A REDBANK Plains man will not return to jail for a fight over a poker machine that broke another man's eye socket, after the Court of Appeal ruled he was provoked.
On July 21, 2015 Ben Van Nguyen, a friend and his friend's mother-in-law were playing poker machines at the Redbank Plains Tavern.
When the friend's mother-in-law left her poker machine to get more money, Redbank Plains man Mulufuaina Iese, 42, began using the machine.
Mr Nyugen approached Iese and told him the machine was being used and asked him to refund his money out. Mr Iese refused.
The two got in an argument and Mr Nyugen put his beer down and took "swift" steps towards Iese.
Iese then punched Mr Nyugen in the head, breaking his eye socket and leaving him concussed.
Later that week Iese returned to the pub where he apologised to the manager and left his contact details. He was later arrested.
Iese pleaded guilty at the Ipswich District Court to causing grevious bodily harm and was sentenced to 18 months jail, suspended after serving four months. Iese appealed the decision just three days later and was released on bail after he had been behind bars for 12 days.
The Court of Appeal heard although the altercation was captured on CCTV the sentencing court did not view it.
Iese's lawyer told the court he believed he was about to be attacked.
"His instructions were that he believed that he was about to be punched. It's apparent from the CCTV footage that both men are of a comparable size and stature to each other," he said.
Justice Robert Gotterson agreed Mr Nyugen's rushed steps towards Iese was provocation.
"The description of (Mr Nyugen) as depicted on the CCTV footage paints a picture of some aggression on his part towards (Iese)," he said.
"He put down his beer and then took a number of steps very quickly towards (Iese)."
Justice Gotterson ruled the 12 days Iese had already served were sufficient. He re-sentenced him to 18 months jail, to be suspended after the 12 days already served.
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