Martin v Commissioner of Police
[2025] QDC 135
•26 September 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Martin v Commissioner of Police [2025] QDC 135
PARTIES:
REECE JAMES MARTIN
(appellant)
v
COMMISSIONER OF POLICE(respondent)
FILE NO:
DC 63 of 2025
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to s 222 Justices Act 1886 (Qld)
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
26 September 2025
DELIVERED AT:
Southport
HEARING DATE:
11 September 2025 and 18 September 2025
JUDGES:
Wooldridge KC DCJ
ORDER:
1. The appeal is allowed.
2. The sentencing orders imposed in the Magistrates Court in Southport on 26 February 2025 are set aside.
3. The following sentencing orders are imposed:
i) For each of the offences of Assault occasioning bodily harm and Public nuisance in the vicinity of a licensed premises, a conviction is recorded.
ii) For the offence of Assault occasioning bodily harm the appellant is sentenced to eight months’ imprisonment, suspended after the appellant has served five days imprisonment for an operational period of 12 months. The appellant must not commit another offence punishable by imprisonment within a period of 12 months if the appellant is to avoid being dealt with for the suspended term of imprisonment.
iii) For the offence of Public Nuisance in the vicinity of a licensed premises the appellant is sentenced to one month imprisonment, suspended after the appellant has served five days imprisonment for an operational period of 12 months. The appellant must not commit another offence punishable by imprisonment within a period of 12 months if the appellant is to avoid being dealt with for the suspended term of imprisonment.
iv) Each of the terms of imprisonment are ordered to be served concurrently with one another.
v) Pursuant to section 159A Penalties and Sentences Act 1992 (Qld) it is declared that the period of five days between the 26th of February 2025 and the 3rd of March 2025 be declared as time already served under the sentence.
vi) The appellant is ordered to pay compensation in the amount of $1000 to the Registrar of the District Court at Southport before 4pm on Friday 3 October 2025, for transmission to the complainant in the charge of Assault occasioning bodily harm at an address to be advised by the Office of the Director of Public Prosecutions. If the compensation is not paid by 4pm on Friday 3 October 2025, I direct that the Registrar give particulars of the order to the State Penalties Enforcement Registry for registration under section 34 of the State Penalties Enforcement Act1999 (Qld).
CATCHWORDS:
APPEAL – MAGISTRATES – APPEAL AGAINST SENTENCE – WHETHER SENTENCE MANIFESTLY EXCESSIVE – an appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was sentenced for an offence of Assault occasioning bodily harm contrary to section 339 Criminal Code (Qld) to eight months’ imprisonment suspended after having served one month imprisonment for an operational period of 12 months, and for a further offence of Public nuisance in the vicinity of licensed premises contrary to section 6 Summary Offences Act 2005 (Qld) to a concurrent sentence of one month imprisonment suspended after serving one month for an operational period of 12 months – where the appellant contends the learned Magistrate erred in the application of sentencing principle – whether the sentence was excessive.
Criminal Code (Qld) s 339
Justices Act 1886 (Qld) ss 222(2)(c), 223, 225
Penalties and Sentences Act 1992 (Qld) s 144
Summary Offences Act 2005 (Qld) s 6Chakka v Queensland Police Service [2024] QCA 213
House v The King (1936) 55 CLR 499
Quatermass v The Commissioner of Police [2015] QDC 169
R v Hughes [2018] 2 Qd R 134
R v Illin (2014) 246 A Crim R 176
R v Leathers (2014) 247 A Crim R 137
R v Pham (2015) 256 CLR 550
R v Rogan [2021] QCA 269COUNSEL:
M Hynes for the appellant
C Wilson for the respondentSOLICITORS:
Rawlings McShane Lawyers for the appellant
Office of the Director of Public Prosecutions (Qld) for the respondent
Background
On 26 February 2025 in the Magistrates Court at Southport, the appellant Reece James Martin, pleaded guilty to a charge of Assault occasioning bodily harm, and a charge of Public nuisance in the vicinity of a licensed premises. In relation to the offence of Assault occasioning bodily harm the appellant was sentenced to eight months’ imprisonment, suspended after having served one month imprisonment, for an operational period of 12 months. In relation to the offence of Public nuisance in the vicinity of a licensed premises the appellant was sentenced to 1 month imprisonment suspended after serving one month, for an operational period of 12 months; being in effect a sentence of 1 month imprisonment, as that term would be served in full prior to the suspension of the term. Each of the terms of imprisonment were ordered to be served concurrently with one another.
On 28 February 2025, the appellant filed a Notice of Appeal to this Court seeking to appeal against the sentencing orders made on 26 February 2025, on the ground that “[t]he sentence was manifestly excessive in all the circumstances”.
That same date, the appellant brought an application in the Magistrates Court for bail pending appeal. That application was adjourned to 3 March 2025, at which time the application for bail pending appeal was not opposed by the prosecution, and the appellant was released to bail, having at that time served five days imprisonment pursuant to the sentences imposed on 26 February 2025. The appellant has remained on bail since that time.
The appeal initially came to be heard before me on 11 September 2025. On that date (as discussed further below) it was identified that additional material was required to be placed before the Court for the proper determination of the appeal. The appeal was adjourned part-heard to 18 September 2025, to provide time for the further material to be obtained and provided, and for submissions to be made once that had occurred.
The outline of submissions on behalf of the appellant contends[1] that the learned Magistrate’s reasoning was impacted by error, and that “the constellation of mitigating features” present here, ought to have resulted in the imposition of terms of imprisonment that were wholly suspended. The respondent also submits that the appeal be allowed, and that the court would resentence the appellant for each charge to terms of imprisonment which do not require the appellant to be returned to custody.[2]
[1]Outline of submissions on behalf of the appellant, paragraph 37.
[2]Outline of submissions on behalf of the respondent, paragraphs 1.1, 8.6, and 9.
I accept the submissions of the parties, and accordingly the appeal is allowed.
The legal framework for the appeal
Section 222(2)(c) of the Justices Act 1886 (Qld) provides that if a defendant pleads guilty or admits the truth of a complaint, they may only appeal under section 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive.
In order to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error which has resulted in the imposition of a sentence which the appellate court is satisfied is excessive. [3] A mere difference of opinion between an appellate court and the court at first instance about the way in which the sentencing discretion may, or should, have been exercised, is insufficient to justify appellate intervention. Absent demonstration of specific error, an appellant need establish that the sentence imposed was unreasonable or unjust such that the appellate court is driven to conclude that the exercise of the sentencing discretion has miscarried in some way. [4]
[3]Chakka v Queensland Police Service [2024] QCA 213.
[4]House v The King (1936) 55 CLR 499 at 504-505; R v Pham (2015) 256 CLR 550 at [28].
The powers of a judge on hearing the appeal are set out in section 225 of the Justices Act1886 (Qld). Section 225 provides:
“225 Powers of judge on hearing appeal
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
(4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”
The appeal record
Subject to any granting of leave to adduce new evidence, an appeal pursuant to section 222 is by way of rehearing on the evidence below.[5] No application to adduce new evidence was made on this appeal.[6]
[5]Justices Act 1886 (Qld), s 223.
[6]While material has been placed before this Court by way of an affidavit under the hand of the appellant’s solicitor, the records exhibits thereto are in my view part of what would properly be considered part of the Magistrates Court record of this proceeding, being the exhibits tendered during the hearing before the learned Magistrate which were not on the Magistrates Court file for the appellant, relating to the appellant’s brother who was sentenced at the same time for his role in the same events. For completeness, the respondent here also provided a presentence custody certificate confirming the period of time that the appellant was held in custody prior to being granted bail pending appeal (Exhibit 3 on the Appeal hearing).
I have been provided with and had had regard to the Transcript of Proceedings of 26 February 2025 before the learned Magistrate, and the Transcript of Decision of the learned Magistrate.[7] Written submissions which were relied upon by the appellant in the proceedings before the learned Magistrate were not filed or marked as an exhibit in the Magistrates Court proceedings. A copy of written submissions which were provided to the learned Magistrate have, by agreement between the parties, been provided to this Court in the course of the appeal hearing.[8]
[7]Collectively Exhibit 1 on the Appeal hearing.
[8]Exhibit 2 on the Appeal hearing.
The exhibits which were tendered on the Magistrates Court proceedings by the prosecution, as related to this appellant, included a statement of facts and disc of CCTV footage.[9] I have watched that CCTV footage in the course of the appeal hearing. A number of documents were also tendered before the Magistrates Court on behalf of the appellant, including a letter of apology by the appellant,[10] reference letters[11], a psychological report[12], and correspondence relating to the appellant’s attendance at Alcoholics Anonymous[13] and the booking of an appointment for an assessment for participating in group counselling[14]. Each of those exhibits have also been considered by me as part of the record of the proceedings in the Magistrates Court.
[9]Exhibits 1 and 9 in the Magistrates Court proceedings.
[10]Exhibit 6 in the Magistrates Court proceedings.
[11]Exhibits 4 and 5 in the Magistrates Court proceedings.
[12]Exhibit 7 in the Magistrates Court proceedings.
[13]While there appears to have been an anomaly in the marking of this Exhibit the document is within the Magistrates Court records and has been considered.
[14]Exhibit 3 in the Magistrates Court proceedings.
Another offender, Alexander Nicholas Martin, this appellant’s brother, was sentenced with the appellant on 26 February 2025, for his involvement in the same events. Although the sentence proceeded as the one sentence hearing in relation to each of the appellant and his brother, the appellant and his brother were charged separately, not conjointly. It seems then, because their charges were on different files, the exhibits as related to each offender were numbered separately, and numerically from Exhibit 1 in relation to each of them. When the matter was first before the Court for hearing on 11 September 2025 this was identified to the parties. The parties were jointly of the view that all of the exhibits tendered before the learned Magistrate on the sentencing proceedings of 26 February 2025 were part of the record which this appellate court was required to consider. The hearing was adjourned part-heard to facilitate the exhibits being obtained and provided. The additional exhibits have now been produced to the court pursuant to an affidavit filed on behalf of the appellant on 16 September 2025.[15]
[15]That affidavit also addresses some anomalies in the identification and numbering of exhibits as relate to each of the appellant and his brother, which need not be traversed further for present purposes.
Circumstances of the offending
Each of the offences of Assault occasioning bodily harm and Public nuisance in the vicinity of a licensed premises was alleged to have occurred on 8 August 2024.
It was accepted by the appellant’s Counsel at sentence that the offending was of the nature of alcohol fuelled street violence, and was serious, and gratuitous[16] and that there was no excuse for the conduct[17].
[16]Transcript of Proceedings of 26 February 2025 at page 24 line 35.
[17]Transcript of Proceedings of 26 February 2025 at page 26 line 14.
Assault occasioning bodily harm
The statement of facts tendered at sentence[18] alleged that in the very early hours of that date, shortly after midnight, the appellant was involved in the assault of a 41 year old male complainant. CCTV footage depicted the complainant on Orchid Avenue in Surfers Paradise, standing near some tables and speaking to other individuals. The appellant approached and punched the complainant to the face, causing him to fall backwards to the ground.[19] The appellant then kicked the complainant to the head. When the complainant tried to stand the appellant kicked him to the head again. Those were the circumstances of the assault committed by this appellant which were the subject of the charge of Assault occasioning bodily harm. The entire interaction as between the appellant and the complainant was of less than fifteen seconds duration.
[18]Exhibit 1 in the Magistrates Court proceedings.
[19]The CCTV footage also showed the appellant and his brother to have walked through this location a short time before the altercation, at which time the males were seated at the table and the complainant was standing a few metres away.
The statement of facts tendered in the Magistrates Court proceedings then provided that the appellant’s brother Alexander Martin had grabbed the complainant by the jumper and slammed the complainant’s head into the pavement. This appellant was not described as continuing his assault of the complainant at that time. It was not positively alleged that the appellant was liable for the actions of his brother on a party basis. The oral submissions of the prosecutor in the course of the hearing were also consistent with appellant’s assault of the complainant having ceased before his brother’s assault of the complainant commenced.[20] However, the CCTV footage of the incident depicts the appellant’s brother Alexander Martin having taken hold of the complainant when the complainant tried to stand, and to be holding him from behind when the appellant kicked the complainant the second time, before Alexander Martin then pushed the complainants face into the pavement, rather than his actions toward the complainant having only commenced after the appellant’s assault of the complainant was completed.
[20]Transcript of Proceedings of 26 February 2025 at page 19 line 20.
As concerns the bodily harm occasioned to the complainant by the appellant the statement of facts provided that the complainant’s face was already starting to bruise and swell while police were speaking to him (inferentially, within a short time of the assault), and the sentence appears to have proceeded on the basis that some of that bruising and swelling was the result of the assault by this appellant as opposed to the subsequent (and separately charged) actions of the appellant’s brother. The prosecutor, in her oral submissions before the learned Magistrate also referred to the complainant being dazed, disorientated and unsteady on his feet.[21] No victim impact statement was tendered. It was indicated by the prosecutor that, at that time, the police had lost contact with the complainant.
[21]Transcript of Proceedings of 26 February 2025 at page 19 line 36.
After police were advised of the assault upon the complainant, police tracked the movements of the appellant and his brother over the Gold Coast City Council camera network, and upon their being located, they were arrested.
Public nuisance in the vicinity of a licensed premises
Police had also been advised of another incident which occurred on the Esplanade, which CCTV footage showed the appellant to have been involved in prior to his arrest. The prosecutor in her oral submissions in the Magistrates Court advised that this second incident occurred “only minutes after” and “approximately three minutes after” the offence of Assault occasioning bodily harm.[22]
[22]Transcript of Proceedings of 26 February 2025 at page 22 lines 29 to 47.
The statement of facts provides that, in company with his brother, the appellant ran toward a group of three males who were unknown to them. The CCTV footage depicts that the appellant and his brother had been walking in the opposite direction to the group of males, and had proceeded past them, before stopping and deciding to turn around and pursue the group of three males. The appellant and his brother jogged to catch up with the three males, and intercepted them while they were crossing the road at a zebra crossing.
The statement of facts provides that the appellant and his brother punched males in the group and pushed them to the ground. More specifically it is said that the appellant punched one of the males in the face causing him to fall backwards to the ground and that the appellant’s brother punched another male and pushed that male to the ground in the middle of the road. The appellant then approached another male who was walking backwards away from him and punched him in the head.
While that summation is not inaccurate, the CCTV provides some further clarity as to the order in which events unfolded. The CCTV depicts the appellant’s brother running ahead of the appellant, and then grappling with one male (male 1) and pushing him to the ground. When one of male 1’s friends (male 2) tried to push the appellant’s brother away, the appellant then grappled with male 2, restraining him and then after removing that hold, throwing blows at him. While that was occurring the appellant’s brother returned to and continued in his interaction with male 1, punching him, restraining him on the ground, and striking him in some way with his foot. The appellant then walked toward the third male (male 3) who was holding his hands up in front of him in a way which was clearly to indicate he did not wish to engage. The appellant then punched male 3 to the face and forcefully pushed him, causing him to land on his back on the roadway. The appellant then again approached male 2 striking him to the face resulting in his falling backwards to the ground. When the appellant struck male 2, male 2 had been walking backwards and holding his hands out low in front of him, indicating he was not wanting to engage with the appellant. As the appellant walked away he clapped his hands together. I accept the submission made by Counsel for the appellant at the appeal hearing that the footage also depicts the appellant interacting with his brother in a way which appears to indicate that following these events the appellant encouraged his brother to walk away.
Other information placed before the learned Magistrate in relation to the appellant
The appellant was 24 years of age at the time of the offending and 25 at the time of sentence.[23] The prosecutor submitted that while the appellant had “somewhat the benefit of youth, he [was] old enough to understand the consequences of his actions”.
[23]Transcript of Proceedings of 26 February 2025 at page 26 line 39. Statement of facts (Exhibit 1) in the Magistrates Court proceedings.
Other aspects of the appellant’s antecedents and circumstances were outlined in the submissions of the appellant’s Counsel, as well as a psychological report under the hand of Consultant Psychologist Ms Clare Fercher-Barrett which was tendered.[24] In his account to Ms Fercher-Barrett, the appellant described a dysfunctional household dynamic growing up, characterised by physical and emotional abuse by his mother. However he made positive observations as concerns his relationships as an adult with his father, brother and stepfather. At sentence the appellant was supported in court by his father. He resided with his partner of two years.
[24]Exhibit 7 in the Magistrates Court proceedings.
He completed year 11 at high school, commenced a hose-fitting apprenticeship, and completed a carpentry apprenticeship. He had worked for the same company – a brewery and bottling company – for over five and a half years.[25] He resided in onsite accommodation at his employment location.[26]
[25]Exhibit 4 in the Magistrates Court proceedings.
[26]Transcript of Proceedings of 26 February 2025 at page 28 line 5, and paragraph 6.14 of the report of Ms Fercher-Barrett which was Exhibit 7 in the Magistrates Court proceedings.
In his interview with Ms Fercher-Barrett for the purposes of the preparation of the pre-sentence report, the appellant recounted a history of managing stress poorly and feeling intensely angry, but denied having acted violently in the past. He reported having a limited recollection of the offending, but reported having been drinking on the night and recalled feeling stressed and “highly strung” at the time due to work issues. Ms Fercher-Barrett observed that consistent with his self-report, there was evidence that Mr Martin suffers from anger management difficulties.[27]
[27]Paragraph 8.11 of the report of Ms Fercher-Barrett which was Exhibit 7 on the Magistrates Court proceedings.
Pursuant to various assessment tools utilised by Ms Fercher-Barrett, at the time of her report the appellant was a low or medium risk range for further violent offending, but “substantially more vulnerable to acting out violently when affected by alcohol”. Ms Fercher-Barrett considered the results, overall, suggested that the appellant presented a low risk for future violence or for engaging in general antisocial conduct. She observed that the appellant was not an inherently antisocial person, and that in her opinion his prognostic outlook was favourable.[28]
[28]Paragraphs 9.2 to 9.11 and 11.8 to 11.9 of the report of Ms Fercher-Barrett which was Exhibit 7 in the Magistrates Court proceedings.
Counsel for the appellant submitted that the material tendered before the Magistrate on behalf of the appellant demonstrated that he was on the path toward rehabilitation. Reference was made to the appellant having obtained a mental health care plan and having thereafter engaged in ten psychology counselling sessions with a Ms Gibson to improve his insight, anger management, and emotional awareness and self-regulation skills. The appellant reported to Ms Fercher Barrett that he had found this treatment “a huge help”. Ms Fercher-Barrett observed that the appellant’s responses in interview reflected a positive attitude towards engaging in therapeutic treatment, an acknowledgement that he had important problems that he needed to address, and a level of motivation similar to other adults being seen in a clinical context.[29]
[29]Transcript of Proceedings of 26 February 2025 at pages 29 to 30. Paragraph 6.12 and 8.12 of the report of Ms Fercher-Barrett which was Exhibit 7 in the Magistrates Court proceedings.
In her report, Ms Fercher Barrett also noted that Ms Gibson had formed the view that the appellant likely had attention deficit hyperactivity disorder, and as at the time of Ms Fercher-Barrett’s report he was waitlisted for further assessment and to discuss whether pharmacological treatment was indicated. Ms Fercher-Barrett noted that the appellant reported symptoms consistent with an attention deficit hyperactivity disorder, but did not express any further concluded opinion herself. [30]
[30]Paragraph 6.12 and 10.4 of the report of Ms Fercher-Barrett which was Exhibit 7 in the Magistrates Court proceedings.
Documentation tendered from Alcoholics Anonymous, identified attendance by the appellant twice a week, over a period from September to December 2024, which it was submitted (orally) had continued thereafter. It was submitted that the appellant had attended “at least 30 sessions”, and that was “probably…a massive underestimation”.[31] It was submitted that the appellant was demonstrating an understanding of “triggers with alcohol”. The appellant had also more recently attempted to engage in an anger management course, for which he had been waitlisted.[32]
[31]Exhibit 8 in the Magistrates Court proceedings. Transcript of Proceedings of 26 February 2025 at page 29.
[32]Transcript of Proceedings of 26 February 2025 at page 30.
The appellant had no criminal history. In his letter of apology to the complainant[33] the appellant expressed that he was “deeply” and “extremely” sorry for his actions, that he had been drinking heavily and his actions got the better of him, and that he was “taking steps to prevent something like this ever happening again”.
[33]Exhibit 6 in the Magistrates Court proceedings.
An offer was made to pay compensation in the amount of $2000 to the complainant (on behalf of both the appellant and his brother, jointly). The money was in the trust account of the appellant’s (and his brother’s) solicitors at the time of sentence.[34]
[34]Transcript of Proceedings of 26 February 2025 at page 27 line 35.
The statement of facts that was tendered before the Magistrates Court provided that the appellant “was bailed” from the Southport Magistrates Court on 21 August 2025, however it was clarified in the oral submissions of the prosecutor that the appellant had entered the watch house at 1:16am on the morning of the offending and was released to bail at 3:49am;[35] that is the appellant had been in police custody for less than 3 hours.
[35]Transcript of Proceedings of 26 February 2025 at page 23 line 36.
Further submissions made before the learned Magistrate in relation to penalty
The maximum penalty for the offence of Assault occasioning bodily harm is 7 years imprisonment.[36] The maximum penalty for the offence of Public nuisance in the vicinity of a licensed premises is 6 months imprisonment.
[36]In his oral submissions before the Magistrates Court, Counsel for the appellant corrected what had otherwise been indicated in his written submissions concerning the maximum penalty for the offence: see Transcript of Proceedings of 26 February 2025 at page 16 line 49.
The prosecution’s submissions
The prosecutor referred to “the principles of section 9, specifically principles of denunciation and deterrence in this incident”.[37] It was identified that a sentence of imprisonment was not here a sentence of last resort. The prosecutor referred the learned Magistrate to the decision of Quatermass v The Commissioner of Police [2015] QDC 169, and cases referred to therein.[38] It was submitted that the authorities “indicate that a period of actual imprisonment is not out of range for offending of this type, and the general exception to actual periods of imprisonment are those purporting to rehabilitation and engage in prosocial behaviours and [who] have exhibited genuine remorse”[39]. It was submitted that a fine or a sentence of probation would not adequately address the gravamen of the offending.[40] It was acknowledged by the prosecutor that the material demonstrated “very recent steps towards rehabilitation” by the appellant, but it was requested that the learned Magistrate “consider those recent steps with appropriate weight”.[41]
[37]Transcript of Proceedings of 26 February 2025 at page 21 line 38.
[38]Transcript of Proceedings of 26 February 2025 at page 20 to 21.
[39]Transcript of Proceedings of 26 February 2025 at page 23 line 12.
[40]Transcript of Proceedings of 26 February 2025 at page 23 line 33.
[41]Transcript of Proceedings of 26 February 2025 at page 23 line 17.
It was submitted by the prosecutor that the appropriate sentence to impose for the offence of Assault occasioning bodily harm was in the range of nine to twelve months imprisonment, to serve one third of the head sentence, and that the appellant would be sentenced to the higher end of that range.
The submissions on behalf of the appellant
Counsel for the appellant sought to distinguish the circumstances of the appellant’s offending from those factors discussed in the decision of Quatermass v The Commissioner of Police which were relied upon by the prosecution as aggravating factors that would give rise to an expectation that an offender would be sentenced to actual imprisonment.[42] Counsel urged the learned Magistrate to view the circumstances of the offending in the context of an unblemished history by a youthful offender making stupid alcohol fuelled decisions, and to sentence the appellant to a period of probation. It was submitted that such an order would assist the appellant in “getting to grips with why this happened in the sense of addressing any underlying mental health issues, in the sense of understanding the role that alcohol played, [and] in the sense of understanding any underlying violence or tendencies towards violence they might have”.[43]
[42]Transcript of Proceedings of 26 February 2025 at page 31.
[43]Transcript of Proceedings of 26 February 2025 at page 26.
Counsel for the respondent referred to the decisions of R v O’Grady; ex parte Attorney-General of Qld [2003] QCA 137 and R v Sanders [2007] QCA 165 as being more serious examples of offending, in support of the submission that “the sentencing range extend[ed] to probation”[44]. Further, Counsel for the appellant submitted that if a sentence of probation were to be imposed the Court could, in the exercise of its discretion, not record a conviction.[45]
[44]Transcript of Proceedings of 26 February 2025 at page 31.
[45]Transcript of Proceedings of 26 February 2025 at pages 32 to 33.
In the event that the learned Magistrate did determine the appropriate sentence to be one of imprisonment, it was submitted that a sentence of six to nine months imprisonment would be imposed with respect to the offence of Assault occasioning bodily harm, and of one to three months with respect to the offence of Public nuisance in the vicinity of a licensed premises. It was submitted that the sentences of imprisonment would be suspended forthwith, as the appellant’s “rehabilitative prospects…would be undone by a short term of imprisonment”. It was submitted that the sentencing purposes of deterrence and denunciation were adequately met by the imposition of the proposed head sentence, and that here there was no identifiable benefit to the community from requiring the appellant to serve a short period of actual imprisonment under the sentencing orders to be imposed.[46]
[46]Transcript of Proceedings of 26 February 2025 at page 34 to 35, referring to R v Rogan [2021] QCA 269.
It was submitted that the sentences would be (wholly) suspended rather than, structured so as to see the appellant released to parole, as the appellant resided interstate, and there may be difficulty or delay in facilitating the transfer of the parole order interstate. It was also accepted that it was open to impose a term of imprisonment with respect to the offence of Assault occasioning bodily harm, and probation with respect to the Public Nuisance offence.[47]
[47]Transcript of Proceedings of 26 February 2025 at page 35 to 36.
“Parity” considerations in relation to the sentence imposed upon the appellant’s brother
A separate statement of facts was tendered as concerns Alexander Martin, to that tendered in relation to the appellant. The CCTV footage which was tendered was tendered as concerns both the appellant and his brother.
In relation to the offence of Public nuisance, although not conjointly charged, each of the appellant’s were properly understood to be co-offenders. Parity considerations arose in sentencing the appellant (and his brother) for that offence.
In relation to the offence of Assault occasioning bodily harm, the appellant and his brother were not charged with the circumstance of aggravation of having committed the offence “in company”. As the sentence hearing proceeded, they were each charged separately for the assault they individually committed on the complainant in the course of the interactions set out in the statement of facts and depicted on the CCTV. That situation on one view did not require the strict application of the parity principle.[48] However, where the appellant and his brother were each being sentenced together on the one occasion, for offending arising out of the same events, each of the prosecution and their Counsel addressed the learned Magistrate as to what would be a just sentence to impose on the appellant, individually, and with reference to the sentence that may be imposed upon his brother.
[48]See the discussion in R v Illin (2014) 246 A Crim R 176 at [24]-[25], R v Leathers (2014) 247 A Crim R 137 at [20]-[23], and R v Hughes [2018] 2 Qd R 134 from [25]
It was not in dispute that that the conduct of the appellant in the offence of Assault occasioning bodily harm with which he was charged, was more serious than the conduct involved in the offence of Assault occasioning bodily harm with which the appellant’s brother was charged. There were also, as may be expected, a number of other similarities in the personal circumstances and matters in mitigation relied upon by each of the appellant and his brother. Alexander Martin was younger than the appellant; he was 20 years of age at the time of the offending. He also had no criminal history and positive character references were provided. He had also written a letter of apology, engaged with alcoholics anonymous to a similar extent to the appellant, and was waitlisted to engage in an anger management course. He did not have the same ongoing employment as the appellant but had accepted an offer to commence a Bachelor of Education at university. There was no psychological report before the learned Magistrate in relation to Alexander Martin, and he had not engaged in counselling sessions with a psychologist since being charged, as the appellant had.
The prosecution submitted that a sentence of nine to 12 months imprisonment was also appropriate in relation to Alexander Martin, but that having regard to the lesser involvement of Alexander Martin in the offence of Assault occasioning bodily harm, and his younger age, his court ordered parole release date could be fixed as at the date of sentence.
Counsel for the appellant (and Alexander Martin) submitted that in balancing the relative offending and age difference between the two, that the court may conclude that “the psychological factors at play” for the appellant “offset” any differences in the seriousness of their respective offending, and that the same sentence ought to be imposed on each of the appellant and his brother – being, it was submitted, a period of probation.[49]
[49]Transcript of Proceedings of 26 February 2025 at pages 26 to 27.
The decision of the learned Magistrate
Her Honour referred to the offending committed by the appellant as captured on the CCTV footage. She described the offending as “significant serious offending”, and a serious example of the offence of Assault occasioning bodily harm. Her Honour noted that the complainant had not known the appellant, or his brother, and prior to the offending, had been, in her words “minding his own business”, and there was no apparent motive for the offending. Her Honour observed the offending involved in the subsequent Public nuisance offence as similarly being a serious example of gratuitous alcohol fuelled violent conduct in a public place, without provocation.[50]
[50]Transcript of Decision of 26 February 2025 at pages 2 to 3, and page 5 line 31.
With respect to the decision of Quatermass v Commissioner of Police to which the prosecutor had referred, Her Honour observed that there were some distinguishing features as between the facts in that case and those present in the appellant’s case, on which “it would appear that [the appellant]’s conduct was less” – her Honour referring to the victim in Quatermass v Commissioner of Police having lost consciousness and having had arguably more serious injuries, and that Mr Quatermass also had a minor criminal history, whereas the appellant did not have any criminal history.[51] Her Honour continued:
“[H]owever, Mr Quatermass only had one charge before the court, and you have a second charge, which is an aggravating feature, that three minutes later, you engaged in similar behaviour which involved violence that was unprovoked. In my view, your offending is aggravated by that, but it’s also aggravated by the fact that you were in company with your brother.”
Later within her remarks her Honour continued[52]:
“There was, in relation to [the complainant], a punch in the face, two kicks in the head by you, and then [the appellant’s brother] grabs [the complainant]’s jumper and slams him into the pavement, before moving on and engaging in similar behaviour with a group of other people. That’s an aggravating feature.”
[51]Transcript of Decision of 26 February 2025 at page 4 line 11 to 23 and page 4 line 29.
[52]Transcript of Decision of 26 February 2025 at page 5 lines 34 to 37.
Her Honour referred to the appellant being “a relatively young fellow”, and the elder as between himself and his brother. Her Honour stated that the appellant “barely” had the benefit of youth on his side. Her Honour stated that she did not accept the submission that he was not old enough to understand the consequences of his actions.[53]
[53]This was not a submission advanced on behalf of the appellant, but a matter raised by the prosecution. Transcript of Decision of 26 February 2025 at pages 2 line 39 to 42 and page 4 lines 7 to 9. See also page 5 line 43.
Her Honour referred to the appellant’s ongoing employment. Her Honour accepted that the appellant had taken significant steps to rehabilitate himself and to understand the offending he had committed. Her Honour referred to the appellant having “impressively attend[ed] anger management twice a week since September 2024”. In fact it had been submitted that the appellant had attended Alcoholic’s Anonymous twice weekly over that period. It appears this may have been a slippage, as Her Honour then, a short time later within her remarks referred to the appellant being on a waitlist to attend an anger management course, and that being indicative of his acknowledgement of his having an anger management issue and a willingness to address it.[54] Her Honour also referred to the psychological treatment sessions that had been attended by the appellant with Ms Gibson and that he had a positive attitude toward engaging in therapeutic treatment.
[54]Transcript of Decision of 26 February 2025 at page 4 line 31 to 32 and line 39 to 41.
Her Honour referred to the appellant’s plea of guilty to the charges, and his letter of apology. Her Honour referred to the appellant and his brother having placed $2000 into trust with their instructing solicitors that they wished to pay to the victim.[55]
[55]Transcript of Decision of 26 February 2025 at page 4 line 35.
Her Honour referred to the “glowing” references that had been provided, and – consistent with the sentiments expressed within those references, and the appellant having no other criminal history – her Honour accepted that the offending was out of character for the appellant.[56] Her Honour referred to the opinion of Ms Fercher-Barrett that the appellant was a low risk of reoffending, subject to some extent, to his use or consumption of alcohol.
[56]Transcript of Decision of 26 February 2025 at page 4 line 29 to 35.
Her Honour remarked:
“In my view, actual imprisonment is not outside the range of proper sentencing discretion…I accept that you were young, but this is a serious offence… It’s an offence that is – it needs to reflect deterrence, to deter you and anybody else from thinking they can behave in this manner, and it needs to reflect the community’s denunciation. But I haven’t lost sight of your rehabilitation efforts, which I accept are significant.
So after carefully balancing the importance of rehabilitation, of which you have engaged, and the various specific particulars of this offending, there is a need to protect the community; there is the need to protect the community from people like you and protect them from senseless alcohol-fuelled violence. So, in my view, a period of imprisonment is the appropriate sentence. A period of probation will not, in my view, give effect to those sentencing principles that I must give effect to.”[57]
[57]Transcript of Decision of 26 February 2025 at page 5 line 41 to page 6 line 5.
Initially her Honour sentenced the appellant, “globally” to a term of eight months’ imprisonment, suspended after having served one month imprisonment for an operational period of 12 months. Counsel for the appellant raised that as a matter of law, her Honour had to impose a separate sentence for each offence. To assist the court, Counsel submitted that the learned Magistrate could achieve the same intended result by, imposing the stated sentence with respect to the offence of Assault occasioning bodily, and as concerned the offence of Public nuisance in the vicinity of licensed premises, sentencing the appellant to one month imprisonment suspended after one month for the identical operational period of 12 months.[58]
[58]Transcript of Decision of 26 February 2025 at page 6 to 7.
The following exchange then occurred between Counsel and the learned Magistrate:[59]
[59]Transcript of Decision of 26 February 2025 at page 7 line 33 to page 11 line 16.
MR HYNES: Can I just – whilst your Honour’s imposing that order, in case it matters, your Honour has said a number of times that he was in company as an aggravating aspect. That’s not, as a matter of law, correct, because he’s not charged with an in-company offence and De Simoni says you can’t. So - - -
HER HONOUR: Okay.
MR HYNES: - - - insofar as that might aggravate matters and the impacts on your Honour’s sentencing discretion, I’d ask that you reconsider the potential impact that has on the ultimate sentence.
HER HONOUR: Okay. Well, can you take me to that passage of De Simoni. I’m familiar with De Simoni.
MR HYNES: So - - -
HER HONOUR: I accept he wasn’t charged with being in company, but his brother was present, and - - -
MR HYNES: That’s right.
HER HONOUR: - - - when there’s two of them there, it’s an aggravating feature and I thought that was outside of De Simoni. So if you want to make some submissions about that.
MR HYNES: Well, if the Crown want to charge a circumstance of aggravation, like someone being in company, they must allege it. And the in-company aspect means, at law, in company meaning confronted by the joint force of one or – two mor more persons.
HER HONOUR: Okay.
MR HYNES: So they’re not saying that he was confronted – the complainant – by the joint force of two or more.
HER HONOUR: All right.
MR HYNES: So there were separate assaults committed at the same time.
HER HONOUR: Right.
MR HYNES: They were, as a matter of fact, together with each other, but they’re not alleging that circumstance of aggravation.
HER HONOUR: Okay. Well, I’m going to stand this sentence down, because I want to hear some more about that, because I don’t want to be led into error - - -
MR HYNES: No.
HER HONOUR: - - - because I have taken that into account. I am familiar with the case of De Simoni - - -
MR HYNES: Yes.
HER HONOUR: - - - and I thought that taking that into account and accepting that he wasn’t charged with being in company, that that was outside. But obviously, I don’t want to be in error.
MR HYNES: Of course.
HER HONOUR: So I’m going to invite some more submissions on that point. Okay.
MR HYNRS: Well, your Honour has mine. I’m happy to - - -
HER HONOUR: So you’ve got no – nothing more to say about that - - -
MR HYNES: No - - -
HER HONOUR: - - - Mr Hynes?
MR HYNES: - - - because to take into account an in-company aggravating aspect infringes De Simoni.
HER HONOUR: Okay.
MR HYNES: It’s not alleged.
HER HONOUR: All right. Well, I’ve – obviously, I’ve got a copy of that case. I want to just go and reflect on that. Ms Garland, do you - - -
MS GARLAND: Your Honour, I don’t have any submissions apart – obviously, I understand you Honour’s inference was that they were in the presence together, perhaps if that – and I understand my friend’s – learned friend’s submission in relation to your Honour referring to it in company. I don’t think your Honour actually intended to imply that they were charged as such.
HER HONOUR: No, I didn’t.
MS GARLAND: Basically, that they were in the company together – or in the presence of each other.
HER HONOUR: That’s right. But I have – and I have said and I did take it into account as an aggravating factor in arriving at this sentence. So I need to – I just need to stand this matter down. I’ll give you an opportunity – you’ve got nothing further to say, Mr Hynes?
MR HYNES: No, your Honour.
HER HONOUR: But maybe the prosecutor has. So I’m sorry about that. I’m just going to have to pause this sentence and just have a look at that case. It’s an important point Mr Hynes has raised.
MS GARLAND: Yes, your Honour. And there was never any inference from the prosecution that they were charged in company. I understood your Honour to be referring to that as in the presence of rather – as an expression rather than the charge - - -
HER HONOUR: And that’s - - -
MS GARLAND: - - - itself.
HER HONOUR: - - - what I was referring to.
MS GARLAND: Thank you.
HER HONOUR: But I think what Mr Hynes is saying, even that - - -
MS GARLAND: Yes.
HER HONOUR: - - - offends De Simoni.
MR HYNES: No, I’m not.
HER HONOUR: You’re not saying that?
MR HYNES: No, no, no, no. You - - -
HER HONOUR: Okay. Well - - -
MR HYNES: - - - can say, “You two were in presence of one another”, but you can’t say, “Because you’re in presence of one another, as a matter of law, you’re in company, and therefore, that aggravates”, because - - -
HER HONOUR: Okay.
MR HYNES: - - - in company means a greater maximum.
HER HONOUR: I accept that.
MR HYNES: Yeah.
HER HONOUR: And so if I use the terminology, and I probably did use the terminology, “in company”, it wasn’t in the sense of the aggravating aspect of a charge that was in – charged in company. Accept that they weren’t charged with being in company, but - - -
MR HYNES: Well, your Honour has said, though – and I don’t mean - - -
HER HONOUR: Yes.
MR HYNES:- - - to be - - -
HER HONOUR: No, no.
MR HYNES: - - - picky. Your Honour has said that it aggravates matters, and if that mattered to your Honour’s sentencing discretion, which is to put my client in jail - - -
HER HONOUR: Yes.
MR HYNES: - - - it can’t - - -
HER HONOUR: Yes.
MR HYNES: - - - and your Honour might revisit what you imposed.
HER HONOUR: Well, that’s what I’m trying to get at. Okay. So it did influence my decision. It wasn’t the only influencing feature - - -
MR HYNES: Of course not.
HER HONOUR: - - - about putting him into jail, actual jail, but I did take that into account as an aggravating feature: not the fact that it was – he was charged with being in company, but the fact that his brother was there present. And I think when I pronounce my sentence, I did refer to the words “in company”.
MR HYNES: That’s right.
HER HONOUR: Right. So I just want to go back, and I want to have a look at De Simoni so that I’m not in error, and I will come back and revisit this.
When court resumed, each party confirmed that they had no further submission to make on the issue. Her Honour then proceeded to clarify her earlier remarks and sentencing orders further, in stating as follows:[60]
“Okay. So continuing on with that sentence and having regard to those issues that were raised by Mr Hynes in relation to De Simoni, I need to clear up the record. I accept that a circumstance of aggravation must be charged in a bench charge sheet. Reece Martin has not been charged with any circumstance of aggravation, clearly, but a circumstance of aggravation arises when an offender is liable to a grater punishment that if the offence were committed without the circumstance of aggravation. There is no circumstance of aggravation in this case here, and I unreservedly withdraw any reference to “in company” as a circumstance of aggravation.
And I accept that I did use those words before, but what I was trying to do was paraphrase the sentencing schedule, which makes it clear that Mr Martin – Mr Reece Martin’s brother, [the appellant’s brother], was present and involved in the offending. So it was merely a reference to that, but I accept that it’s come across as if I’m sentencing him or he’s getting a harsher sentence because there was this circumstance of aggravation that he was in company with his brother. So what I was trying to convey when I did use those words was the distinguishing feature of the Quatermass case and the fact that in this case – well, I’ll just go through them again.
But in Quatermass, there were more serious injuries, and that defendant had a minor criminal history, which is not the case with Mr Reece Martin, and the victim in that case was unconscious. I made a reference to the fact that in the Quatermass case, another distinguishing feature was that he was sentenced on – for the one charge, there were multiple blows inflicted on [the complainant]. He was struck whilst he was down, kicked in the head twice. It was unprovoked. The – Mr Reece Martin, and for that matter, [the appellant’s brother], were unknown to the victim, and it was alcohol-fuelled violence that occurred in a public place.
As I said, the sentencing schedule sets out all the facts, which I’ve take into account, and the – and supports what was viewed in exhibit 9, which was that video evidence. The fact that I did make reference before to “in company”, that was not determinative of my decision that it’s appropriate for this defendant to spend time in actual custody. As I said before, the fact that his brother was present is an agreed factor set out in the schedule, and I haven’t relied on any other facts outside of the sentencing schedule that would amount to a more serious offence than which this defendant has been convicted.”
[60]Transcript of Decision of 26 February 2025 at page 12 line 8 to 44.
Her Honour then reiterated[61] that having regard to all of the matters in the appellant’s favour, that “on balance and in view of the seriousness of the offending, the need, in my view, to protect the community and deter [the appellant] and others…from committing this type of offending, a short period of actual imprisonment is warranted.” Her Honour then confirmed that the sentencing order would be, as concerned the offence of Assault occasioning bodily harm, a sentence of eight months’ imprisonment suspended after serving one month for an operational period of 12 months, and as concerned the offence of Public nuisance in vicinity to a licensed premises, one month imprisonment suspended for a period of one month for an operational period of 12 months.
[61]Transcript of Decision of 26 February 2025 at page 12 line 46 to page 13 line 9.
At that juncture a further matter was raised by the appellant’s Counsel[62]:
[62]Transcript of Decision of 26 February 2025 at page 13 line 11 to 42.
MR HYNES: …As a matter of sentencing discretion, we offered up compensation. Are you ordering it in that case?
HER HONOUR: I’m not going to order the - - -
MR HYNES: Okay.
HER HONOUR: - - - compensation, and thank you for raising that. That will be a matter for this defendant. I note that the – I think it was in your submissions that these defendants – and I don’t know who’s put in what, but there’s a sum total of $2,000 that’s earmarked in your solicitor’s trust account for that purpose. Whether these clients give you instructions – sorry – give the solicitor instructions to release that to the victim is a matter for them.
MR HYNES: But has your Honour taken it into account as a matter in mitigation that goes to remorse and also seeking to place the complainant back in a position?
HER HONOUR: Yes, I did.
MR HYNES: Okay. Thank you.
HER HONOUR: And I thought I raised that already in my – I think I did raise that.
MR HYNES: Just confirming. Thank you.
HER HONOUR: Yes. Yes. No, it’s been taken into account.
MR HYNES: Thank you.
HER HONOUR: All right. Thank you. So that concludes the sentence in relation to Reece Martin.
The learned Magistrate then proceeded to pass sentence with respect to Alexander Martin. In the course of her remarks, the learned Magistrate referred to, among other matters, that Alexander Martin was four years younger than the appellant, and that the appellant was the main protagonist in relation to the offence of Assault occasioning bodily harm. Her Honour concluded that a period of imprisonment was the only appropriate sentence, and that probation would not adequately reflect the gravamen of the offending. Her Honour sentenced Alexander Martin as concerns the offence of Assault occasioning bodily harm to 8 months imprisonment wholly suspended for an operational period of 12 months, and to 1 month imprisonment wholly suspended for an operational period of 12 months for the offence of Public nuisance; that is, the sentences that were imposed upon the appellant and his brother were identical, other than that the appellant was required to serve one month in custody before the suspension of the term(s) of imprisonment imposed upon him.
The transcript then includes the following exchange:[63]
[63] Transcript of Decision of 26 February 2025 at page 15 line 34 to page 16 line 10.
HER HONOUR: I won’t make an order in respect of compensation to the victim; that’s a matter for you.
Anything else I need to do with this one, Mr Hynes? I don’t think so.
MR HYNES: No, your Honour.
HER HONOUR: Okay.
MS GARLAND: Sorry, your Honour. I didn’t catch that amount your Honour’s - - -
HER HONOUR: No, no. I said I’m not making - - -
MS GARLAND: Thank you.
HER HONOUR: - - - an order - - -
MS GARLAND: Sorry, I didn’t hear that.
HER HONOUR: - - - for compensation - - -
MS GARLAND: Thank you.
HER HONOUR: - - - for all the reasons I gave Mr Hynes before. It’s a matter for these defendants what they do with that money that’s held in trust.
Submissions on this appeal
The issues raised by one or both of the parties in their submissions before this Court on the appeal are well articulated in the Certificate of Readiness that has been jointly prepared and filed by the parties. They are:
i)Whether the sentencing Magistrate erred by treating the appellant’s conduct “in company” as an aggravating circumstance that increased penalty severity;
ii)Whether her Honour gave disproportionate weight to the goal of community protection despite expert evidence that the appellant poses a low risk of future offending;
iii)Whether Her Honour failed to give proper weight as to the appellant’s remorse, including the offer of compensation to the complainant;
iv)Whether the requirement that the appellant serve one month in actual custody was necessary or instead rendered the sentence manifestly excessive when compared with similar matters and the appellant’s personal mitigation; and
v)Whether, having regard to the foregoing errors of principle, the sentence imposed lay outside the sound exercise of the sentencing discretion and is manifestly excessive.
Additionally, the respondent raises that the sentencing order made in relation to the charge of Public nuisance in the vicinity of a licensed premises is not an valid sentencing order.
The reference to the offending being “in company”
The respondent contends that notwithstanding the further remarks of the learned Magistrate seeking to clarify her earlier reference to the offending having occurred “in company”, that “properly analysed, the Acting Magistrate impermissibly took into account a consideration that she should not have in arriving at an outcome that saw the appellant jailed for one month [and] then, having done so, and reflected on her sentence, she maintained the same outcome”, indicating that her reasoning was infected by error that was not corrected.
As the appellant identifies, the appellant was here charged with the offence of Assault occasioning bodily harm (simpliciter), absent the circumstance of aggravation of “in company”. The reality was however, that the appellant committed the offence of Public nuisance in vicinity of a licensed premises with his brother. That offence does not at law have a circumstance of aggravation of “in company”, but it must be accepted that the circumstance of the appellant having committed the offence along with another offender, was an aggravating aspect of his conduct in committing that offence, which would lead to that conduct being viewed more seriously. Similarly, while the charge of Assault occasioning bodily harm did not allege that the appellant was in company with another offender – that is, that the victim was confronted by the combined force or strength of two or more persons – the incontrovertible facts before the learned Magistrate were that the appellant engaged in the conduct in the presence of another individual who was behaving in the same way as he was. It was a group activity. As the appellant fairly conceded on the appeal, that remained a relevant factor to be taken into account on sentencing, and “group violence would almost always be considered more serious than singular violence”[64].
[64]Transcript of Proceedings 11 September 2025 at page 17.
It was accepted that if the statements by her Honour were properly understood as indicating only that the offending was more serious than if it had been committed by the appellant “alone”, then that would not reflect error.[65] In my view that is how the learned Magistrate’s remarks ought to be understood. That is consistent with the context in which the reference to the offending having occurred in company with the appellant’s brother was made. Each of the appellant and his brother pleaded guilty to the charge of Assault occasioning bodily harm before her Honour. At no time did the learned Magistrate refer to the offence for which she was sentencing the appellant, incorrectly. That the offence had a higher maximum penalty if the circumstance of aggravation were charged, than in the circumstances before her Honour, where it was not charged, was expressly raised in the course of submissions, when Counsel for the appellant corrected an error in his outline of submissions which had, in that very context misstated the applicable maximum penalty.[66]
[65]Transcript of Proceedings 11 September 2025 at page 18.
[66]Transcript of Proceedings of 26 February 2025 at page 16 line 49 to page 17 line 11.
Having regard to the record as a whole, I do not accept that the learned Magistrate sentencing discretion miscarried on this basis, as advanced by the appellant.
The sentence imposed on the offence of Public nuisance in vicinity of licensed premises
The respondent identifies that the sentence imposed with respect to the charge of Public nuisance in vicinity of a licensed premises did not comply with section 144 of the Penalties and Sentences Act 1992 (Qld).
Section 144(3) as relevant, provides:
“144 Sentence of imprisonment may be suspended
(1) If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.
(2) An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.
(3) An order under subsection (1) may suspend the whole or a part of the term of imprisonment.”
The sentencing order made by the learned Magistrate as concerns the offence of Public nuisance in vicinity of licensed premises was one of one month imprisonment suspended after having served one month for an operational period of 12 months. The respondent is correct that in suspending the one month term of imprisonment, after one month had been served, the learned magistrate was not making an order suspending “the whole or a part of the term of imprisonment” as required by section 144(3).
In fairness to the learned Magistrate, that format of sentencing order was adopted at the suggestion of counsel, to rectify the earlier error in her Honour’s sentencing orders where her Honour had not imposed separate terms of imprisonment with respect to each of the two charges before her.[67] It is unclear that the anomaly identified did here in fact result in a sentence that was excessive, given that following the appellant having served the one month of the suspended term, as required by her Honour’s sentencing orders, there was no remaining suspended term “operational” for the remaining eleven months of the operational period. In any case, the determination that has been made on the appeal otherwise, means that the issue raised with the original sentencing orders has been addressed.
[67]Transcript of Decision of 26 February 2025 at pages 6 to 7.
Further discussion
The other issues raised on the appeal in support of the submission that the appeal be allowed, are appropriately addressed together.
It is alleged by the appellant that an analysis of the learned Magistrates reasons ‘expose errors in the application of sentencing principles’, resulting in a sentence which is excessive.[68]
[68]Outline of submission on behalf of the appellant, [4].
No issue is taken on this appeal by the appellant with the head sentence imposed with respect to each of the two offences, only the requirement that the appellant serve a period of time in actual custody.[69] Of course a consideration of whether the sentence imposed were excessive, and what may be the appropriate sentence to impose on appeal requires contemplation of the sentencing orders as a whole. As clarified in the oral submissions of the appellant at the hearing, in circumstances where the appellant has now served five days in custody before being granted appeal bail, the appellant’s primary submission is that the Court would now impose the same sentences as had been imposed in the Magistrates Court, other than that this Court would order that each of the sentences would be suspended after having served five days imprisonment, with five days being declared as time served with respect to the sentences imposed. The respondents submissions contend similarly. I have clarified with the parties that those submissions contemplate a compensation order also being made as part of the formal sentencing orders, in contrast to the approach taken by the learned Magistrate at first instance.
[69]The submission made at first instance that the appropriate sentence was one of probation are not maintained on this appeal.
The appellant was being sentenced for the one offence of Assault occasioning bodily harm and the one offence of Public nuisance in vicinity of a licensed premises, committed on the one date, and proximate in time to one another. Fortunately, as concerns the offence of Assault occasioning bodily harm, the injuries sustained by the complainant, as could be said to have been caused by this appellant in the course of the assault with which he was charged, were limited to facial bruising and swelling. As both the appellant and the respondent have submitted to this Court, the injuries inflicted by the appellant were significantly less than were sustained by the complainant in the decision of Quatermass on which the learned Magistrate placed reliance; the complainant in that case sustained a number of significant facial fractures, for which he underwent corrective surgery. No evidence was placed before the court of any injury having been inflicted by the appellant in the course of the public nuisance offence.
However, as the learned Magistrate correctly identified, there were a number of serious aspects to the appellant’s conduct, constituting those offences, including but not limited to the offending being of the nature of unprovoked violence in a public place. The need for the sentence to serve the purpose of general deterrence was a significant sentencing consideration.
No error arises from the imposition of a term of imprisonment. I accept however that the approach of the learned Magistrate in sentencing the appellant, whereby, pursuant to the sentencing orders imposed, the appellant was ultimately required to serve a period of one month of actual custody, is here indicative of error in the application of principle, and the sentencing discretion having miscarried resulting in a sentence which is excessive.
As was observed by Sofronoff P in R v Rogan [2021] QCA 269, the requirement to serve a very short term of actual imprisonment can have significant effects beyond the restraint on liberty for the period itself. Courts are properly hesitant to sentence first time offenders – in particular, but not only, youthful offenders – to sentences involving the requirement to serve a very short period of actual custody, unless required to serve a legitimate sentencing purpose.
As each of the appellant and the respondent have submitted, her Honour’s sentencing remarks evidence that her Honour placed significant weight on the need for “community protection”. Imposing a sentence which “protect[ed] the Queensland community from the offender” was here a legitimate purpose and consideration in sentencing the appellant. However the appellant was a relatively young man with no criminal history, who had pleaded guilty, was remorseful for his conduct, and who since being charged had taken meaningful steps towards his rehabilitation. Her Honour found the offending to be “out of character” for the appellant. With one possible caveat, assessed as at the time of sentence, to be a low risk of further offending. That caveat was the consumption of alcohol, which was one of the factors the appellant had taken steps toward addressing. It cannot be said that the decision of the learned Magistrate to impose a sentence whereby the appellant was required to serve one month in actual custody arose directly from the weight given by the learned Magistrate to community protection, as a sentencing consideration. However I accept the submission that community protection did not here necessitate the imposition of sentence which required the appellant to serve one month imprisonment before being released. Further the structure of sentence did not then see the appellant, upon release, subject to any supervision as may be thought appropriate where community protection is of some concern.
It is implicit in her Honour’s sentencing orders that she considered there was a basis to impose a more substantial penalty upon the appellant, than his brother, in all the circumstances. I agree. There remained however means other than those adopted by the learned Magistrate to here, to the extent appropriate, distinguish between the appellant and his brother, including the imposition of a different head sentence, a different operational period, or the imposition of a concurrent period of probation.
The learned Magistrate’s approach to the offer of payment of compensation by the appellant was also here, unorthodox. In sentencing the appellant, her Honour referred to the offer that was made to pay compensation, but made no order for the payment of compensation, indicating that she was leaving it up to the appellant whether in fact he did make the payment as offered.
It is of course, not obligatory that a court make an order for compensation (or as applicable, restitution) where an offer is made. Reasons that may militate against making such an order may include, for example, that the offered funds are not presently available, or limited capacity of an offender to produce funds in the quantum in question within a reasonable period of time for reason of the duration of the custodial sentence to be imposed or other matters personal to the offender. Those factors were not present here. The money was in held in trust with the appellant’s solicitors at the time of sentence and able to be transferred upon direction.
The offer of a payment of compensation to the complainant was here able to be seen as a further tangible demonstration of the appellant’s genuine remorse. While those with capacity to pay compensation cannot be seen to be able to buy their way out of serving an appropriate sentence or an appropriate custodial term, the payment of compensation is recognised to be of benefit to victims and society more broadly, and is a matter that may properly be taken into account in the overall exercise of the sentencing discretion. The concern of the appellant that he may not have received the full benefit of the offer of compensation in mitigation of his sentence, that he may have received had the order been made for the offered compensation to be paid, is valid. It is unclear why the learned Magistrate took the course that her Honour did here, or if her Honour approached the exercise of her Honour’s sentencing discretion any different to if the compensation order had been made.
I accept that the sentencing discretion of the learned magistrate has here miscarried, resulting in a sentence which is excessive, in particular in the requirement that the appellant serve one month in actual custody. The circumstances here do not, in my view, support that to be an appropriate exercise of the sentencing discretion in the circumstances. Further to the five days that has been served in custody since the appellant was sentenced in the Magistrates Court, and the order for compensation that is to be made, I accept the submissions made before me as to the appropriate sentencing orders to now impose.
Orders
The orders of the Court are as follows:
1. The appeal is allowed.
2. The sentencing orders imposed in the Magistrates Court in Southport on 26 February 2025 are set aside.
3. The following sentencing orders are imposed:
i) For each of the offences of Assault occasioning bodily harm and Public nuisance in the vicinity of a licensed premises, a conviction is recorded.
ii) For the offence of Assault occasioning bodily harm the appellant is sentenced to eight months’ imprisonment, suspended after the appellant has served five days imprisonment for an operational period of 12 months. The appellant must not commit another offence punishable by imprisonment within a period of 12 months if the appellant is to avoid being dealt with for the suspended term of imprisonment.
iii) For the offence of Public Nuisance in the vicinity of a licensed premises the appellant is sentenced to one month imprisonment, suspended after the appellant has served five days imprisonment for an operational period of 12 months. The appellant must not commit another offence punishable by imprisonment within a period of 12 months if the appellant is to avoid being dealt with for the suspended term of imprisonment.
iv) Each of the terms of imprisonment are ordered to be served concurrently with one another.
v) Pursuant to section 159A Penalties and Sentences Act 1992 (Qld) it is declared that the period of five days between the 26th of February 2025 and the 3rd of March 2025 be declared as time already served under the sentence.
vi) The appellant is ordered to pay compensation in the amount of $1000 to the Registrar of the District Court at Southport before 4pm on Friday 3 October 2025, for transmission to the complainant in the charge of Assault occasioning bodily harm at an address to be advised by the Office of the Director of Public Prosecutions. If the compensation is not paid by 4pm on Friday 3 October 2025, I direct that the Registrar give particulars of the order to the State Penalties Enforcement Registry for registration under section 34 of the State Penalties Enforcement Act1999 (Qld).
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