Director of Public Prosecutions v Gareth Gutierrez

[2017] VCC 1640

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Case No. CR-16-02122

DIRECTOR OF PUBLIC PROSECUTIONS  Prosecution

v

GARETH GUTIERREZ  Defendant

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JUDGE:  HIS HONOUR JUDGE MURPHY
DATE OF HEARING:  Trial: 4 – 8, 11 – 12 September 2017
  Plea: 18 October, 9 November 2017
DATE OF SENTENCE:  9 November 2017
CASE MAY BE CITED AS:  DPP v Gutierrez
MEDIUM NEUTRAL CITATION:                 [2017] VCC 1640

REASONS FOR SENTENCE

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CRIMINAL LAW – Sentence – Common assault – Jury verdict – Offender a member of Victoria Police – Offender assaulted teenager by slapping to the back of the head after performing an arrest – Offender suffered from Post-Traumatic Stress Disorder as a result of operational duties – Relevance to sentencing – Whether appropriate to record conviction – No conviction recorded – Fine imposed – R v Verdins (2007) 16 VR 269, considered – Sentencing Act 1991 (Vic) s 8

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APPEARANCES:                Counsel  Solicitors

For the Crown  Mr N Goodenough               Solicitor for the Office of

Public Prosecutions

For the Defendant                Mr G Steward  Tony Hargreaves & Partners

HIS HONOUR:

1.    Gareth Gutierrez, after a short trial you have been found guilty by a jury of one charge of common assault. The maximum penalty is five years imprisonment.

2.    At the trial, you were also charged with intentionally causing injury, or in the alternative, recklessly causing injury. You were acquitted of these charges. You are entitled to full benefit of the acquittal, however, you must be sentenced consistently with the jury verdict.

Circumstances of the offending

3.    The circumstances of the offending emerged in the course of the trial.  At the time of the events on 14 May 2015, you were a Senior Constable of Victoria Police attached to the Melton Police Station. The events commenced when a property owner in North Melton noticed a youth in the backyard of an unoccupied dwelling.  He formed the view that there may have been an attempted burglary and effected a citizen's arrest.  A property owner across the road contacted the police and two officers from the Melton Police Station attended the scene.

4.    Subsequently, one of those officers spoke to the youth while the other spoke to the property owner.  The youth, on his evidence, was seeking to retrieve a football that had gone over the fence into the backyard.  He was playing football with three other schools friends in the park beside the property.

5.    In the course of the bringing the first youth to the front of the property, the complainant and his friends formed the view that the property owner had assaulted their friend by pushing or bashing his head into a brick wall of the house.  When the first police van arrived, one officer sought to question the restrained youth while the other sought to question the property owner and inspect the backyard. 

6.    In the meantime, an off duty police officer who was passing by stopped. It was then that you and another officer arrived in another police van. 

7.    There was conflicting evidence as to what happened next and it is unnecessary for me to fully resolve the conflicting evidence as to how the original series of events unfolded.  The prosecution case was that after you arrived, you were speaking to the property owner. You were interrupted by the complainant, a 17 year old youth, who sought to encourage you to charge the property owner with an assault against the first youth, his friend, who was retrieving the football from the backyard.  He insisted that he was a witness.

8.    You sought to dismiss his admonitions and when he refused to accept your command to “move on”, you threatened him with a “ticket”.  He then invited you to give him a ticket.  You then proceeded to seek to arrest him. 

9.    There was contest as to whether or not he threw a punch at you or sought to escape your grasp.  You eventually grabbed hold of him and then proceeded, while he was standing up, to use your capsicum spray on him.  You then brought to the ground, pinned him and proceeded to handcuff his hands behind his back. 

10. While in that position you then sprayed him with capsicum spray to each side of his face.  It was the spraying of the capsicum spray whilst on the ground that constituted the charge of intentionally (or recklessly) causing injury to him. You were acquitted this charge and the alternative.

11. After he was in handcuffs, you gave him three or four slaps with an open hand to the back of his head. It was these slaps that constituted the charge of common assault that you were found guilty of.

12. Your defence was that you were acting in the lawful execution of your duty in bringing him to the ground and using the capsicum spray, or alternatively acting in self-defence on the basis that he was not fully subdued and he was threatening to spit on you. 

13. The jury must be taken to have rejected your evidence that you were acting in self-defence or in the execution of your duty when you slapped him to the back of his head when he was on the ground. 

14. After the complainant received the slaps that were the subject of the common assault charge, he was then brought to his feet and taken across the road and hosed down by way of “after-care”.  He was then taken to the police van and taken by and your fellow officer to the Melton Police Station. 

15. On the way to the station, you admitted to your fellow officer that you may have given him "one or two too many".  At the station, the complainant then proceeded to sign a caution indicating that he had assaulted police. He was then taken home by his mother. Subsequently, a complaint was made and charges were laid against you.

16. In submissions, the learned Crown prosecutor submitted that you had effectively been the instigator of the incident and that, prior to you arriving, the situation was calm.  It would be unfair to you to reach conclusions as to whether the incident was, in fact, precipitated by your conduct in threatening to give the complainant a ticket, and then, when he effectively invited you to do so, you proceeded to restrain him to either issue him the ticket or verify his identity. Whether in retrospect it could be said that your use of capsicum spray was excessive in the circumstances is not a matter that it is necessary for me to comment on.

Seriousness of the offence

17. Your counsel accepted that it was a serious matter for a serving police officer to use excessive force by way of slapping a fully restrained youth three or four times to the back of the head.  He submitted, however, that there was no evidence of actual physical injury and even the nature of the assault was one that would normally be dealt with summarily.  I accept the defence characterisation but cannot ignore the fact that any assault by a law enforcement officer is of a serious nature. 

18. No victim impact statement was filed.  The complainant attended a doctor for treatment of the after effects of the capsicum spray, but did not complain of any blows to his head.

Personal circumstances

19. Your personal circumstances were set out in the defence plea submissions, as well as in the various medical reports tendered on the plea. I incorporate these by reference.

20. You are aged now 34 and your parents were in Court to support you for the plea. Your wife was present in Court for the duration of the trial. You do not have any children.

21. You have been in the police force since you were aged 21, having graduated from the Academy in August 2007.

22. In submissions, your counsel referred to the fact that you are of prior good character.  I was referred to the evidence led on the trial from serving police officers testifying to your good character and your good work record as a member of the police force. Evidence was also led from a neighbour of yours who has known you for many years. I am satisfied that you are of prior good character and antecedence, as well as being free of any prior disciplinary matters. These are all matters that I am entitled to take into account in sentencing you.

23. The learned Crown prosecutor indicated that there had been no remorse shown. I accept that there is no remorse here, but this of itself is not determinative, particularly in circumstances where you are now under treatment for post-traumatic stress disorder (‘PTSD’), with a recommendation from your treating psychiatrist, Dr Joe Black, that you be referred to an in-patient facility.

24. The key issue on the plea was whether or not to proceed to the recording of a conviction. I am required to consider the matters set out in s 8 of the Sentencing Act 1991.

25. The prosecution position was that, given that this was an assault perpetrated in the course of duty on a 17 year old youth, where you had pleaded not guilty and there was no remorse, the matter was of such seriousness that it called for the recording of a conviction and a financial penalty.

26. Your counsel’s submission was that, at the time of the incident, you were suffering from work-related PTSD, and this accordingly reduces your moral culpability and ought lead to the exercise of my discretion against the recording of a conviction. 

27. In support of this submission, you called evidence from your treating psychiatrist, Dr Black. In both his reports and oral evidence, he opined that, as a result of exposure to traumatic events in the course of your police career, you were suffering from PTSD at the time of this incident.  Further, from his experience in dealing with patients from the military and first responders, where such an individual is suffering from PTSD, they may have difficulty in “titrating”, to use his jargon, their response to threats perceived. 

28. After reviewing some of the transcript of the trial and the medical material he opined:

"I remain of the opinion that the assault took place in a situation of high levels of ambiguity and potential threat where a policing task was to take control of a volatile situation with carefully titrated use of force." 

29. In his earlier report, Dr Black indicated that:

"Gareth’s PTSD may have distorted and exaggerated his sense of threat during the incident and possibly caused him to use more force than was necessary."

30. It was on this basis that your counsel submitted that your moral culpability was reduced because the original PTSD had arisen as a result of events in your police service.  Considerations of general and specific deterrence should therefore attract a diminished weight in sentencing, he submitted.

31. The learned Crown prosecutor accepted on the basis of the medical evidence tendered that you were suffering from PTSD at the time.  Notwithstanding this he submitted, however, that it did not lessen the seriousness of your offence and should not lead to a non-conviction disposition.

Consideration

32. It is clear from the medical material submitted that you were suffering from both depression and PTSD prior to May 2015.  It is unnecessary to elaborate on the various events that occurred prior to the events of 14 May 2015.  It is significant, however, that Dr Don Senadipathy in his report dated 29 April 2013 opined that you had pre-existing PTSD from 2010. He diagnosed you at that point with anxiety, found that you suffered from panic attacks and depressed mood and from psycho-somatic symptoms. At that point, he found that you were unfit to work, and that you would benefit from psychiatric treatment. 

33. Associate Professor Singh, in a report dated 15 June 2016, refers to a five year history of PTSD-like symptoms in a setting of workplace traumas. Similarly, in a report dated 18 June 2015, Dr Robert Athey opined that you have a provisional diagnosis of PTSD and he noted that:

"although symptoms have been present for several years, there has been an accumulation of events which have eventually precipitated the full picture of post-dramatic stress disorder." 

34. He found at that point, which was approximately one month after this incident, that you were unfit for pre-injury duties. 

35. You began seeing a police psychologist in December 2014 and gave a history of depression and anxiety, as well is possible traumas related to incidents that occurred while you were at the Faulkner Highway Patrol.

36. You had reported experiencing suicidal thoughts and had enquired about consulting a psychiatrist.  A note indicates that you were attending counselling regarding traumas of previous jobs and unresolved prior workplace issues.  At that point, apparently there had been a refusal to accept a claim for work-related stress.

37. In an email dated 28 November 2014, you indicated that you did not think you were fit for work at that stage, but felt that if you lodged another claim, it would be rejected. You subsequently indicated to the psychologist who was treating you that you would be seeking assistance from the Police Association to get help regarding your PTSD. This was in March 2015, and appears to be the last contact with the police psychologist before this incident. 

38. It is unnecessary for me to apportion any responsibility for the fact that you were not under active treatment for your PTSD as at the date of this incident.

39. An explanation was provided by Dr Black in that responses to PTSD are often idiosyncratic and some sufferers attempt to deal with the matter by proceeding to continue to work notwithstanding this underlying problem.

40. As I have indicated, the learned Crown prosecutor accepted that you had PTSD, but submitted that it did not wipe the slate.  I accept that, but the evidence of Dr Black makes your pre-existing condition relevant to the issues on the plea.  He opined in both reports and in oral evidence that people suffering from PTSD have difficulty adjusting their behaviour when confronted with potential threats. He said:

"I can tell you that it is an incredibly difficult thing to do and my perspective is that…you will not understand unless you have done it or tried to do it.  And secondly, somebody with PTSD, in attempting to titrate, to measure force against a particular situation, particularly if the event contains resonant elements with things that have gone wrong before, may over or underreact.”[1]

[1] Plea Transcript, p 22.

41. In relation to questioning about titration, Dr Black opined:  

"Well police officers, first responders, people like me, we have to deal with these incidents all different.  We are allowed in some circumstances to use force and we are asked by the people of Victoria to measure that force against the situation….Police officers, prison officers [and] military personnel are asked to apply a level of force that appears to be justified in these circumstances.  The problem for somebody with post-traumatic stress disorder is that their titration systems, their threat detection systems, have been distorted by what they've seen and done before."[2]

[2] Plea Transcript, p 25.

42. He repeated these comments in his second report.

43. The evidence of the police officers at the scene was effectively that you did engage in disproportionate conduct in the face of the actions of the complainant and his schoolboy friends.  The jury must have not been prepared to accept beyond reasonable doubt that your conduct in using a capsicum spray on the complainant when he was on the ground was unjustified.

44. Your conduct in slapping the complainant was, however, unjustified and constituted an assault.  Your defence counsel asked me to accept on the basis of the evidence of Dr Black that this unjustified use of force was related to your pre-existing PTSD, in that you did not properly calibrate your response to the scene that you faced when you arrived at the location in Melton North.

45. Having carefully considered the evidence of Dr Black, particularly in the light of the other medical evidence, I am prepared to give you the benefit of the doubt.  I accept that your pre-existing PTSD was a factor in your conduct that day.  Putting it another way, but for your work-related pre-existing PTSD, I find it is unlikely that your response to the event that you faced would have been of the nature that it was.

46. Mr Steward, your counsel, was unable to authoritatively indicate the consequences for your future police career if a conviction was recorded against you. I am prepared to accept, however, that is likely to have a detrimental impact. Again, that is not a decisive consideration.  Mr Steward emphasised that your PTSD was employment related and thus, where it has impacted on your offending, it must be taken into account in your favour.

47. Weighing the competing considerations, I am satisfied that it is not in the public interest for this finding of guilt by the jury to be followed by the entry of a conviction.  There is a link between your work-related psychiatric condition and your offending.  The medical evidence of Dr Black supports the defence submission that persons in your position have difficulty responding to routine policing events and adjusting their response by way of the use of force to the risks they face in short term environments where decisions must be made quickly. 

48. It is easy to be wise after the event and to hypothesise that a different course of action should have been taken.  Your underlying psychiatric condition reduces your moral culpability and reduces the importance of both general and specific deterrence. 

49. You are now under expert medical treatment for your condition.  It is not in the community interest for the possible successful resumption of your hitherto successful policing career to be retarded by the entry of a conviction.

Sentence

50. On the charge of common assault, you are fined, without conviction, $3000.00.

51. I grant you a four-month stay to pay the fine.

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