Director of Public Prosecutions v Gaul
[2022] VCC 1351
•25 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02511
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL DAVID GAUL |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2022 | |
DATE OF SENTENCE: | 25 August 2022 | |
CASE MAY BE CITED AS: | DPP v Gaul | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1351 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Guilty plea to one charge of assault at common law following Sentence Indication Hearing – offender serving member of Victoria Police at relevant time – use of service revolver to intimidate suspect during execution of search warrant to obtain information about location of significant quantity of heroin – multiple allegations of charged and uncharged criminal misconduct maintained by prosecution until trial but then withdrawn – factual allegation of assault reframed to exclude allegation of battery – timing of plea affected by change in prosecution case – prior good character – prior exemplary police service – no charges pending – significant delay in laying charges and in matter coming to trial – COVID-19 delay – offender ill-health retired from Victoria Police – no risk of re-offending – post-traumatic stress disorder – principles of general deterrence, denunciation and condemnation – whether sentencing purpose can be achieved by a disposition less than imprisonment
Legislation Cited: ss 7, 182 Criminal Procedure Act 2009; ss 3, 5, 6AAA Sentencing Act 1991; s23 Summary Offences Act 1966
Cases Cited:Adams v The State of Western Australia (2014) 290 FLR 165; Biba v The Queen [2022] VSCA 168; Brown v The Queen [2020] VSCA 60; R v Knight (1988) 35 A Crim R 314; R v O’Connor [1987] VR 496, 501; R v Piacentino (2007) 15 VR 501; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; The Queen v Madex [2020] VSC 145; Worboyes v R [2021] VSCA 169; Wyka and Gardiner v The Queen [2020] VSCA 104
Sentence:Convicted and sentenced to pay a fine in the amount of $7,500.00
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Buckland | Office of Public Prosecutions |
| For the Accused | Mr J Gullaci with Mr C Grant | Tony Hargreaves & Partners |
HER HONOUR:
1MICHAEL DAVID GAUL, you are to be sentenced in respect of one charge of common assault contrary to common law as contained in Indictment No H12800116.2.
2The maximum applicable penalty is five years’ imprisonment.
Circumstances of offending
3The circumstances of offending are well set out in the Summary of Prosecution Opening for Plea dated 18 August 2022, tendered as Exhibit A.
4On 14 July 2010 you were a member of Victoria Police holding the rank of Sergeant. You were stationed at the Melbourne Divisional Response Unit (the “DRU”). Among other duties, this unit undertook investigations into “mid-level” drug trafficking. The DRU had a number of crews each consisting of one sergeant and five other ranks. As sergeant, you supervised one of these crews, Crew 2. Although the crews generally worked independently on their respective investigations, at times they would provide support to each other’s investigations, particularly when it came to the execution of search warrants, as was the case on 14 July 2010.
5On 14 July 2010, police had credible evidence that an illicit drug, heroin, was being trafficked from a residential address at 25 Church Street, Richmond. The source of that information came from approximately three months of surveillance at the premises and from an undercover police operative who had agreed to purchase six ounces of heroin from QUOC LAP DANG, a person at that residence that day. The agreed price for the heroin was $73,000. Soon after the transaction, you were part of a team who executed a search warrant at that address. Although the principal target of the operation was Mr Dang, three Asian male suspects, including Mr Dang, were present at the residence and were arrested at the scene. Each suspect was restrained and taken to separate parts of the house. Those suspects were:
(i)THANH TINH HUYNH, a resident at the address;
(ii)QUOC LAP DANG, the main target who was a visitor at the address; and
(iii)MANH HUNG NGUYEN, also a resident at the address.
6After extensive searching throughout the house, which included removing plaster boards from the walls and lifting floor boards, police were unable to locate the heroin.
7During the course of the search you approached the suspect Mr Nguyen, taking him to various locations within the house and asking him where the drugs were hidden. Mr Nguyen repeatedly denied any knowledge of the drugs, a response you did not accept. Eventually, in frustration, you withdrew your service revolver from its holster and pointed it at Mr Nguyen’s chest from a distance of approximately one metre. You did this in an attempt to intimidate Mr Nguyen into telling you where the drugs were hidden.
8There was no lawful justification for you to use your firearm in this way, albeit you were endeavouring to locate and seize a substantial quantity of heroin. There is no suggestion that you intended to fire your weapon or cause physical harm to Mr Nguyen.
9Ultimately, police found the six ounces of heroin in the S-bend of a toilet at the premises.
10All three suspects were charged with various offences arising out of the events that day. Mr Dang and Mr Huynh were each dealt with in the County Court at Melbourne on charges of trafficking in a drug of dependence. On 25 January 2012, Mr Dang was convicted and sentenced to imprisonment for a period of 32 months, with a minimum non-parole period of 16 months. On 12 December 2012, Mr Huynh was convicted and released on a community based order for two years. He was ordered to perform 200 hours of unpaid community work and to undergo assessment and treatment for alcohol and drug addiction.
11Mr Nguyen, the person you menaced with your firearm, was charged with trafficking in a drug of dependence. On 25 July 2011 the charge was struck out or withdrawn at the Magistrates’ Court at Melbourne.
Arrest and interview
12More than six years passed before you were interviewed about the events of 14 July 2010. On 17 November 2016 you were interviewed at the offices of Victoria Police Professional Standards Command in relation to this and other alleged acts of criminal misconduct. You responded with “no comment” to questions asked of you about the charge before me. In particular, the only question asked about the allegation as it is presently framed and that is now the subject of the sole charge before me appears at question 24:
“Q 24:
Also at the same address [25 Church Street, Richmond it is alleged] that you waved your service revolver around in the direct presence of the suspect in a threatening manner to induce that suspect to reveal where drugs were located. Do you wish to comment and explain on that?
A:
No comment.[1]”
[1]Depositions, page 525
13I shall now elaborate on the history of the allegations of misconduct against you and the chronology of proceedings.
History of withdrawn allegations, charges and uncharged acts
14As counsel have stated, this case has a “tortured history.”
15Initially, many allegations of misconduct were alleged against you arising out of the execution of two search warrants, one at 25 Church Street, Richmond, on 14 July 2010, and the other at an address in Whiteman Street, Southbank, on 23 July 2010.
16It was alleged that you had assaulted suspects at both premises and that you stole property found there or at other locations. In particular, it was alleged that you physically assaulted Mr Nguyen, first, by holding a screwdriver to his neck while threatening to kill him, second, by placing your service revolver in his mouth so that it made contact with his teeth, and third, that you kneed him to his ribs or stomach while he was handcuffed and being escorted from the premises by two police members. It was also alleged that you incited other police members to steal items of property that had been seized by police.
17Insofar as the incidents at Whiteman Street are concerned, it was alleged that you assaulted a suspect there by striking him to the face with your elbow.
18As early as October 2010 there was a suggestion that these allegations would be referred for further action to be taken by both the police Ethical Standards Department (“ESD”) and the Office of Police Integrity (“the OPI”).[2] It was believed that various police members requested that they be compelled to report their allegations at a hearing to be conducted at the OPI.
[2]See Exhibit 13, email dated 4 October 2010 from Detective Senior Sergeant Boris Buick, Ethical Standards Department, to Mr Martin Hardy, Manager of Investigations Office of Police Integrity, and Exhibit 12, copy letter dated 6 December 2010 from Detective Senior Sergeant Buick to Inspector Winchester
19Despite this, you remained a serving member of Victoria Police and were even promoted.
20As I stated, it was not until 17 November 2016 that you were interviewed in relation to all of the allegations. Just short of a year later, on 5 October 2017, you were charged on summons with 18 charges, many of which were laid in the alternative:
Charge 1 – Common Law Assault (gun incident), 14/7/10, Richmond.
Charge 2 – Misconduct in Public Office (gun incident).
Charge 3 – Intentionally cause injury (gun incident).
Charge 4 – Recklessly cause injury (gun incident).
Charge 5 – Common Law Assault, 14/7/10 (screwdriver incident).
Charge 6 – Misconduct in Public Office (screwdriver incident).
Charge 7 – Intentionally cause injury (screwdriver incident).
Charge 8 – Recklessly cause injury (screwdriver incident).
Charge 9 – Common Law assault (knee incident).
Charge 10 – Misconduct in Public Office (knee incident).
Charge 11 – Intentionally Cause injury (knee incident).
Charge 12 – Recklessly Cause injury (knee incident).
Charge 13 – Common Law Assault (elbow incident), 23/10/10, Southbank.
Charge 14 – Misconduct in Public Office (elbow incident).
Charge 15 – Incite Theft, 15/7/10.
Charge 16 – Incite Theft, 28/5/10.
Charge 17 – Incite Theft, 29/11/10.
Charge 18 – Make Threat to Kill, 14/7/10.[3]
[3]See paragraph 22 Exhibit A
21A contested committal hearing was conducted at the Magistrates’ Court at Melbourne on 22 November 2018, and between 30 November 2018 and 7 December 2018. You were committed to stand trial on charges 1, 2, 5, 6, 9, 10, 13, 14, 15, 16, 17 and 18, the charges relating to causing actual injury having been withdrawn (charges 3, 4, 7, 8, 11 and 12).
22The first indictment to be filed in the County Court, Indictment No H12800116, was filed on 21 November 2019. It contained eight charges arising from the four alleged physical assaults to which I have referred: the three against Mr Nguyen, and one against the suspect at Whiteman Street. Charges 1, 3, 5 and 7 alleged misconduct in public office contrary to common law. Charges 2, 4, 6 and 8 were laid as alternatives to these charges and alleged assault contrary to common law.[4] There were no charges containing allegations of theft or incitement to commit theft.
[4]See also Summary of Prosecution Opening for Trial dated 28 February 2019
23When arraigned on this indictment before me on 2 December 2019, you pleaded not guilty to all charges. I heard preliminary arguments at a pre-trial hearing in December 2019.
24The trial date was postponed on a number of occasions due to the declaration of the worldwide pandemic of COVID-19.
25The trial was finally relisted to commence before me with a jury on 1 August 2022. There were further preliminary hearings arising out of subpoena issues, following which the Prosecution filed over a fresh trial indictment, Indictment No H12800116.1, on 4 August 2022. The new indictment pleaded only the three charges of physical assault against Mr Nguyen, and dropped the four allegations of misconduct in public office and the physical assault against the suspect at Whiteman Street.[5]
[5]See also Summary of Prosecution Opening for Trial dated 3 August 2022
26When arraigned before me on 9 August 2022 on the new trial indictment, you pleaded not guilty to all charges.
27On 16 August 2022, at the request of both parties, an application for a Sentence Indication Hearing was made under s182 of the Criminal Procedure Act 2009. An agreed statement of facts was filed on behalf of the Prosecution. The Prosecution agreed to file a one-charge indictment containing a single allegation of assault at common law (the revolver incident) if you pleaded guilty to it. All other charges would be dropped. Significantly, no longer would the Prosecution allege that you placed your service revolver into Mr Nguyen’s mouth, rather it would allege that you merely pointed it at his chest from a distance of approximately one metre.[6] The Prosecution submitted:
“Given the extended delay involved in this matter, and noting the defence submissions it would be conceded that a suspended sentence is within range for the offence.”[7]
[6]See Agreed Facts for Sentence Indication Hearing dated 16 August 2022
[7]See paragraph 7 Prosecution Submissions for Sentence Indication Hearing dated 16 August 2022
28I granted the application for the Sentence Indication Hearing, and stated that if you pleaded guilty to one charge of assault at common law on the agreed factual basis placed before me, the Court would not impose a term of imprisonment that would require immediate service in custody. You accepted the indication, and the matter was listed for hearing on 17 August 2022 so that a plea indictment could be filed.
29On 17 August 2022 the third, now current indictment was filed over the previous indictment. It contains one charge of assault contrary to common law. You were arraigned that day on Indictment No H12800116.2. You pleaded guilty to the charge. Given the history of the matter and the significant change in the prosecution case, I asked counsel to consider whether a sentence less than a term of imprisonment was open. I then adjourned the matter for a plea hearing on 19 August 2022.
30I have spent some time outlining the history of this case because it is relevant to a number of sentencing considerations, as I shall explain in these reasons for sentence.
Impact of offending
Impact on victim
31Mr Nguyen has made a Victim Impact Statement, tendered as Exhibit B. In response to the question: “First, try to remember when the crime first happened. How did you feel?” Mr Nguyen declared:
“It was bad memories when I come back the court. It makes me sad, angry and scared. When I stand in front of the court, tell and heard about some stories, it does not even hurt my body but it hurt my spirit, it hurts my brain.
…
I’ve lost my trust in the fairness of the public service system. It’s been always in my mind that he [you] would find me to revenge, and revenge my family as well.
[Sic]”
32In his statement dated 12 May 2017[8] Mr Nguyen set out the full detail of all allegations of assault he made against you. His reaction to the sum total of the alleged assaults has been edited and reproduced in the Crown Submissions on Sentence dated 18 August 2022, tendered as Exhibit C:
“17. He took the gun out and pointed it . . . This terrified me, I didn’t know if I was going to get shot or not . . .
. . .
20. I was compliant during the whole incident and did everything the police told me to do. I don’t believe I did anything to provoke the police . . .
21. Whilst I was being detained by the police, being assaulted in the manner described hurt me, frightened me and left me feeling really disappointed with police. I suffered nightmares for some times afterward and caused me to not sleep very well. Loud noises scared me easily and I am now very scared of the police. The nightmares continued for years and were finally subsiding until police contacted me recently about this. I did not require medical treatment . . . but I was left mentally scared and damaged. Recalling the day makes me feel quite unsettled and brings back many bad memories.”[9]
[8]Depositions pages 272 – 275, repeated at pages 707 - 710
[9]Paragraph 7 Crown Submissions on Sentence dated 18 August 2022
33It is impossible to disentangle the consequences of each of the individual assaults alleged by Mr Nguyen in order to measure the true impact of the single charge that remains before me; however, I am prepared to accept that it was a terrifying experience for Mr Nguyen, as your counsel conceded.
Impact on other attending members of police
34Regardless of whether the police officers who were present and witnessed this crime are “victims” as that term is defined in s3 of the Sentencing Act 1991,[10] both sides have acknowledged that your conduct also had an effect on at least two such police members.
[10]Section 3 of the Sentencing Act 1991 defines “victim” as follows: “victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender”
35In his written submissions as to penalty on behalf of the Prosecution dated 18 August 2022, tendered as Exhibit C, Mr Buckland, who appeared on behalf of the Prosecution, quoted what these two members of police wrote in their statements about how they felt about what they witnessed. It must be remembered, however, that each of these officers state they witnessed acts of misconduct that are no longer alleged against you. For example, in his statement, “Police witness 1” claimed to have seen you use your firearm against Mr Nguyen up to four times, and stated that you placed it into Mr Nguyen’s mouth. He also stated that he saw you knee Mr Nguyen to the stomach as he was being led out of the house while he was still handcuffed and restrained by two members of police.[11] In his statement, “Police witness 2” stated that he saw you remove your service revolver from its holster and hold it in your hand while you questioned Mr Nguyen. He also stated that he saw you knee Mr Nguyen in the ribs as he was being led out of the premises by police. “Police witness 2” stated that you offered him items of property that had been seized during the execution of a search warrant.[12] He stated that what he witnessed left him with “an uneasy feeling.”[13]
[11]The identity of police witnesses apart from the informant and the accused have been suppressed. The relevant statement of “police witness 1” appears at pp 825 – 829 of the Depositions
[12]The relevant statement of “police witness 2” appears at pp 805 – 809 of the Depositions
[13]Statement of “police witness 2” appears at p 807 of the Depositions
36Although the only remaining allegation of misconduct alleged against you is the one described earlier, I nevertheless accept that observing you use your firearm without lawful justification in an attempt to persuade Mr Nguyen to tell you where the heroin was hidden would have been concerning for police witnesses 1 and 2. At the very least you set a very poor example for the junior police members who witnessed your loss of self-control and aberrant behaviour.
Gravity of offending
37Assault at common law can be committed in a variety of ways and can be constituted either by the application of unlawful force, however slight, a battery; or by an act that intentionally causes a victim to apprehend immediate and unlawful violence.[14] In your case, there is no longer any allegation of battery. It is asserted by the Prosecution that you did not apply any unlawful physical force to the body of Mr Nguyen.
[14]R v Knight (1988) 35 A Crim R 314
38An aggravating feature of your crime is that you were in a position of trust, not only by reason of your position as a serving member of police, but also because Mr Nguyen was under arrest, effectively detained in police custody or at the very least under police control when he was handcuffed and not at liberty to leave the premises. The fact that a weapon was used to effect the assault elevates the level of its seriousness. You committed this act, however, when frustrated at not being able to locate the heroin you knew to be at the premises. You suffered a grave lapse in judgment. Although your act was wholly unjustified, it was committed in an attempt to locate, secure and seize the heroin, and not for personal gratification or gain.
39Acting impulsively, you did not turn your mind to the long-term effect your offending might have on the immediate victim or on police members who witnessed the assault. Nor did you consider the possible effect your crime might have on the reputation of the broader police community. It must be noted that crimes of this nature have the potential to bring the reputation of police into disrepute and undermine confidence in the administration of justice. Police are entrusted to uphold the law and to treat all suspects with dignity, respect and according to law.
40Ordinarily, principles of general deterrence, denunciation and condemnation are important sentencing considerations in cases such as this.
Plea in mitigation of penalty
41Mr Gullaci, who appeared with Mr Grant on your behalf, conceded the gravity of your offending; however, he identified a number of significant matters in mitigation of penalty. I now turn to those matters.
Personal history
42You are 50 years of age. You were aged 38 years at the time of offending.
43You grew up in Blackburn with your parents, four brothers and five sisters. You are the youngest of your ten siblings. When you were five years of age, your father passed away from lung cancer. Your mother remarried when you were eight years old. You come from a loving home environment and still maintain very close relationships with your mother and siblings.
44You were educated to year 10 level. When you were in primary school, your family moved to Queensland. Whilst at school, you played for Southport Football Club. At the age of 16 or 17 years, you returned to Melbourne to pursue a career in Australian Rules Football. Although you were not drafted to a senior club, you were paid to play football for Blackburn. At the same time you commenced an apprenticeship as a butcher at Safeway. You completed two years of your apprenticeship before suffering a workplace accident in 1989. You then worked as a storeman for Holeproof Clothing during 1989 and 1990. You were then offered employment as a warehouse supervisor for Homelite Textron, where you worked until 1994. Thereafter you spent a year working as a sales representative for Griffiths & Bearings Products during 1994 to 1995, and as a claims manager for Conquest Sports between 1995 and 1996.
45At age 23 you were married and now have a 22-year-old daughter from that union. Your marriage lasted for 10 years. Your ex-wife moved to Tasmania where your daughter also lives.
46You joined Victoria Police in 1996 at the age of 24 years. You remained in the police force until late 2020 when you retired due to a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). On 16 November 2016 you were suspended, and then suspended without pay at the conclusion of the committal hearing in December 2018. At the time of your suspension, you had achieved the rank of Detective Sergeant.
47During your career you were stationed at a number of units:
(a) Heidelberg Uniform;
(b) you were promoted to Detective Senior Constable at Greensborough CIB;
(c) Heidelberg CIB;
(d) you were promoted to Sergeant at Carlton Uniform. It was here that you worked with the Regional Response Unit on secondment when this offending occurred;
(e) Melbourne North Uniform;
(f) Broadmeadows Uniform; and
(g) you were promoted to Detective Sergeant and stationed at Broadmeadows CIU.
48Throughout your career in policing, you have undergone training and participated in a number of courses. Three certificates attesting to your ongoing training were tendered as Exhibits 5,[15] 6[16] and 7.[17]
[15]Advanced Diploma of Investigation (Detective)
[16]Certificate “Developing Future Leaders Program”, a Victoria Police Frontline Leadership Initiative for Sergeants
[17]Certificate Sergeant Qualifying Program
49You worked hard as a member of police, motivated to do your best and to fight crime. You received a number of commendations.
(a) On 26 August 1998 you received a District Commendation with citation:
“Between 1 July 1997 and 30 November 1997 whilst performing duty with Operation Darvi, [you] acted with initiative, dedication and enthusiasm and professionalism. [Your] efforts were principally responsible for the arrest and prosecution of fifteen (15) persons for trafficking in drugs and associated offences.”[18]
[18]See Exhibit 11
(b) On 8 April 2003 you were awarded a Regional Commendation with citation:
“Commended for [your] judgment, dedication to duty, investigative skills, teamwork and professionalism displayed during “Operation Lochdu/Moonga” a Multi Jurisdictional Task Force involved in the investigation of a major drug trafficking syndicate between January, 1999 and February, 2000, whereby 11 persons were charged with 200 offences. Of those persons charged, nine were charged with trafficking in a drug of dependence.”[19]
[19]See Exhibit 3
(c) On 28 August 2014 you were awarded a Regional Commendation for outstanding performance with citation:
“For outstanding dedication, teamwork and investigative skills between October 2013 and February 2014 as part of Operation Maneuvers that resulted in 70 offenders being charged with over 516 offences relating to 93 commercial burglaries in the North West Metro Region.”[20]
(d) On 6 October 2015 you were recommended for the 2015 Mick Miller Award. This award was established to formally recognise outstanding performance by a Detective in fighting serious crime and organised crime in Victoria. You were acknowledged by Assistant Commissioner Fontana for your professionalism and work ethic as a detective.
(e) On 19 July 2016 you received a Regional Commendation for outstanding performance with citation:
“For displaying investigative excellence, professionalism, courage, teamwork and initiative during Operation Euroa, which impacted on 250 Commercial and Residential Burglaries in North West Metro Region, resulting in the safe arrest of 83 offenders for a range of offences and the recovery of $2.5 million in stolen property.”[21]
[20]See Exhibit 4
[21]See Exhibit 2
50As your counsel pointed out, police work is hard and can be physically demanding and emotionally taxing. You were committed to performing on-the-ground policing, a job that no doubt brought with it risk to your personal safety. A copy of an article that appeared in the Herald Sun newspaper on Saturday, 29 October 2005, was tendered as Exhibit 10. The article describes you as a “hero policeman” and reports on an incident wherein you risked your life to disarm a dangerous, armed offender:
“A HERO policeman who wrestled a loaded rifle from a robber will be recommended for a bravery award.
Sen-Det Mick Gaul, of Heidelberg CIU, had the .22 calibre sawn-off rifle pointed at him after a hold-up in … Heidelberg West.
But the reluctant hero said yesterday he was only doing his job.
“I would say it was just an instinct thing,” Sen-Det Gaul said.
“You really don’t have enough time to think. It was more just a case of get the gun off him.”
…
“It’s probably the aftermath when you think how lucky you were. … Obviously it’s our job to protect life and property and we try to do that to the best of our ability.”[22]
[22]Exhibit 10
51Returning to your personal life, following the breakdown of your marriage you formed a relationship with your current partner, a Detective Senior Constable at Victoria Police. She has been a member of police for 28 years and has been a great support to you.
52Following your departure from Victoria Police, you established a small family window-cleaning business. The business employs one ill-health retired member of Victoria Police and a current serving member (on a casual basis), both of whom have been diagnosed with PTSD.
53You receive a modest pension as a result of your retirement from Victoria Police.
Prior good character and contribution to the community
54It is accepted that you are a man of prior good character. You have no prior convictions and there are no pending charges.
55In addition to your contribution as a hard-working policeman, you have also contributed to the community, coaching senior level football over a period of seven years. In 2009/2010 you implemented an Indigenous Program for Indigenous youths from Western Australia who played football for the club you coached. The program involved billeting these players.
Physical and mental health
56As mentioned earlier, you retired from the police force following a diagnosis of PTSD in 2017. The diagnosis is hardly surprising given the distressing events you have witnessed in your job and the cumulative effect of being exposed to trauma. Mr Gullaci referred to four specific incidents that have contributed to your diagnosis of PTSD:
(a) In 1998, you attended a fire where a child’s cubby house was ablaze. On arrival you could hear the four-year-old boy screaming from inside the cubby house. The child died as a result of the fire;
(b) In October 2005 you risked your life while disarming an offender who pointed a loaded .22 rifle at you. I have already referred to the newspaper article in which your courage and bravery were reported;
(c) Following the Black Saturday Bushfires in 2009 you were involved in bushfire recovery in Marysville. These duties involved the recovery of bodies over a two-week period; and
(d) In 2014/2015 you were one of the first responders to the drowning of a four-year-old girl in a bath. You were present when unsuccessful attempts were made to revive her.
57These are not the only traumatic events you have witnessed in your long career as a policeman. You have attended approximately 20 scenes where people have died or have been killed.
58Your condition of PTSD is well documented.[23] You have been receiving regular treatment from a psychologist for this condition since 2017. You currently take daily prescribed medication, 100mg of Zoloft.
[23]See for example Exhibits 8 and 9
59With regard to your physical health, you had a partial knee replacement three months ago and you are still recovering from the surgery.
Guilty plea
60I have mentioned the tortured history of this case and described how the original allegations have, over the years, evaporated. I must take this into account when assessing the weight to be given to your guilty plea. Although your plea came very late in the piece, the charge to which you pleaded guilty is vastly different from the allegations of misconduct maintained by the Prosecution right up until the Sentence Indication Hearing.
61You have always maintained your innocence of the previous allegations of criminal misconduct, both charged and uncharged.[24] To the extent that this stance has contributed to delay, you are not to blame in light of the fact that all allegations of misconduct as previously framed have been abandoned by the Prosecution only days ago. You are presumed innocent of all abandoned allegations of misconduct and are entitled to be sentenced on that basis.
[24]See for example Amended Defence Response dated 9 December 2019 and Further Amended Response dated 3 August 2022
62It should also be noted that the Prosecution has accepted that it was the instigator of plea negotiations, with “overtures” being made by the Prosecution inviting you to plead to an appropriately-framed indictment with an agreed statement of facts for sentencing purposes.
63In these circumstances, the lateness of your plea notwithstanding, I regard you as having entered your plea in a relatively timely fashion.[25]
[25]Biba v The Queen [2022] VSCA 168 at [17]
64A guilty plea, no matter why or when entered, must almost always attract a sentencing discount. In considering the weight to be given to your guilty plea I take into account the following factors:
(a) The timing of your plea;
(b) You are entitled to a statutory discount because of your plea;
(c) I accept that your plea evidences some level of remorse;
(d) You have avoided the cost of a trial and, more significantly, you have spared the victim and the other witnesses the inconvenience, embarrassment and ordeal of giving evidence at trial;
(e) There is social utility involved in your guilty plea; and
(f) By taking this course I accept that you have facilitated the course of justice.
65Dealing with the question of the social utility inherent in your guilty plea, I note that there was an element of delay in the matter proceeding, largely attributable to the world-wide pandemic of COVID-19. I further note that additional weight must be given to this factor because of the impact that COVID-19 has had on the criminal justice system.[26]
[26]Worboyes v R [2021] VSCA 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
66In addition to the extra weight that your guilty plea must attract because of COVID‑19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i)You may face a higher risk of contracting the disease whilst in custody;[27]
(ii)There is an increased likelihood of periods of quarantine or isolation; and
(iii)The pandemic may cause additional stress and concern for prisoners and their families, as it does for every member of the community.[28]
[27]The Queen v Madex [2020] VSC 145 at paragraphs [51]-[52]
[28]Brown v The Queen [2020] VSCA 60 at paragraph [40]
67Although there is no direct evidence before me as to the effect of any of these factors upon you, I am prepared to assume that in the current climate they are matters to be taken into account as real possibilities in your case.[29]
Verdins[30] factors
[29]Wyka and Gardiner v The Queen [2020] VSCA 104
[30]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
68I have mentioned that you suffer from PTSD. I accept that this will most likely make a term of imprisonment more onerous for you.
Additional hardship if imprisoned because of status as former member of police
69It is not in dispute that if imprisoned, the conditions of imprisonment will be harsher for you by virtue of your status as a former member of Victoria Police.[31] You may well need to serve any such period in protective custody.
[31]Adams v The State of Western Australia (2014) 290 FLR 165
Prospects of rehabilitation
70It is common ground that your prospects of rehabilitation are excellent. With respect, I agree, taking into account your age, your prior good character, the fact that there is nothing pending, your good behaviour in the lengthy period of delay, your contribution to the community both in the form of your 20 years of otherwise exemplary service as a member of Victoria Police and in the form of contribution as a result of your participation in programs to coach and arrange for local billeting of Indigenous youths travelling from Western Australia, and the family support you enjoy.
Prosecution submissions as to penalty
71Mr Buckland conceded that all of the matters advanced by your counsel must be taken into account; however, he submitted that given the gravity of your conduct, a modest term of imprisonment is warranted, albeit that any such period should be wholly suspended. In the alternative, he submitted that at the very least you should be released on a Community Correction Order with conviction.
72Mr Buckland stressed the need to give weight to principles of general deterrence, denunciation and condemnation, particularly in light of the fact that you were a serving member of police, entrusted with the care of the suspect, Mr Nguyen. He noted the fact that in the assault you used a firearm, a fact that increases the objective gravity of your crime.
73Mr Buckland noted the effect of your offending on not only the victim, but also upon other police members who witnessed the assault. He also noted that your conduct has the potential to damage the community’s confidence in police officers as upholders of the law.
Sentence
74Mr Buckland has submitted that the only appropriate response to your offending is the imposition of a term of imprisonment, to be wholly suspended.
75On the other hand, Mr Gullaci submits that there is an available alternative to such a disposition, namely the imposition of a fine. He submits that given your current physical limitations you would be unable to comply with a Community Correction Order.
76It must be observed that you are to be punished only for the single crime before me, and not for all the previous allegations of criminal misconduct levelled against you, charged or uncharged. Those charges and allegations have been withdrawn by the Prosecution and, as mentioned, at law you are presumed innocent of them.
77It must also be observed that the factual basis of the charge in respect of which you are to be sentenced has also changed dramatically. No longer is it suggested that on several occasions you placed your service revolver into Mr Nguyen’s mouth. The Prosecution case now is simply that you drew your service revolver from its holster and pointed it on one occasion at Mr Nguyen while he was seated with his hands handcuffed behind his back. At this time you were demanding that he tell you where the drugs were. The Prosecution alleges that you pointed the firearm at Mr Nguyen’s upper chest area, within one metre of him. The Prosecution alleges, and you accept, that you did this without any lawful basis in order to intimidate Mr Nguyen.
78There is another important factor to consider now that the allegation of assault has changed, and that is that the assault is no longer constituted by a battery, the actual application of unlawful force. Instead, the assault is constituted by an act that intentionally caused Mr Nguyen to apprehend immediate and unlawful violence.
79Had the current charge been the only allegation of misconduct alleged against you back in 2010, it would have been open to prefer the summary charge of common assault in the Magistrates’ Court under s23 of the Summary Offences Act 1966, which provides:
23 Common assault
Any person who unlawfully assaults or beats another person shall be guilty of an offence.
Penalty: 15 penalty units or imprisonment for three months.
80You were not charged until 2017, so laying that charge was not open as the statutory period allowing such a course would have expired in July 2011.[32] In any event, it was always determined that this matter would not proceed in the summary stream.
[32]The charge of common assault under the Summary Offences Act must be brought within 12 months – see s7 Criminal Procedure Act 2009
81Until the introduction of the Criminal Procedure Act 2009, the common law offence of assault was not triable summarily, not because of its gravity, but because of its classification as a common law offence. As the previous version of the Victorian Sentencing Manual noted:
Fundamental gravity of [common law assault]
This offence is not triable summarily, but that is a function of its identity as a common law offence, and not as a reflection of its gravity. In the higher courts it is only rarely dealt with as the principal proven offence, but it is a commonly presented offence, often associated with more serious or violent sexual offences.[33]
[33]Victorian Sentencing Manual, chapter 24.3.11 as at November 2009
82I note that in the original form of the indictment[34] four charges of assault were laid as alternative charges to four charges of misconduct in public office contrary to common law.[35] The common element to all charges was the allegation of assault constituted by a battery.[36]
[34]Indictment No H12800116
[35]Charges 1, 3, 5 and 7
[36]See also Summary of Prosecution Opening for Trial dated 28 February 2019
83On the facts before me, I am compelled to regard your crime as a one-off incident that occurred in a moment of loss of self-control and sheer frustration at not being able to locate a significant quantity of heroin, against a background of many years of what appears to be exemplary service as a member of Victoria Police. In those years you were commended on five occasions for your dedication to service, your courage, and your investigative excellence and initiative. You are a man of prior good character who has contributed to the community. You committed this offence some 12 years ago. In the period of delay you continued to serve as a member of police for several years, even being promoted. Thereafter, as a result of the many traumas you suffered as a result of your service culminating in your diagnosed condition of PTSD, you were unable to cope with your career in policing. Since your retirement from the force you have created a cleaning business. There are no pending charges.
84You have already been punished to an extent by reason of the fact that you have had a number of serious charges hanging over your head for many years now. This has no doubt caused you great anxiety and concern for your reputation. You have lost the job you truly loved and in which, but for this isolated incident, you excelled.
85I must pay regard to the sentencing principles set out in the Sentencing Act 1991 (“the Act”) as well as to sentencing principles established by the common law. For the purposes of sentencing you today, those principles work in harmony.
86Consistent with principles of parsimony,[37] subsections (3) and (4) of s5 of the Act provide:
(3)Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
(4)Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
[37]R v O’Connor [1987] VR 496, 501; R v Piacentino (2007) 15 VR 501, 511 [47]
87The purposes in respect of which sentences may be imposed are set out in s5(1) of the Act:
(1)The only purposes for which sentences may be imposed are—
(a)to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b)to deter the offender or other persons from committing offences of the same or a similar character; or
(c)to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d)to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e)to protect the community from the offender; or
(f)a combination of two or more of those purposes.
88Section 5(2) of the Act sets out a number of matters to which the Court must have regard when sentencing an offender:
(2)In sentencing an offender a court must have regard to—
(a)the maximum penalty prescribed for the offence; and
(ab)the standard sentence, if any, for the offence; and
(b)current sentencing practices; and
(c)the nature and gravity of the offence; and
(d)the offender’s culpability and degree of responsibility for the offence; and
(daaa)whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and
(daa)the impact of the offence on any victim of the offence; and
(da)the personal circumstances of any victim of the offence; and
(db)any injury, loss or damage resulting directly from the offence; and
(e)whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f)the offender’s previous character; and
(g)the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.
89I take all of these matters into account along with the other factors to which I have previously referred.
90General deterrence is an important factor that cannot be overlooked. You were in a position of trust and owed Mr Nguyen a duty of care. You were a senior officer within the view of junior and other officers. You were entrusted to uphold the law, not take it into your own hands or to break it. Your actions placed the victim in fear and have undermined his confidence in police. More broadly, your conduct has the potential to bring Victoria Police into disrepute and undermine the broader community’s confidence in the administration of justice.
91As was conceded by Mr Buckland, specific deterrence is not, however, necessary in your case, given that in the 12 years since offending there has been no further offending. You pose no ongoing threat of re-offending. You are no longer a member of Victoria Police and therefore you will not likely ever again be involved in the apprehension, detention or questioning of suspects. You will not be involved in the execution of search warrants.
92Balancing all factors relevant to my task in sentencing you today, on Charge 1, common assault contrary to common law, I am satisfied that sentencing purposes can be achieved without imposing a term of imprisonment.
93I have considered whether a penalty less than a fine with conviction is appropriate. In all the circumstances, in my judgment any disposition less than that would fail to recognise the overall gravity of your offending, would undermine the importance of the need to deter others from offending in like manner, and would be inadequate to mark the condemnation and denunciation of your conduct.
94Accordingly, on Charge 1 of assault at common law, you are convicted and fined $7,500.00 (seven thousand five hundred dollars).
Statement and direction under s6AAA Sentencing Act 1991
95I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for your plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentence I would have imposed is as follows:
96You would have been convicted and ordered to serve 6 (six) months’ imprisonment. I would have directed that the whole of this sentence be suspended for a period of 12 (twelve) months.
97I direct pursuant to s6AAA that the sentence that would have been imposed but for your plea of guilty be noted in the Court’s records.
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