Director of Public Prosecutions v Mareangareu
[2018] VCC 1181
•23 August 2018
:
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-17-00876
Indictment No. C1610853
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON MAREANGAREU |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial dates: 21, 22, 23, 24, 25, 28, 29, 30 and 31 May 2018, 1, 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, 19, 20 and 21 June 2018 Plea hearing: 31 July 2018 | |
DATE OF SENTENCE: | 23 August 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Mareangareu | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1181 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – attempting to pervert the course of justice – common assault – member of police acting in the course of duty assaulted teenage boy then laid charges against him and another in an effort to conceal his own wrongdoing – offender of impeccable prior good character – offender demonstrated extraordinary acts of courage and bravery both while on duty and in personal life – whether mercy available to reduce penalty that would otherwise call for a term of immediate imprisonment
Legislation Cited: Crimes Act 1958, s320; Sentencing Act 1991; Evidence Act 2008, s138
Cases Cited: Browne v Dunn [1893] 6 R 67; Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86; R v Healy (unreported) VSCA, No 51 of 1997; R v Andrews (1972) 57 Cr App R254; R v Buscema [2011] VSC 206; R v Cumber (1989) 11 Cr App R(S) 470; R v Goodwin (1989) 11 Cr App R(S) 194; Director of Public Prosecutions v Josefski (2005) 13 VR 85; R v Reading [1998] VSCA 37; R v Flett [2005] VSCA 8; Saleem v The Queen [2014] VSCA 190; Zotos v The Queen [2014] VSCA 324; Adams v R; Director of Public Prosecutions v Paranihi; Director of Public Prosecutions v Soltan [2011] VSCA 77; R v Osenkowski (1982) 30 SASR 212; R v Clarke [1996] 2 VR 520; Director of Public Prosecutions (Vic) v Cook (2004) 141 A Crim R 579; Markovic v The Queen [2010] VSCA 105
Sentence: Convicted and sentenced to a term of twelve (12) months’ imprisonment and a fine of $5,000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G Coghlan (Plea) Ms K Thompson (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr A Halphen | Tony Hargreaves & Partners |
HER HONOUR:
1 Simon Mareangareu, you are to be sentenced in respect of one charge of common assault contrary to common law (alternative to Charge 1 on the Indictment, intentionally cause injury) and one charge of attempting to pervert the course of justice contrary to common law (Charge 4).
2 The maximum applicable penalty for common assault is five years’ imprisonment.[1]
[1]Crimes Act 1958, s320
3 The maximum applicable penalty for attempting to pervert the course of justice is 25 years’ imprisonment.[2]
[2]Crimes Act 1958, s320
4 You were tried before a jury on Indictment (C1610853.2). You faced seven charges - one charge of intentionally cause injury (Charge 1), one charge of false imprisonment (Charge 2), two charges of attempting to pervert the course of justice (Charges 3 and 4) and three charges of perjury (Charges 5, 6 and 7). You were tried jointly with Dennis Gundrill. You pleaded not guilty to all charges.
5 Following a 23-day trial (including three days of hearing preliminary issues), on 21 June 2018, the jury returned verdicts of guilty to the charge of common assault and one charge of attempting to pervert the course of justice, and verdicts of not guilty to all remaining charges against you. The jury returned verdicts of not guilty in relation to all charges laid against Dennis Gundrill.
Circumstances of offending
6 In the early hours of Christmas Day 2014, you and Mr Gundrill, then both serving members of Victoria Police, were performing mobile patrol duties in a divisional van in the vicinity of Canterbury Road and Boronia Road, Vermont. As at that date, you were a senior constable with nine years’ standing, stationed at the Nunawading police station. Mr Gundrill was a leading senior constable of police, also stationed at Nunawading police station.
7 At approximately 2.30am, as you approached the intersection, you noticed two teenagers at or near the intersection, facing a 7-Eleven store on the other side of the road. The teenagers appeared to be heading in the direction of the 7‑Eleven. Both teenagers were wearing hoodies and carrying backpacks. You determined to stop your vehicle and speak to them.
8 You called out to the boys and asked them to approach. The conversation commenced relatively innocuously. You asked the boys what they had been doing that night. They told you that they had come from a friend’s house and were on their way home. You informed the boys that there had been burglaries and vandalism in the area. Both boys lifted their backpacks and shook them to indicate they had no implements capable of making graffiti. You asked them to provide their details. At this stage, you did not know who they were and were wondering what they were doing out and about at that time of morning.
9 One of the boys thought your behaviour was strange so he activated the video recording on his mobile phone. The recording commenced as he was spelling his name. He identified himself as Stuart Laird. You then asked for his date of birth. He provided that to you. Then you asked for his address. He asked you whether he had to give his exact address but you responded by asking him whether he had been in trouble with the law before. It was only after he told you that he had never been in any trouble with the law before that you replied that he was required to provide his full address because, using your words “Right now I suspect you blokes are doing burglaries”. In fact, you held no such suspicion. As you told the jury, you were merely “poking the bear” to provoke a response. Both boys scoffed at your suggestion and seemed to ridicule it. Even so, Mr Laird provided his correct address. You then turned your attention to the other teenager. You asked for his name. He replied as if to clarify whether you were addressing him. You told him that you already had Mr Laird’s details and said “aren’t you listening, smart arse?” The conversation continued:
Foster “No man, fuck. Alright. KYAN. K.Y.A.N. Mareangareu Pardon? Foster K.Y.A.N. Mareangareu Yep. Foster F.O.S. Mareangareu This is one word? Foster No, this is my name. Kyan is my name, man. Mareangareu Yep. Foster Then you’ve got my last name. Mareangareu Hey sonny. Don’t get smart. Just … .”
10 Before Kyan Foster could complete spelling his surname, you either grabbed him by the ear, or by the shoulder strap of his backpack. There was no reason to do so. He was not running away, and he was not under arrest. In response, Mr Foster slapped your hand away to release your grasp. You then punched him in the jaw with a clenched fist, as hard as you could. That is the subject of the common assault charge.
11 Very soon after Mr Gundrill joined the group.
12 All of this was captured on Mr Laird’s video. The video then records the following exchange:
Laird “Oi Oi Oi. Mareangareu Fucking assaulted me. Foster What the fuck. Laird What are you doing Kyan? Kyan. Oi please, please. Sorry, I’m sorry. Gundrill You don’t look sorry. Laird I didn’t do anything man. Mareangareu You don’t fucken hit police, alright. Gundrill Sit down there. Sit down. Laird Can I please get my phone … Gundrill No. Foster What the fuck? Gundrill Sit down. Mareangareu You don’t fucken hit police. Foster I’m not trying to cause trouble, man. Can I just … Mareangareu Well just fucken give us your details and you’re on your way. Gundrill What did I just tell you? I said no, get up. No means no. Mareangareu Sit down. Foster What do you want him for, he’s done nothing man. Mareangareu Sit down. Foster Alright. Mareangareu Now don’t touch fucken police. Foster K.Y.A.N. you touched me first man. What’s with you man? Mareangareu Because you’re being a smart arse. Foster I’ll give you my details, just calm it down, man. Unknown male Do you need a hand mate? Gundrill Hey? Unknown male Do you need a hand mate? Gundrill Yeah, we’re alright now. Sit down. Laird Sorry. Gundrill You’re not sorry. You’re stupid. You don’t listen. Laird I didn’t do anything, man. Gundrill You did. You’re here one o’clock in the morning, or two o’clock in the morning. Laird I’m about to go home … Gundrill Get rid of that video right now.
13 Mr Laird turned off the video but very soon after turned it back on again. In the exchange that followed, both you and Mr Gundrill attempted to search the backpacks of Mr Laird and Mr Foster over their repeated objections. You did not state that you suspected either Mr Foster or Mr Laird of having committed any crime under the Drugs, Poisons and Controlled Substances Act 1981. I attach a full copy of the transcript of the recovered video as “Annexure A” to these Reasons for Sentence.
14 At the time you punched Mr Foster to the face he was not under arrest and you were not in the process of arresting him. Accordingly, he was not resisting arrest. Nor were you acting in justifiable self defence. There was simply no lawful excuse for your assault of Mr Foster. You were the initial aggressor. You had no lawful excuse either to grab him by the ear or by the shoulder strap of his bag for that matter. You were not attempting to apprehend him in any way for any crime you believed, much less suspected he may have committed. Mr Foster was entitled to defend himself, and he did that by slapping your arm away. For this you punched him and later charged him with assault. That was the only basis of the charge of assault police.
15 In the aftermath of your assault on Mr Foster and over his objections, you determined to search his backpack. This was despite the fact that you had already told Mr Foster that if he provided his details he could be “on [his] way”, a remark captured on the video. In light of this statement, Mr Foster could not have been under arrest at that time since you had made it clear to him that if he complied with your request, he would be at liberty to leave the scene. As I stated, at no time while at the scene did you say that you intended to make any search of Mr Foster or his backpack under the Drugs, Poisons and Controlled Substances Act. Yet when making your notes, you wrote “both told that they were being detained [under the Drugs, Poisons and Controlled Substances Act].”[3]
[3]Trial exhibit H
16 You applied handcuffs to Mr Foster and both boys were arrested at the scene. Their backpacks were searched. You searched Mr Foster’s backpack. Each boy was found in possession of a small quantity of cannabis and a bong. Mr Foster and Mr Laird were placed in divisional vans and were taken separately to the Nunawading police station where they were interviewed. Mr Laird’s bag containing his mobile phone was seized at the scene and on arrival at the police station it was logged into the property register. Mr Laird did not see the phone again until he was released later that morning into the care of his father at about 6.00am. In the car on the way home, Mr Laird told his father that he had captured the incident on his mobile phone. As he tried to find the recording on his phone, he realised it had disappeared.
17 You became the informant in charges to be preferred against both Mr Foster and Mr Laird.
18 You made notes in your police book relatively soon after the event. You made no mention in those notes of the existence of a video recording. Nor did you mention the true circumstances in which you punched Mr Foster to the jaw. As mentioned earlier, you incorrectly recorded in your notes that both boys had been informed at the scene that they were being detained under the Drugs, Poisons and Controlled Substances Act.
19 You prepared preliminary briefs of evidence against each of Mr Foster and Mr Laird and submitted them to your superior for authorisation to prosecute. You included a copy of your notes in the brief. You also included a typed statement you made on 5 May 2015.[4] The statement individually, and the brief as a whole, were both misleading, in that they failed to refer to significant facts. Nor did your preliminary statement make any reference to the video. You proposed that each of Mr Foster and Mr Laird be charged with assaulting an emergency worker (police) on duty, resist arrest and possess a drug of dependence, namely cannabis. You made no mention of the true circumstances in which you punched Mr Foster, or the true circumstances in which you alleged that he assaulted you. Had you done so, it would have been obvious that Mr Foster was neither resisting arrest nor assaulting police, since he was doing no more than defending himself against you. Mr Foster was also entitled to resist any unlawful arrest and/or any unlawful search of his person and property. You made no mention of the true circumstances in which the cannabis and bongs were discovered. Had you done so, this would have raised a serious question about the legality of the searches and whether the product of the searches was admissible in the case against either boy.[5] In short, had you revealed the true circumstances to your superior when you submitted the briefs for authorisation, your misconduct would have been laid bare, and the charges you proposed may not have been authorised. Mr Foster did not unlawfully assault you in the circumstances claimed, he did not resist any lawful arrest and the small quantity of cannabis in his possession was found in questionable circumstances.
[4]Trial exhibit S
[5]Evidence Act 2008, s138
20 At the time of the incident, Kyan Foster was aged 17 years. He was slight in build and stature. Stuart Laird was aged 16 years. Neither boy had been in trouble with the law before. You were over 50 years of age, well-built and strong.
21 The briefs of evidence were eventually authorised for prosecution and the charges that you proposed were laid against both Mr Foster and Mr Laird. The authorisation was given on the basis of the material you supplied in the briefs. You had many opportunities to disclose the true facts, but you chose not to.
22 By arrangement with Kyan Foster’s mother, Lisa Foster, you served the charges and associated paperwork on her on 18 May 2015. In a conversation that lasted approximately 20 minutes, you admitted that you struck Kyan Foster because “He fired up and he wanted to have a crack at the coppers and lost”.[6]
[6]Trial exhibit A4 - audio recording, page 1 of transcript of exhibit A4 behind tab 4 of Jury Book
23 In the discussion you mentioned the upcoming Children’s Court hearing and suggested that Ms Foster inform the Magistrate of her son’s bipolar disorder. You told Ms Foster to speak to the prosecutor and try to “work something out”.[7] However, you also earlier stated that you had no interest in the outcome and that her son could contest the charges and “battle it out”.[8] Ms Foster recorded the conversation.[9]
[7]Transcript of exhibit A4, page 17
[8]Transcript of exhibit A4, page 11
[9]Trial exhibit A4
24 Meanwhile, unbeknown to you, in February 2015, Mr Laird’s father had engaged an expert to recover the deleted video files. The expert was able to recover the two files that Stuart Laird had recorded of the incident.[10] The recovered video footage was enhanced and tendered as exhibit A3[11] at your trial. After the video was submitted to other, independent investigating police, all charges against Stuart Laird and Kyan Foster were dropped. This fact alone demonstrates the impact the video footage had on the integrity of the charges laid against the boys.
[10]Trial exhibit D, report of Payam Toloo
[11]Also tendered as trial exhibit B
25 Charge 4 on the Indictment alleged that you attempted to pervert the course of justice in that you:
“i.Made a false statement for inclusion in briefs of evidence against Stuart Laird and Kyan Foster;
ii.Complied (sic) a brief of evidence in respect to charges against Stuart Laird and against Kyan Foster knowing that the said briefs of evidence contained evidence which was false;
iii.Caused charges to be filed against Stuart Laird and against Kyan Foster knowing that the evidence relied upon and included in the briefs of evidence was false;
iv.Served a Charge Sheet and Summons, together with a Preliminary Brief and Statement made by the Informant upon the mother of Kyan Foster, knowing that evidence relied upon and included therein was false;
v.Attempted to persuade the mother of Kyan Foster to encourage her son to not contest the summary hearing.”
26 Any one or more of these particulars might have sustained the guilty verdict, provided that the jury was unanimous about which of them it was satisfied of beyond reasonable doubt.
27 I mentioned earlier that you were found not guilty of the three charges of perjury alleged against you. The perjury charges arose from the statement you made on 5 May 2015 that was included in the briefs submitted for authorisation to prosecute both Mr Foster and Mr Laird.[12] Although you were acquitted of the perjury charges, the jury must have rejected beyond reasonable doubt your false claim in your statement to the effect that you were acting in self defence when you punched Mr Foster.
[12]Trial exhibit S
28 As you know, I have heard submissions from your counsel, Mr Halphen, and from the learned prosecutor, Ms Coghlan, about which of the particulars must have satisfied the jury to the requisite degree to establish the charge.
29 Your counsel argued that because you were acquitted of the perjury charges, the jury could not have been satisfied of the first four particulars. On the other hand, Ms Coghlan submitted that there is no inconsistency between the acquittals on the perjury charges and the conviction on the attempt to pervert the course of justice charge, and that I should be satisfied that all five particulars were proved beyond reasonable doubt.
30 The first particular relies upon proof that your statement was false. Specific passages of that statement were the subject of each of the perjury charges. Consistent with the jury’s verdict, and subject to what I shall later describe, I am inclined to disregard the particularised falsities asserted in those charges when considering the conduct the subject of the attempting to pervert the course of justice charge.
31 The second, third and fourth particulars concern the compilation of the briefs, the laying of the charges and the service of those charges, all the while knowing the evidence contained in the briefs said to support the charges was false. There is a clear distinction to be drawn between the crimes of perjury of which you were acquitted and the conduct alleged in these particulars. The crime of perjury requires proof beyond reasonable doubt:
(a) That the accused made a false statement; and
(b) That the accused made the false statement under oath or on affirmation; and
(c) That the accused knew the statement was false or did not believe it was true.
32 There is an additional requirement in most cases that there be corroboration of the falsity of the statement.
33 It must be observed that all particulars of the attempt to pervert the course of justice charge are broader than your counsel asserts. They do not depend on the three passages the subject of the three perjury charges. The falsity alleged in Charge 5 (perjury) was:
“i. I explained to them over the Christmas period police would speak to any person who was out and about at unusual times.”
34 The falsity alleged in Charge 6 (perjury) was:
“i. Both males appeared affected by an unknown substance
ii. I could sense the strong smell of cannabis.”
35 The falsity alleged in Charge 7 (perjury) was:
“i. …. as I reached out to FOSTER[’]S back pack, FOSTER has slapped my right arm, with his open right hand, sensing an immediate threat, I punched FOSTER to the nose … .”
36 The compilation of the briefs of evidence required you to complete a police pro forma “Preliminary Brief – Statement Made by Informant VP Form 1372”. No perjury charges were laid in respect of that statement. The perjury charges were based on representations made in your statement of 5 May 2015.
37 The preliminary brief against Mr Foster contained a statement on the pro forma document:
Preliminary Brief – Statement Made By Informant
Statement of alleged facts
Description of alleged offence(s) with reference to supporting evidence. Where relevant provide a description of the background and consequences of the alleged offence.
At about 2.30 am on Thursday the 25th of December 2014 the accused FOSTER and co-accused LAIRD were observed walking near the intersection of Mitcham Road and Canterbury Road in Mitcham. They were both subsequently spoken to by Senior Constable MAREANGAREU and Leading Senior Constable GUNDRILL. Both Police officers were in uniform and driving a marked Police vehicle.
Senior Constable MAREANGAREU has exited the divisional van and approached both males whilst Leading Senior [Constable] GUNDRILL remained inside the vehicle. At this time Adrian MYSZKA, a Security Patrol Officer, was conducting a patrol of the property near the intersection and observed Police talking to the males.
Senior Constable MAREANGAREU has had a conversation and explained to them why they were being spoken to. During this conversation Senior Constable MAREANGAREU has noticed a smell which he believed to be cannabis coming from the males. Senior Constable MAREANGAREU then informed both males that they were going to be searched for Cannabis. Both males refused to be searched and were verbally aggressive.
As Senior Constable MAREANGAREU reached out to grab the backpack of the accused, the accused has slapped Senior Constable MAREANGAREU’s arm with his open right hand. Sensing an immediate threat Senior Constable MAREANGAREU has punched the accused in the nose and has taken him to the ground.
…
Statement made by accused
I did not assault anybody today, no one was hurt as a result of my actions. He bought the negativity to me.
I only followed his actions.
I was absolutely frustrated.
I believe I had a little bit of Marijuana and a pipe in my bag.[13]
[13]Trial exhibit F
38 This statement, which also required a list of evidence[14] was included as part of the materials provided to your superior for consideration when determining whether to authorise the prosecution. On this version, which is inconsistent with your sworn testimony, you asserted that early in the piece, you informed the boys that you were exercising your power to search their bags for cannabis. That version is also at odds with the video recording. The video records you claiming your right to search as: “Right now I suspect you blokes are doing burglaries.” Cannabis was never mentioned. Also, you failed to mention that you actually made physical contact with Mr Foster – either by grabbing his ear or the strap of his backpack. On this inaccurate version you had Mr Foster as the initial aggressor making the first physical contact. In your sworn evidence before the jury, you testified that you actually grabbed hold of the shoulder strap of Mr Foster’s backpack because you thought he was about to “do a runner”.[15] The statement makes no mention of this. It was obvious from the video that you had hold of Mr Foster in some way before you lashed out at him. There was no mention of the existence of the recording in the summary or anywhere else in the brief. Yet there is a section where you, as informant, were required to list relevant evidence and exhibits.[16]
[14]Trial exhibit F, final page, jurat - noting the acknowledgment made on 1 February 2015 and the third-last page noting the list of evidence forms part of the sworn statement
[15]TT 1126
[16]See for example the check list on the second page of the brief, trial exhibit F
39 The preliminary briefs you compiled against each of Mr Foster and Mr Laird included:
·Your statement made 5 May 2015;
·A copy of Mr Gundrill’s statement made 10 April 2015;[17]
[17]Trial exhibit R
·A copy of some (but not all) of your handwritten notes;[18]
[18]Trial exhibit H, copy of notes included in the brief; trial exhibit G, copy of notes not included in the brief
·A copy of some (but not all) of Mr Gundrill’s handwritten notes;[19]
[19]Trial exhibit J, copy of notes included in the brief’; trial exhibit K, copy of notes not included in the brief
·Two DVDs titled “STATION MASTER” and “INFORMANT MASTER” containing copies of the respective records of interview for Stuart Laird and Kyan Foster;
·Ringwood Children’s Court – Prosecution Brief Cover Sheet;
·Charge Sheet and Summons;
·Co-accused Cover Sheet (VP Form 205);
·Brief Head (VP Form 208A);
·Forfeiture/Disposal Order (VP Form 745);
·Preliminary Brief – Statement Made by you, the informant (VP Form 1372);
·LEAP reports;
·Statement of Adrian Myszka made 1 February 2015;[20] and
·Photographs of the drug paraphernalia and cannabis confiscated from Mr Laird and Mr Foster.
[20]Trial exhibit A5
40 It was your duty to include all of the evidence relevant to the proposed prosecutions, regardless of whether that evidence was incriminating or exculpating. To compile a brief without all of the relevant evidence conveyed an utterly false picture.
41 The briefs failed to mention the true circumstances in which you asserted the boys’ crimes were committed, they included documents that did not convey an accurate picture of events, and there was no hint of the fact, much less the possibility of the existence of a contemporaneous video recording of part of the incident. At no time did you take any step to inform your superiors of the deficiencies in the briefs, although there was plenty of time and opportunity to do so. Nor did you ever make any attempt to disclose all relevant facts to either the prosecution or the defence. In short, you did nothing to prevent the prosecutions from occurring without the critical information.
42 The evidence at trial was sufficient to find that both you and Mr Gundrill were aware of the fact that Mr Laird had a phone, that he used it to make video recordings during the incident, that both you and Mr Gundrill had opportunity and motive to delete the recordings and that no-one else had any such knowledge, opportunity or motive.
43 Although the prosecution’s primary position was that both you and Mr Gundrill were jointly complicit in the deletion of the video files, the learned trial prosecutor conceded that the prosecution could not prove which one of you committed the act. More significantly, the prosecutor conceded that he could not exclude the possibility that either of you could have done it acting alone. Given these concessions, the jury’s verdicts of acquittal on these charges was inevitable.[21]
[21]Charge three against Mr Mareangareu; charge nine against Mr Gundrill
44 Although the jury was not satisfied beyond reasonable doubt that you were complicit in the deletion of Stuart Laird’s video files of the incident, I am satisfied that you were aware of both their existence and their significance. I am satisfied beyond reasonable doubt. Such a finding is consistent with the jury’s verdict. The evidence before the jury in this regard was as follows:
45 Mr Laird’s evidence-in-chief:
Q:“… Was there any conversation between you and Gundrill or, indeed, Mr Mareangareu‑ ‑ ‑?‑‑‑
A:M’mm.
Q:‑ ‑ ‑ about searching the phone to see if there is any material relevant to any concern that they had?‑‑‑
A:Ah, yeah, so Mareangareu went through my photos and my messages and my contacts.
Q:Yes. When you say, ‘Went through your photos’, was that at the same time as your earlier evidence just a moment ago about Mr Gundrill being practically given the phone ‑ ‑ ‑?‑‑‑
A:M’mm.
Q:‑ ‑ ‑ by you?‑‑‑
A:Yep.
Q:And what he did – was it on the same time frame? Was it before or after it?‑‑‑
A:Ah, well, Gundrill asked my dad’s number before it. Yeah, so it was the first event.
Q:And when it came to looking at photos, different phones operate internally differently, what – how did your phone operate when it came to accessing photos?‑‑‑
A:It was just click the gallery button and it would come up with a camera reel.
Q:Yes, I see. And then you could just ‑ ‑ ‑?‑‑‑
A:Swipe.
Q:‑ ‑ ‑ scroll through them to look at ‑ ‑ ‑?‑‑‑
A:Yeah, exactly.
Q:‑ ‑ ‑ any photographs that had been successively taken by that phone?‑‑‑
A:Yeah, exactly.
Q:Yes. Was there one in particular about a motor vehicle that engaged you in conversation with Mr Mareangareu?‑‑‑
A:Yeah, he, um – I took a picture a while ago of a Dodge Challenger that I saw and he asked me – he’s, like, ‘Oh, yeah, nice car. I drove one of these in America.’
Q:Yes. Was that in the conversation we’re just discussing now when he was going through the photos?‑‑‑
A:Yes, correct.
Q:And where was Mr Gundrill when that was [taking place]?‑‑‑
A:Um, I wasn’t sure. He wasn’t in my field of view. I could only see Mareangareu.
Q:I see. Yes. And when it came to anything said by either of them about having found anything in your phone that concerned them about your use of drugs?‑‑‑
A:Yep.
Q:Was there any such conversation information provided back to you or not?‑‑‑
A:Yeah, he saw a photo of another bit of weed. It would’ve been smaller than this amount in my palm and he was saying, "Oh, look at this. Yeah, this is a classic example", but ‑ ‑ ‑
Q:Yes?‑‑‑
A:Yep.
Q:And was there any other discussion between you and either of the two policemen about the cannabis matters?‑‑‑
A:Ah, yeah, he said, ‘Oh, I wish I could take you down to Mitcham Hospital and see all the young people whose lives have been ruined by marijuana’.
Q:… Now, at some point in time you’re in the back of the van, you don’t have your phone?‑‑‑
A:Yep.
Q:You don’t have your backpack ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ or its other contents?‑‑‑
A:Yep.
…
A:Ah, no, um, I also spoke to Gundrill when I was in the back of the van as well.
Q:… And what passed between you?‑‑‑
A:Um, well, after I spoke with Mareangareu, Gundrill came over and he asked what I wanted to do, um, when I was older and I told him I wanted to do forensic science at Monash Uni.
Q:And what did he say to that?‑‑‑
A:He’s, like, "Oh, I’m going to make sure that never happens. You’re going to be carting shit for the rest of your life".
Q:Yes. And that was Gundrill ‑ ‑ ‑?---
A:Yeah.
Q:‑ ‑ ‑ and not in the presence of the other man?‑‑‑
A:Yep.[22]
[22]Trial Transcript (“TT”) 291-294
…
Q:Did you remove it [the video recording]?‑‑‑
A:No, I did not.
Q:Is there any prospect that you removed it?‑‑‑
A:No.
Q:Did you ever have a desire of wanting to remove it?‑‑‑
A:No. Um, I do remember what Gundrill said as well. He – when I was in the back of the van, he asked if I would delete [it] and nothing would happen, but I didn’t believe him. Yeah.
Q:Yes. If I could return to that, what did he say to you?‑‑‑
A:He asked us, ‘Oh, yeah, if you get rid of that video, we can make this go away’, or something along those lines.
Q:No, you said he asked us?‑‑‑
A:Oh, sorry, me. I was just in the back of the van, sorry.
Q:Yes. No one else was with you?‑‑‑
A:Yeah, no.
Q:And what were his words, as you recall them?‑‑‑
A:Um, he says, ‘Oh, if you get rid of that video, it’ll be a lot easier, or we’ll make it go away’. I can’t remember the exact phrase he used. Yeah.
Q:… Now, … did you inform your father that the video had been apparently deleted?‑‑‑
A:As soon as I realised it was deleted, yeah.”[23]
[23]TT 296
46 When cross-examined by your counsel, Mr Laird was not challenged about his account of your dealings with his phone or your conversations about the images he noticed and discussed with him.
47 When cross-examined by counsel for Mr Gundrill, Mr Laird confirmed his earlier testimony:
Q:“As I understand it, you’ve told us today that there were two instances of the police having your phone after you were placed into the divisional van; is that right?‑‑‑
A:Yeah. That’s correct.
Q:… And you say this: the first occasion is Mr Gundrill … on his own ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ opening up the divisional van ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ with the phone ‑ ‑ ‑?‑‑‑
A:Ah, yeah, (indistinct).
Q:And what do you say happens?‑‑‑
A:Um, he asked me for my dad’s number. Oh no. … So he said, … can I have your father’s number and so I … grabbed my phone and I was … – getting his number out of my phone.
…
Q:So this is the situation as I understand it. You’re handed the phone by Mr Gundrill?‑‑‑
A:Yep. To unlock it.
Q:Okay. In order that you can get your dad’s phone …. number...?‑‑‑
A:Yeah. …
Q:… So to then get that, first thing is that you have to put in your passcode?‑‑‑
A:Yep.
…
Q:Then you have to do further things on the phone; correct?‑‑‑
A:Yep.
Q:Right?‑‑‑
A:So go to contacts and – yep.
Q:Yes. Okay. But you have to further manipulate the phone or input it; correct?‑‑‑
A:Um, it’s just clicking the contacts button and ‑ ‑ ‑
Q:Yes?---
A:…comes up and Dad’s right there, D. (sic).
Q:… And then you say you then return the phone; correct?‑‑‑
A:Yep.
Q:… The van is closed?‑‑‑
A:Yep.
Q:… And then you say that there’s a separate occasion ‑ ‑ ‑?---
A:Yep.
Q:‑ ‑ ‑ on this occasion Mr Mareangareu ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ coming and speaking to you about wanting to look through your phone ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ to see whether there’s anything in terms of drug trafficking?‑‑‑
A:Yeah.”
…[Questions about whether Mr Laird had ever previously mentioned the occasion during which Mr Gundrill saw the phone or had access to it as per his account to the jury.]
Q:“Do you suggest that prior to coming to court today that … in the Magistrates’ Court you ever said that there was this completely separate incident involving Mr Gundrill providing you with the phone and getting you to open it and find your dad’s number?‑‑‑
A:Um, did I bring it up. Um, nah. I just can’t remember. I probably – maybe like – if anything, it’s going to be the VEAM which is going to be the most accurate, but – yeah.
…
Q:Okay. You say this?‑‑‑
A:Well, actually, I don’t know if it was on his own. Maybe Mareangareu was there when he was asking for the number. I can’t remember, yeah.
…
Q:And you’ve – I just want to take you to something that you said to the police [when interviewed as a witness approximately six months after the incident]. …
…
Q:...This is at page 218 and the deposition starts at the end. You said this. ‘And, yeah, he was going through my phone pictures.’ Mareangareu ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ was. ‘And then, yeah – and obviously he at some point – he deleted the video after because the video was definitely there when I opened up my camera and I initially – I saw it there. It was, like, the first one that, like, popped up because it was most recent. Yeah?’‑‑‑
A:Yep.
Q:Okay. So that’s you telling the police, isn’t it, that when you were asked by Mr Mareangareu to open up the phone, you did open up the phone?‑‑‑
A:Yep.
Q:And you could see that the video was still there?‑‑‑
A:Yep.
Q:… And you then engage in a surmise or speculation that at some point after that it must have been deleted?‑‑‑
A:Yep.
Q:… Follows, doesn’t it, from what you’re saying that before that point it was still … in existence. That’s right?‑‑‑
A:Yeah, that’s correct.
...
Q:‑ ‑ ‑ you were in a position to delete it yourself?‑‑‑
A:Yeah. I could’ve. Yeah.
...
A:... But why would I?
Q:Okay. All right. Well, you knew, didn’t you, from that moment when you opened it up at that stage and could see the video sitting there ‑ ‑ ‑?‑‑‑
A:Yeah.
Q:‑ ‑ ‑ at that point in the van ‑ ‑ ‑?‑‑‑
A:Yep.
Q:‑ ‑ ‑ you knew the police would be going through the phone?‑‑‑
A:Yeah.
Q:You knew that Mr Mareangareu would be going through the phone?‑‑‑
A:Yep.
Q:And you knew that he’d be doing it then and there. Yes?‑‑‑
A:Yeah.
Q:And you knew that that meant that he would be going through photographs as well as messages?‑‑‑
A:Yep.
Q:That’s right?‑‑‑
A:Yeah. That’s correct.
Q:And that if he did that that the very first thing that he would see would be you secretly filming him?‑‑‑
A:Yep.
Q:That’s right, isn’t it?‑‑‑
A:Well, it wasn’t secret, but yeah.
Q:Yes. Or that you – filming him?‑‑‑
A:Yep.
Q:… You must have been very scared on the night when you were sitting in the van?‑‑‑
A:Yeah. I was. Yeah.
Q:… Terrified?‑‑‑
A:Yeah. I was pretty scared.
Q:Worried about getting into trouble. Yes?‑‑‑
A:Yep.
Q:But also worried about what the police might do?‑‑‑
A:Yep.
...
Q:Because you would say that you observed the police acting inappropriately before you ended up in the van. Correct?‑‑‑
A:Yeah.
Q:And you would say violently?‑‑‑
A:Yep.
Q:… And you were thinking, weren’t you, ‘Well, what’s going to happen if Mr Mareangareu sees this video I’ve taken of him’?‑‑‑
A:I was under the impression that he knew that the video was being taken.
Q:All right. You say that you weren’t scared about what possible reaction there might be?‑‑‑
A:Why would – what would they do?
Q:Right. You say this … on your oath … that sitting in the back of the divisional van, … [i]n the dark ... [a]t 2 o’clock in the morning ... [w]ith the police there, but no one else to your knowledge at that stage. Correct?‑‑‑
A:Yep. Mareangareu was actually being quite nice to me at that time though beforehand. He was saying the stuff about the Mitcham Hospital and, like, making a bit of – just – bit of conversation about the Challenger as well afterwards and ‑ ‑ ‑
...
Q:Did you delete the recordings when you had the opportunity to do in the back of the van?‑‑‑
A:Absolutely not.
Q:Can I put to you that this suggestion as well in relation to Mr Gundrill suggesting that he would delete – he would withdraw the charges if you deleted the video is rubbish?‑‑‑
A:Yeah. He requested that.
… .”
48 The inference can safely be drawn that although you may not have been complicit in the deletion of the video, you were well aware of its existence and the potential impact it had. The inference can be drawn from the following circumstances:
(a) When he arrived at the police station, Mr Foster was found to have blood on or around his nose. The police attendance summary records:
”Comments
Injuries – Bloodied nose – Refused medical treatment
...
Initial supervisor check - Bloodied nose.
I said: How did you get the bloody nose?
He said: The copper hit me because I pushed his arm away.
I said: Why did you push his arm away?
He said: He was trying to search my bag and I didn’t want him to.”[24]
[24]Trial exhibit M
(b) The Prisoner’s Property Sheet made in respect of the property seized from Mr Laird at the time of his arrest recorded the fact that he had a mobile phone;[25]
[25]Trial exhibit T
(c) Mr Gundrill’s handwritten notes that you included in the brief contained a reference to a conversation he had with Mr Laird about the phone:
Gundrill: “The screen on your mobile phone has cracked. Was it like that before?---
Laird: Yes.”[26]
[26]Trial exhibit J
(d) The video captured damaging evidence of your treatment of Mr Foster;
(e) The video recording occurred right in front of you, as you were conversing with both Mr Laird and Mr Foster;
(f) Both Mr Laird and Mr Gundrill referred to the phone as Mr Laird was in the process of making his recording, as can be heard on the recording;
(g) In your presence Mr Gundrill directed Mr Laird to “get rid of that video right now”, as is also heard on the tape;
(h) Mr Laird testified that both you and Mr Gundrill each referred to and handled the phone while Mr Laird was either in or in the vicinity of the divisional van. In particular, you handled the phone and scrolled through the messages and the images where the videos were recorded and stored. The phone stored the images and videos in reverse chronological order, meaning that the most recent photograph or video would first appear when the application was opened. Not only did you look at and scroll through this section of Mr Laird’s phone, you even commented on at least two images;
(i) When cross-examining Mr Laird, your counsel did not suggest to Mr Laird that his evidence about your handling of his phone was untrue;
(j) When you gave evidence, you swore that you were unaware that Mr Laird even had a phone, let alone that you handled it or scrolled through the images contained in it;
(k) Also, when giving your evidence, although you denied knowledge about Dodge Challengers, you did not deny that you had travelled to the USA, and if true, it was a fact Mr Laird could not have known about unless you told him;
(l) When given the opportunity to have Mr Laird recalled so that your version of this matter could be put to him, your counsel declined the opportunity;
(m) During discussion with counsel about directions that might be given in accordance with the Jury Directions Act 2015, I asked your counsel whether I should instruct the jury about any possible reason for his failure to challenge Mr Laird about that aspect of his evidence. Your counsel stated that it was unnecessary for me to provide any potential explanation for his failure to challenge that part of the evidence. Instead, your counsel assured me that his cross-examination had been conducted in accordance with your specific instructions he held at the time;[27]
[27]TT1286-1288. It should be noted that I did not direct the jury about the rule in Browne v Dunn (1893) 6 R 67
(n) You had motive to conceal the fact that a video had been taken; and
(o) You were aware that Mr Gundrill had made no mention of the video in his police statement (which was based on a draft you provided to him), a copy of which you included in the brief of evidence.
49 Turning to the final particular of the attempting to pervert the course of justice charge, your counsel conceded that it is open to find that this is the basis upon which the jury’s verdict of guilty was returned.
50 Returning to the first particular, I see no inconsistency between the jury’s verdict of acquittal on perjury Charge 7 and the conviction on the attempt to pervert the course of justice charge. Part of your statement alleged to be false was in fact true – in particular it was an undisputed fact that the part of your statement that asserted “MR FOSTER has slapped my right arm” was true.
51 In all the circumstances, I am satisfied that all the particulars are made out.
Gravity of your offending
Common assault
52 The gravity of the crime of common assault varies widely, always depending upon the circumstances peculiar to each case. What makes yours a more serious example is the fact that you were a serving member of police, on duty, expected to respect civil liberties and to uphold the law. Also, as a strong, well-built man, you were far more powerful than your teenaged victim. You were perhaps frustrated by your perception that the boys were being uncooperative and lacked the respect you thought you deserved. You lashed out, believing Mr Foster to be a “smart arse”.
53 The learned prosecutor, who was not trial counsel, conceded that the jury’s verdict does not exclude the possibility that although you may have held the subjective belief that your conduct was necessary in self defence, your conduct was not a reasonable response in the circumstances as you perceived them. I do not consider that position to be consistent with your sworn testimony and other evidence at trial. Although there is no dispute that regardless of who was the initial aggressor, Mr Foster did slap your arm in an attempt to free himself of your grip, and the video records you saying that Mr Foster hit you, you told the jury, in effect, your self defence response only commenced after you punched Kyan Foster to the face. In your conversation with Ms Foster, you told her that when you struck her son, you were “in fear for … [your] life”.[28] There were other representations that you made to Ms Foster in that discussion that shed light on your claim of self defence. The conversation includes the following exchanges:
[28]Trial exhibit A4, page 2
Mareangareu He fired up and he wanted to have a crack at the coppers and he lost Foster Is that his only charge? Mareangareu No, he was given one for assault police which is a summary offence, not indictable, and he is getting one for resist arrest. Now, I could have loaded him up – I could have loaded him up with about 12 different charges but I kept it down to three. When you assault police, there’s two types, there is an indictable offence which is a copper will get an injury or something like that (indistinct) or a broken leg or something, and there is a summary one. All they have to do is put the copper in fear of his life, just put him in fear and what he done was – I’ve gone like that to brush his hand and he has just gone whack – Foster … Were you in fear of your life? Mareangareu Yeah.
…
Do you go to work and expect someone to hit you?
…
I don’t go to work and expect that someone have a crack at me on Christmas morning.
…
I was asking him questions. He’s the one who fired up. ‘G’day, boys, how are you going? What have you got in your bags? Can we have a look? We have got people knocking over cars, doing graffiti, what have you got in the bag?’ ‘Nothing, what are you going to do about it?’…
Straight off the bat, he is aggressive, so what does he expect us to do?
Foster Well, not beat him up. That’s what we expected. Mareangareu No, we would never beat him up. Hold on, we never beat him up. We’ve spoke back – I spoke back to him the way he spoke back to me. I speak to anyone in a normal manner. Foster You punched him in the face - Mareangareu Yes - Foster Without provocation - Mareangareu Smack, whack -
…
Yeah, I’m not denying it.
Foster He did a defensive move and you punched him in the face. He is 17 years old. Mareangareu Yeah, and I’m not denying it.
…
It was Christmas morning, he could have just shown his bag, a bi[t] of paper, end and sorted.
…
He is not in big trouble.
Foster I don’t think he should be in any trouble. You said he’d get a slap on the wrist in court. He’s had a punch in the face. Mareangareu Yeah. I’m not the magistrate. I can’t dish out justice, but if you were to go at us, you are going to get hurt. Not hurt, we are going to defend ourselves.
…
I’m a 52 year old man who doesn’t expect to be hit by a stoned 17 year old kid, and it happens to us -
Foster He didn’t hit you. Mareangareu He didn’t? Foster He didn’t hit you. Mareangareu He didn’t hit me? No worries. Foster You said yourself that night that he pushed your arm away. Mareangareu No, no. He slapped me on the hand like I told you on that day. He slapped me, what am I supposed to do? Just take it? You don’t hit us. We don’t go to work expecting to get hit.
…
I don’t expect to have smart arses of Christmas morning talk to me the way he did. I was quite civil….
… Foster I’m upset because as far as I’m concerned, you’re a man who hurt my kid. Mareangareu I’m a 52-year-old man, I’m an old man.
… And I’ve never denied it.
…
I don’t know what’s coming next. If someone whacks me, I don’t know what’s coming next. That’s why probably now more than ever, we’re going to defend ourselves even harder now because of what’s happening. They’re changing the whole way that we work, probably over the last two months.
54 Although Mr Foster may have refused your request to look in his bag, as he was entitled to, he was not aggressive. The video speaks for itself in this regard.
55 When cross-examined by the prosecutor before the jury about your assertion to Ms Foster that you were in fear for your life, the transcript records:
Q;Well, when in this timeframe was it that you moved from no fear for your life to a fear of your life?---
A: After I hit him. Strictly after I hit him.”[29]
(emphasis added)
[29]T1152
56 If your self-defensive response did not commence until after you punched Kyan Foster, then the blow you landed before that time could not have been in self defence. It might have justified what you did next, but it could not operate retrospectively to lawfully excuse what you had done before. Although self defence does not always require a person who is under attack to be in fear for his or her life before being able to respond lawfully to the threat, that is how you put your claim of self defence to Ms Foster, a position you maintained before the jury.
57 Accordingly, I am unable to agree that your response to Mr Foster’s slap may have been made in the belief that it was necessary in self defence. At any rate, your conduct was not a reasonable response in the circumstances as you perceived them. It was a gross overreaction and was wholly unwarranted.
58 Thankfully, Mr Foster suffered no immediate injury although the blow “really hurt” and was of sufficient force to knock him from his seated position on a fire hydrant to the ground, where he likely suffered the blood nose.
Attempting to pervert the course of justice
59 The crime of attempting to pervert the course of justice is a very serious one. The maximum applicable penalty of 25 years’ imprisonment is sufficient to mark the gravity of this crime, although this must be kept in perspective.[30] The maximum penalty is reserved for the worst category of offending.
[30]Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 at paragraph [7]
Offence gravity
60 In R v John Healy,[31] Charles JA, dealing with a case where the appellant had attempted to bribe the victim of a sexual assault to withdraw charges, observed:
[31]Unreported, VSCA, No 51 of 1997, BC9703737
“The offence to which the applicant pleaded guilty was correctly described by the learned judge as a very serious one and one which in most cases attracts a custodial sentence. As his Honour put it,
‘the administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.’
Indeed, in R v Andrews (1972) 57 Cr App R254, Lord Widgery, CJ said, at 258, that –
‘there are few more serious offences possible in the present day than those which tend to distort the course of public justice and prevent the courts from producing true and just results in the cases before them ...’
Plainly any sentence should reflect a substantial element of general deterrence.
Furthermore, the applicant was well aware of the criminality of his attempts to silence the victim’s accusations, as can be demonstrated by his repeated attempts to disguise the bribe and his warnings that all involved had to be careful.”
61 In R v Buscema,[32] Nettle J (as his Honour then was) observed:
[32][2011] VSC 206 (citations and footnotes omitted)
“[6]Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition. The offence is broadly defined, however, and as so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending. Circumstances which bear upon the assessment of the nature and gravity of particular offending, and so upon the sentence to be imposed, have been identified as including the following:
a) The consequences which the offending was calculated to avoid;
b) The time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue;
c) Whether the deception involved some other person, either as an accomplice or as a victim;
d) Whether there was any threat or violence involved;
e) Whether the offence was spontaneous or premeditated;
f) Whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.”[33]
[33](Ibid) at paragraph [6]
62 It is particularly serious to engage in conduct that exposes a person to wrongful conviction and imprisonment.
63 In R v Cumber,[34] the English Court of Appeal observed:
“To bring a false accusation of assault against an innocent man is a serious form of perverting the course of justice. It involved considerable distress, and in this case expense, to … [the victim] against whom the false allegation was made. It also involved a gross misuse of the courts of this country. The seriousness of such conduct had to be marked by the learned judge and had to be marked by a sentence of imprisonment taking immediate effect.
… .”[35]
[34](1989) 11 Cr App R(S) 470
[35](ibid) per Pill J at 471
64 R v Goodwin[36] is also an example of the seriousness with which the crime must be regarded when a false allegation of a grave crime is made. In that case, a young female offender made a false allegation of rape against her former boyfriend. As a result he spent fourteen days in custody before the truth was exposed. Her youth, immaturity and guilty plea notwithstanding, the Court of Appeal remarked that:
“…, on any view, … [what the appellant had done was], a wicked thing to do. ... The possibilities are terrifying when one considers what might have happened had the police not been so persistent [in uncovering the truth].
… It is necessary to make people understand that this sort of lie will be met by severe punishment. … .”[37]
[36](1989) 11 Cr App R(S) 194
[37](ibid) per Lord Lane CJ at 196
65 Fortunately, this is not a prevalent crime and the maximum applicable penalty applies to the worst possible class of offending.[38]
[38]See Director of Public Prosecutions v Aydin and Kirsch (supra) at paragraphs [11], [26] and [28]
66 The authorities demonstrate that among the matters to be considered are:
· Whether the conduct constituted a continuing offence and was persistently pursued, or whether the conduct was a momentary lapse of judgment;
· The degree of premeditation;[39]
[39]See Director of Public Prosecutions v Josefski (2005) 13 VR 85 at paragraph [74]
· Whether the conduct sought to influence matters regarding bail;[40]
[40]Director of Public Prosecutions v Aydin and Kirsch (supra)
· Whether the conduct related to the concealment or falsifying of evidence or exhibits;
· Whether the conduct involved a false allegation of serious criminal conduct exposing an innocent person to wrongful conviction;[41]
[41]R v Cumber (supra)
· Whether the conduct resulted in the imprisonment of an innocent person;[42]
[42]R v Goodwin (supra)
· Whether the conduct was an attempt to bribe police officers in the execution of their duty;[43]
[43]Director of Public Prosecutions v Aydin and Kirsch (supra) and R v Reading [1998] VSCA 37
· Whether there was an element of entrapment;[44]
[44]See R v Reading (ibid)
· Whether the offending included threats of physical violence;[45]
[45]See Director of Public Prosecutions v Aydin and Kirsch (supra); and R v Flett [2005] VSCA 87 at paragraph [24]
· Whether the offender was the instigator or was drawn into the offending by others;[46] and
· Motive.
[46]Director of Public Prosecutions v Josefski (supra)
67 The dominant sentencing factors in cases such as these are denunciation and deterrence, both general and specific.[47]
[47]Saleem v The Queen [2014] VSCA 190 and the cases referred to therein; Zotos v The Queen [2014] VSCA 324
68 Ms Coghlan submitted that your offending falls within the mid range of seriousness, while your counsel submitted your conduct falls at the lower end of the scale of seriousness.
69 When explaining why the highest standard of proof, proof beyond reasonable doubt, is applied in criminal cases, it is often said that it is because society has made a value judgment that it is better for ten guilty men to go free than to have one innocent man wrongly convicted. Your conduct was calculated to have a guilty man – you – go free and innocent persons – the boys – be wrongfully convicted.
70 What makes your case a serious example of this crime is –
(1)As just mentioned, your conduct was not related to a case in which you were the accused. You were seeking to gain the advantage of hiding your own misconduct and in doing so you exposed two teenagers, neither of whom had prior convictions, to the risk of wrongful conviction. That would be a grave miscarriage of justice. The impact of such a consequence could have had devastating ramifications for the boys.
(2)As an experienced serving member of Victoria Police, your duty was to uphold the law, not break it. Worse still, you compounded your crime of assault by attempting to use the criminal justice system as a vehicle to escape responsibility for your misconduct;
(3)You abused the trust that the community has placed in you to exercise responsibly the powers of search, seizure and arrest conferred upon you as an officer of the law;
(4)Yours was not a spontaneous act. You set a course to cover your tracks and then stuck to it, regardless of the consequences; and
(5)Your conduct has the very real potential to both diminish the reputation that police enjoy in our community and also to undermine the public’s confidence in the administration of justice more generally.
71 That the boys were not wrongfully convicted is no thanks to you. It was Mr Laird’s father and independent members of police who were committed to and did uncover the truth. Had it not been for the resourcefulness of David Laird, who sought out and paid the expert to recover the video files, your crimes might never have been uncovered and the charges against Mr Foster and Mr Laird would not likely have been withdrawn. Without the video, had the matter been contested in court, it would have been your word as an experienced sworn member of police holding no apparent motive to lie against two inexperienced teenagers, each of whom had been found in possession of cannabis.
Impact of your offending
72 Both Kyan Foster and his mother, Lisa Foster, made Victim Impact Statements tendered as exhibits B and C respectively. Neither of them wanted their statement to be read aloud in Court. I have read the statements and note that Mr Foster has suffered considerably as a result of your conduct. At law Mr Foster was a child when found in possession of the small quantity of cannabis. His case was to proceed in the Children’s Court where if found guilty of all charges, his crimes would not likely have been the subject of media attention. Now, because of your crimes, he has been identified in the media. The coverage has been extensive. Mr Foster fears the attention will forever shadow him. Whenever his name is “Googled” he will be identified as the person who was the subject of charges. That may hamper his employment prospects.
73 Ms Foster has also suffered. She is left feeling frustrated, powerless and in fear.
Plea in mitigation
74 As your counsel, Mr Halphen, identified, there are a number of mitigating factors to be considered:
Personal history
75 Your personal history is well set out in the report of Mr Patrick Newton, clinical and forensic psychologist, dated 18 July 2018[48] and summarised in your counsel’s written submissions.[49]
[48]Exhibit 1, tab B
[49]Exhibit 1, tab A
76 You were born in New Zealand in November 1963. At the time of offending, you were aged 51 years. You are now aged 54.
77 You are the eldest of four children, appear to have come from a loving and supportive family. Your father was a commercial fisherman and your mother was a homemaker.
78 You successfully completed high school. You were a good sportsman and made friends easily at school. You left school in a period of economic recession in New Zealand. This made it difficult for you to obtain an apprenticeship so you found work in a “fish factory”. You worked there for several years and then obtained work at the local abattoirs.
79 In 1987, you came to Australia hoping to improve your prospects of employment. You undertook a tiling apprenticeship and then worked for the same employer until 2000. Thereafter you worked in sales with a number of tiling and ceramics companies.
80 In 2005, you sought more meaningful and fulfilling work and decided to join Victoria Police. You commenced at the Victorian Police Academy on 28 November 2005, graduating on 21 April 2006. You commenced general duties on 24 April 2006. You were confirmed as a constable on 21 April 2008. On 21 April 2010, you achieved the rank of Senior Constable. You have worked diligently as a committed member of Victoria Police for many years and have acted as mentor for junior members.
81 On 12 August 2015, you were suspended from duty as a result of the investigation into the matters that brought you before this Court. You returned to work in March 2016, on restricted duties. In April of this year, you qualified for, but did not accept, the rank of Leading Senior Constable.
82 Following the jury’s verdict, you were suspended from Victoria Police without pay. It would appear that your career as a member of Victoria Police is all but over.
83 You have been married twice. Your first marriage lasted sixteen years, ending in divorce in approximately 2000. You later married your current wife, Donna. You have been together for approximately sixteen years now. You have two daughters aged twelve and ten. Your eldest daughter has had bilateral talipes (club feet) since birth and has undergone approximately twelve surgical procedures. She has worn bilateral ankle/foot orthoses all her life. You are a committed family man who enjoys the love and support of those around you.
84 As you stated at trial, your work has exposed you to a number of attacks:
“I’ve had everything. I have been slapped, I have been punched, I have been kicked, I have been elbowed, I have been driven at by cars, I have been rammed by cars. I have been spat at. I have had faeces thrown at me. I have been vomited on. I have had syringes with blood pointed at me. And I have had a gun pointed at my face. ... .”[50]
[50]TT1128
85 In addition, your work duties have involved you in distressing and traumatic events including multiple attendances at fatalities and suicides.
86 In your experience at work you have witnessed things that many people do not see or experience in a lifetime. All of this has taken an emotional toll upon you, and you have had repeated difficulties relaxing and frequent sleep disturbance as well as periods of emotional exhaustion. Notwithstanding this, you have typically avoided psychological input, avoiding debriefing and referrals for counselling. Fortunately, you have not resorted to alcohol or illicit substances to cope with work and life stressors.
87 Mr Newton considered that you are prone to downplay the level of distress that you experience and that you often hide your emotions. With the benefit of detailed interviewing and extensive psychological testing, Mr Newton concluded that under your calm exterior you are in fact suffering noteworthy symptoms of depression and anxiety. These symptoms are most evident in your concern for your wife and family, rumination about the jury’s verdict, and a degree of deeply held pessimism about your future. You feel a sense of powerlessness about your future. You perceive yourself to have been misunderstood and you fear that your control of your future is now in the hands of others. These feelings of hopelessness and loss of control have in turn combined to trigger recollections of difficult and confronting experiences from your policing career. In combination, your symptoms cause you a noteworthy level of emotional distress. Your symptoms combine reactive elements – related to your recent prosecution and trial – and more long-standing features reflecting distressing experiences from your career in Victoria Police. In addition, you are unsure of your future career prospects and this has left you uncertain about your direction in life more broadly. Together these issues leave you feeling insecure regarding your sense of identity, and floundering to re-orientate yourself in life.
88 Mr Newton considered that these symptoms cause you sufficient distress to meet DSM-5 criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also considered that there is some risk that your mood could deteriorate if your level of stress should continue. Accordingly, he is of the opinion that you should continue with the psychological treatment you have already commenced and, if necessary, be referred for appropriate medical management should your mood deteriorate. Mr Newton added that there is no indication to suggest that you were suffering from any mental disorder at the time of offending.
89 Mr Newton also noted that in a forensic context, there is no indication of psychopathic or antisocial personality traits. There is no evidence of generalised problems with impulse control or that you are alienated from society. While you are not timid, Mr Newton did not consider there was evidence of your need for stimulus seeking or risk taking. You told Mr Newton that you viewed your position as a police member as a special trust placed in you by the community, and this prosecution has shaken your identity severely.
90 In his concluding remarks, Mr Newton reported:
“My assessment suggests that Mr Mareangareu is an essentially normal individual with considerable potential to overcome his current challenges and to continue to engage successfully with society. While he is experiencing some noteworthy emotional distress as a result of the various stressors in his life, and while he would be prudent to continue to access some personal counselling to address this, no deeper psychological, behavioural or personality-based issues were identified as being extant and there is no indication of any factors that would suggest an elevated risk for further criminal offending.
… In the event that the Court should consider a custodial disposition to be appropriate in his case, there would be some risk that Mr Mareangareu’s level of emotional distress would increase markedly. His personality is such that he is particularly prone to internalise the punitive aspects of sentencing in the form of mood disturbance; it would be important that he had access to effective treatment in such circumstances. While almost all prisoners experience a degree of emotional turmoil following sentence, in Mr Mareangareu’s case this would be likely to be rendered more intense by virtue of his status as a past member of Victoria Police and the additional ‘challenges’ which would be likely to arise on this ground alone. To this extent it is likely that his experience of imprisonment would be rather more burdensome than that of a typical prisoner.
More broadly, Mr Mareangareu’s prognosis for rehabilitation is considered to be very good. There are no indications of dispositional or other psychological factors underpinning his offending which might act as precipitants for recidivism on his part. … .”[51]
[51]Exhibit 1, tab B, page 7
Prior good character
91 You are a man of undoubted prior good character. Not only have you no prior convictions, but you have never previously faced any disciplinary charges. You previously enjoyed a very good reputation in the community.
92 The folder of materials tendered as exhibit 1 on your behalf contains some 55 character references. Some of the referees were present in Court to support you at the plea hearing.
93 I have read all of the references. They speak of a man dedicated to the protection of the community, committed to his work and his family. In short, a trusted, respected, admired and reliable worker, a loyal friend and a devoted, loving father, husband, son and son-in-law.
Contribution to the community
94 Until this incident, you had served as a member of police with distinction. Your bravery has been recognised. On three separate occasions you risked your own life to save others.
95 Your first commendation was presented on 3 June 2009 when you were awarded a divisional commendation for bravery and courage.[52] On 8 August 2008, whilst conducting divisional van duties in the early hours of the morning, you attended on a suicidal woman who had climbed up a four-storey construction site. She threatened to jump from the top floor. You managed to scale the same building from a different direction. You grabbed the woman by the shoulders when she was jumping and saved her from leaping off the building.
[52]Trial exhibit SM1; plea exhibit 1, tab D
96 The second commendation was bestowed on 22 June 2016 when you were awarded a divisional commendation for courageous actions.[53] On 29 March 2016, you were off duty when you discovered a man struggling in treacherous waters in the outgoing tide of Western Port Bay. You contacted emergency services immediately and then swam 200 metres to rescue the man. You brought him to shore where you were assisted by paramedics. You later learned that the man had jumped from the San Remo Bridge as part of a dare.
[53]Trial exhibit SM2; plea exhibit 1, tab D. See also references of Tamara Meadows, exhibit 1, tab E, page 27; Lorraine Mason, exhibit 1, tab E, page 45; Peter Mason, exhibit 1, tab E, page 55
97 There was a third incident in which you risked your life to prevent a suicide. On that occasion, a man was attempting to kill himself by running towards traffic on Springvale Road, Nunawading. You ventured out into the traffic, tackled the man, saving his life. You then ensured that he obtained mental health treatment.[54]
[54]Reference from Senior Sergeant Nick Vaughan, exhibit 1, tab E, page 5
Delay
98 There has been delay, a fact conceded by the prosecutor. There has been considerable delay in the period since your offending and the matter coming to trial. Not all of the delay is attributable to you. More significantly, I take into account the fact that the charges have been hanging over your head for quite some time, and that in the period of delay you have committed no further breaches of the law. There are no pending matters.
Prospects for rehabilitation
99 I have already referred to Mr Newton’s opinion that your prospects for rehabilitation are good.
100 On the other hand, Ms Coghlan submits that Mr Newton’s opinion must be balanced against your belief that you are innocent of the crimes and the fact that you have shown no remorse.
101 It must be observed that when making his plea on your behalf, not a word was uttered by your counsel about any victim empathy you may feel. Indeed, not one of the 55 references tendered on your behalf demonstrates you have any understanding of the impact of your offending on the victims or the potential damage you may have caused had the video not been recovered.
Submissions about penalty
Submissions made on your behalf
102 Given your prior impeccable character, your extraordinary acts of bravery, your personal history and circumstances, your excellent prospects for rehabilitation, and the fact that you have already suffered as a result of your crimes both in terms of loss of career and in terms of shame resulting from the wide media coverage of the case, your counsel urged me to release you on a community correction order.
103 I should note that on the question of hardship if you are imprisoned, I accept that if imprisoned, the term will be more onerous for you because of your status as a former member of Victoria Police.
The Prosecution submissions
104 Ms Coghlan, on the other hand, submitted that the circumstances of your attempt to pervert the course of justice are so grave that nothing short of an immediate term of imprisonment will suffice. She submitted that a combined term of imprisonment with a community correction order is outside the range for that crime in the present circumstances.
105 [Discussion ensued with counsel about whether the names of Kyan Foster and Stuard Laird should be suppressed]
106 MS THOMPSON: Thank you, Your Honour. There's no objection to their names being mentioned in the summary, Your Honour, or the sentence.
107 HER HONOUR: Thank you very much.
Sentences to be imposed
108 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
109 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
110 In arriving at the appropriate sentence for the crime of attempting to pervert the course of justice, I have considered the extent to which the principles of mercy can be given effect to reduce the penalty. As was stated in Adams v R; Director of Public Prosecutions v Paranihi; Director of Public Prosecutions v Soltan:[55]
“The facts of a particular case may justify the sentencing judge adopting a merciful approach to the exercise of his or her sentencing discretion.[56] However, while considerations of mercy may inform the appropriate range, they cannot justify a manifestly inadequate sentence.”[57]
[55][2011] VSCA 77 at paragraph [70]. See also paragraph [89]
[56]R v Osenkowski (1982) 30 SASR 212 at 212-13; R v Clarke [1996] 2 VR 520 at 523
[57]Director of Public Prosecutions (Vic) v Cook (2004) 141 A Crim R 579 at 586, paragraph [16]; at 589, paragraphs [28]-[30]; at 591, paragraphs [42] and [43]. See also Markovic v The Queen [2010] VSCA 105 (5 May 2010), paragraph [14]
111 Offending of this nature would ordinary attract an immediate term of imprisonment of some length. I agree with Ms Coghlan that your offending falls in the mid range for the reasons I outlined earlier. You pleaded not guilty, and therefore you are not entitled to any sentencing discounts that would have attached to a guilty plea. You have shown no remorse, made no apology and have not demonstrated any appreciation of the harm you have already caused and might have caused had the video not been recovered. You feel that you have been punished to an extent as a result of the media attention you have attracted, but you fail to recognise that the same publicity has caused suffering to Mr Foster and possible to Mr Laird. As a member of police acting in the execution of your duty, abusing power conferred upon you and taking advantage of your position as a trusted officer of the law, your conduct was disgraceful and utterly abhorrent.
112 The question which has troubled me is whether the exercise of mercy can extend so far as to justify releasing you on a non-custodial disposition. As I observed at the plea hearing, most members of the community will go through their entire lives, each without ever risking their own life to save that of another. But you have done that on three separate occasions. There are three people who owe their lives to you. A cynic might say that is just part and parcel of being a policeman, most members of police put their lives at risk every day. But that does not explain the extraordinary courage you displayed when you were off duty and swam out in treacherous waters to save a total stranger.
113 I now turn to the sentences to be imposed. Would you please stand, Mr Mareangareu.
114 Every member of the police on front line duty demonstrates enormous courage and bravery every day. It is service that the community has much to be grateful for. But that cannot excuse an individual member, no matter how brave, from taking the law into his own hands to mete out summary justice and then cover up his wrongdoing using the criminal justice system to achieve that end.
115 On charge four, attempt to pervert the course of justice, I have agonised over the appropriate sentence. I extend as much mercy as I am able to in all the circumstances, but I cannot accede to your counsel’s request that I release you on a community correction order. I consider that such a result would fall outside the appropriate sentencing range even with full credit given to your prior good character and your remarkable acts of courage and bravery.
116 That said, I have significantly reduced the term of imprisonment than I would otherwise have imposed. You are convicted and sentenced to a term of twelve (12) months’ imprisonment.
117 On common assault, the alternative to Charge 1, you are convicted and fined $5,000.00.
118 Mr Halphen, is time required - you may be seated, Mr Mareangareu. Is time required to pay the fine?
119 MR HALPHEN: Yes, Your Honour. Six months.
120 HIS HONOUR: I grant a stay of six months - - -
121 MR HALPHEN: Thank you, Your Honour.
122 HIS HONOUR: - - - in relation to payment of the fine.
123 MR HALPHEN: And, Your Honour, just while I'm on my feet, could it be noted for the purpose of the authorities that - the obvious matters that Mr Mareangareu is a police member and this is the first time he is being in custody.
124 HER HONOUR: Yes, a welfare letter will be sent to the prison authorities noting Mr Mareangareu's status as a former member of Victoria Police and requesting that all care be given to ensure his safety. We will ensure that correspondence to that effect is given to the prison authorities. Please do not remove Mr Mareangareu from the vicinity of the court until the letter is provided.
125 Thank you, the prisoner may be removed. Please remove the prisoner. Close the court.
- - -
ANNEXURE “A”
Transcript of Recovered Video
| FIRST VIDEO FILE - (Report says created at 02:39:50) | |
| LAIRD | S.T.U |
| MAREANGAREU | Yep |
| LAIRD | A.R.T |
| MAREANGAREU | A.R.T |
| LAIRD | Yeah. And then L.A.I |
| MAREANGAREU | L.A.I |
| LAIRD | R.D |
| MAREANGAREU | R.D. What's your date of birth Stuart? |
| LAIRD | 30th of December |
| MAREANGAREU | Yep |
| LAIRD | 1997 |
| MAREANGAREU | 97. Where do you live. |
| LAIRD | Ah just … do I have to give the exact address? |
| MAREANGAREU | You been in trouble with the law before? |
| LAIRD | Nah |
| MAREANGAREU | Nothing |
| LAIRD | Never |
| MAREANGAREU | Yeah you do. |
| LAIRD | OK. |
| MAREANGAREU | Because right now I suspect you blokes are doing burglaries. So therefore… |
| LAIRD | Burglaries |
| FOSTER | Fucken hell. Christmas day, we're burglaring man, Christmas morning man. That's what we're doing |
| MAREANGAREU | …that's why I want to look in your bags (underneath FOSTER talking at the same time) |
| LAIRD FOSTER | We're not burglars. That’s what we’re doing Stuart, burglaring. I’m sorry, we’re not burglars. |
| MAREANGAREU | Where to you live Stuart? |
| LAIRD | Alright. 3 Talbot Street [Apparent break in audio] |
| MAREANGAREU | Yep |
| LAIRD | Mitcham |
| MAREANGAREU | Mitcham. Got any ID on you? |
| LAIRD | Ah no I don't sorry. |
| MAREANGAREU | What's your name? |
| FOSTER | Yeah me? |
| MAREANGAREU | Is there anyone else here? |
| FOSTER | Oh there's him man. |
| MAREANGAREU | Yeah I got his details, aren't you listening smart arse? |
| FOSTER | No man, fuck. Alright. Kyan. K.Y.A.N |
| MAREANGAREU | Pardon? |
| FOSTER | K.Y.A.N |
| MAREANGAREU | Yep |
| FOSTER | F.O.S |
| MAREANGAREU | This is one word? |
| FOSTER | No this is my name man. Kyan is my name. |
| MAREANGAREU | Yep |
| FOSTER | Then you've got my last name. |
| MAREANGAREU | Hey sonny. Don't get smart. Just … |
| LAIRD | Oi Oi Oi |
| MAREANGAREU | Fucken assaulted me. |
| FOSTER | What the fuck |
| LAIRD | What are you doing Kyan? Kyan? Oi please. Please. Sorry, I'm sorry. |
| GUNDRILL | You don't look sorry |
| LAIRD | I didn't do anything man. |
| MAREANGAREU | You don't fucken hit police, alright. |
| GUNDRILL | Sit down there. Sit down (shouted) |
| LAIRD | Can I please get my phone… |
| GUNDRILL | No (shouted) |
| FOSTER | What the fuck? |
| GUNDRILL | Sit down (shouted) |
| MAREANGAREU | You don't fucken hit police. |
| FOSTER | I'm not trying to cause trouble man. Can I just … |
| MAREANGAREU | Well just fucken give us your details and you're on your way. |
| GUNDRILL | What did I just tell you? I said no, get up. No means no. |
| MAREANGAREU | Sit down. |
| FOSTER | What do you want him for, he's done nothing man |
| MAREANGAREU | Sit down. |
| FOSTER | Alright. |
| MAREANGAREU | Now don't touch fucken police. |
| FOSTER | K.Y.A.N You touched me first man. What's with you man? |
| MAREANGAREU | Because you're being a smart arse. |
| FOSTER | I'll give you my details, just calm it down man. Fucken … |
| UNKNOWN MALE | Do you need a hand mate? |
| GUNDRILL | Hey? |
| UNKNOWN MALE | Do you need a hand mate? |
| GUNDRILL | Yeah we're alright now. |
| GUNDRILL | Sit down (shouted) |
| LAIRD | Sorry AUDIO LOOPS OVER AND OVER THE FOLLOWING CONVERSATION |
| GUNDRILL | You're not sorry. You're stupid. You don't listen. |
| LAIRD | I didn't do anything man. |
| GUNDRILL | You did. You're here. One o'clock in the morning, or two o'clock in the morning |
| LAIRD | I'm about to go home … |
| GUNDRILL | Get rid of that video right now. |
| SECOND VIDEO FILE - (Report says created at 02:42:36) | |
| LAIRD | No, I do not consent to a search. |
| GUNDRILL | You don't have to consent … |
| LAIRD | I do have to consent |
| GUNDRILL | I'm doing a safety and evidence search before … |
| LAIRD | No, I haven't broken the law I do not consent to a search. |
| GUNDRILL | Why aren't you, if there's nothing in there |
| LAIRD | I don't have to because I don't want to. Hey no, this is harassment. |
| GUNDRILL | It's not harassment |
| LAIRD | This is harassment. |
| GUNDRILL | You're hiding something from me. |
| LAIRD | I'm not hiding anything alright. |
| GUNDRILL | Well, let's have a look hey |
| LAIRD | Hey, no you can't twist my arm. Hey, OW. Get off my arm |
| GUNDRILL | I'm not on your arm. |
| LAIRD | You are on my arm, you're twisting my arm. What the fuck, ahh. Get off my arm, please. Get off. Get off my arm. |
| GUNDRILL | I'm not on your arm. |
| LAIRD | You're twisting my arm. Get off, you're twisting it. Thank you, that is much better. |
| GUNDRILL | What's in your bag that you're hiding? |
| LAIRD | No I'm not letting you, not showing my bag because I don't have to. |
| GUNDRILL | Well, we might go back to the police station and get your dad to come … |
| LAIRD | No. We're not going to the police. Ok. Get my Dad to come up right now. |
| GUNDRILL | No, the police station |
| LAIRD | No. Stop twisting my arm, I'm not resisting. |
| GUNDRILL | We are gonna go to the police station |
| LAIRD | Stop twisting my arm |
| GUNDRILL | Well. Get up. |
| LAIRD | Ahh |
| GUNDRILL | What have you got in your bag you're not supposed to have? |
| LAIRD | I haven't don't anything wrong. I'm just standing here. What the hell? Hey can you please help us? |
| UNKNOWN MALE | I'll do whatever man |
| LAIRD | We haven't done anything wrong. We were just walking here. What the. Oh my God. Oh this is. No I do not consent. |
| GUNDRILL | You don't have to. You're under arrest AUDIO LOOPS OVER AND OVER THE FOLLOWING CONVERSATION |
| LAIRD | For what, for what crime? |
| GUNDRILL | Hey? |
| LAIRD | For what crime? |
| GUNDRILL | For suspected burglary. You were told that when we …. |
| LAIRD | Suspected burglary. We didn't burglarise anything. We didn't burglarise anything. |
| GUNDRILL | Now give me your bag |
| LAIRD | No I want to … my bag |
| GUNDRILL | You can't have it in the back of the van |
| LAIRD | Ok ok I'll give it to you |
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