Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas

[2013] QCAT 365

CITATION: Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas [2013] QCAT 365

PARTIES:	Crime and Misconduct Commission (Applicant)
V
Deputy Commissioner Ross Barnett Andrew Earnest Thomas (Respondents)

APPLICATION NUMBER: OCR403-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: 11 June 2013

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member, Presiding Member
Michelle Howard, Member

DELIVERED ON: 17 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     That the decision of Deputy Commissioner Barnett  on sanction is set aside;

2.     That Sergeant Thomas be demoted in rank from Sgt 3.5 to Senior Constable 2.9 for two years.

CATCHWORDS:

POLICE DISCIPLINE – where report to off-duty but on-call officer of abandoned motor vehicle in remote location – where officer failed to act upon report – where subsequent report of vehicle to another officer at nearby station – where deceased driver of vehicle  subsequently located – where officer otherwise had exemplary career – where administrative action to move officer – where mitigating factors – where disciplinary action to demote officer in rank for 2 years was suspended – where officer has subsequently discharged from police service

Crime and Misconduct Act 2001 s 219J

Queensland Civil and Administrative Tribunal Act 2009 s 20

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Aldrich v Ross [2001] 2 Qd R 235

Crime and Misconduct Commission v Flegg and Anor [2013] QCATA 29

Crime and Misconduct Commission v Flegg and Anor  [2012] QCAT 74

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr E Mac Giolla Ri of Counsel instructed by the Official Solicitor for the Crime and Misconduct Commission 

FIRST RESPONDENT:

SECOND RESPONDENT:

Ms B Wadley, Senior Legal Officer,  Queensland Police Service

Mr A Braithwaite, solicitor, Gilshenan & Luton, Lawyers

REASONS FOR DECISION

1. Augathella is a small country town in far western Queensland just north of Charleville.  There are only two police officers stationed at Augathella. Sgt Thomas was the officer in charge of the local police station. He was stationed there for some 16 years.

2. On 6 December 2009 Sgt Thomas was off duty and the other police officer was absent and no relief personnel had been rostered to work at the Augathella police station that day.  At about 11:30am that morning a local resident telephoned the Augathella police station and spoke with Sgt Thomas and told him that he had seen an abandoned car along the Narran Road at Wyandra, which is about halfway between Cunnamulla and Charleville.  Sgt Thomas was given the registration number of the vehicle and he told the resident that he would look into it.

3. Sgt Thomas took no further steps to investigate the circumstances of the vehicle being in that location.  On 10 December 2009 whilst at the police station in Charleville, Sgt Thomas became aware that a search operation had commenced along the Narran Road at Wyandra for a missing person.  On becoming aware of this information, Sgt Thomas attended the Charleville CIB and informed the officer in charge of his conversation with the local resident on 6 December 2009. 

4. The following day on 11 December the body of the driver of the vehicle was located in bushland adjacent to Narran Road at Wyandra.

5. Because of his failure to act on receiving the information from the local resident Sgt Thomas was charged with misconduct in that he failed to take appropriate action following a report of an abandoned vehicle in a remote location near Wyandra.  Sgt Thomas accepted that the charge against him had been substantiated and a hearing was conducted on 20 November 2012 before the Deputy Commissioner.  After considering written submissions from Sgt Thomas, and taking into account a number of mitigating factors, the Deputy Commissioner imposed a sanction that Sgt Thomas be demoted in rank from Sgt 3.5 to rank of Senior Constable 2.9 for a period of 2 years.  He also decided that having regard to his insight into his own failure and his service history that the sanction should be suspended for the 2 year period.

6. On 5 December 2012 the Crime and Misconduct Commission filed an application to review the decision of the Deputy Commissioner on the grounds that the sanction imposed did not adequately reflect the gravity of Sgt Thomas’ misconduct, and did not properly reflect the purposes of disciplinary proceedings.  Because Sgt Thomas has accepted the charge against him was substantiated, the only issue before this Tribunal is to consider the appropriate sanction to be imposed as a result of his misconduct having regard to all the circumstances pertaining to his failure to take action on being notified of the abandoned car.

7. The function of the Tribunal in a review proceeding is to produce the correct and preferable decision.  It does so by hearing and deciding the application by way of a fresh hearing on the merits.[1]  In undertaking this task the Tribunal must not only have regard to the purpose of the disciplinary proceedings, but also give weight to the Assistant Commissioner’s views as to the appropriate disciplinary sanction.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s20.

   [2]Aldrich v Ross [2001] 2 Qd.R 235; Crime and Misconduct Commission v Flegg and Anor [2013] QCATA 29.

8. On 3 May 2013 Sgt Thomas was discharged from the Queensland Police Service. Because of this, section 219J(4) applies. In essence, it provides that if an officer has left the QPS, the Tribunal can make a disciplinary declaration only if the officer, had he or she continued to serve, have been dismissed or demoted.

9. The seriousness of the charge against Sgt Thomas can be gleaned from the particulars supporting the charge which were:-

   §The unusual circumstances [in which the local resident] found the vehicle;

   §The likelihood that a person who abandoned the vehicle may need assistance;

   §The remote location of the abandoned vehicle;

   §The temperature and other environmental conditions of the area;

   §The consequences to a person, if they don’t receive assistance, and so are exposed to such environmental conditions;

   §The officer in charge of Wyandra station was not present within the Wyandra police division on 6 December 2009.

10. Little needs to be said about the environmental conditions in the area where the vehicle was located.  Wyandra is about half way between Cunnamulla and Charleville.  Augathella is about 85km north of Charleville.  The vehicle reported to Sgt Thomas was about 2km from the Mitchell Highway which is the main road between Cunnamulla and Charleville.  The area is largely uninhabited and in December, temperatures can soar to extremes in the high 30s.  It’s unclear why the local resident called Sgt Thomas in Augathella when there are police stations closer at Cunnamulla, Wyandra and Charleville.  Despite this he gave Sgt Thomas sufficient information that he should have been alert to the potential consequences for a person stranded in that region having spent 16 years at Augathella.  Moreover the local resident said it was “weird” that the car was parked where it was. 

11. In initial interviews with the investigating officers, Sgt Thomas gave reasons for not taking any action as a result of the local resident’s information.  These included making assumptions that the vehicle was stolen; he had no idea a missing person was involved; he did not realize the vehicle was in a remote location; and, the telephone connection with the local resident was poor.  He also said that he had personal issues which caused him to not respond as he normally would have.

12. The CMC submit that his explanations fall into two main categories.  Firstly, that he made a reasoned decision not to take any action because of his appraisal of the circumstances of the abandoned car, and secondly, he was preoccupied and unwell because of a head injury as a result of which he failed to take steps to deal with the information given to him about the abandoned vehicle.  We accept that these two categories of explanations are contradictory. 

13. Irrespective of the explanation given, it seems to us that Sgt Thomas simply forgot about the call and therefore failed to take any action in respect of the information given to him by the local resident.  We come to this view because of his exemplary record as a police officer of some 30 odd years standing and his commitment to the service being stationed in Augathella for some 16 years.  Had he given any further thought to the information given to him, we have no doubt that he would have taken action at least to contact Charleville police or Wyandra police alert them to  the need to investigate the matter.  We are not satisfied that Sgt Thomas deliberately ignored the information. Nor do we accept that he deliberately provided false evidence to the investigating officer. He appears initially to have been mistaken as to the day of the week on which the call was received.

14. There is no challenge by the CMC to the matters taken into account by the Deputy Commissioner in determining sanction which include: reliance on Sgt Thomas’ exemplary career in the Queensland Police Service since April 1981 when he was first sworn in; references that were provided by people in the Augathella police division who have known Sgt Thomas for the 16 years; an acceptance that Sgt Thomas was dealing with some personal issues at the time of this incident and also he was recovering from an injury.  We are also satisfied that this was a singular serious failure on Sgt Thomas’ part and must be considered in light of the background of the many good things that have been said about Sgt Thomas, his service record and contribution to the police service in the state. 

15. In considering sanction, the Deputy Commissioner had regard to the case of Crime and Misconduct Commission v Flegg and O’Regan (Flegg).[3] That case has some similarities to this one in that Sgt Flegg failed to adequately respond to a significant risk to persons in danger on a vessel in the Torres Strait in a timely fashion.  Sgt Flegg acknowledged his misconduct and the sanction imposed by the Deputy Commissioner was similar to that imposed here, including that the sanction was suspended.  The Crime and Misconduct Commission appealed this decision and it was initially confirmed by the Tribunal.

    [3][2012] QCAT 74. Although the Deputy Commissioner misquoted the date of the decision, it is apparent that he refers to the decision cited.

16. However, the Appeal Tribunal subsequently held in Crime and Misconduct Commission v Flegg and Anor (Flegg No 2)[4] that the sanction imposed in the circumstances was inadequate and ordered that Sgt Flegg’s rank be reduced from Sgt 3.5 to Senior Constable 2.9 and that the sanction not be suspended.  For completeness, we note that the Appeal Tribunal’s decision is currently on appeal to the Court of Appeal. It is, as yet undetermined. We accept, as submitted by the Crime and Misconduct Commission that we can not take the fact of appeal into account when considering how or whether to apply it.

    [4] [2013] QCATA 29.

17. This is significant because the Deputy Commissioner relied on the sanction imposed on Sgt Flegg and initially confirmed by this Tribunal when considering the appropriate sanction to impose. He effectively followed Flegg, although distinguishing the differences between Sgt Thomas’ case and Sgt Flegg’s case. Having identified those differences, the Deputy Commissioner said he was persuaded that a similar sanction “as affirmed by QCAT, would satisfy the purposes of discipline”.[5]

    [5]Section 21(2) Documents Part A pages 177- 178 (Deputy Commissioner’s Findings and Reasons pages 15-16).

18. In considering this matter afresh we cannot ignore what was said by the Appeal Tribunal in Flegg No 2 as to the seriousness of a breach of this kind.  In many respects, Sgt Thomas’ conduct in failing to respond at all to the information provided by the local resident is more serious than that of Sgt Flegg who was, actively engaged in the search and rescue process during which the misconduct occurred, in conjunction with other persons. His failure was in not conveying the seriousness of the situation at a crucial time in the process.  Here, Sgt Thomas took the report, and did nothing as a consequence of it.  As counsel for the applicant observed, correctly in our view, it is the conduct rather than the outcome that should be the focus in determining the appropriate sanction to impose for the conduct.  Here, Sgt Thomas did nothing and had he made a simple phone call to the Charleville police, Cunnamulla police or Wyandra police station the outcome for the deceased driver of the vehicle may have been different. 

19. We do not accept the argument made by Counsel for Sgt Thomas that there was a greater dereliction of duty in Flegg because Sgt Flegg’s misconduct occurred in the context of his operational duties, whereas Sgt Thomas was off duty, although on call. Sgt Flegg was the sole search and rescue coordinator on Thursday Island and all responsibility fell on him to ensure that all search and rescue procedures were implemented at an early stage. He was actively monitoring the situation, conversing with other participants in the search and rescue, but did not notify Australian Search and Rescue until the vessel was in serious trouble. Although, Sgt Thomas was off-duty, he did nothing at all in response to the report.

20. Importantly, common to both cases are circumstances involving misconduct with the potential for loss of life. In those circumstances, is a suspended sentence appropriate? The Appeal Tribunal has said, that in circumstances which have some similarity to these, that a suspended sanction is wholly inadequate having regard to the seriousness of the conduct. 

21. In accordance with the principles in Aldrich v Ross,[6] we are urged by Mr Braithwaite to place considerable weight in this instance on the decision of the Deputy Commissioner who on a proper analysis of the competing factors and the need for maintenance of internal discipline concluded that a suspended sanction was appropriate.  This in our view is inconsistent with what was said by the Appeal Tribunal in Flegg No 2 and despite the submission of the Deputy Commissioner at the hearing, had the Appeal Tribunal’s decision been before him we doubt he would have suspended the sanction imposed.

    [6] [2001] 2 Qd.R 235.

22. Further, Counsel for Sgt Thomas correctly submitted that the purpose of disciplinary action is to protect the public, maintain appropriate standards of behaviour, and maintain public confidence, rather than to punish.[7] While we accept that is so, we can not accept the submission said to flow from this and the managerial action taken against Sgt Thomas, that any additional sanction imposed on Sgt Thomas would be punitive since he is no longer a serving officer. We accept the submission of the Crime and Misconduct Commission that it is irrelevant whether the officer continues to serve. Sanction also serves as a deterrent. Indeed, as Sgt Thomas is no longer serving, he will not, if the suspension is removed incur the financial consequences which would flow to a serving officer because of s219J(5).

    [7]Hardcastle v Commissioner of Police (1984) 53 ALR 593; Police Service Board v Morris (1985) 156 CLR 397.

23. We accept the Deputy Commissioner’s decision regarding sanction as far as demoting Sgt Thomas from Sergeant 3.5 to Senior Constable 2.9. However, we find that the sentence should not be suspended. Accordingly, we set aside the Deputy Commissioner’s decision and substitute our own decision in these terms.

Non-publication order

1. For completeness we note that on 6 March 2013, a Tribunal Member made a non-publication order until further order prohibiting publication of the following (paraphrased to exclude names which publication prohibits):

   i)any material including medical, forensic, police reports, submissions and photographs referring to the deceased person;

   ii)any material referring to third parties who provided evidence to the investigation and to the coronial enquiry or referring to third parties otherwise mentioned in the police material;

   iii)any material referring to Sgt Thomas’ personal and family details; and

   iv)the memorandum of advice from Mr Gardiner, Barrister-at-law to the Queensland Police Service Solicitor.