REVIEW DIVISION

Summary

Application to review DISMISSAL –– s.146(1)(m) of the Victoria Police Act 2013 –– charges of ASSAULT proven against the Applicant relating to an arrest of a vulnerable person under Mental Health Act –– Applicant one of six police who attended –– Mr G had threatened to provoke police shooting ­–– police response poorly planned and supervised –– Mr G rushed at police, OC spray deployed, taken to ground, Applicant used police baton to strike Mr G’s leg repeatedly then used his foot to restrain Mr G’s head. –– Magistrate concluded not “summary justice or police brutality”, “…that he believed, in the heat of the moment, that it was necessary to achieve his objective” ; defence not made out as the Applicant’s subjective belief was not a reasonable belief as Mr G was already well-controlled –– Mr G was later hosed to his face, including while another police officer filmed –– whole incident captured on CCTV, attracted significant media attention

PUBLIC INTEREST: HUMAN RIGHTS and HARMS Mr G’s human rights violated; significant harms (Mr G, his psychologist, witnesses, Victoria Police); significant adverse impact on reputation and standing of, and community’s trust and confidence in Victoria Police;

PARITY: Public interest in consistent and predictable approach in discipline matters. Applicant’s conduct most akin to matter of Glass (dynamic; honest mistake under pressure; no malice; legitimate goal; (misapplied) attempt to use a legitimate tactic). (Retention resulted). Public interest in workforce trust in the decision-making process discussed.

DETERRENCE: Given his subjective intentions and motivations (honest mistake under pressure), ought to be the subject of a punitive sanction to deter other police. Culpability and seriousness ameliorated by:  lack of experience; previous exposure to a difficult arrest; panic; lack of supervision and others’ failures of planning and execution; other conduct during the incident (apart from the assaults) was as expected (recognition of risk; call for back-up; use of verbal tactics; radio reporting; assistance to Mr G and the paramedics; his reporting of the incident to management).

SUITABILITY: Applicant has otherwise shown a pattern of empathetic, diligent, skilled policing service; intelligent, teachable; with ongoing guidance, supervision and support, could return to duties safely and successfully; dismissal is not necessary to protect the public.

Board concludes dismissal is harsh, unjust and unreasonable, considering the availability of other outcomes short of dismissal which can hold the Applicant to account. Matter adjourned for further consideration of order to be made under section 152(3)(a)(i).

ORDER: Public interest and the interest of the Applicant considered –– disjunctive drafting of section 136 of the Act restricts orders available –– having been satisfied that Victoria Police has made appropriate arrangements to transfer the Applicant and to offer remedial training and workplace supervision and support, the Board orders demotion to the rank of constable, reduction in salary to the fourth salary increment of constable (with equivalent seniority) and that he be reprimanded.