A drunk racegoer who repeatedly punched a police officer to the head, leaving her with concussion and temporarily off work, has avoided a mandatory six-month jail term.
Kieran Mutch, now 23, drank up to 35 cans of premixed vodka while attending the Dunkeld Cup in November 2019.
He returned to Warrnambool via a bus in the afternoon and was approached by officers in Liebig Street after reports of a man playing up.
Mutch, who was highly intoxicated, resisted arrest and threw a number of punches, injuring a female police officer.
She suffered concussion and was temporarily off work following the incident.
The court heard witnesses told police they observed a police officer strike the offender with an elbow but magistrate Franz Holzer said that could not be proven beyond reasonable doubt and that police officers "might have had some difficulty in that environment, in a drunken frenzy by Mr Mutch".
The man was charged with similar offences after a similar incident in early October 2019, including being drunk, resisting arrest and causing a male police officer to suffer a soft tissue injury to his right thumb.
Mutch pleaded guilty in Warrnambool Magistrates Court on Monday to charges, including drunken disorderly, assaulting police and recklessly causing injury, which carries a mandatory jail sentence of six months.
But Mr Holzer said there were "considerable opportunities" under the Sentence Act in terms of special circumstances and that a community correction order was within range.
He said Mutch was a young offender with stable employment and previous issues with alcohol that he had since addressed.
The court heard Mutch had been on bail for the two years since the offending and that he had complied with a bail condition to not consume alcohol.
Taits Lawyers' principal Alex McCulloch, representing Mutch, said an "extraordinary" amount of alcohol had been consumed on the day of the November offending and that the man's "own stupidity was on display".
He said the offending was an example of why people shouldn't binge drink.
Mr McCulloch said Mutch was a "very softly spoken, quiet young man and his behaviour is at complete odds with his normal character".
"He is a typical hard-working young man who on this occasion simply drank too much," he said.
Mutch was placed on a 12-month community correction order with 150 hours of unpaid community work.
An alcohol exclusion order was issued for a period of two years.
Mr Holzer said the offending was "anti-social in the extreme" and that Mutch had acted like a "goose".
"You put officers at risk in ways that are entirely avoidable," he said.
"There is no other way to describe it but inappropriate and he's done himself a very grave disservice on both occasions."
The sentence comes two years after a former Warrnambool man avoided the six-month jail sentence after attacking two paramedics while in a "psychotic state" after taking a cocktail of drugs at a festival.
James Haberfield, then 22, was sentenced to an 18-month community corrections order in August 2019, about a year after the state government introduced laws for those who attack emergency workers.
The emergency services community was outraged, with then Victorian Ambulance Union secretary Danny Hill saying the ruling undermined the mandatory sentencing for assaulting emergency service workers, and there "absolutely" must be an appeal.
Premier Daniel Andrews said at the time that if the matter wasn't successfully appealed, his government would strengthen laws aimed at putting people who attacked emergency services workers behind bars.
County Court Judge Michael Tinney upheld the magistrate's decision in December that year and refused to jail Haberfield, stating the new laws still provided for special reasons which could act as exception.
The state government then introduced further laws in March the following year which it said would make it harder for people who assaulted emergency services workers to avoid jail by claiming they were impaired by drugs and alcohol at the time of the offence.
The changes narrowed the range of excuses offenders could use in court, including mental impairment from self-induced alcohol use, and stated that cases of assaults on emergency workers be heard in the County Court, rather than the Magistrates Court, which deals with lower-level crimes.
Member for South West Coast Roma Britnell said a message needed to be sent to people who assaulted our emergency service workers
"Any acts of violence should be met with imprisonment. That is the whole reason for having mandatory sentences," she told The Standard.
"Laws were brought in to mandate jail sentences for assaults on emergency service workers because they deserve to be safe in their workplaces and it's the government's obligation to ensure their safety," she said.
"Despite amendments to the legislation to narrow some of the defences used in court - including mental impairment from self-induced alcohol or drug use - it is clear the law is still not meeting community expectations." A spokeswoman for Attorney General Jaclyn Syme said the government continued to review the operation of the laws to ensure they were operating effectively and as intended.
"It is unacceptable that the people who go to work every day to keep us safe could be injured - or worse - on purpose," she said.
"That's why we've made it crystal clear that violence against our emergency services workers will not be tolerated."
Information obtained from Ms Syme's office showed that in 2020, the state government further strengthened emergency worker sentencing laws after consultation with the Emergency Worker Harm Reference Group.
It said that under the Sentencing Amendment (Emergency Worker Harm) Act 2020, offenders seeking to use ''special reasons'' to avoid a jail term for certain offences against emergency workers now found it harder to do so.
The changes made by the act said that courts must take into account the parliament's intent that a sentence of the statutory minimum length should ordinarily apply, even where a 'special reason' existed.
It said that since March 2021, the Office of Public Prosecutions now prosecuted all offences with a statutory minimum sentence under the act in the higher courts, reflecting the complexity of the laws and the gravity of the offences. These laws apply to incidents that occur followed the introduction of the reforms.
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