WAPU on Facebook

WAPU on Twitter

By Steven Glover

Karen Smith loves response policing.Karen2

She has been a Response officer for the past six years and she is passionate about helping others. While on duty in Midland, she and her partner came across a woman in obvious need of assistance. She was staggering down the middle of Morrison Road and appeared upset and intoxicated.

After the woman failed to move out of the way for the police vehicle, Karen and her partner pulled over and tried to assist the woman off the road.

“We could see something had happened, we didn’t know if she was a victim or whether she was just intoxicated, but something had happened and we needed to stop because it is a fairly busy road,” Karen said.

“From the start, we could see she was fairly aggressive. She was quite close to a bus stop and she had a cousin sitting inside the bus stop area. She didn’t get off the road so myself and my partner walked towards her and said: ‘Look, you need to get off the road, this is dangerous, just hop off,’ and she was very aggressive to us right from the start.”

With the woman being uncooperative, Karen elected to start again, all in the aim of getting the woman off the road and to safety.

“I said: ‘My name is Karen and this is Tania, you haven’t done anything wrong, we are just concerned for your safety, hop off the road. Are you waiting for a bus? Maybe we can give you a lift?’

“I just wanted to get on board with her and let her know that everything was going to be ok,” Karen said.

Even with this fresh approach, the woman was still aggressive and Karen put her hand on the woman to move her to the side of the road. And that is when the woman lashed out.

“She went absolutely mental and from that point she swang round at me and clawed me across my face,” Karen said.

karen3“I put my hand up to my face and she spat in my face straight away and then she turned around and spat in my partner’s face as well. Then it was a massive struggle to get her down to the ground at that point in time and just restrain her. She was a massive danger to herself.”

Everything happened so quickly, Karen didn’t initially realise she was injured.

“I felt her claw my face but we were just too busy trying to get her sorted, her friend was yelling at us and at her to stop and the cars that were driving by were slowing down. While she was on the floor, she was slashing wildly and it was very hard to get her under control,” she said.

Karen’s partner called for backup while Karen restrained the top half of the woman’s body she noticed that the woman’s back was bleeding but it was from a wound on her own face bleeding onto the woman. The clawing action from the woman had opened a gash on Karen’s cheek.

“Every one of her fingernails was down my face. Sometimes we get hurt just through making the arrest, it’s just the way it is and we accept that but she clawed my face. She made contact with every fingernail, it wasn’t an unintentional thing and then to do that and straight away spit in my face, there was nothing unintentional about that,” Karen said.

When back up arrived, the officers placed the woman in the van and then took her back to the police station, where the woman continued to be aggressive for another two hours.

While this was occurring, Karen was receiving treatment for the wound on her cheek and her colleagues were processing the paperwork to charge the women with Assault Public Officer (Prescribed Circumstances), a charge which triggers a mandatory six-month prison sentence if the accused is found guilty.

The process of the charge was fairly normal, nothing outof the ordinary. Karen and her colleagues strongly believed that her injuries were bodily harm and enough to satisfy the prescribed circumstances criteria.

“It certainly wouldn’t have entered my mind that it would have been anything other than that (prescribed circumstances) to be honest, it just didn’t enter my mind,” Karen said.

However, from here the story goes from bad to worse.

Not only did Karen have to head home and show her battle wound to her husband and children, down the track she also had to explain that the woman was going to avoid jail.Karen1

In the weeks and months after the incident, Karen maintained oversight of her progress through the courts. She was always asking her sergeants to provide her with information on where she was at.

One day, Karen received an email from the accused’s lawyer. The email alluded to the fact she had behaved the way she had because of her mental health. Karen passed the email to WA Police Prosecuting Division.

Karen later received another email saying the matter was being progressed through to the START Court, and with no other information, her supervisor spoke to Prosecuting about what it all meant.

“I didn’t think anything of it, I believed that it would go through and she would be found guilty,” Karen said.

She then received a phone call from Prosecuting to come down and discuss the matter further, which she was happy to do. Karen was told not to worry about the matter going to the START Court as it was just a process and that because the accused’s lawyer had alluded to the fact she had a mental health issue, Prosecuting would put that on the table and it would negate it, allowing them to progress through the courts.

“I was told 99 per cent of the time that would be what would happen and it wouldn’t go through and not to worry about it,” Karen said.

Though Karen thought it was a bit odd.

“I was disappointed because her defence lawyer had alluded to the fact she had a mental health issue but it was our prosecution that put that on the table for them, they didn’t ask for it. They’d offered her that,” Karen said.

“I kind of thought we should have waited for her lawyers to ask, but we offered, so I was disappointed to hear that because I thought, make them work for it if that is what they want. Prosecution said they were doing it to help the cause as they can take that off the table because they probably won’t find a causal link.”

At this point, Karen enlisted the help of WAPU President George Tilbury after WAPU called on Members in February to advise the Union if and when any Assault Public Officer (Prescribed Circumstances) charges were downgraded.

Mr Tilbury asked Assistant Commissioner (Judicial Services) Duane Bell to review Karen’s case, amongst others.

In relation to Karen’s case he advised the matter was still progressing through the courts and she would be updated.

Karen received no further updates.

The accused faced the START Court and she was allowed to remain in that court provided she adhered to certain conditions, which have never been made known to Karen. However, subject to the START court program, she committed additional offences including criminal damage,
possess article with intent to injure, stealing, disorderly conduct, possess prohibited drug and breach of bail, the latter on two occasions. Further to these offences, she committed two additional counts of assault public officer in almost identical circumstances, bringing her total to five convictions for this charge.

She was eventually sentenced to two months imprisonment for the assault on Karen and her partner after the prescribed circumstances were withdrawn as per arrangement between WA Police and defence counsel, to allow her to escape punishment under the mandatory sentencing legislation. Also of note, she received a four-month sentence for the assault against the Public Transport Authority guards, when there was no bodily injury.

“To say I was massively disappointed was an understatement, it just made no sense to me,” Karen told Police News.

karen4“Once again, I wasn’t informed of the outcome, I had to find out everything for myself. Every time that I saw she had reoffended I just thought to myself surely she has breached the conditions of the court by now? And it wasn’t up until the day that she got her charge that I realised that I didn’t even know their intention was to finally drop the prescribed. I wasn’t told that.

“If I had been told along the way, it would have made it a little easier but just to find out that they have dropped it to an Assault PO and she has got a two-month sentence for that and a couple of other things as well, I just felt completely insignificant throughout the whole process and as though I was completely out of the equation by that time.”

It was situations like Karen’s which highlighted the apparent downgrading of prescribed circumstances charges. Over the past 12 months, WAPU has asked WA Police to review a number of matters in the hope that more charges will be allowed to proceed to the courts.

“We are strongly of the view that all prescribed circumstances charges should proceed to court and then let the magistrates decide the outcome,” Mr Tilbury said.

“The administrative downgrading is a slap in the face to our hard working Members and in our opinion, unnecessary.”

Last month, WA Police changed its guidelines for Assault Public Officer (Prescribed Circumstances) charges.

In a broadcast to all WA Police staff from Mr Bell, he said where a prima facie case exists the matter may be progressed as an Assault PO (Prescribed Circumstances) and put to the court.

“The court will now be clearly advised by the prosecutor that an assault on a police officer whereby the officer suffers bodily harm means that it is not an element of the offence but is a circumstance that goes to the sentence that may be imposed following conviction,” Mr Bell said.

“Therefore, if the court is not satisfied bodily harm was suffered, a conviction can still be sustained for Assault Public Officer.”

The Broadcast also stated that Prosecuting will also engage with and provide information to the respective District or Divisional Office and with any appointed District or Divisional Inspector responsible for ensuring the police officer victim is being provided appropriate welfare and support.

Mr Tilbury said he was very pleased the review has uncovered exactly what WAPU has been telling WA Police for some time.

“When a Member is assaulted and bodily harm occurs, it should be up to the courts to decide the fate of the accused, not an administrative panel,” Mr Tilbury said.

“I want to also thank Assistant Commissioner (Judicial Services) Duane Bell for listening to our concerns and implementing positive change for all Members.”

WAPU will continue to monitor the handling of assault public officer charges and we welcome your feedback as part of the evaluation process.