Former bike boss Toby Mitchell has had his jail sentence thrown out after a successful appeal over a pub slap during his birthday bash in regional Victoria in November.
The ex Mongols president, 47, contested the two-month jail sentence in Victoria’s County Court last week.
He was charged with assault after slapping another man twice at the American Hotel in Echuca in November. Mitchell did not contest the charges, but pledged to appeal the jail term which was handed down in the Magistrates Court last year.
Mitchell was in the border town with more than 100 bikie mates for a charity ride and his birthday when a boozy night at the pub ended in him slapping the punter in the face after a verbal argument.
Prosecutors submitted that Mitchell hit the man with a closed fist, causing the man to fall to the ground. He then hit him again with his palm.
They also said the two-month term was in range and suitable given the circumstances.
Though his lawyer Damian Sheales contested that Mitchell only slapped the man and there was no punch involved.
Mr Sheales submitted the man was being a “pest” and heavily intoxicated when he started bothering Mitchell and the woman he was with, before the altercation.
Mitchell was later arrested and charged with common law assault and failing to provide an access code to a mobile phone.
While handing down his sentence on Tuesday, County Court Judge George Georgiou said there was not enough evidence to suggest Mitchell punched the man, despite the incident being captured on CCTV footage.
“I am not able to be satisfied beyond reasonable doubt that the first strike was a punch,” he told the court.
“The victim did fall to the floor (after the first strike), but not so after the second strike.”
However, Judge Georgiou said a “wiser head” would have walked away from the confrontation and warned Mitchell any further offending would land him in jail.
“This offending occurred in the heat of the moment without any premeditation,” he told the court.
Judge Georgiou accepted the defence submission that the victim didn’t suffer any physical injuries and had not made a complaint. He also noted Mitchell had disassociated himself with the Mongols and taken genuine steps toward rehabilitation.
“I am not satisfied a jail term is the only form of (punishment) available to me,” Judge Georgiou said.
“The penalty (two months’ jail) is disproportionate to the offending conduct.”
Mitchell was convicted and sentenced to a 12-month community corrections order for the assault charge and fined $2500 for refusing to provide police with the passcode to his phone.
