The Queen v Elkington[1998] QCA 135

COURT OF APPEAL

PINCUS JA

WILLIAMS J

FRYBERG J

CA No 33 of 1998

THE QUEEN

v.

DAVID WILLIAM ELKINGTON Applicant

BRISBANE

DATE 27/02/98

JUDGMENT

WILLIAMS J:  Arising out of events which occurred at a city night club on 30 March 1997 the applicant was charged with unlawfully doing grievous bodily harm. He pleaded guilty in the District Court on 13 February 1998 and was sentenced to four months imprisonment to be followed by two years probation. He applies for leave to appeal against that sentence on the ground that it was manifestly excessive.

The circumstances giving rise to the offence can be relatively briefly stated. The applicant had met the complainant a few weeks prior to the incident at a night club and on that occasion they had conversed for a period of time. On the occasion in question they apparently again met by chance in or near the toilet of the night club. The complainant was then holding a broken champagne glass in his hand. As the applicant went past, he accidentally cut his hand on the glass and there was an exchange of words between them. It appears from the whole of the evidence that at that stage there was an apology for the incident which appeared to be accepted by the applicant.

Some considerable time later the complainant left the night club with his companions. As he left the night club he was struck a single blow from behind to the area of his cheek and suffered serious injuries which required surgery and a number of days in hospital.

The applicant is a young man now aged 21 years who has no prior criminal history. He undertook further studies after leaving school in order to improve his tertiary entrance qualifications and has since been studying at Griffith University.

It was conceded by the Crown that this should be treated as an early plea of guilty. The applicant spoke to the police shortly after the incident and there was never any significant denial of what had occurred.

The learned sentencing Judge emphasised two matters which had been relied on by the prosecution. They were that this was an offence involving violence at a night club, a circumstance that was becoming all too prevalent in our community. In consequence he said that the sentence had to reflect an appropriate element of deterrence. Secondly, the attack was calculated or planned. That was established by the fact that the applicant consciously decided not to commence the fight within the precincts of the night club because he believed if he did so the bouncers would become involved. He waited until the complainant was outside the night club before landing the blow. It is true that only one blow was struck and that is a matter that cannot be ignored. However, it was a severe blow and this Court is all too aware of the fact that on many instances such a single blow causes even more serious consequences than were suffered by the complainant in this case.

Given the fact that the applicant was a young man with no previous convictions and only one blow was struck, the sentence imposed is, in my view, towards the top of the appropriate range. But in all the circumstances, bearing in mind the particular factors to which I have referred, I am not satisfied that it was manifestly excessive. I am not satisfied that the sentencing discretion erred and in the circumstances I would refuse the application for leave to appeal.

PINCUS JA:  I agree.

FRYBERG J:  I agree.

PINCUS JA:  The order will be as indicated by Justice Williams.