Garth v Queensland Police Service
[2012] QCAT 261
•29 June 2012
| CITATION: | Garth v Queensland Police Service [2012] QCAT 261 |
| PARTIES: | Travis Michael Garth (Applicant) |
| v | |
| Queensland Police Service (Respondent) |
| APPLICATION NUMBER: | OCR149-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member |
| DELIVERED ON: | 29 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent’s decision of 6 July 2011 is set aside and instead there be a reduction in the applicant’s level of rank from Constable paypoint 1.5 to Constable paypoint 1.3 to take effect from 6 July 2011 and advancement to paypoint 1.4 be deferred for 12 months that is to 6 July 2012. |
| CATCHWORDS: | Police Discipline – whether sanction imposed sufficiently reflected the applicant’s conduct – whether the conduct was “misconduct” or “breach of discipline” – where there are significant mitigating factors – where there was some delay in concluding the disciplinary proceeding |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Nr Garth represented by Mr Gnech, solicitor |
RESPONDENT: | Queensland Police Service represtened by Mr Nicholson of counsel instructed by the Queensland Police Service Solicitor |
REASONS FOR DECISION
The applicant was sworn in as a police officer into the Queensland Police Service on 28 June 2008. He was assigned to the Fortitude Valley Police Station.
On the morning of 13 September 2010 he and two other young police officers were involved in an incident with a female member of the public which led to disciplinary action being taken against him by the respondent. The applicant accepted that the disciplinary charge laid against him was substantiated, and at a disciplinary hearing conducted on 6 July 2011 the Assistant Commissioner imposed a sanction of a reduction of rank from Constable, paypoint 1.5, to Constable paypoint 1.2, and the advancement to paypoint 1.3 be deferred for 12 months.
The applicant has filed an application to review the respondent’s decision on sanction on the grounds that it was manifestly excessive in the circumstances. The applicant’s complaint is that:
a.The sanction was purely of a punitive nature;
b.Insufficient weight was given to the purposes of discipline as outlined in the Queensland Police Human Resource Management Manual;
c.Insufficient weight was given to the applicant’s service record, and;
d.Failing to consider the full financial effect on the applicant.
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 review application by way of a fresh hearing on the merits.[1] In undertaking this task in matters involving police disciplinary proceedings the Tribunal must not only have regard to the purpose of disciplinary proceedings in the QPS, but also give due acknowledgement to the Assistant Commissioner’s[2] decision within the constraints of the Tribunal’s obligations under section 20.
[1] QCAT Act, section 20.
[2]Aldrich v Ross [2001] 2 Qld R 235 at [41]-[43]; Chapman v Rynders [2012] QCATA 16.
Because of the President’s comments in Chapman v Rynders, Mr Gnech submitted that Aldrich v Ross no longer has application in police disciplinary review proceedings. I disagree that the President’s comments go that far. The Assistant Commissioner’s reasons and decision remain a relevant consideration, however, it cannot override the primary obligation of the Tribunal under section 20. As was said in Murray v Stewart,[3] considerable respect is paid to the views of the original decision maker but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views and there will be cases where it is necessary to depart from the views of the decision maker.
[3] Murray v Deputy Commissioner Stewart [2011] QCAT 583.
Although it is of assistance for the applicant to identify those parts of the Assistant Commissioner’s reasons and conclusions he disagrees with, this is not an appeal and it is not necessary or desirable for the Tribunal to embark on a critique of the Assistant Commissioner’s reasons. The Tribunal must stand in the shoes of the Assistant Commissioner and consider the matter afresh. There is no presumption that the original decision is correct.[4]
[4] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
Having said that, the submissions from each party are confined to the points raised in paragraph 3 above, and I will therefore confine the review to those matters, bearing in mind that the applicant has accepted responsibility for his misconduct.
Whilst on patrol through the Valley the applicant and two other police officers did a “walk through” of one of the bars when a female asked the applicant if he wanted to see her breast reconstruction. He replied in the affirmative and they then went to a street nearby and, under a street light, the female exposed her breasts.
The applicant had one of the police officers with him take photos of the young lady while he posed with her. He also placed another police officer’s cap on her head and handcuffs over her wrists whilst the other officer took more photos with his mobile phone. The incident took place in a public area in view of members of the public.
The applicant later showed other police officers the photographs but deleted them when told to do so by his superior.
The objects of the Police Service (Discipline) Regulations 1990 is to provide a system of guiding, chastising and disciplining subordinate officers in the police service by maintaining standards of discipline within the QPS to: protect the public; uphold ethical standards within the QPS; and promote and maintain public confidence in the police service.
The purpose of discipline is set out in the respondent’s Human Resource Management Manual (HRMM) which is to maintain public confidence in the service; self esteem of the service; maintain confidence that the service can fulfil its statutory functions; maintain proper standards for its members; maintain the efficiency of the service; and protect the reputation of the service.
Both parties agree that the object of disciplinary proceedings against a police officer is not to punish or extract retribution but for the purposes set out above.[5] However, the extent of the sanction imposed to achieve these purposes must have some relation to the seriousness of the conduct engaged in by the police officer. In the most serious case of misconduct, dismissal is usually the appropriate sanction. Any sanction imposed of the type referred to in regulation 10[6] carries with it a punitive component for the individual. It also serves as a deterrent to others and maintains confidence in the police service.
[5] Hardcastle v Commissioner of Police 53 ALR 593.
[6] Police Service (Discipline) Regulations 1990.
There are a number of factors to be taken into account when considering the sanction that should be imposed as a result of the applicant’s conduct. The applicant was a constable and the senior officer in the group of three. In this circumstance it is reasonable to expect the senior officer to set an example for the junior officers, particularly the first year constable, when first approached by the female.
The situation was further aggravated when, after the female exposed her breasts, the applicant was actively complicit in the taking of photographs of and with her. On top of this he was actively complicit in further photographs with her wearing an official police cap and with the pretence of being handcuffed. The applicant, as the senior officer, could have at any stage intervened to stop the behaviour of all those involved.
The situation was further aggravated, when the applicant showed the photos to other police officers not involved in the photograph session, both in the police car and back at the police station. This seriously impacts on the applicant’s insight into his conduct. There was some initial reluctance to delete the photos from his mobile phone although he did ultimately comply.
This conduct resulted in a comprehensive investigation by the Ethical Standards Command which utilised significant resources within the Service. About a dozen officers were interviewed and provided statements or engaged in records of interview.
The two other officers involved in the incident elected to engage in the QPS’s Consensual Disciplinary Process when charges against them were laid. The supervising sergeant was disciplined for failing to report misconduct and for failing to take further action on instructing the applicant to delete the photos. He was sanctioned with a reduction of paypoints as was the constable junior to the applicant.
The significance of this evidence is that these two officers, the applicant’s contemporaries, accepted their conduct fell below the standard required of the Service and accepted the sanctions imposed. This in a way establishes the benchmark of sanction for the conduct engaged in by the applicant. I acknowledge that each sanction must be considered on its own factual circumstances, particularly having regard to the mitigating factors relevant to the particular officer, but it seems to me that the sanction imposed by the Assistant Commissioner is a starting point.
By its terms the sanction imposed does have a punitive element, effectively the applicant has been fined by way of a reduction in pay for a number of years. The pay system in the QPS is such that a police officer is entitled to go to the next pay level after 12 months service provided the officer meets the requirements of the paypoint progression. Here, the applicant, at the time of the incident was at paypoint 1.4 and as at the date of the sanction on 6 July 2010 was at paypoint 1.5. Within about four weeks of the decision, in early August 2010, he would have been at paypoint 2.1 with the rank of Senior Constable. Having regard to his service record I see no reason, on balance, why he would not have attained that rank. He has told the Tribunal that since the imposition of the sanction his duties have not changed and he will progress to paypoint 1.3 in July. The effect of the sanction is that it will take four years to get back to where he was at the time of the sanction.
The applicant contends that by imposing only a monetary penalty without re-training, mentoring or community service does not reflect the objects and purposes of discipline. It is submitted to maintain public confidence there would be an expectation that the applicant should undergo some form of mentoring programme. Also the imposition of a reduction in paypoints without retraining does not instil confidence that the applicant will not engage in similar behaviour in the future.
These submissions fail to take into account that the applicant is a mature person in his mid twenties and married with children. He acknowledges his conduct fell short of the standard required. He made an error of judgment which has reflected badly on him and I am confident he has experienced a significant degree of embarrassment as a result of this incident. I do not accept he needs counselling, mentoring or community service to set him straight on how he should conduct himself as a police officer.
I disagree that a reduction in paypoints does not instil confidence in the police service. All officers are aware of the disciplinary process and their obligations under the HRMM. They also know that a breach of discipline can result in a variety of sanctions, one of which is a reduction of paypoints. This process in itself promotes confidence among the serving officers that the standards will be maintained which in turn maintains self esteem within the service.
I have therefore come to the view, contrary, to the submissions of the applicant that the sanction imposed was not just punitive in nature.
As I have said, when considering the severity of the sanction to be imposed one has to have regard to the mitigating factors. The applicant’s record as a serving officer is impeccable. He has “glowing” references supporting his abilities, professionalism and attitude as a police officer. I need no convincing that these matters must be taken into account in the applicant’s favour.
I draw no adverse inference from the fact he did not take part in the Consensual Disciplinary Process. He was entitled to proceed to a disciplinary hearing before the Assistant Commissioner. However in doing so, delay as a mitigating factor, carries less weight.
The applicant accepts that the charge against him is substantiated but contends that the conduct did not amount to misconduct but rather a breach of discipline. Misconduct is defined in section 1.4 of the Police Service Administration Act 1990 as conduct which:
(a)Is disgraceful, improper or unbecoming of an officer, or
(b)Shows unfitness to be or continue as an officer, or
(c)Does not meet the standard of conduct the community reasonably expects of a police officer.
The applicant draws a distinction between the two types of conduct by reference to examples of “misconduct” in the Ethical Standards Command training material for Managerial Resolution Courses Study Guide which include the following:
Stealing Control of Information Assault/excessive force Inappropriate access – information Unauthorised disclosure – information Unauthorised secondary employment Release of confidential information Intimidation Falsify documents False complaint Untruthfulness Harassment in workplace Victimisation Missing Exhibits Damage during search Breach of domestic violence Sexual misconduct Unethical work practices Wrongful arrest Discrimination Fail to secure firearm Drink drive (on duty) Poss Child Pornography Corruption
By way of comparison there is also table of examples of breach of discipline:
Custody allegations Demeanour/Attitude Inaction Fail to investigate Incivility Manner of Driving Improper behaviour Improper use of email Rudeness Escape custody Lost QPS Property Improper search Search warrant issues Inadequate investigation Failure to identify Duty failure Fail to take PAC Search Issues Failure to provide medical treatment Fail to provide particulars Fail to report departmental traffic incident Absent from duty Drink drive (off duty) Fail to comply with procedures
It seems obvious when having regard to the tables above that the conduct complained of does not fit comfortably within the examples of misconduct. Although, as the respondent rightly points out, these are examples only. Having said that the examples of “improper behaviour”, “duty failure”, “demeanour/attitude” and “failure to comply with procedures” in the examples of breach of discipline are more akin to the applicant’s conduct in the circumstances of this case. The use of handcuffs and the police cap certainly makes the conduct more serious but not sufficient to warrant a classification of “misconduct”, when it seems from the evidence, the female involved was a willing participant and encouraged the behaviour. However, clearly the applicant should have exercised restraint.
I also respectfully adopt the comments of Dr Forbes in Shauer v Banham[7] that the community does not regard police officers as professionally unfit if they do not strictly comply with operational guidelines. Police officers, particularly the younger ones, will still make mistakes when engaging with the public. However, it is clear that not every indiscretion or mistake would necessarily be conduct deserving of the description "misconduct" for disciplinary purposes. There needs to be some nexus or some factor which raises that conduct to another level or "puts it over the line" so far as the reasonable expectations of the public are concerned. I am therefore not satisfied that the conduct is “misconduct” but a “breach of discipline”.
[7] Misconduct Tribunal 24 February 1997.
Even so, this is a serious breach of discipline and a paypoint reduction is an appropriate sanction. I would not vary the sanction imposed by the Assistant Commissioner except that the applicant was on the cusp of promotion to Senior Constable with a paypoint level of 2.1. This was to occur within a month of the sanction being imposed. It will in effect, on my calculations take him four years for him to get back to the paypoint he was at when the sanction was imposed.
In my view a reduction of two paypoints would have the effect of a loss of three paypoints, that is a loss over three years, because of the timing of the sanction, coming when he was about to move to the next paypoint level. Therefore I would vary the Assistant Commissioner’s decision by imposing a sanction of a reduction in level of rank from Constable paypoint 1.5 to paypoint 1.3 with the applicant not to progress to paypoint 1.4 for a period of 12 months. In practical terms he will be eligible to progress to paypoint 1.4 on 6 July 2012. There will be an order accordingly.
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