Director of Public Prosecutions v Repac
[2019] VCC 175
•22 February 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
CR-17-01946
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN REPAC |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | Trial dates 24 October – 12 November 2018. | |
DATE OF SENTENCE: | 22 February 2019 | |
CASE MAY BE CITED AS: | DPP v Repac | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 175 | |
REASONS FOR SENTENCE
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Catchwords: Common Law Assault
Sentence: Adjourned undertaking without conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Director (Plea) (Sentence) | Ms J. Warren Mr N. Goodenough | |
For the Accused (Plea) | Mr G. Steward Mr B. Kelly |
HIS HONOUR:
1 Steven Repac you fall to be sentenced having been convicted by a jury of one charge of common law assault for which the maximum penalty is imprisonment for five years. It is conceded in this case that a sentence of a term of imprisonment in all of the circumstances would not be appropriate. The issue on the plea was whether or not the sentence I impose should record a conviction.
2 Section 8 of the Sentencing Act 1991 gives the sentencing court a discretion as to whether or not to record a conviction. In exercising that discretion the court must have regard to all of the circumstances of the case, including the nature of the offence, the character and past history of the offender and the impact of the recording of a conviction on the offender’s economic and social well-being or, on his or her employment prospects.
3 During the course of your plea I made it clear to your counsel Mr Steward that I agree with his submission that your offending falls towards the lower end of the range for this offence. It could have been dealt with in a summary way in the Magistrates’ Court where the maximum penalty for any one offence is only three month’s imprisonment. On the plea Mr Steward submitted that I should exercise the power in s.75 of the Act to adjourn the matter upon you entering into an undertaking to be of good behaviour without recording a conviction.
4 Ms Warren who appeared to prosecute on the plea conceded that the offending was at the lower end but submitted that in all of the circumstances any disposition should record a conviction.
5 You were charged on a joint indictment with Ms Nicole Munro. She was charged with one charge of assault, Charge 1, and you were charged with five charges of assault, Charges 2-6. After a trial lasting some eight days the jury was unable to reach a verdict on the charge brought against Ms Munro and it was unable to reach a verdict on Charges 2, 3, 5 and 6 brought against you. The Director of Public Prosecutions later filed a Notice of Discontinuance in relation to the charge brought against Ms Munro and the charges brought against you where the jury was unable to reach a verdict. You thus fall to be sentenced on charge 4.
6 Having been convicted after a trial you cannot expect a reduction in sentence that would normally follow had you pleaded guilty to the charge. You have shown no remorse.
7 The circumstances of the offending may be shortly stated. The prosecution case was that in the early hours of the morning on 15 January 2015 you assaulted the victim Yvonne Berry whilst she was in custody. Your actions in committing the offence in Charge 4 were recorded on CCTV footage. The victim was in a police cell at the Ballarat police station.
8 Earlier in the evening Yvonne Berry was taken into custody and brought to the Ballarat Police Station by you and Senior Constable Munro she having been found in a drunken state in Ballarat. After this was done you and Senior Constable Munro resumed your duties away from the station in the divisional van.
9 Ms Berry was placed in a cell but later she forced her way out overpowering two women police officers in the process. During the scuffle Ms Berry obtained possession of a lanyard belonging to the sergeant in charge of the police station that evening. She roamed through the police station until she was eventually over powered by weight of numbers of police and the use of capsicum spray and what appeared to be complete exhaustion on her part. When she was completely subdued by other officers she lay on the floor of the cell drunk, on her stomach with her hands cuffed behind her back. Her person was thoroughly searched in an attempt to find the lanyard to no avail. In the course of the search carried out by others her clothing, including her underwear, was pulled down exposing her buttocks. By this stage she lay on the floor of the cell totally humiliated and vulnerable.
10 Everything that happened in the cell that night was captured on CCTV. There can be no doubt that when you offended the victim had been completely overpowered and subdued. Although she had posed a threat to the security of the station earlier in the evening, when you offended she no longer did so. But the lanyard was still missing. It was later found in a storeroom that had been accessed by Ms Berry.
11 You and Ms Munro answered a call to return to the station to assist in recapturing Ms Berry. But by the time that you and Ms Munro arrived back at the station, Ms Berry had already been completely subdued and searched. She was back in cell 1 in the position I have previously described.
12 In the minute or two before you offended Ms Munro is depicted as possibly speaking with Ms Berry. You and Ms Munro were alone with Ms Berry in the cell with the door clearly open. You and Ms Munro then left the cell. Ms Munro exited first. You had been standing on the victim’s ankles whilst Munro had been speaking with her. As Munro left the cell you got off the victim’s ankles and as you left the cell you kicked her with force to her left shin with your left foot before leaving the cell. This constitutes the assault that you have been convicted of. It was gratuitous and uncalled for. The victim was in custody and totally subdued and posed no threat to anyone especially you. She had not provoked you in any way. It is not alleged that your kick the subject of Charge 4 inflicted injury.
13 There can be no doubt that the unacceptable way in which Ms Berry had behaved on this evening would evoke feelings of both frustration and anger from those who, in the course of their work as police officers, had to deal with her. Her behaviour underscores the fact that the work involved in being a police officer is extremely difficult on occasions. But the public understands that and trusts the police to do their job both professionally and ethically at all times. By your gratuitous kicking of the victim whilst she was in custody, and in a defenceless and vulnerable state, you breached the trust that had been placed in you as a serving police officer. In such circumstances a sentence imposed should appropriately reflect general deterrence and denunciation.
14 Your defence was that what you did was reasonable and necessary to discharge your duties as a serving police officer. That defence was nonsense in relation to this charge. As might have been expected the jury soon rejected that defence. What you did was neither reasonable nor necessary. It was clearly a spontaneous but gratuitous kick. In fact the jury indicated fairly early in their deliberations that they had reached a unanimous verdict on Charge 4 but were having difficulty reaching a unanimous verdict on the remaining charges.
15 You did not give evidence as is your right and there was no record of interview with you that went into evidence. You did however make a written statement about the events of 14 and 15 January 2015. That statement went into evidence. I allowed the prosecution to lead part of that statement as post offence conduct. In that statement you told lies. In it you said that you assisted in placing handcuffs on Ms Berry in the door area of cell 1. That was not true. Ms Berry had already been handcuffed by others before you arrived back at the station. You went on to say that she continually resisted whilst handcuffs were applied so you pinned her down to prevent her from kicking out at other members. That was not the truth. When you re-entered the cell Ms Berry was completely subdued. The prosecution case was that you told these lies in order to try to justify what you had done.
16 After 15 January 2015, Ms Berry made a complaint of having been assaulted whilst in police custody. There followed a number of events which have caused delay in having these matters finalised. Mr Steward in his helpful written outline of submissions detailed a lengthy chronology which has meant that you have had the charges that resulted from the events of 15 January 2015 hanging over your head for some time and this has taken its toll on you in a number of ways. I agree that in many ways the delay in laying charges and bringing them before the courts is in many ways unacceptable and I don’t attribute it to you. I have taken the fact of delay into account as I must.
17 Ms Berry’s complaint was not specifically about the assault of her that was the subject of Charge 4. That was but a small part. Her complaint was about her overall treatment that she had received from a number of police officers throughout the night at the Ballarat Police Station. It was those matters that have attracted extensive investigation and publicity in various quarters of the media. The charge that you have been convicted of, and for which I must sentence you, is all that is left that has resulted in a finding of guilt. This charge brings to account but one or two seconds of your conduct in what was from any viewpoint several hours of regrettable conduct by a number of persons, including Ms Berry.
18 On 2 April 2015 you were suspended with pay by a Notice of Interim Action from Professional Standards Command, a body which apparently investigates the conduct of police. For some months in 2015 the investigation of Ms Berry’s complaint was taken over by the IBAC but by November it had returned the investigation to the Victoria Police.
19 On 22 December 2015 the Notice of Interim Action was rescinded and you were returned to work as a police officer. The following day Professional Services Command determined “there is insufficient evidence to support a criminal prosecution in relation to allegations of assault”. Ms Berry’s complaint was recorded as “Not substantiated”. How any police officer properly investigating this complaint could have reached such a conclusion is beyond my understanding. I can only conclude that whoever it was did not view the CCTV where the fact of your assault on Ms Berry is obvious.
20 It took Police Command nearly two months to advise you in writing of this decision.
21 In May 2016 you transferred to work at Ararat police station. In the same month IBAC came back into the picture it having decided to conduct public hearings. I was told that there had been challenges to the power of IBAC to conduct public hearings. From what I have been told relief in the nature of prohibition was sought in the Supreme Court to stop IBAC conducting its hearings. That relief was denied and special leave to appeal to the High Court refused. I doubt you were behind these proceedings and conclude that others concerned with broader principles instigated them.
22 At the end of May 2016 IBAC, having conducted public hearings at which you were compelled to give evidence, wrote to the Chief Commissioner of Police recommending charges against you and Ms Munro. In June 2016 Professional Standards Command commenced another investigation to consider the sufficiency of evidence and to obtain advice on the prospects of a successful prosecution.
23 In September 2016 you lodged a Work Cover claim for Post-Traumatic Stress Disorder. The claim was accepted by your employer Victoria Police. I received into evidence a report from the Victoria Police Psychologist you consulted in February 2017 which relates in part to the psychological impact upon you following the laying of these charges and the impact upon you of having been subjected to a high degree of public scrutiny.
24 In November 2016 Victoria Police sent a brief of evidence to the OPP for assessment. By this time almost two years had passed and the prospects of summary jurisdiction lost.
25 You were charged on 12 January 2017 with two charges of assault. You were not suspended from duty. There followed discussions about whether or not you could be dealt with by way of diversion. You agreed to a suggestion in a letter from the Office of Public Prosecutions to proceed in this way. Ms Munro, who had also been charged did not agree.
26 I don’t know what happened at this point. The OPP having suggested that the matter be dealt with by way of diversion on 26 July 2017, by 8 August 2017 your solicitor was advised that the then Director of Public Prosecutions had denied the request for the matter to be dealt with by way of diversion. Had the matter in fact been dealt with by way of diversion you would not have had a conviction recorded. Importantly, I regard your willingness to accede to the diversion process as an important matter in the sentencing of you. At that point at least it seems you were willing to accept responsibility for what you had done because acknowledgement of responsibility for offending is a prerequisite to invoking the diversion program.
27
I have not seen the correspondence passing from the OPP to your solicitors
26 July 2017 or the previous Director’s response of 8 August 2017. It may be that the original offer was subject to the Director’s consent. If the charges could not be dealt with by a diversion because Ms Munro did not agree then that is regrettable. If the Director did not accede to the charges being dealt with by way of diversion because of demands or conditions insisted upon by the victim Ms Berry, as I was told, then that too is regrettable. The important point is that so far as you are concerned you then were willing accept responsibility for the offending and to have the charges dealt with by way of diversion.
28 All of this needs to be viewed in context. You were born on 26 July 1989. At the time you offended you were aged 25. You had, and have, no other convictions for anything and have otherwise led an unblemished life. There is nothing pending against you. I received evidence and accept that this offending aside you are a person of good character. You were a young, relatively inexperienced police officer. On any view the action of the assault in Charge 4, though gratuitous, was and inappropriate but spontaneous action that was of a low level. What makes it more serious is that you were a police officer and the victim was in your custody.
29 However, other offenders who are young without prior convictions who are willing to put their hand up to have charges brought against them for the first time are routinely dealt with in the Magistrates’ Court by diversion without a conviction being recorded. The diversion program especially recognises that young people sometimes make mistakes for the first time, and spontaneously do silly things, and given a second chance they are unlikely to re-offend. You fall into that category. I very much doubt you will re-offend again in this way.
30 Yet having been offered, and you having accepted, to being dealt with by diversion, the offer was withdrawn by the then Director at that time for reasons I don’t completely understand. Having seen on the CCTV the way Ms Berry generally behaved, which I regard as being extremely difficult and unacceptable, she also having been a serving police officer, I’m surprised the prospect of having these charges dealt with by way of diversion was lost because of conditions sought to be imposed by Ms Berry. Again the important point is that through all this you lost the opportunity of having the charges dealt with in a way which would have saved the time and costs of a trial and which would have seen you acknowledging responsibility for your conduct but without a conviction being recorded.
31
I turn to other matters. Shortly after the trial concluded you were married, and on 8 February this year your wife gave birth to a son. After some leave you re-commenced normal duties at Ararat Police Station on 12 December 2018 but on 3 January 2019, following the jury’s verdict on the previous
12 November, you were suspended without pay. One would be entitled to expect in the circumstances that Victoria Police command could have acted with better expedition.
32 Now aged 29 you now find yourself recently married. The father of a young son and your wife on 12 months maternity leave. You have considerable debt and uncertain future employment prospects and face financial hardship. You have had to rely upon family for financial assistance. You completed VCE in 2007 and an Advanced Diploma of Justice in 2009.
33 At the age of 21 you joined Victoria Police. In 2016 you completed Certificates 3 and 4 in Fitness at the Australian Institute of Personal Trainers.
34 Since May 2018 you have been consulting a psychiatrist from whom a report has been obtained. You were referred for psychiatric counselling by your general practitioner. You suffer from post-traumatic stress disorder from exposure to distressing crime scenes and secondary to this depression, insomnia and anxious ruminations consequent upon the position you now find yourself in and the consequences that may lay ahead for you and your family. You have had these matters hanging over your head for the last four years.
35 The fact you have been suspended from the police force without pay because of this offending has made it difficult for you to obtain employment. You have made a number of unsuccessful attempts to find work. Recently you have found work in the retail sector. You have been told if you are convicted this employment will be terminated. If a conviction is recorded your employment with Victoria Police will definitely be terminated permanently. Having been found guilty of this offence, even if a conviction is not recorded, your return to work as a police officer is uncertain.
36 I am satisfied that having regard to all of the circumstances here, including the nature of your offence, the fact your employment as a police officer will be lost if convicted, and the fact that your financial and employment future will be prejudiced by a conviction, that in the exercise of my discretion the proper course to take is to impose a disposition without recording a conviction against your name.
37 In my view, for the reasons that I have endeavoured to set out above, this is a just outcome. I think that is recognised by Ms Berry herself in her victim impact statement, which I received into evidence. Whilst much of what she said there was strictly inadmissible she nevertheless graciously called upon the court not to impose a conviction upon you. I say graciously because she too has been through a lot over the last four years including having to endure lengthy cross examination by your counsel. In making my decision I have had full regard to what Ms Berry said about this matter in her victim impact statement.
38 Accordingly, and pursuant to s.75 of the Sentencing Act 1991, upon you entering into an undertaking to be of good behaviour for a period of 12 months, and to attend before the court if called upon to do so, the sentencing on Charge 4 will be adjourned for a period of 12 months without the recording of a conviction.
39 Are you prepared to enter into such an undertaking Mr Repac
40 OFFENDER: Yes, Your Honour.
41 HIS HONOUR: Very well. Please leave the dock and come up and take a seat behind your council, Mr Kelly.
42 MR KELLY: Your Honour.
43 HIS HONOUR: Are there any questions arising out of that?
44 MR GOODENOUGH: No, Your Honour.
45 HIS HONOUR: Very well Mr Repac. Upon the rising of the court, you are free to leave.
46 OFFENDER: Thank you, Your Honour.
47 HIS HONOUR: Adjourn the court please.
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