Magistrate's many errors put former seaman behind bars

A MAGISTRATE'S series of errors landed a decorated former Navy seaman behind bars when he should have been fully paroled.  

A district court judge said a Maroochydore magistrate should not have jailed or recorded a conviction against Matthew David Scott Payne for assault occasioning bodily harm.  

The 29-year-old was convicted and ordered to serve three months of an 18-month jail term, given 40 hours of community service and told to pay compensation of $4000 to SPER after he pleaded guilty on October 18.   

The five-year Navy veteran punched a man who was trying to remove him from a party boat at Mooloolaba about 5.30am on February 22.  

Once on dry land the accused hit another man so hard that the victim blacked out.   That victim managed to get to his feet and continued fighting with Payne until the victim was taken to hospital with facial fractures.  

The Australian Defence Medal recipient served all but two weeks of the three months behind bars when the appeal decision was handed down late last month.   

Judge John Robertson said the magistrate failed to analyse a number of complex facts surrounding Payne's case.  

Judge Robertson said the magistrate's other errors included failing to mark prosecution material as evidence; ruling that the case involved "gratuitous violence"; and making a "significant factual" mistake when describing a victim as suffering a "disfigurement".  

"There was not a shred of evidence to suggest disfigurement," Judge Robertson said.

 "This was a significant factual error, which on its own, would not have led me to allow the appeal."

 The judge said the magistrate did not read one of the judgments he relied upon when sentencing the accused and he also did not give enough weight to mitigating factors including Payne's post-traumatic stress disorder and that he was raising two children on his own.  

He also said the magistrate should have taken into account Payne's many glowing character references and the impact a conviction would have on his plans to start a business.  

Judge Robertson sentenced Payne to 15 months probation, ordered him to serve 40 hours of community service and quashed the recording of a conviction.  

"It is very unfortunate that the appellant has served two and a half months in prison, when the proper exercise of sentencing discretion should not have led to any actual imprisonment," he said.   


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