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THE CHIEF JUDGE: This is an appeal against sentence. This case is a good example of what can go wrong when the parties compromise, and particularly where the Court is aware of the charges that have been discontinued. The appellant was, apparently, originally charged with two counts of assault occasioning bodily harm in company and a nuisance charge. He pleaded guilty to one count of affray, and the difficulty which sometimes arises is in the processing of that in terms of the facts before the Court. The learned Magistrate, in this case, expressed surprised, and strongly so, at that development.

The sentence imposed was three months imprisonment with immediate parole and an order was made that the appellant pay two amounts of $1,000 in compensation to two victims. The ground of appeal is that the sentence is excessive, and, originally, the order sought on appeal was that, taking into account that the appellant has completed the parole period, he should be convicted and not further punished. I am satisfied the sentence was excessive, but I am not satisfied that that suggested order would amount to a proper disposition.

My view is that the sentence should be set aside and that, in its place, taking into account that three months has already been served on parole with success, the appellant should be placed on probation for a period of six months, including the usual conditions under section 93 of the Penalties and Sentences Act 1992, and the additional requirement that he submit to medical, psychiatric and psychological treatment, as directed, under section 94(a) of that Act. I will set out, briefly, some reasons.

The appellant was born on 20 December 1996. The offence occurred on 5 December 2023. He was, therefore, just short of 26 years old at the time.

He came before the Magistrates Court at Holland Park on 26 September 2024, by which time he was 27 years old. He has a relevant criminal history. In June 2015, he was before the District Court convicted of rape. The sentence was six years imprisonment. I will come to her Honour's treatment of that. What should be observed is that that offence was committed in May 2014 while the appellant was still 17 years old, and that the sentence, although one of six years, included a parole eligibility date, in effect, after serving one year. That is all that is known about that entry. The criminal history includes, relevantly, that on 27 January 2022, before the Ipswich Magistrates Court, the appellant was convicted of contravening a domestic violence order and placed on probation for 12 months. There was a report before the learned Magistrate, which I will come to in a minute.

That order had expired at the time of the commission of the affray. The appellant sought leave to amend the grounds of the appeal to include assertions of specific error. In my respectful opinion, while it is open to an appellant to argue that the Magistrate below committed specific error, the ground of appeal remains that the sentence was excessive. The nature of the appeal, under section 222, after a plea of guilty has been canvassed by the Court of Appeal in Chakka v Queensland Police Commissioner [2024] QCA 213.

There was a statement of facts before the learned Magistrate. It is necessary to refer to it, because it is a detailed document, and to the learned Magistrate's treatment of the facts. The offending started at around 5 pm on 5 December 2023. It occurred in a barbecue and pool area at a rental complex at Eight Mile Plains. Among the residents in that area was a group of young children and the father of one of them. One of the children was celebrating her fourth birthday. The defendant was yelling at the top of his voice, "You black cunts think you can do whatever you want and no one will stand up to you." The father of the children, who was a complainant, walked towards the defendant, who yelled, "I'll fucking fight you."

Another adult in the area heard an elderly woman screaming. Apparently, the defendant was with some women. The appellant approached the pool area. The two, who have been referred to as complainants or victims in the statement of fact, and their associates, surrounded the appellant. There was arguing back and forth. One called out to him to calm down, telling him he did not have to be angry and that everyone was a friend there, but he continued to scream, and screamed at an elderly lady, "You are a stupid bitch", and, "You black pussy." He was asked to calm down. He called the person asking him to calm down a "fucking arsehole".

One of the two victims put his belongings on the ground and lifted his fists in a motion ready to fight, and this seemed to make the appellant leave the area, but he came back about five minutes later with two women. He walked straight to one of the victims, who was standing near the amenities block, and without warning, struck him with an open hand to the nose. This caused that person to fall backwards, hitting his head on a nearby tree with enough force that it made him dizzy. Another witness observed that water seemed to spray from the victim's head. There is no explanation for that except that one might infer that the person had been in the pool and had wet hair.

Then the appellant walked towards the other victim, who was with his children in the barbecue area. That person walked away from the children and said to the appellant, "What are you doing? We're having a birthday party. I've got my daughters here." The appellant yelled, "I don't give a fuck" and walked directly at the victim. The victim lifted his fists, ready to fight. The appellant punched him to the head. Then the victim managed to get the appellant in a headlock. The appellant bit the victim on the right bicep. Another male came and attempted to separate them, and eventually, that did happen. There was no evidence before the Magistrate of bodily injury.

At the beginning of submissions by the prosecution, the learned Magistrate remarked that the conduct was antisocial and violent and racially charged. Her Honour in fact said it was racially motivated, and it was misogynistic, and it was frightening. Her Honour also referred to community outrage about men's violence towards women. The appellant's solicitor told the court that the appellant had put $2,000 into the solicitor's trust account ready to be paid in compensation. The learned Magistrate fairly asked, "For what?" The answer was, "For the distress caused." And although

her Honour, with respect, correctly questioned whether a compensation order could be made for distress, ultimately made such orders.

Whether those orders were open was not a ground of appeal. I have not heard any argument about it, and I therefore am not judging that.

The learned Magistrate was told that the appellant is a father of two children, aged four and two years. He shares the care of the children half the time. He pays child support to the mother. He was at the time going through Family Court proceedings to obtain full custody of the children. He completed year 10. He started an apprenticeship in diesel fitting. He works full-time as a truck driver and labourer, and according to the solicitor's instructions, the appellant has no substance abuse or mental health issues.

There was a report concerning the appellant's performance on probation. There was a person from community corrections at court who gave the learned Magistrate a report. It included these features: that the appellant appeared to engage well; he completed a mental health care plan through a psychologist; he ceased consulting that psychologist and wanted to see another one; he was referred to a men's domestic violence program but because of his approach to that, he did not attend the program, or it was not organised for him. The community corrections officer told the Magistrate that the appellant said, "He is not a domestic violence person, and he's unable to attend because he's called down to the care of his son at the time."

He was engaged with a psychologist through this time, and the officer told the Magistrate that was confirmed, that he was withdrawn from the domestic violence program. Her Honour, not unreasonably, with respect, took a dim view of that. It simply meant that the appellant did not want to do the DV program. His solicitor, however, did tell the learned Magistrate that while currently going through Family Court proceedings to obtain the full custody of his children, the appellant was waitlisted for a Men Choosing Change program.

The appellant, in the hearing today, relied greatly on some of the learned Magistrate's comments during submissions. It might reasonably be inferred that her Honour was not just surprised, but a little unsatisfied at the discontinuance of the more serious charges of assault occasioning bodily harm in company and the difficulty that that presented in sentencing. Her Honour's task was not easy, given the facts of the case and the background. What matters more is what her Honour said on sentence, and no particular issue is taken with her Honour's rehearsal of the facts, but what might have influenced the outcome was her Honour's assessment of the danger of the actions.

Her Honour said this: "There is quite a lot of public campaigns about striking someone so that they fall and hit their heads. Many people have suffered significant injuries and have not been able to live their lives properly due to the injuries caused by being struck in the head area. What you did was seriously wrong. You are incredibly lucky that he did not end up with permanent brain damage because of what happened. When someone hits their head, that is what happens."

One should not criticise every word said by a magistrate on a busy day of sentencing, but it is difficult to escape the inference that her Honour reached an excessive outcome, because of whatever background information that her Honour had, including what the original charges were. Her Honour also correctly recounted some of the statements made by the defendant. Her Honour understood that although the defendant had been sentenced to six years for the offence of rape, he had, since then, "Not been behaving in a violent way," generally, but referred properly to the domestic violence offence in 2021.

It was submitted that her Honour omitted reference to the appellant's psychological treatment when considering his performance on probation, but her Honour accurately stated that he was not compliant with the order as to doing a program that he had been referred to. It was open for her Honour to conclude that the appellant had a problem maintaining a calm demeanour when things were not going his way.

Her Honour commented that, "The behaviour that day had a serious impact on the two victims who had been assaulted. It had a serious impact on an elderly lady and a serious impact on the many small children who became frightened." I set this out, not because these things were necessarily wrong, but to give some understanding of my impression that her Honour ultimately imposed an excessive sentence because of her apprehension of the criminality, which, I think, ultimately was exaggerated. So, her Honour's conclusion that the set of circumstances was too serious for the court to simply impose another period of probation was, in my respectful submission, wrong.

Her Honour expressly took into account the pleas of guilty and expressions of remorse. For what it is worth, I also record that the prosecutor below submitted in the first place that a suspended sentence was within range, or alternatively a period of probation of nine to 12 months. The appellant argued, among other things, that the learned magistrate's comments demonstrated that her Honour had pre-judged the case, and was biased against the defendant. I am not satisfied that those arguments are made out, but I am satisfied, as I have said, that the sentence was excessive.

So the appeal is to be allowed. The sentence imposed is set aside. Subject to the appellant's consent, the order is that he be under the supervision of an authorised Corrective Services officer for a period of six months starting today on the conditions I have set out earlier in these reasons. I need to say where he would report.

THE CHIEF JUDGE: And, Mr Boddice, you are - you have obtained instructions during the hearing that he would consent to the order?

THE CHIEF JUDGE: Thank you. For the purposes of the section, he is to report at Ipswich by close of business today. You have not made a submission about the recording of a conviction, and frankly - well, that is a matter for you. I have a view, but I should hear from you about it.

MR BODDICE: I did not intend on making any submissions about the recording of a conviction.

THE CHIEF JUDGE: In my opinion, there should be a conviction recorded. Okay. Thank you, both. Anything else? Thank you. Adjourn the court.