A man’s jail sentence for a Mooloolaba assault has been overturned.A former Navy seaman who punched a man in the face and knocked another unconscious should never have been sent to prison, a district court judge has found.
Matthew David Scott Payne was sent to jail for 18 months with parole after three, after pleading guilty to assault occasioning bodily harm during a night out on the Sunshine Coast.
But in reasons published on Friday, Maroochydore District Court Judge John Robertson found the presiding magistrate made “multiple errors both in law and in fact” and the 29-year-old should never have gone to jail.
“It is very unfortunate that the appellant has served 2 ½ months in prison, when the proper exercise of sentencing discretion should not have led to any actual imprisonment,” he stated.
“In re-sentencing the appellant, I have to take into account that he has already been seriously punished by being incarcerated.”
The Australian Defence Medal recipient, who spent five years in the Navy, was partying on a boat moored near Underwater World at Mooloolaba in the early hours of February 22.
He was kicked off the boat and went on to punch one man, who some witnesses said was involved in removing him from the vessel, in the face more than once about 5.30am.
In a fight with another man he punched him once to the side of the face hard enough to knock him out.
The victim, who’d been drinking with Payne on the boat after meeting that morning, got back up and continued the fight but was taken to Nambour Hospital about an hour later with facial fractures.
In justifying his decision, Judge Robertson said the magistrate had failed to analyse a series of complex facts of the case and made a “significant factual error” in describing the complainant as having suffered a “disfigurement”.
He inferred the magistrate had not read one of the judgements he relied upon in sentencing and rejected the initial ruling that the case involved “gratuitous violence”.
More weight should have been given to mitigating factors including post-traumatic stress disorder stemming from an assault in naval training and a break-up with the mother of his two daughters, who he was caring for full-time when sentenced.
On November 25, Judge Robertson upheld Payne’s appeal and re-sentenced him to 15 months’ probation and 40 hours’ community service, with no conviction recorded.
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