Director of Public Prosecutions v Fowler
[2020] VCC 738
•5 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-18-02544
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSS FOWLER |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 17 February – 4 March 2020 Plea: 26 May 2020 | |
DATE OF SENTENCE: | 5 June 2020 | |
CASE MAY BE CITED AS: | DPP v Fowler | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 738 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty verdict – One charge of recklessly causing injury – Assault by on duty police officer captured on CCTV – Offender’s kick to victim after arrest unnecessary and gratuitous – Victim was handcuffed and vulnerable – Victim suffered pain and bruising – Low level example of the offence – No remorse – Delay – Good character – No prior criminal history – Very strong prospects of rehabilitation – Discretion not to record a conviction exercised pursuant to s 8 of the Sentencing Act 1991.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Okutgen v The Queen (1982) 8 A Crim R 262; DPP v Gutierrez [2017] VCC 1640; DPP v Repac [2020] VCC 175.
Sentence: $10,000 fine without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Fisher | Office of Public Prosecutions |
| For the Accused | Mr G J E Steward | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
Ross Fowler, you have been found guilty of one charge of recklessly causing injury, contrary to s 18 of the of Crimes Act 1958 which carries a maximum penalty of 5 years imprisonment.
You have no prior criminal history.
Circumstances of the offence
At the time this offence occurred, you were a Senior Constable of Police stationed at the Frankston Police Station.
On 29 February 2016, at about 10.35pm, you and your partner Travis Woolnough, also a Senior Constable, were requested to attend a house at 46 Morton Street, Frankston North as a result of a complaint that related to Katherine Bradshaw who was the partner of the victim in this matter, Brian Jackson. Ms Bradshaw had contacted her sister and a friend and had asked them to call the police on her behalf. The complaint was to the effect that Ms Bradshaw had asked Mr Jackson to leave the house but he was refusing to do so.
Before attending, you and Mr Woolnough were informed that Mr Jackson was alcohol affected and possibly drug affected, that the dispute was only verbal and that there were three children in the house.
At approximately 10.49pm, Mr Jackson was in the driveway of the house packing some belongings into his utility when you and Mr Woolnough arrived. Mr Jackson stated that he saw Mr Woolnough approach him in the driveway. At the time, he was holding a can of Jim Beam that he had just opened. Mr Jackson gave evidence that at that point, as he met Mr Woolnough in the driveway, Mr Woolnough pushed both Mr Jackson’s hands in an upward motion causing him to spill the drink over himself. Mr Jackson stated that he was then told that he could not go back into the house but that he could continue to pack his things.
Mr Jackson then walked across the road in a diagonal direction to 41 Morton Street, a house owned by his mother that was being renovated at the time by Mr Jackson. There he made a telephone call to his mother in order for her to come and collect his daughter, which is captured on CCTV cameras positioned on the house at 41 Morton Street.
Mr Jackson then walked back over the road to 46 Morton Street where he was met by you and Mr Woolnough. You and/or Mr Woolnough told him to stop and that he could not go to his ute. At that point, Mr Jackson stated that a person jumped on his back which he initially did not know was a police officer. Mr Jackson turned to see who was on his back at which point he was sprayed in the face with capsicum spray. While it is not certain at what distance he was sprayed from, witness Shane Pierce states he saw the spray travel four to five metres. Either way he states that Mr Jackson’s face was covered by the spray.
Mr Jackson then turned away and proceeded to cross the road again towards 41 Morton Street, followed by you and Mr Woolnough. As the three of you approached number 41, the remaining movements, and the acts that were relied on at trial in relation to both you and Mr Woolnough, are captured on CCTV.
As Mr Jackson reached the footpath outside number 41, Mr Woolnough extended his police baton and struck Mr Jackson twice to the legs, however he continued walking. As Mr Jackson entered the front yard, Mr Woolnough moved his leg in a sweeping motion in order to kick Mr Jackson’s legs out from under him. Again, he continued to walk. Mr Woolnough then grabbed Mr Jackson’s left arm with both hands and swung him to the ground. You then struck Mr Jackson to the back with your torch. At trial, the prosecution alleged that it was at this point that you and Mr Woolnough were in a position to arrest Mr Jackson and that the actions of both of you from that point on were contrary to law.
Mr Jackson got to his feet again and as he was doing so, you kicked him to his body. Mr Jackson was then standing with his back towards the front gate facing the two of you. He extended his arms and then clutched his face in his hands. Mr Woolnough then kicked Mr Jackson to the chest with enough force to cause him to fall outside the property onto the footpath. At this point, while Mr Jackson was on the ground, you struck him to his body twice with the torch.
Mr Jackson again got to his feet and walked back into the yard at 41 Morton Street. Mr Woolnough pushed Mr Jackson causing him to stumble and as he did, you struck him to his body again using your torch. Clutching his head in his hands, Mr Jackson was facing away from you and Mr Woolnough. Mr Woolnough kicked him to the left leg and pushed him in the back causing him to stumble away from the two of you. Mr Jackson then turned around to face the two of you and was pushed in the chest by Mr Woolnough with both hands causing him to fall back into a neighbouring fence. You then struck him again across the stomach with your torch. At this point Mr Jackson states that he heard one of you say he was under arrest and the footage depicts him putting his hands out in front of him while Mr Woolnough placed handcuffs on him.
In evidence, Mr Jackson stated that this was the first time that he heard that he was under arrest, while you and Mr Woolnough stated that you had told him a number of times that he was under arrest before the last time, when he put his hands out in front of him in order to be cuffed.
At this point Mr Jackson walked away from the fence and you walked around to the back of him and kicked him to his lower back or top of his bottom, causing him to fall forward towards Mr Woolnough, who also pushed him at this point.
Mr Jackson was provided with after care for the effects of the OC foam by taking him to the garden tap allowing him to wash his eyes. He was then placed into the back of a police wagon and transported to Frankston Police Station.
You and Mr Woolnough were charged with intentionally causing injury as the primary charge together with alternative charges of recklessly causing injury and common assault. Mr Woolnough was acquitted of all charges. You were acquitted of the primary charge and found guilty of the alternative charge of recklessly causing injury.
Finding of fact
In sentencing you, I am bound by the principles in the case of Cheung v The Queen.[1] As such, I must interpret the facts in a way that is consistent with the jury's verdict. However, given the way the case was presented by the prosecution and the verdicts of not guilty in relation to your then co-accused, Mr Woolnough, the facts require some analysis and a formal finding.
[1] (2001) 209 CLR 1.
At trial, the prosecution case was put on the basis that the conduct of you and Mr Woolnough after the time when Mr Jackson was first taken to the ground at 41 Morton Street, was contrary to law. The case was put on a statutory complicity basis, that each of you were encouraging and/or assisting the other.Thus, you were each charged with the same offences.
As noted, Mr Woolnough was found not guilty of the primary charge and any alternative charges. Thus, while Mr Jackson was struck a number of times by both you and Mr Woolnough after the time that the prosecution alleged that the conduct was contrary to law, the jury did not find any actions of Mr Woolnough to be illegal.
What occurred after Mr Jackson was arrested and handcuffed in my view explains how the jury came to the verdicts they did in relation to you and Mr Woolnough. Mr Jackson was clearly under arrest and in custody as he walked away from the fence handcuffed, at which point you kicked him to his lower back area. As such, your conduct following arrest and handcuffing is plainly distinguishable from the conduct of both you and Mr Woolnough before that time. At plea there was common ground as to this position and as such, I formally find that the conduct giving rise to the charge is limited to your kick after arrest.
As to the injury component of the charge, at trial, no issue was taken with the first two elements of the offence in this regard. That is, that the victim was injured and that it was your conduct that caused the injury, the primary defence at trial being that any conduct was justified and lawful. As you have been found guilty of the charge in the context of a finding of fact that limits your conduct to the kick following arrest, some attention must be given to the injury caused.
‘Injury’ is defined in s 15 of the Crimes Act 1958 as a physical injury or harm to mental health whether temporary or permanent. ‘Physical injury’ is further defined to include unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function.
Clearly the jury were satisfied beyond reasonable doubt as to the two applicable elements. Firstly, these two elements were not in dispute at trial. Secondly, the jury must have accepted that the injury sustained was a physical injury or harm to mental health.
At the plea hearing Mr Fisher, who appeared on behalf of the Director of Public Prosecutions, submitted that while it was difficult for the victim to be precise about which strike caused which injury, there are certain passages in the transcript which he took the Court to that support that the victim suffered injury as a result of the kick and from which the jury could be satisfied. Mr Steward who appeared on your behalf at the trial and plea accepted that the kick caused soreness, pain and bruising however submitted that the injury or injuries could be described at their highest, as moderate. I accept that submission.
Nature and gravity of the offence
Recklessly causing injury is an offence carrying a maximum penalty of five years imprisonment. It is therefore viewed by Parliament as a relatively serious offence, however not at the high end of injury charges. Nonetheless, each case must be viewed in the context of its own specific circumstances.
You were on duty as a member of Victoria Police when the offence occurred. You were called to a domestic dispute and had limited information upon your arrival. What you confronted was Mr Jackson, who you assumed to be intoxicated and possibly drug affected. After an initial confrontation where capsicum spay was deployed by Mr Woolnough, the dispute reignited over the road at 41 Morton Street where CCTV cameras picked up most of the subsequent altercation. The CCTV was clearly a significant piece of evidence that the jury was required to assess.
There can be no doubt that Mr Jackson’s conduct leading up to the offence to which you have been found guilty, was frustrating for you and Mr Woolnough. However, as was argued by the prosecution at trial, the CCTV footage depicts that Mr Jackson was trying to get away from you, not seeking to confront you. An example was when he spread his arms openly only to be kicked forcefully by Mr Woolnough propelling him through the front gate opening and onto his back after which he was then struck by you with your torch.
Once arrested and handcuffed, whether because of frustration or anger, you gratuitously kicked Mr Jackson in the lower back as he was walking in front of you. Further, it is clear on the CCTV footage that Mr Jackson was not attempting to escape. Your kick was an entirely unnecessary act.
By the time you kicked Mr Jackson, he had been capsicum sprayed in the face from which he was clearly affected. He had been forcefully kicked in the chest causing him to land heavily on the ground, he had been struck by a torch a number of times and on his own evidence, was in pain. While these earlier strikes do not from part of the offence, they put your conduct in context. That is, that when you ultimately kicked Mr Jackson in the back, he had been physically struck a number of times, he was suffering the after effects of the capsicum spray, he was in handcuffs and he was facing away from you. Thus, in my view, at that time he was in a vulnerable position. It is also completely understandable that the jury found your conduct at that point to be illegal and it is difficult to see how you maintained your defence that somehow, your conduct of kicking Mr Jackson in the back while handcuffed, was justified and in the execution of your duty.
As a member of the police, while on duty you are required to confront persons like Mr Jackson on a regular basis. They are often reactive, defiant and difficult to deal with. However the community is entitled to trust that even in these challenging circumstances police officers must act lawfully, which demands a great deal of judgment, tolerance and patience.
Mr Steward submitted on your behalf that this was a low level example of the offence of recklessly cause injury. The prosecution largely did not take issue with this assessment. In my view the offence does fall towards the lower level. The nature of the injury or harm was not permanent or longstanding and the kick, while gratuitous and unnecessary, occurred in circumstances where you were frustrated and exhausted from the prolonged physical altercation with Mr Jackson.
Victim impact statement
Brian Jackson prepared a victim impact statement. In that statement he recounts the pain he suffered as a result of injuries he received and while it is difficult to determine what pain relates specifically to the kick to the back, as a result of the concession in relation to injury, at the very least there would be some pain linked to the offence. What seems to be the greater effect for Mr Jackson was the psychological impact following the incident. Understandably, he has less trust in the police.
While there are a number of matters contained in the victim impact statement that are not relevant to this specific crime, I accept that the necessary initial investigation and the delay in proceeding through the internal and IBAC investigations have had an impact on Mr Jackson. To that end he states that the prolonged court processes have drained him emotionally.
Personal circumstances
You are 51 years of age and were 48 at the time the offence occurred.
You are the youngest of four children and your parents have passed away. You grew up on a farm near Kerang and your family worked long hours as primary producers. You attended the local primary school and the Kerang Technical School. You completed year 12 and obtained a diploma in electrical engineering at Swinburne TAFE. You then worked in that field from 1998 to about 2001.
In 2004 you joined the Victoria Police and you have been employed as a police officer from that time. You had reached the rank of Senior Constable and you were working at the Frankston Police Station at the time of the offending. You had also been upgraded to the position of Acting Sergeant and were in the process of applying for a permanent position as a Sergeant of Police having successfully passed your Sergeant’s exams. You were suspended from duty about a week after the jury returned their verdict.
You have been in a stable relationship with your wife Kate Taylor since 2001. You have no children of your own, however you have been a father figure to Ms Taylor’s son since the relationship commenced. Ms Taylor and her son both wrote references to the Court and have continued to support you through this criminal process.
A number of documents were tendered on the plea including a report prepared by Patrick Newton, clinical and forensic psychologist. Mr Newton provides a detailed psychological history and conducted some psychological testing as part of his assessment. Mr Newton observed that as a result of the criminal charges and the criminal process, you have suffered significant anxiety together with depressive symptoms. From a diagnostic point of view, he is of the opinion that your symptoms meet the criteria for an adjustment disorder with mixed anxiety and depressed mood. Ultimately, he recommends that you continue to receive counselling if your symptoms do not resolve in the medium term.
A report was also tendered from Ailsa Drent, psychologist, to whom you were referred from your Employment Assistance Program. You first saw Ms Drent following the verdict in the trial and have seen her on six occasions. Ms Drent confirms that you are suffering from severe stress, depression and anxiety. She has worked with you to create positive coping strategies and assisted you in developing resilience through this process.
A further report was prepared by Andrea Fisher, social worker. You were also referred to Ms Fisher by the Employee Assistance Program. Ms Fisher saw you on three occasions and ultimately came to the same view as Mr Newton; that you display signs of stress and anxiety in addition to trauma responses as a result of the incident. She states that you describe feelings of guilt, not from feeling that you acted inappropriately, but because of the impact the event has had on your career, your wife and family and your capacity to contribute to family finances.
Also tendered on the plea were a large number of professional development and assessment reports which were prepared by your employer on a regular basis over your employment assessing your performance as a police member from 2008 until the time you were suspended. In general terms the reports are very positive and describe you as a conscientious and dedicated member of the police force. You have consistently met the standards that are required of you. You have never had any adverse disciplinary findings against you. Other material from your Victoria Police file was tendered in relation to two commendations awarded to you in 2007.
Thirty character references were tendered on your behalf which I have read and taken into account. The references represent a wide cross-section of your family, colleagues and friends. The references all speak with a united voice that you are otherwise an honest, humble, reliable and respected member of the community including the police community and further, that the conduct of which you have now been found guilty is inconsistent with the character of the person they know.
Relevant sentencing considerations
As you were found guilty of this charge following a trial, you are not entitled to a reduction in your sentence that ordinarily applies upon a plea of guilty. Further, in the body of material that has been tendered on your behalf, I am unable to ascertain any evidence of remorse or regret. Rather, the psychological and other material focuses on the impact the criminal process has had on you and the anxiety you experience while contemplating the outcome of the sentencing process and the uncertainty of your employment. Indeed, the written submissions filed on your behalf tend to maintain your defence that the victim remained a threat to you even after he had been arrested and handcuffed.[2]
[2] Defence plea submissions at [12]-[18].
This matter has had a long history and thus delay is a relevant sentencing consideration. The offence occurred in February 2016 with the IBAC investigation not commencing until April 2017. Charges were laid against you in December 2017 and a contested committal hearing was conducted in December 2018. Four years and three months have now passed since the commission of the offence. While this case is relatively unique compared with other criminal hearings resulting in additional investigation and time, none of the additional delay has been attributable to you and therefore such delay is able to be taken into account in your favour.
At 51, you come before the court with no prior criminal history and no prior disciplinary history with Victoria Police. Further, there is a large body of evidence before the court demonstrating that you are a man of otherwise good character. It is well established that as a man of your maturity, you are entitled to rely on the fact that you have been of exemplary character until this incident.[3] You have lived a decent, honourable life and have served the community as a member of Victoria Police for many years. As such your good character is a matter that I take into account.
[3]Okutgen v The Queen (1982) 8 A Crim R 262.
General deterrence and denunciation of your conduct are clearly relevant sentencing considerations. As noted above, police on duty are in a special position where they must exercise restraint and patience in often very difficult circumstances. The community must also be able to trust that police officers will act lawfully. Therefore, the conduct that you engaged in on this occasion cannot be tolerated and must be denounced by the courts.
Specific deterrence in my view need not be given weight in this instance. Your previous good character and the very real impact this criminal process has had upon you, in my view support that conclusion. For similar reasons, your prospects of rehabilitation are able to be assessed as very strong.
The primary sentencing submission made on your behalf was that in all the circumstances a disposition without the recording of a conviction is able to meet the relevant and applicable sentencing considerations. Section 8 of the Sentencing Act 1991 provides as follows:
(1)In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
(a)the nature of the offence; and
(b)the character and past history of the offender; and
(c)the impact of the recording of a conviction on the offenders economic or social well-being or on his or her employment prospects.
…
The focus of the submission was in relation to the effect the recording of a conviction may have on your employment status with Victoria Police. In support of that submission an affidavit was tendered from Christopher Gorissen, a Senior Sergeant of Police and the Manager for Legal and Discipline at the Police Association Victoria. The affidavit essentially provides statistics from the period of 2000 to 2020 in relation to the difference between members sentenced with conviction and those sentenced without conviction in terms of whether or not they remained with Victoria Police. While the details of each case are not known and Mr Gorissen himself concedes the figures involved some speculation, what Mr Gorissen states is that while every case turns on its own facts, the statistics demonstrate that there is a far greater chance of a member remaining with Victoria Police if they are sentenced without a conviction being recorded.
It was also submitted that the consequence of you losing your job would also enliven the consideration in s 8(1)(c) in relation to the impact on your economic circumstances. Currently, you and your wife are paying off a recently acquired house which requires the income from both of you in order to be able to make the mortgage repayments.
Two cases involving police members found guilty following a trial were provided to support the submission that the recording of a conviction does not always follow after a finding of guilt: Director of Public Prosecutions v Gutierrez[4] and Director of Public Prosecutions v Repac[5]. However each of those cases have facts that distinguish them from this case. In Gutierrez, the police officer was suffering from work related PTSD at the time of the offending which was found to have a direct causal link and was pivotal in the decision to not record a conviction. In Repac, the police officer was 25 years of age and inexperienced. Relevantly, the victim in her victim impact statement asked the court not to impose a conviction. Further, in Repac the sentencing judge was told that if a conviction was recorded against the police officer, his employment with Victoria Police would ‘definitely’ be terminated.
[4] [2017] VCC 1640.
[5] [2020] VCC 175.
Each case must turn on its own facts and in my view the circumstances of your case give rise to a very difficult sentencing task. On the one hand, your conduct following a trial and without the unique features of mitigation found in cases such as Gutierrez and Repac, ordinarily would call for the recording of a conviction. On the other hand, the assault itself was of a low level and you have until now, lived an honourable life and had an exemplary career.
Taking into account the relevant sentencing considerations including the matters relevant to s 8(1) being the nature of the offence, your character and the impact the recording of a conviction would have on your economic well-being and your employment prospects, in my view a fine without conviction is able to meet the relevant sentencing considerations in this instance.
Sentence
Mr Fowler, please stand.
Ross Fowler, on Charge 2, causing injury recklessly, you will be fined $10,000 without conviction.
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