaware that she was striking the complainant while holding a glass.

The sentencing Judge referred to the absence of provocation on the part of the complainant and considered the potential damage that could have been caused by the attack. Indeed, the damage was significant. As I have said, the complainant suffered permanent scarring. The sentencing Judge also accepted that the complainant suffered extensive emotional trauma and said that her life had been devastated as a result of the attack. But for the applicant's plea of guilty he would have sentenced her to imprisonment for three years.

The respondent supports the sentence imposed, submitting that, given the fact that the parties did not know each other prior to the incident and the consequences for the complainant, a sentence of two to two and a half years was within range.

The applicant's submission is that the appropriate sentence was 18 months imprisonment wholly suspended. She relies on her minor criminal history, extreme intoxication, early plea of guilty, early apology, remorse and her responsibility for her eight-year-old child as mitigating circumstances. She also relies upon a concession made by the complainant that the hotel security officer should not have allowed the applicant back into the hotel, although I see no substance in that proposition.

I can see nothing in the material to justify a conclusion that the applicant was unaware that she held a beer glass in her hand when she struck the complainant and the findings of the sentencing Judge appear to be to the contrary. After referring to the fact that the complainant provided the applicant with no provocation His Honour said, "You directed a beer glass into her face."  His Honour went on to point to the injuries and the scarring, to which reference has already been made. 

In my opinion the sentence imposed was within the appropriate range for the offence committed by the applicant and I would refuse the application for leave to appeal.

McPHERSON JA:  I agree. I would only add, by way of a  gratuitous statement, that the consistency and frequency with which offences arising out of the use of beer glasses come before this Court leads me to wonder if the time has not come when some other material less likely to shatter should not be considered for the use of consumers at public houses.

That day will, I am sure, come when some victim of an offence like this, who is either more determined or more seriously injured, takes the course of litigating against the owners of public houses for an injury which, on my experience of these matters, is now to be considered as reasonably foreseeable. I agree with what the President has said on the subject of the sentence in this case and my remarks with respect to the other matter are intended simply to draw the attention of society to the problem which we are seeing with great frequency in this Court.

FRYBERG J:  I agree with the order proposed by the President and with the reasons which he has given.

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