Security footage showing the aftermath of the Noosa punch involving Virgil Power.
Security footage showing the aftermath of the Noosa punch involving Virgil Power.

Noosa 'coward punch': Magistrate 'got it right' says lawyer

SUNSHINE Coast criminal lawyer Damon Locantro argues magistrate Bernadette Callaghan got it right in sentencing a man involved in a Noosa assault to 240 hours community service.

Magistrate Bernadette Callaghan sparked controversy and it seems outrage in the rank and file of police and politicians with her sentencing of Virgil Power. 

The sentence was described by the Attorney General, Jarrod Bleijie as;

" manifestly inadequate, not in line with community expectations, and did not set an adequate deterrent"

In my 20 years of dealing with these matters in court I have to say the penalty is not manifestly inadequate or a slap on the wrist, rather it was quite firm. 

 Mr Power was sentenced to the maximum amount of community service a person can get.

Community service is a fair way up the sentencing chain in terms of severity, on par with probation and only one step down from a sentence of imprisonment.

It has been said that not recording a conviction was lenient however most first offenders for matters in the Magistrates Court don't have convictions recorded against their name. 

In deciding whether to record a conviction or not the court must consider the offender's character and age and the impact that recording a conviction will have on the offender's-
(i)  economic or social wellbeing; or
(ii)  chances of finding employment.

Parliament wrote those sentencing laws and Ms Callaghan duly considered them as she was required to do. 

The considerations in the law reflect the fact that sentencing is not simply about wielding a big stick and destroying someone's life where they may have made a one-off mistake, provoked and under the influence of alcohol. 

When you read the law and understand that Ms Callaghan was compelled to consider Mr Power's character and the potential loss of his legal career and, reflect that potential in her sentence, you might reconsider any imputation of favouritism.

The sentence was not the only supposed cause for outrage. 

Ms Callaghan has come under attack for comments she made during the sentencing.

I have to say I am firmly in support of the remarks she made, particularly those dismissing the 'one punch campaign' as being an appropriate consideration when sentencing someone.

The Sentencing Act does not require a Magistrate to consider, and deliver a harsher penalty, because these events are now making front-page news.

Such an expectation of the community will only serve to weaken our sentencing regime.

We have a well-established sentencing regime based on parity.

If two people commit the same offence, they should expect to get around the same penalty.

Mr Power was sentenced based on that well established regime, not on the level of media exposure, any submission the prosecutor made in relation to the media campaign, nor what politicians might think of the sentence imposed.

The magistrate got it very wrong: An alternative view

Magistrate granted transfer



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