DPP v Sarachik [2025] VCC 1364

1. On the ground floor, the complainant was walked out to the divisional van outside the apartments. He was shouting that he couldn't see and complaining about his eye. He refused to get in the pod of the divisional van. Several members lifted him up by his arms and legs and slid him into the pod. He was rolled onto his side so that he was not face down.
2. The divisional van pod was closed at 10:23pm. Outside the van, you told Gilmore in the presence of Miller that the complainant had been non-compliant so you struck him once or twice to the face to get him down to the ground and he continued to violently resist, so he received a knee strike to the face by you.

1. You, the complainant, Miller, Steer and Brown arrived at the Alfred at about 10.35pm. Sometime between 11:00pm and 11:15pm, the complainant was examined by Emergency Department staff. The complainant's right eye was swollen shut, there was blood on his face, and lacerations on his forehead and nose. He was referred for a CT scan.
2. At 11:12pm, a sample of the complainant's blood was taken. Subsequent analysis revealed a blood alcohol concentration of 0.2392 g/dL. At 11:14pm, the CT scan was conducted, that revealed the complainant had a left orbital floor (eye socket) fracture (non-displaced) and a fractured nose (minimally displaced).
3. Whilst at the hospital, you said to the hospital staff that the complainant received three or four strikes with a closed fist to the face by you, and a knee to the face by you. When asked by hospital staff what the complainant did to you, you confirmed he tried to head butt Miller. It must be acknowledged that you said three times that you kneed the complainant in the face, rather than kicked him.

1. The complainant suffered surface injuries that were documented in the medical notes, that is, bruising to the right eye which was swollen shut, injuries to the forehead and nose described as lacerations, swelling of the right eye, open injury to the forehead and the bridge of the nose. The injuries that were found on imaging were a left orbital floor fracture and fractured nose.
2. The supplementary statement of Dr Maaike Moller confirms that the kick delivered to the complainant could readily have caused the orbital floor fracture and the nasal bone fracture.[1]
3. When making a determination as to causation, there must be an evidentiary basis for the sentencing judge to make a finding. That is, it is to be accepted that where an aggravating factual circumstance is contested, the onus lies on the prosecution to establish it beyond reasonable doubt.
4. If the circumstance is one that the sentencing judge considers aggravates the offence, I must be satisfied of that fact beyond reasonable doubt.[2] In accordance with R v Storey,[3] the sentencing judge may not take facts into account in a way that is adverse to the interests of the accused, unless those facts have been established beyond a reasonable doubt, but if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
5. Where the facts implied in a verdict of guilty are clear, the judge must accept the necessary implications and sentence the accused accordingly.
6. At the plea hearing Mr Steward submitted that the kick cannot be shown beyond reasonable doubt to have caused the injury. He submitted that you had not been found guilty of any offence involving causing an injury and that no injury can be attributable to the action of kicking. Ms Stokes, who appeared on behalf of the Director of Public Prosecutions agreed that it cannot be proved to the requisite standard.
7. Because you were acquitted of the other common law assault charge (particulars: punching), I cannot find beyond a reasonable doubt as to causation. That is, on the evidence, I cannot make a determination that the kick was the cause of the injuries to the complainant.
8. Bearing these matters in mind, I find that the injuries resulting from the kick to be low to moderate.

1. Dealing with the particulars of the charge you were found guilty of:

a) While the complainant was lying on the ground, face down, hand cuffed and restrained, you kicked him in the face (Alternative Charge 3: Common Law assault - particulars: kicking).

a) The accused applied force to the complainant's body; > > b) The application of force was intentional; and > > c) The application of force was without lawful justification or excuse.

3. The statutory maximum is 5 years. Parliament indicates by this maximum that this is relatively serious offending, though not of the high end.
4. The Sentencing Act 1991 prescribes a number of non-exclusive circumstances relevant to determining the gravity of offending, one of which is the 'nature and gravity of the offence' under s5(2)(c). Relevantly, the Court of Appeal has noted that s5(2)(c) is directed to:

"... an assessment of the objective gravity of the offence in respect of which sentence is to be imposed."

1. In making that assessment, the Court must consider and take into account matters such as the nature and effect of the actions of the offender and the objective circumstances of the offence.[4]
2. I take into account your physical actions, that is, you have struck the complainant with your boot, to a vulnerable part of his body, being the head. I place weight on the fact that the complainant was restrained by Miller and lying face down with no ability to foresee and protect himself from the kick to his head. He had been OC sprayed and was well subdued. I find this to be an aggravating feature because, you as a trained, senior, sober police officer who by reason of the Police Tactical Manual is taken to have known that a forceful strike to the head could indeed lead to serious injury. Despite these circumstances, you delivered the kick.
3. Overall, I consider your offending is at the lower level even though it was gratuitous and unnecessary.

1. Rodney Gaskin prepared a victim impact statement declared on 7 November 2025. In the statement he recounts the two years of emotional damage to him and his wife and family. He details the impact of the night will remain with him and his wife. He talks about treatment with counselling and how he experiences ongoing headaches and blood noses. While it cannot be determined what pain and ongoing ailments relate to the offending, I accept that there are lasting psychological effects linked to the offence.

1. You are 30 years of age and were 27 at the time of the offending.
2. You are the eldest of three children. You were born in South Africa and lived briefly in Zimbabwe with your parents before migrating to Australia at the age of 3. Your family settled in South-East Melbourne and you attended primary and high school there. You completed Year 12 and worked for a few years between jobs as an energy broker and an event host. You commenced an Associate Degree in Aviation at RMIT in 2015, but left the course after a year to apply to join Victoria Police.
3. You were an active police member from 2017 until 2023 and had worked between Moorabbin and Melbourne East before being located at Prahran from 2020. You said that prior to these incidents, your work history was positive. You denied exposure to trauma or life-threatening incidents as part of your police work, and noted that you had not been subject to any prior disciplinary sanction. You have an ambition to return to police work.
4. You have had one significant relationship in 2024.
5. You reported during your psychological assessment with Mr Patrick Newton on 27 October 2025 that you have experienced various periods of emotional challenge over the years. You have had some psychological counselling for a family matter and also following your suspension from Victoria Police in 2023. You were seeing a counsellor early this year for assistance with ongoing anxiety and depression due to your suspension. You had been prescribed medication by your GP but have recently ceased taking it.[5]
6. You have reported that you have never had problems with substance use.

1. Turning to mitigatory factors. You have an unblemished criminal history and have not been involved with the law prior to this offending. I received evidence and can accept that besides this offending, you are a person of good character,[6] you have a supportive family and stable housing.
2. I turn to now address remorse. You went through an entire trial process, denying the allegations. This was your right and is not held against you. You denied kicking the complainant to the head at all to your superiors and at the hospital.
3. In the psychological report of Dr Newton, you had an opportunity to recount your perspective on the matters. You stated that you believed your actions were reasonable and necessary in the circumstance and that you had no intention of causing injury to the complainant. You stated that you regret your actions and acknowledge that in part, your offending contributed to the complainants injuries. You stated that you want to better your communication and skills when dealing with violent offenders without using violence yourself.
4. I find that you have demonstrated little remorse for your actions, however, have acknowledged the offending.

1. As you have gone through the committal process and were convicted after your trial, there is no reduction in sentence or sentencing discount that would normally apply had you pleaded guilty to the charge. However, you will not be punished for running a trial.
2. Your defence was your actions were reasonable and necessary within your role as a police officer, to gain compliance from the complainant. This was not accepted by the jury, nor is it accepted by me. At the time of the offending, the complainant was intoxicated, handcuffed with his hands restrained behind his back. He was lying face down with an officer on his body.
3. The public entrusts members of the police force to discharge their duties professionally and ethically. Your act of kicking the complainant while in a vulnerable state to a vulnerable part of the body, has breached trust that the community would have for you. Taking this into consideration, the sentence imposed will reflect general deterrence and denunciation. You have no history of previous assaults and on the evidence of good character, I do not expect you to offend again. Specific deterrence is not a sentencing consideration of significant weight. Overall I consider your prospects for rehabilitation to be good. Rehabilitation is an important factor given your age, unblemished record, good character and desire to return to your career.
4. The primary sentencing submission made on your behalf was that a disposition without the recording of a conviction is sufficient to meet the relevant sentencing considerations.

1. Having been convicted by a jury of one charge of common law assault for which the maximum penalty is imprisonment for 5 years, I determine that it would not be appropriate to sentence you to a term of imprisonment in accordance with the circumstances.
2. The focus of submission on your behalf was in relation to the effect of recording a conviction may have on your employment and emotional well-being. The psychological report of Mr Newton details how you would likely experience emotional distress and that a conviction would render future work with Victoria Police difficult.
3. Three cases involving members of Victoria Police found guilty following a trial were provided in support of the submission to not record a conviction.[7] Similarly, evidence from the police association suggested greater risk to your employment if a conviction were recorded. There is nothing definitive about that evidence one way or another and I do not accept on the balance of probabilities a conviction will hamper your prospects of re-employment. Each case must turn on its own facts and following the trial, there are matters of aggravation and mitigation which must be considered specific to you.
4. Pursuant to s8 of the Sentencing Act 1991, the sentencing Court has discretion as to whether to record a conviction or not. A Court is to regard all 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 or social well-being or on his or her employment prospects.
5. Bearing those matters in mind in accordance with your circumstances, I consider a fine without conviction will meet the relevant sentencing considerations. I now sentence you as follows.
6. Yaron Sarachik, on Alternative Charge 3: Common Law assault - particulars: kicking), I sentence you to a $10,000 fine without conviction.

1. Yaron Sarachik, on 18 August 2025, a jury of 12 unanimously found you guilty of one charge of common law assault (particulars: kicking) contrary to Common Law which carries a maximum penalty of 5 years imprisonment.
2. You have no prior criminal history.
3. The public entrusts members of the police force to discharge their duties professionally and ethically. Your act of kicking the complainant while in a vulnerable state to a vulnerable part of the body, has breached trust that the community would have for you. Taking this into consideration, the sentence imposed will reflect general deterrence and denunciation.
4. You have no history of previous assaults and have given evidence of good character, I do not expect you to offend again. Specific deterrence is not a sentencing consideration of significant weight. Overall I consider your prospects for rehabilitation to be good. Rehabilitation is an important factor given your age, unblemished record, good character and desire to return to your career.
5. As you have gone through the committal process and were convicted after your trial, there is no reduction in sentence or sentencing discount that would normally apply had you pleaded guilty to the charge. However, you will not be punished for running a trial.
6. Bearing those matters in mind in accordance with your circumstances, I consider a fine without conviction will meet the relevant sentencing considerations.
7. Balancing all those matters, I will sentence you to a $10,000 fine without conviction.
8. This summary is not intended to be a substitute for the reasons of the County Court or to be used in any later consideration of the Court's reasons.

[1] Supplementary statement of Dr Maaike Moller dated 25 July 2025

[2] R v Storey [1998] 1 VR 359

[4] Director of Public Prosecutions v Herrmann [2021] VSCA 160 at paragraphs [9]-[10]

[5] Psychological Report of Patrick Newton dated 3 November 2025

[6] Character references of: Melanie Sarachik dated 29 October 2025; Yakira Sher dated 29 October 2025; Andrew Stamper dated 27 October 2025; Bianca Stern dated 28 October 2025; Daniel Shandler dated

29 October 2025; Elad Gafin dated 28 October 2025; Jacob Pinskier dated 29 October 2025; James

Dann dated 28 October 2025; Jess Steinberg dated 28 October 2025; Maeve Slonim dated 29 October

2025; Matthew Sacher dated 29 October 2025; Sigalit Gafin dated 28 October 2025; Yuval Witkin dated 29 October 2025

[7] Director of Public Prosecutions v Gutierrez [2017] VCC 1640; Director of Public Prosecutions v Repac

[2020] VCC 175; DPP v Fowler [2020] VCC 738