WARNING: DISTRESSING FOOTAGE. The young man robbed a chemist and attacked bystanders. He deserved to be punished. But did he deserve this?

A still from CCTV footage of the arrest of a man in a Preston chemist. Normal text size Larger text size Very large text size It begins with a barrage of blows from a policeman to the head, neck and back of a young Sudanese-born Melbourne man. Seven heavy punches land from the officer’s right fist and then, when his arm appears to tire, the policeman swaps to the left and lands two more. Then he stands up. With his colleague still kneeling on the young man’s torso as he lies face down on tiles, the officer lines up the man’s head like a soccer ball. He kicks it, hard. The CCTV vision of this 2016 arrest in the back of a Preston chemist shop has been uncovered by The Age as part of an ongoing investigation into the Victoria Police complaint system and which has included other disturbing CCTV vision and cases.


The chemist shop vision shows a tall, young man first robbing the shop and then being confronted in the back corridor by a civilian, who restrains him without throwing a punch. When police take over, things change. The African-Australian man, who is suffering a psychotic episode, is punched and kicked as two officers try to subdue him and handcuff his arms behind his back. As the man wriggles, trying to avoid the cuffs and with one policeman continuing to kneel on his back, the officer who delivered the earlier blows unsheaths a police baton. He appears to hammer it into the back of the man’s head. He does this three times. When the cuffs are finally on, the suspect is subdued. Then the sunglass-wearing policeman who has delivered the baton blows does something that unambiguously crosses a line. He stands up and stomps on the African man’s back.


As violent as this incident in February 2016 seems, the police internal affairs unit, known as Professional Standards Command, deemed it not serious enough to sanction. Vision such as this is now at the heart of the debate about whether Victoria’s police complaint system is broken. The African man’s lawyer, Natasha Wolan, says the case is among a growing body of evidence that shows there is something seriously wrong. “There is no way a reasonable person would find the use of force proportionate. The first time I saw this, I was absolutely horrified.” The crimes leading up to her client’s arrest – crimes for which he pleaded guilty in October 2017 – are also horrifying. Loading During his psychosis, the man violently attacked several bystanders and held up the chemist with a pair of scissors, terrifying shoppers. His sentencing hearing heard evidence about the gravity of his offending, along with details about his traumatic upbringing. He fled a civil war as a child and grew up plagued by mental illness and substance abuse.


A mistaken recording by immigration authorities of his date of birth meant he'd been previously jailed for months in adult prisons for crimes he committed while still a child. He was 23 when he entered the shop, shirtless and wild. Wolan says that afterwards, her client knew he deserved to be punished. But the proper forum for judgment was not the floor of the chemist shop. It was the court that ultimately sentenced him to two years and nine months in prison. “If police start meting out their own punishment, that becomes really problematic, especially when there is limited accountability for police actions through the complaint system,” says Wolan. Prosecutors quietly dropped the man’s charges of resisting arrest and assaulting police after they viewed the vision of his arrest. This, says Wolan, suggests prosecutors knew police had gone too far. (The man has asked for his name not to be used as he is in prison and fearful for his safety.)


Wolan says that in her six years at the Fitzroy Legal Centre (she recently joined Legal Aid Victoria), she has not had a single complaint about police substantiated, either by professional standards or the public sector watchdog, the Independent Broad-based Anti-Corruption Commission (IBAC). This includes the case of the man stomped on in the Preston pharmacy. Now, retired senior judges, the Victorian Law Institute and academics have joined her in critiquing a complaint system that recently veered towards crisis point with the resignation of the man who steered it, Professional Standards Command (PSC) Assistant Commissioner Brett Guerin. In February, Guerin was caught using an alias to post racist and violent comments on social media. Guerin's troll endorsed Africans being brutalised. His oversight of PSC's handling of previous complaints (PSC said the Preston chemist case involved "appropriate" conduct by police) is now being reviewed by IBAC. But it's clear IBAC already believes change is need. The agency recently called for reforms to its powers and resourcing to enable a "major change" to the police complaints system. Watch police detaining the robber. Warning: violence. Loading Replay Replay video Play video Play video Extreme force Wolan’s client is left to pursue his rights via a civil lawsuit. It’s a costly, difficult process.


At its best, though, that process can expose some of the failings of Victoria’s existing police complaint system. Just ask Nuala Tobin. Last November, Tobin, a Melbourne nurse, felt her stomach churn as her eyes were drawn to a newspaper article. The headline read “No conviction, just fine for cop who slapped handcuffed teen 'one too many' times”. She read the policeman’s name once. Then again. Senior Constable Gareth Gutierrez had been tried in the County Court for assaulting a 17-year-old who, along with two other teenagers, had been attempting to retrieve a soccer ball from an irate man’s yard. Police, including Gutierrez, were called and the 17-year-old exchanged words with the senior constable. Gutierrez had responded by spraying the youth with capsicum foam and handcuffing him. While the teen was helpless, the 33-year-old policeman slapped his head three or four times with an open hand. He later confided to a colleague he’d given the boy “one too many”. Despite his later denials, the court found the same. But a judge spared Gutierrez a criminal conviction because he suffered post-traumatic stress disorder caused by his police work. Tobin absorbed these facts as she read the article, searching for the date the teen was slapped. It was May 15, 2015. Two weeks before that, Victoria Police had agreed to confidentially settle a civil case Tobin had lodged and which alleged she had been the victim of police brutality. The officer she had accused, but who was denying any wrongdoing, was Gareth Gutierrez. Tobin cannot disclose the terms of the confidential settlement she reached with police (many settlements involve a no fault payout), but The Age has uncovered a crucial element of her sealed civil complaint against Gutierrez. It featured in a different court case – the criminal prosecution that police launched against Tobin in Melbourne Magistrates Court. Loading In October 2010, Gutierrez and several of his colleagues accused Tobin of attacking the police officer after police intervened in a heated argument between Tobin and her boyfriend outside a CBD nightclub. The police case against Tobin partly collapsed after an independent witness swore a statement and testified about its contents in court. Matthew Landolfo, a public servant, contradicted the police version of events, including their claim Tobin had kicked Gutierrez. While walking through the CBD, Landolfo had “heard a woman scream”. Next, he saw “Gutierrez physically lift a woman, who I now know to be Nuala Tobin, up off the ground and then throw her into the pavement with extreme force". Landolfo then observed Tobin “bleeding heavily from the nose … in a great deal of distress". “She was crying and she was upset. She kept repeating, ‘What have I done,’ and, ‘What are you doing to me’,” said Landolfo, who described Gutierrez’s treatment of Tobin as an “entirely unnecessary … assault". Landolfo also told the court that when he quizzed the highest ranking police officer at the scene about Tobin’s treatment, he was told to “f--- off” and threatened with arrest. Nothing to see here Despite Landolfo’s court allegations about witnessing police brutality, he was never approached by police internal affairs officers. Magistrate Bernard Fitzgerald, though, relied on Landolfo’s evidence to reject the police allegations that a drunken Tobin had assaulted Gutierrez. While the magistrate found Tobin had initially resisted arrest, and fined her $450 without conviction, he ruled the most serious charge of assaulting Gutierrez “has to be dismissed”. It took five years for Tobin to reach a settlement in her civil case against the police and Gutierrez. When she recently spoke to Fairfax Media about her efforts to get police to act on her allegations, she described it as exhausting. “For me, it was never about monetary compensation. But, unfortunately, that was the only avenue I had to get so-called ‘justice.’ Accountability should mean a person subject to credible allegations of brutality is actually held responsible or re-trained in how to deal with the public using other means than brute force.” Tobin says it’s telling that just days after police agreed to settle her case against Gutierrez and the force in 2015, he slapped the head of a handcuffed teen. Her criticism about the force’s apparent failure to hold accountable or retrain police who are the subject of repeated misconduct allegations has been separately made by public sector watchdog IBAC. An IBAC audit found that internal investigators had only bothered to review an accused officer's complaint history in 5 per cent of complaint inquiries. The cases of both Tobin and the African-Australian arrested in the Preston chemist shop suggest that, at least sometimes, evidence of misconduct is overlooked or underplayed by internal affairs investigators. Senior police have acknowledged the complaint system, while robust, can improve. Superintendent Tony De Ridder recently told a parliamentary committee that the force is undertaking a “very substantial project” to improve the way it assesses previous complaints about officers subject to a fresh allegation. It is also considering why its own investigators miss evidence that appears later in court actions. The CCTV vision from the chemist shop is now the subject of a fresh inquiry, this time by IBAC. Tobin, though, is cynical about the force's promise to reform. “I see a psychologist on a regular basis seven years after what happened to me,” says Tobin. “I feel like I will never be truly safe.” Know more? Contact the author at nmckenzie@fairfaxmedia.com.au or on Journotips