R v Tran, Levchenko and Fucile
[2013] VSC 363
•17 July 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012
| THE QUEEN |
| v |
| QUOC HAI TRAN NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4 April – 7 May, 20 May 2013 | |
DATE OF SENTENCE: | 17 July 2013 | |
CASE MAY BE CITED AS: | R v Tran, Levchenko and Fucile | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 363 | |
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CRIMINAL LAW – Sentence following jury trial – Assault – False imprisonment – Intentionally causing injury – Security officers at Crown casino – Casino patrons victims of the offending – On trial self defence raised - Whether to impose imprisonment – Whether to impose convictions – Extra-curial punishment – Fines imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney and Mr A Moore | Office of Public Prosecutions |
| For the Accused Tran | Mr L Carter | Tony Hargreaves and |
| For the Accused Levchenko | Mr I Hill and Mr T Walsh | Partners |
| For the Accused Fucile | Mr J McMahon and Ms R Shann |
HIS HONOUR:
On 7 May 2013, a jury found you, Quoc Tran, guilty of assault, false imprisonment and intentionally causing injury. You, Nicholas Levchenko, were found guilty of false imprisonment. You, Jacques Fucile, were found guilty of intentionally causing injury and false imprisonment.
The maximum penalty for assault is five years’ imprisonment, for intentionally causing injury it is ten years’ imprisonment and for false imprisonment it is also ten years’ imprisonment. The financial penalties available for these offences are represented by 600 penalty units for assault converting to $73,284.00 and 1200 penalty units for both intentionally cause injury and false imprisonment converting to $146,568.00.
The circumstances of the offences
These jury verdicts arise from incidents which occurred at the Crown casino on 3 July 2011. On that day, three people, Anthony Dunning, Olivia Ferguson and Matthew Anderson went to the casino, arriving at about 6.00pm. Prior to that, they had watched the football at the MCG and during the course of the day had been consuming alcohol.
The incident at Crown casino began when, at about 10.42pm, Anthony Dunning was standing alone in the vicinity of the Velvet Bar and a security officer, Matthew Lawson, concluded that he was intoxicated. At this stage Dunning’s friends, Olivia Ferguson and Matthew Anderson had left him and gone to the food court. In their absence, Lawson and Dunning spoke and, clearly, Lawson told Dunning that he was intoxicated and he was required to leave the premises. Mr Dunning did not receive that direction very happily. However, the CCTV footage, which recorded the whole of the incident, shows that he appeared to agree to go. At the time he moved off, there were four security officers around him. He showed no physical resistance though it would appear there was a continuing debate about why it was necessary for him to leave. Other security personnel were nearby and ready to be involved if required, including Kris Tuner.
Shortly after they began to walk away from the Velvet Bar, the group, as it now was, encountered Olivia Ferguson and Matthew Anderson as they returned from the food court to meet Anthony Dunning. The group stopped in order for Ferguson and Anderson to understand what was happening. It would appear that Mr Dunning continued to protest about being required to leave the casino and may have directed offensive language, at least to the extent of the phrase “fuck off”, at the security officers. I have no doubt that the position that both Olivia Ferguson and Matthew Anderson took was to assist to facilitate their group leaving the casino. Apart from anything else, Ms Ferguson’s willingness to try to diffuse the situation is evident from the CCTV footage. After a discussion between Dunning, Ferguson, Anderson and the Crown casino staff, which lasted about two and a half minutes, the group continued to move towards an exit.
As that happened, Olivia Ferguson turned and slapped the face of you, Quoc Tran. What led to that occurring was and remains in contention. Having co-operated to assist in Dunning’s departure, logically there must have been some reason for her action.
Her best recollection of her motivation for that conduct was that you had said something offensive about Anthony Dunning. Certainly the CCTV footage, particularly View E from Exhibit B, demonstrates that you turned and said something very brief to perhaps either or both of Kris Turner and Matthew Lawson. The slap appears to be acutely reactionary to that. At the time she turned to slap you, Ms Ferguson had her back to you and was in the process of walking away with her partner and their friend after helping to facilitate that exit.
Kris Turner gave evidence during the trial that you had said nothing and Ms Ferguson simply walked over and slapped you saying “you’re a fucking cunt”. I do not accept that evidence. Kris Turner’s recollection of events is at odds with many aspects of the CCTV footage and during the course of his evidence I formed the view that he tailored some of his evidence to suit what he perceived to be the interests of the accused. While there is no justification for her slapping you, and it certainly should not have occurred, the fact that it was a reaction to something said by you, makes your reaction to it all the more surprising.
The offences by Tran against Ferguson
Your response to being slapped by Ferguson was to grab her by the left hand with your left hand and with your right hand behind her head, throw her to the floor in a spinning or twisting movement. Your putting of her to the floor, as best as I can determine, took less than one second. Once on the floor you pinned her to the ground using the weight of your body. With the assistance of Kris Turner you then placed her in what is described by Crown casino training as the “shut down position”. This involves taking the arms of the patron so that they are perpendicular to the body and holding them on the ground at about the wrist and shoulder.
Ms Ferguson’s evidence was that during this period she was being insulted, called names and told not to move. She said she believed one of them was you Quoc Tran but she did not know who else. In my opinion, the evidence does not permit me to make a finding adverse to you on that issue. Ms Ferguson said she did not try to move and at no stage did she resist or struggle; she could not have moved if she had wanted to. She said she apologised twice and was crying.
After Ms Ferguson had been held on the floor for about fifty seconds, you and Turner lifted her onto her feet. At this point, her face is visible in the CCTV footage and it is clear she is distressed. You both held her in “wrist-lock holds” which were described by various witnesses throughout the trial. It involves holding a person’s forearm at a right angle to their body and parallel to the floor. The security officer’s arm is on the inside of the patron’s arm and their hand is on the outside of the patron’s hand, holding it so that the palm is facing in and the fingers are pointed upwards and slightly outwards. The position is such that a small amount of pressure will bring about pain in the wrists of the patron. As I understand it, when this hold is applied by an officer on each side, it is called the “horizontal transport hold”.
You, Quoc Tran, can be seen to “pass” the arm of Ms Ferguson to Adam Hewetson about 37 seconds after she is raised onto her feet and over about ten seconds you are talking and gesturing to Olivia Ferguson, Adam Hewetson and Kris Turner. You then give some directions to the security officers holding Matthew Anderson; I will describe the incident involving him shortly. You then lead Hewetson and Turner holding Ms Ferguson, followed by two other security officers, through a series of corridors. Ms Ferguson was released at what is referred to as the Whiteman St exit behind a pillar and out of view of the CCTV footage. Mr Anderson had been walked out in an opposite direction towards the Yarra river bank.
On the prosecution case, the charge of assault of which you have been found guilty was put as a continuing assault, from the time you reacted to Ms Ferguson’s slap until you handed her arm to Hewetson. The focus of argument during the course of the trial was on whether your actions in putting her to the ground in the manner that you did was justified in self-defence. By their verdict, the jury concluded they were satisfied beyond reasonable doubt that you were not acting in self defence. Indeed, in my opinion, the way you so forcefully put Ferguson on the ground was an extraordinary reaction to a slap; there were six of your colleagues around you and any “threat” which you might have faced was minimal. Indeed, even allowing for the theoretical possibility of some threat from an unknown ally of Ms Ferguson, which was not a reality, the level of threat from her was non-existent. In my opinion, you did not believe that what you did was necessary to be done to defend yourself.
By finding you guilty of false imprisonment, the jury have found that you counselled or procured Hewetson and Turner to deprive Ms Ferguson of her liberty against her will by holding her in a horizontal transport hold as you escorted her off the premises and away from her partner Matthew Anderson. The jury concluded that this was not necessary for the security staff to protect themselves or other patrons. Indeed, Ms Ferguson posed no threat, was apologising, and was crying. I have no doubt that, though she may have inquired as to the whereabouts and well-being of her partner and friend, she would have followed lawful directions to leave the premises.
By finding you guilty of intentionally causing injury, the jury have found that you counselled or procured Hewetson or Turner to inflict pain on Ms Ferguson by applying pressure to her wrists in the course of escorting her to the Whiteman St exit in the horizontal transport hold. Injury is defined as including pain by s 15 of the Crimes Act 1958. The CCTV footage clearly demonstrates a facial expression of pain at several points during the period of nearly two minutes it took to escort her off the premises, including particularly at 22:49:10 and 22:49:38.
In respect of this charge, the jury was invited by the prosecutor to infer that in your role as supervisor, you had indicated to Hewetson and/or Turner that you wanted Ms Ferguson to feel pain during her escort off the premises. It is clear that the jury drew that inference based on their assessment of your interactions with Ms Ferguson, Hewetson and Turner, and the fact that you are physically close to Ms Ferguson when she is exhibiting signs of pain and yet failed to remedy the situation. For my part, I am satisfied beyond reasonable doubt that Ms Ferguson would have been crying out in pain at least intermittently during the course of her escort. It seems that the jury reasoned that your failure to intervene demonstrates an intention on your part that she suffer that pain.
The offences against Anderson by Levchenko and Fucile
As you, Quoc Tran, took Ms Ferguson to the ground, her partner, Matthew Anderson, was moving ahead of you and was turning in your direction. He raised his arm and perhaps took half a step in your direction before you, Nicholas Levchenko and Jacques Fucile, with some intervention from Matthew Lawson pushed him backwards onto the ground. Once he was on his back on the ground, you each held one of his arms and you, Jacques Fucile, put your hand on his throat as part of your restraint of him. While Nicholas Levchenko was holding the left arm, you then used his right arm to gain some leverage and flip him onto his stomach. In the process of doing so, you put your entire body weight on him, and, on several occasions, you placed your hand on the back of his head, seemingly with some weight behind it, in order to balance yourself. At about 22:47:31, you pulled Matthew Anderson’s left arm up and twisted it behind him. The witness Diego Zappariello, who was standing very close to Mr Anderson, recalls hearing Anderson saying “my arm, my arm” in a struggling voice.
Anderson gave evidence that while he was on the ground a number of things were said, including words to the effect of, “You want to be a fucking hero”, “I’m going to break your fucking fingers” and “This weak cunt is bleeding on me”. In response to an inquiry about Olivia Ferguson, someone responded words to the effect of, “We’ve got that fucking whore on the ground”. Again, as offensive as this language is, in my opinion I could not be satisfied to the required standard that these words were spoken by one or other of you.
After Mr Anderson had been held forcefully on the ground for about one and a half minutes, both of you, on the instructions of the witness John Zocchi, raised Anderson to his feet and held him in a horizontal transport hold. There was some interaction between Zocchi and Tran and you then commenced walking him out towards the Santé exit away from his partner. From viewing the CCTV footage, it appears Anderson was resisting being walked out, particularly as he passed his friend Anthony Dunning on the ground. At about 22:49:16, it appears he makes some further efforts to resist and John Zocchi spoke to him. Outside of the premises, you both continued to hold him, apparently waiting for instructions to release him. At 22:51:30, about three minutes after he was first raised to his feet, you released him by pushing him on the back onto a pedestrian bridge near that exit. Anderson gave evidence that some abusive things were said about his partner while you were outside and that once pushed on to the bridge, he said words to the effect of, “You’re fucked. My brother’s a policeman. He will be involved.” Anderson and Ferguson managed to contact each other and after some period met up at Crowne Plaza.
Matthew Anderson’s nose was bleeding from the time he was on the ground and continued to bleed intermittently overnight. He said he was suffering pain in his left arm from his elbow to his wrist on the night and that it was worse the next day. He visited the hospital the morning after the incident and was told he had a fractured nose, fractured left elbow and torn ligaments in the left elbow. During the trial there was argument about whether the nose was in fact fractured and whether the avulsion fractures in the elbow could be attributed to this particular incident. I do not need to decide those issues. The photographs of Mr Anderson, taken by police on 5 July 2013 and being Exhibit C on your trial, demonstrate clearly that his nose was injured. As to the injury to his arm, I accept Anderson’s evidence that he had his arm in a sling for about 10 days, that he had about five weeks off work and that he still has issues raising objects over his head. The evidence of Dr Johnston, the doctor who treated him in the Accident and Emergency department on the morning of 4 July 2011, accords with this, except as to the residual issues with the left arm. Dr Johnston said she could not explain this as the ligaments should have healed in six weeks. I consider Matthew Anderson to have been an honest witness and Dr Johnston conceded that she has not treated Mr Anderson since this initial consultation.
You were both acquitted of recklessly causing serious injury to Anderson. It is most likely that the jury concluded that Matthew Anderson’s injuries were not “serious”. The alternatives of intentionally causing injury and recklessly causing injury were both left. The case was put against each of you both on the basis of liability as a principal offender and on the basis of you aiding and abetting each other. It was accepted by the prosecution that you, Jacques Fucile, were more likely to have caused the injuries to both the nose and left elbow. Nicholas Levchenko you were acquitted of both alternatives. Jacques Fucile, you were found guilty of intentionally causing injury.
Jacques Fucile, argument was put on your behalf by your counsel that the jury may have found you guilty of intentionally causing injury on the basis that you intentionally inflicted pain. Certainly, the jury were aware that the offence could be made out on such a basis by reference to the way that offence was put against Quoc Tran. But that was not the way the case was put against you and such a finding is not supported by the evidence. Matthew Anderson suffered injuries and you clearly caused them. I am satisfied beyond reasonable doubt that it was the pressure that you put on Mr Anderson’s head in the process of flipping him over which injured his nose. I am further satisfied that it was the way you pulled and twisted his arm up behind him once he was on his stomach that injured his arm. As to what you intended, upon viewing the CCTV footage, I am not satisfied that the jury necessarily concluded that you intended to break Matthew Anderson’s nose. I am, however, satisfied that the jury concluded that you intended to injure Matthew Anderson when you twisted his arm up behind him.
The jury found you both guilty of false imprisonment. That is, the jury found that by applying the horizontal transport hold and removing Mr Anderson from the premises away from his partner, Olivia Ferguson, and his friend, Anthony Dunning, you were intentionally depriving him of his liberty against his will without any lawful justification.
Victim Impact Statements
Two victim impact statements were produced by Mr Tinney SC. They were from Olivia Ferguson and Matthew Anderson. It was accepted by all counsel on the plea that for this couple, it is difficult to distinguish between the impact of your actions and the impact of the death of their friend, Anthony Dunning. However, in my opinion, apart from the trauma they suffered as a result of the death of Mr Dunning, it is clear that the conduct which led the verdicts in this case have had an impact upon them, and I take that into account in sentencing you.
Personal circumstances of Quoc Tran
Quoc Tran, you are 35 years old, having been born on 12 April 1978 at sea in transit to Australia from Vietnam. You live with your parents, and until her passing in September 2011, also with your grandmother. You completed your VCE at Haileybury College in 1995 and spent the next five years undertaking a diploma in international trade and working in a call centre doing market research. In 2000, you obtained a Certificate II in Security Operations and following that you obtained a job at Crown Casino as a security officer. In April 2011, you were made a Security Supervisor, a role you were in on the night of these incidents. Since the present charges were laid, you have remained at Crown Casino but you have been working in an administrative capacity.
Character references were provided on your behalf by Ricardo D’Souza and Mark Maglalang, friends of yours since you were teenagers. They describe you as calm, mild mannered and respectful. I accept that this kind of conduct is out of character for you; it is reflected in the absence of any prior convictions. Furthermore, Mr Carter indicated that except for this incident, you have never been the subject of any complaint or discipline. However, you have failed to take responsibility for this conduct, deemed by the jury to be criminal. You maintain your innocence, have made no indication of remorse and offered no apology to Ms Ferguson for your treatment of her. In these circumstances, there is some difficulty in concluding about your prospects for rehabilitation, as these two aspects seem to conflict. Mr Carter suggested that your prospects for rehabilitation were excellent. I think it very likely that you now understand that there are consequences for the kind of conduct you engaged in and that you have probably had a salutary lesson.
Personal circumstances of Nicholas Levchenko
Nicholas Levchenko, you are 27 years of age, having been born on 30 November 1985 in St Petersburg, Russia. Your parents were both gifted scientists and it was that work which caused them to come to Australia in 1993. In 1998, your parents separated and your father moved to Sydney but you remained in Melbourne with your mother who by this time had opened a café. You worked in that café and others during your schooling. You did not inherit your parents flair for academia but you completed your VCE at Caulfield Grammar School in 2003. You then commenced a mechanical engineering degree at RMIT but determined it was not for you and in 2005, you commenced working in the security industry, initially in nightclubs in the St Kilda area. In 2005, you started working at Crown Casino where you remain, although you left for a period of about 18 months from August 2008 and worked at the Chadstone shopping centre. Since these charges have been laid, you have been performing administrative duties.
You rent a home from your parents where you live with your fiancée and a friend. Since 2007, you have been undertaking a bachelor’s degree in Security Management by correspondence with Edith Cowan University in the hope that you will obtain a management position at Crown Casino. You have a leadership role with the Vitiaz Association, a Russian Orthodox youth association and you volunteer your time, including two weeks of annual leave to the organisation every year. The numerous character references written in support of you confirm you as having a generous disposition and as a being valuable member of the community. You have no previous convictions and I accept that this offending is out of character for you. In a letter signed by the senior priest of the Russian Orthodox Church in Strathfield in NSW, he described you as “remorseful” and although you stood your trial, I can accept that in the particular circumstances that is a fair assessment of your state of mind.
On your behalf it was submitted that rehabilitation was not a question. In your case, I hope and believe that is so. I do regard your future prospects as positive with little risk of further offending.
Personal circumstances of Jacques Fucile
Jacques Fucile, you are 31 years of age, having been born on 16 January 1982. You are engaged and currently live some time with your fiancée and some time with your father. You left school in Year 11 and have been employed full time ever since, originally working in your father’s hairdressing salons, then in hospitality, retail and at a lightglobe importing business, Mirabella. You obtained Certificate II in Security Operations in 2006 and commenced working occasionally as a security officer while still working at Mirabella. You left there in 2008 to join the police force but failed the entry exam as a result of poor spelling. You subsequently commenced work at Crown Casino and remain there, performing administrative duties.
You have continued to further your skill set by undertaking various courses, demonstrated by a number of certificates which formed part of Exhibit 3 on the plea. A number of character references were also provided on your behalf which describe you as hardworking, respectful and self-reflective. They indicate that this offending is out of character for you and I accept that. Mr McMahon, on your behalf, emphasised that these certificates and the character references demonstrate that you are a man who seeks to better himself, and to contribute to the people around you.
As with Quoc Tran, in assessing your prospects for rehabilitation, I am faced with the seeming conflict between these offences being out of character for you and the absence of any indications of remorse on your part. However, like Quoc Tran, I consider it likely that since the jury’s verdict you have reflected upon your conduct and are unlikely to engage in conduct of this kind again.
Gravity of offending
I turn to the gravity of the offending in each case. As Mr Carter submitted on behalf of Mr Tran, the offences against Ms Ferguson did not result in significant injury. As a result of the assault, she had a sore jaw and a bruised arm which did not cause her to visit a medical practitioner. As a result of the offence of intentionally causing injury, Ms Ferguson suffered pain. I accept that pain alone is at the lowest level of injury criminally punishable.
However, this does not mean that the offences in question are not serious. Quoc Tran, your response to the slap by Ms Ferguson would have been shocking had it been carried out by anyone, but your role and background make it a particularly extraordinary response. You were trained as a security officer; your role in general and on this evening, was to minimise the potential for conflict and violence. You, far more than the average member of the community, were in a position to be able to manage any anger or instinctive response you felt in relation to that modest provocation and to react with level-headedness and professionalism. You were surrounded by no less than six security staff. To throw Ms Ferguson on the ground in the violent way you did, and then to hold her on the ground for some 50 seconds, was an extreme response, entirely out of proportion with what had occurred to that point.
As to the offence of intentionally causing injury, I accept that the intentional infliction of pain is at the lesser end of the scale of offences of that kind. However, intentionally inflicting pain on another person remains a serious offence. You counselled or procured the infliction of pain upon Ms Ferguson, when she was helpless and vulnerable and you were in a position of power over her, being able, in your role as supervisor, to control how and when she was moved about the casino. Mr Carter argued on your behalf, that the jury’s finding of guilt on this charge was no more than a finding that you had failed to intervene in the infliction of pain by either or both of Hewetson and Turner. I do not accept that. The jury were directed, both in my charge and in a response to a question by them, that they must be satisfied beyond reasonable doubt that you intentionally assisted or encouraged the commission of the offence.
As to the false imprisonment of both Ms Ferguson and Mr Anderson, it was submitted on the plea that the false imprisonments were of a relatively short duration. In the case of Ms Ferguson, from the time you, Quoc Tran, passed her arm to Hewetson, she was detained for a further 40 seconds. Mr Anderson was detained by you, Nicholas Levchenko and Jacques Fucile, for approximately three minutes after being brought up off the ground.
It was also submitted that these false imprisonments were absent some of the aggravating features regularly seen in this kind of offence, such as imprisonment done for the purpose of committing a further criminal act. I accept that this incident is at the lower end of the scale of this type of offence. Nevertheless, it is not entirely absent of aggravating features. Not only did you physically detain Ms Ferguson and Mr Anderson, as opposed to accompanying them as they walked from the premises of their own volition, but you took them out separate exits leaving them on opposite sides of the casino. These two were a couple who had no quarrel with each other; there was no need to separate them for their own safety. Nor had they been inciting or encouraging each other to be aggressive or disruptive to the casino staff. The only purpose in taking Ms Ferguson and Mr Anderson to separate exits must have been a desire to assert dominance and control over them. Alternatively, though I understand there was no evidence to this effect, it may have been the result a blind adherence to procedure which was so absent a consideration of the individual circumstances that it does little to reduce the moral culpability of you all.
In this respect, I find that you, Quoc Tran, bear a greater responsibility for the false imprisonment than do either of you, Nicholas Levchenko and Jacques Fucile. Quoc Tran, I am satisfied that you gave the direction that led to Ms Ferguson and Mr Anderson being removed from the casino separately. You, in your role as supervisor, were in a position to influence, not only your own conduct but the conduct of others. Nicholas Levchenko and Jacques Fucile, while it in no way absolves you of your responsibility for your actions, I accept that you were following the directions of Quoc Tran when you removed Mr Anderson from the premises and away from his partner. I find that the fact that you were accompanied by another supervisor, Mr John Zocchi, does little to reduce your moral culpability as it was the two of you, and not he, who had witnessed Anderson’s conduct prior to and during the physical incident. You were in the best position to determine whether detention was a necessary precautionary step. In addition, Anderson was suffering visible injuries caused at your hands and no inquiry was made as to whether he would like some assistance in receiving attention to those injuries.
So far as you are concerned Nicholas Levchenko, your offending was the least serious of the three. You were found guilty of only the offence of false imprisonment. Your conduct did not result in any injury to Matthew Anderson.
Jacques Fucile, by finding you guilty of the offence of intentionally causing injury, the jury have found, at least, that you intended to injure Matthew Anderson’s left arm. This is clearly not the most serious example of this kind of offending, you did not use a weapon, the offending was spontaneous and the injury is at the lower end of the scale, at least in respect of the offences of this kind that come before this court. However, when you twisted his arm and inflicted this injury upon him, Matthew Anderson was already restrained on the floor and entirely unable to fend you off or react to anything that you did. He was entirely at your mercy. Your role, as a security officer, was to attend to the security of him and the other patrons. To intentionally inflict injury upon him was a clear abuse of that role.
Furthermore, it is significant to note that Matthew Anderson had done absolutely nothing to provoke that action by you. He was entirely innocent of any wrongdoing. The worst that could be said was that he was concerned for the welfare of his friend and also his partner. During the discussions about Dunning being required to leave, he had been at best helpful to your cause and at worst disengaged. Your reaction at the time Ms Ferguson was taken to the ground was so swift that Mr Anderson had done no more than move perhaps a step towards her. On behalf of you, Jacques Fucile, Mr McMahon of counsel made submissions that your actions were conscientious and occurred in stages. He described you as putting your hand “in a perfectly moderate way on the waist of Mr Anderson” before taking him to the ground. A viewing of the CCTV footage in real time demonstrates that your actions were far more likely to be a reaction to what Quoc Tran had done to Olivia Ferguson than any considered response to Mr Anderson’s actions.
On the plea, counsel on behalf of each of you, sought to emphasise that your moral culpability was reduced by the belief that you were acting in accordance with Crown Casino standard operating procedures. Clearly this submission cannot apply to the offences of intentionally causing injury. I do, however, accept that if you believed you were entitled to act in the way that you did, that would reduce your moral culpability.
Mr Carter seemed to indicate that while the method that you, Quoc Tran, used to take Ms Ferguson to the ground was outside the standard operating procedures, her being restrained on the ground in the shutdown position was in line with those procedures. I do not accept that submission. Although the witness Kris Turner said that the shutdown position would be used on any patron who had assaulted an officer, as Ms Ferguson had done by slapping you Quoc Tran, I have previously given my reasons for attributing little, if any, weight to his evidence. The preponderance of the evidence in this case indicated that there is discretion in the use of the shutdown position[1] and that it is typically reserved for highly aggressive patrons who pose a risk to others when other techniques have not been effective in gaining control.[2] Some of the other factors Adam Hewetson identified as being relevant to the use of the shutdown include the demeanour of the patron, the characteristics of the patron and the number of officers around. Against this background, I am not prepared to accept Mr Carter’s characterisation of you throwing Ms Ferguson to the ground as an “overzealous carrying out of duty”. I do not accept that you mistakenly believed that you were entitled to do what you did.
[1] See the evidence of Hewetson at Transcript pp. 737-739 and Griffiths at Transcript p. 766.
[2] See the evidence of Hewetson at Transcript p 737-739; Tobiasz at Transcript p. 756; Griffiths at Transcript p. 766; Duncanson at Transcript 770-771; Mathews at Transcript 778-779.
As to the use of the horizontal transport hold and the removal of these patrons from the premises, I accept that each of you likely held a belief, albeit mistakenly, that you were entitled to do that. Although the use of this hold is, on the evidence of Shane Peat, reserved for highly aggressive patrons, I accept that it would be a common practice to apply the hold to remove someone who had just been restrained in the shutdown position.[3] In the context of the overall situation however, in particular the unlawfulness of the initial taking to the ground of Ms Ferguson and the separation of Ms Ferguson and Mr Anderson during their removal, this is of little weight.
[3] See the evidence of Zocchi at Transcript p.512; Luta at Transcript p.562; Hewetson at Transcript p.750; Tobiasz at Transcript pp.754-755; Matthews at Transcript p.780.
Other relevant considerations
Mr Carter in particular, submitted that I should have some regard to the fact that these matters could have been determined summarily where the maximum penalty would clearly be less. That, he submitted, would be relevant to my determination of the appropriate sentence to be imposed on you. The plea in this case was heard before the judgement of the High Court in Elias was delivered.[4] That judgement of the Court makes it clear that the kind of constraint said to arise in such circumstances is “misconceived”.
[4] [2013] HCA 31.
As a consequence of having been found guilty of offences of assault and intentionally causing injury, both of you Quoc Tran and Jacques Fucile, are very likely to be disqualified from holding an appropriate operator licence for a period of five years and, if I impose a conviction on you in relation to the jury’s findings, for a further five year period. This is a result of the operation of ss 13 and 25 of the Private Security Act 2004. Nicholas Levchenko, it does not appear that a finding of guilt or a conviction for false imprisonment would lead to an automatic disqualification. However, I accept that the Commissioner may consider it relevant to the exercise of his or her discretion under that Act. I accept that the loss of your chosen career for a five-year period, at least in the case of you Quoc Tran and Jacques Fucile, constitutes an extra-curial form of punishment and I take it into account in sentencing you.[5]
[5]Ryan (2001) 206 CLR 267; DPP v Ellis (2005) 11 VR 287.
Mr Tinney SC, on behalf of the prosecution, submitted that general deterrence should be given significant weight in this case and referred me to a number of decisions involving security staff.[6] In these decisions, the occupation of the offender as a security officer was treated, in effect, as an aggravating factor. I have already addressed that aspect within an assessment of the gravity of the offences. The cases also made it clear however, that there is a role for general deterrence in a case like this. Members of the security industry should know that abuse of their position will be strongly denounced in our Courts.
[6]DPP v Karazisis & Ors [2010] VSCA 350 (check citation); R v Taputoro [2007] QCA 29; R v Anderson [2012] QCA 264.
The parties made widely differing submissions as to the appropriate sentence in light of the factors I have just outlined. Mr Tinney SC on behalf of the prosecution submitted that nothing less than a custodial sentence would adequately address the conduct. Counsel for each of you, Quoc Tran, Nicholas Levchenko and Jacques Fucile, emphasised that you will already suffer the loss of your career and that a fine without conviction would satisfy the sentencing principles.
Conclusions
Mr Tinney SC submitted that one of the factors which made these offences serious was that each of you was acting as a security officer at Crown casino with significant power and similar responsibility. I agree with that.
Counsel for each of you submitted that I should not impose a conviction for your offending given the nature of the offending and the consequences that would flow from a conviction. Mr Tinney SC strongly disagreed. I also disagree in part.
Mr Tinney SC submitted that in the case of you Quoc Tran and you Jacques Fucile, only a period of immediate imprisonment would be appropriate. I disagree. I do not consider that a term of imprisonment is necessary to achieve the purposes for which this sentence is imposed. That does not mean that I, and the community, consider that this conduct is not serious. But I accept that if I impose convictions for these offences, you, Quoc Tran and Jacques Fucile, will lose your career for a period of 10 years. That is a significant punishment, which I consider will contribute substantially to the general deterrence sought to be effected by these penalties and it has weighed heavily in the determination of the appropriate sentence to impose in your cases. In addition, I propose to impose significant fines on each you.
I have a discretion as to whether or not a conviction should be recorded. Where this discretion is to be exercised, it is governed by s 8 of the Sentencing Act 1991. That section requires that I have regard to all the circumstances of the case including the nature of the offence; the character and past history of each of the accused; and the impact of the recording of a conviction on the economic or social well-being of the accused or on his employment prospects.
As I have earlier stated, I recognise that the recording of a conviction would, at least in the case of you, Quoc Tran and Jacques Fucile, result in a 10 year, as opposed to 5 year, disqualification from being employed within your chosen profession. In the case of you Nicholas Levchenko the imposition of a conviction for the offence of which you were found guilty may or may not have a similar effect on your future career.
In all the circumstances of the case, in particular the gravity of the offending and the need for both general and specific deterrence, I propose to record convictions in respect of the offences of which the jury found you, Quoc Tran, and you, Jacques Fucile, guilty. Thus, Quoc Tran, I record convictions against you for assault, intentionally causing injury and false imprisonment. Jacques Fucile, I record convictions against you of intentionally causing injury and false imprisonment. Notwithstanding the submission of the prosecutor that a conviction should also be imposed on you Nicholas Levchenko, for the reasons I have already referred to, I will not record a conviction against you for the offence of false imprisonment.
Quoc Tran, for the offence of assault, you are convicted and fined in the sum of $3,500.00. For the offence of intentionally causing injury, you are convicted and fined in the sum of the sum of $2,000.00 For the offence of false imprisonment, you are convicted and fined in the sum of $2,500.00. The total is $8,000.00.
Nicholas Levchenko, for the offence of false imprisonment you are fined without conviction in the sum of $2,000.00.
Jacques Fucile, for the offence of intentionally causing injury, you are convicted and fined in the sum of $4,000.00. For the offence of false imprisonment, you are convicted and fined in the sum of $2,000.00. The total is $6,000.00.
In accordance with s 50 of the Sentencing Act 1991, I order that payment of these fines be by instalment if necessary and that the fines be paid within 12 months.
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