A 29-year-old man charged with 'Affray' was spared jail when he was sentenced in Mudgee Local Court last week, with one of the mitigating factors being that he "finished second" in the fight he instigated.
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Timothy Michael Harris of Belmore Street, Gulgong, was sentenced to a two-year Intensive Corrections Order with a condition that he undertake rehabilitation and ordered to complete 200 hours community service.
On the afternoon of Wednesday, June 19, 2019, Harris and the co-accused had been disputing back-and-forth via Facebook Messenger and arranged to fight at Victoria Park near the intersection of Denison and Perry streets, Mudgee.
During the incident others intervened and Harris was knocked to the ground and was kicked while down. He got up and ran away and the others followed, continuing the argument along Perry Street.
Harris got into a car being driven by a friend and yelled out the window at the group, "I'm going to get you, I'm coming to your house, I'm going to f*** you up". They stopped and another argument with the co-accused ensued before all parties separated.
Multiple people heard the incident and called the police. Harris was taken to Mudgee Hospital feeling light-headed with sore ribs.
Magistrate David Day - reading from the statement of agreed facts - noted that in the messaging in the lead-up to the fight, the defendant invited the co-accused to "sort it out, one-on-one".
"How very 20th century - early 20th century," he commented.
Harris - who appeared in court via Audio Visual Link, having been refused bail at an earlier appearance - was seen to sit with his head in his hands as Magistrate Day continued to read from the facts submitted, along with his criminal record.
However, Magistrate Day also said that there were a number of mitigating circumstances to take into account - specifically that he "finished second" in the incident and had to be treated for his part.
"There's been considerable extra-curial punishment**, he picked the fight and he lost," he said.
**Under the Crimes (Sentencing Procedure) Act 1999, during sentencing a court can take into account "loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence".
