A JUDGE who overturned a decision by a magistrate to convict a man for assault has referred to the judicial officer’s potential to grow “weary” and be “distracted by thoughts of a sustaining lunch” in a withering court judgment.

Jason McKay was convicted and fined $500 in the Gladstone Magistrates Court on October 21 last year after pleading guilty to common assault.

Mr McKay appealed the sentence on the grounds it was manifestly excessive and argued the magistrate failed to give adequate weight to the effect a conviction would have on his employment as a security guard, his blue card for working with children and gave too much weight to his prior criminal history.

District Court Judge Michael Burnett quashed the conviction handed to Mr McKay and ordered the state pay costs for the appeal last month.

Judge Burnett found the sentence was manifestly excessive because the recording of a conviction had a significant impact on Mr McKay’s economic and social wellbeing.

But he added that in a busy summary court, the conduct of a hearing towards the conclusion of a lengthy session was “a hazardous time”.

“The presiding judicial officer can be weary from the day’s events,” he said.

“The mind can be momentarily distracted by thoughts of a sustaining lunch and matters can suffer from a sense of repetition following a lengthy session of listening to the tales of like offending throughout the course of that day’s session.”

Judge Burnett said the magistrate failed to properly request information from Mr McKay, who fronted court without a lawyer.

He said the magistrate should have requested further material from Mr McKay after being told he was the manager of a security company.

“In my view, her doing so would have fulfilled her duty to a self-represented litigant and had not exceeded the limits of her duty. It follows, in my view, that the decision to convict was infected with error and that sentence must be set aside,” he said.

He said if the magistrate had sought more information from Mr McKay, it would become clear that a conviction would have meant a loss of employment and a reduction in income that was “acute” for a married man with six children, one who had a disability.

“ ... it is plain from the transcript that her Honour having formed a view on conviction did not permit the appellant an opportunity to place any further relevant material before her,” Judge Burnett said.

He said Mr McKay only had one previous item on his criminal history for being a public nuisance seven years earlier and argued it was not relevant.

“He was a mature man, married with six dependent children one of whom was disabled. He was active in his family affairs and in particular his school community. A conviction meant he lost his blue card as well as his security licence, but importantly from that aspect he could no longer contribute in his school’s activities because of the loss of his blue card,” Judge Burnett said.

He said the impact of recording a conviction was “entirely disproportionate” to his offending.