A magistrate has dismissed a charge of affray against a Rebels motorcycle gang member, determining his assaults on two security guards outside a Bendigo nightclub would not have terrified a reasonable onlooker.
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Shane Michael Smith, 36, of Adelaide, pleaded guilty in the Bendigo Magistrates Court to two charges of unlawful assault but contested a charge of affray. Police dropped seven other charges.
Smith was with others at Universal nightclub on August 6, 2017, when a friend was ejected by security after allegedly starting a fight.
Smith followed, and once outside, hit a security guard in the head without warning.
More court news:
Another guard saw the punch and tackled Smith to move him away. There was a scuffle between the two, during which Smith also punched the second guard.
CCTV footage showed the incident lasted 13 seconds.
Police prosecutor Leading Senior Constable Chris Jones argued this conduct constituted affray, but defence counsel Mark Gumbleton said it was not enough to likely evoke a feeling of terror in a bystander, as the charge required.
After viewing the CCTV footage, magistrate Michael King determined the incident did not constitute affray, and determined there was a degree of duplicity between the assault and affray charges.
Mr Gumbleton told the court there was no good explanation for Smiths actions, but he acted out of misguided loyalty to a friend and judgement clouded by alcohol.
He apologises for what occurred that night, he said.
Mr Gumbleton said Smith had made several trips to Bendigo from his home in Adelaide to appear at court and mid last year agreed to plead guilty to the assaults, but the offer was rejected.
He submitted the assaults were comparatively minor, although Dr King noted he had no control over the potentially dangerous consequences of his actions.
But Leading Senior Constable Jones said Smith committed an unprovoked attack on security guards and the consequences could have been worse. He asked for a term of imprisonment.
The court heard Smith had previously committed violent offences.
Dr King noted the assault victims were in their workplace and said other members of the community had a right to enjoy these places without being exposed to violence.
But he did not see the community interest in jailing Smith without him having an opportunity to address his anger issues, to which Mr Gumbleton said his client was seeking help.
The court heard there would also be a delay in arranging a community corrections order to be transferred to South Australia.
Dr King convicted Smith and fined him $3500. He also approved an order banning Smith from the Bendigo CBD between the hours of 10pm and 6am for 12 months.
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