Hetherington v Assistant Commissioner of Queensland Police Service
[2011] QCAT 82
•7 March 2011
| CITATION: | Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 | |
| PARTIES: | Wesley Errol Hetherington | |
| v | ||
| Assistant Commissioner of Queensland Police Service | ||
| APPLICATION NUMBER: | MSR007-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 16 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Member |
| DELIVERED ON: | 7 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | a) Set aside the decision of Assistant Commissioner AG Davey of 11 November 2009. b) Order that the applicant Wesley Errol Hetherington be demoted to the rank of Senior Constable paypoint level 2.9 for a period of 12 months and that he not be eligible for automatic progression to the next paypoint level or rank until the expiration of that period. |
| CATCHWORDS: | Police misconduct – appeal to Misconduct Tribunal before commencement of QCAT Act – conversion to right to review by QCAT – attempt by off-duty policemen to enter hotel after “lockout” time – use of police badge to obtain entry – relevance of applicant’s alcoholism – range of sanctions in cases involving police abuse of alcohol – demotion for 12 months and reduction in paypoint from 3.5 to 2.9 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Mr T Schmidt |
| RESPONDENT: | Represented by Mr S McLeod |
REASONS FOR DECISION
Issue
On 11 November 2009 a finding of misconduct was made by Assistant Commissioner Davey against the applicant Sergeant Hetherington. The Assistant Commissioner will be referred to as “the disciplining officer” and Sergeant Hetherington as “the applicant”.
The disciplining officer imposed a sanction, namely that the applicant be demoted to the rank of Senior Constable paypoint level 2.8 for a period of 12 months, and that he not be eligible for automatic progression to the next paypoint level or rank until the expiration of that period.
There is no challenge to the finding of misconduct. The only contested issue is the severity of the sanction.
Jurisdiction
The determination the subject of this review occurred prior to the commencement of the Queensland Civil and Administrative Tribunal Act 2009 which brought QCAT into operation. At that time (November 2009) the applicant’s right to seek a review of the decision lay to a Misconduct Tribunal exercising jurisdiction under sections 18, 25A and 26 of the Misconduct Tribunals Act 1997.
The applicant duly filed a “notice of appeal” to a Misconduct Tribunal on 24 November 2009. However upon the commencement of operation of the QCAT Act in December 2009, the former system was replaced. The applicant’s right to challenge the determination is now a right to a review by QCAT of the determination. The present position is governed by sections 219BA(1)(a), 219G and 219H of the Crime and Misconduct Act 2001, and sections 17 – 20 of the QCAT Act. Under section 256 and 269 of the QCAT Act the application is taken to be a proceeding before QCAT. However under section 271 I have only the functions that the Misconduct Tribunal had, and can only make a decision that the Misconduct Tribunal could have made. In particular, section 26 of the Misconduct Tribunals Act 1997 will apply to the nature and form of the orders that I may make.
The principles mentioned in Aldrich v Ross [2001] 2 Qd R 235 govern the determination of the present review.
Relevant facts
The relevant charge was:
That on the second day of March 2008 at Brisbane your conduct did not meet the standard of conduct the community reasonably expects of a Police officer in that you:
a) Sought to obtain a benefit by producing your police identification badge;
b) Conducted yourself in a manner that lead to your arrest and charging for the offence of obstruct police - section 790(1) Police Powers and Responsibilities Act 2000.
The disciplinary investigation revealed that at 3:49am on 2 March 2008 the applicant, who was off-duty and in company with another man, attempted to gain entry to the Empire Hotel Fortitude Valley. When told by security personnel, “Sorry it’s after curfew” he produced his police badge, and proceeded to enter the premises, stepping over the queue rope, accompanied by his companion. He went to the public bar and attempted to purchase drinks. A security officer asked him to provide his identification, upon which he again produced his police badge. Upon noting that photo identification did not seem to be located in its normal position, the security employee asked for photo identification, and when it was not produced, requested staff to call police by radio. The applicant was restrained pending the arrival of police.
A short time later two Constables arrived. Having observed the situation one of them requested the applicant to step outside to discuss the matter and placed his hand on him to direct him. The applicant refused, became aggressive and pushed the Constable’s hand away. The Constable then scuffled with him and placed him under arrest. In the attempt to handcuff him all three persons went to the ground.
[10] The applicant was escorted from the premises and onto the footpath where a struggle continued with the applicant on the ground. He was taken to the City Watch House and charged with the offence of obstructing a Police officer.
[11] He was bailed on “cash bail”. When he appeared before a Magistrate on 3 March 2008 the Magistrate refused to accept the cash bail and proceeded with the matter, found the offence proven and fined him $200. No conviction was recorded.
[12] In the course of the investigation the applicant indicated that he suffered considerable physical pain at the hands of the arresting police. It would seem that he was probably to some extent the victim of over-vigorous response by the arresting officers who were at that time of the view that he was impersonating a police officer. However the applicant has at all times stoutly refused to make any formal complaint concerning their conduct, and, more significantly, chose not to defend the “obstruct to Police” charge that was brought against him. I have no alternative than to proceed on the basis stated in the investigation report.
Matters in mitigation
[13] The applicant was off duty at the time. This is usually an important mitigating factor, but in the present case it is counterpoised by the fact that at the relevant time he was presenting himself as a Police officer by producing his badge and seeking to obtain advantage from it.
[14] At all times subsequent to his arrest he has been extremely remorseful, has apologised to the QPS, apologised personally to the arresting officers and reported his own misconduct to his Superintendent. He cooperated fully with investigators during the discipline investigation and did not contest the allegations that were made against him. I accept that there has been genuine remorse and that he has acted responsibly at all times since the unfortunate occurrence.
[15] He has been punished for his conduct given that he suffered the pain of a vigorous arrest and the indignity of confinement in the watch-house as well as incurring a fine of $200.
[16] Evidence was presented on his behalf to the effect that at the relevant time he was suffering from anxiety disorder, depression and alcoholism. This was in the form of a report from a clinical psychologist and a medical practitioner. Counsel for the applicant submitted that:
“The applicant was an alcoholic at the time of this incident and had not sought treatment. Since being demoted by the respondent, he has been under the care of a clinical psychologist and has been addressing his alcoholism”.
[17] That particular circumstance is, I think, two-edged. Alcoholism may help to explain his conduct, but it is not an excuse, and it simultaneously tends to suggest a degree of unfitness for the testing duties that police officers are required to perform. I accept that alcoholism is a disabling condition, but consider that people, especially those in positions of power, must accept some responsibility for their own alcoholism. It is unnecessary to pursue this particular topic further because I am prepared to accept his counsel’s submission that the incident was out of character for him, and was an aberration driven by his craving for alcohol. His addressing of the problem since the incident is also to his credit, but this is perhaps offset by his failure to do so before the incident.
[18] I mention in passing that the report of the clinical psychologist asserts:
“An inappropriate penalty harsher than that due in the circumstances has worsened his condition greatly…”.
That is a gratuitous and inappropriate comment from an expert witness who should have known better. It will receive no weight here.
[19] All things considered, the applicant’s alcoholism is a relevant factor that helps to explain but not to excuse the conduct in question.
[20] The applicant, prior to this incident, had a very good service record spanning 22 years, and held 2 medals. Since the incident he has acted in an exemplary manner including his gaining an overseas service medal from the QPS Commissioner and the AFP Commander in respect of service following the Thailand tsunami.
[21] The financial implications of the order that was made are very substantial. Counsel for the applicant submitted that they equate to a total sanction over a 5 year term of $21,897. It is accepted that it will take the applicant 5 years to get back to his previous paypoint of Sergeant 3.5. The above figure is calculated on the following basis:
§ First year – initial loss (demotion 3.5 to 2.8) – $8,054
§ Second year, moving from 2.8 to 3.1 – $6,171
§ Third year, 3.1 to 3.2 – $4,005
§ Fourth year, 3.2 to 3.3 – $2,568
§ Fifth year, 3.3 to 3.4 – $1,099
[22] On that basis it is said that his loss will be $21,897 by the time he gets back to 3.5. However calculation of the present day value of this future loss, which might represent the quantum of an immediate fine, was not attempted. Obviously actuarial calculations would be necessary, and they would undoubtedly result in a figure substantially less than $21,897, although it would still be a substantial sum. On the other hand, if the adverse impact upon superannuation entitlements were brought into the equation, the figure would be aggravated, but, again no attempt was made to descend to any particularity on the above matters. I am therefore left with a broad submission, which I accept, that the global effect of the order is to impose a very substantial financial loss, and also to postpone his career by a period of 5 years.
Discussion
[23] Some 20 months elapsed between the event and the imposition of the disciplinary sanction.
[24] This was not in any way contributed to by the applicant. The facts were never in contention, and this long systemic delay in dealing with the matter was in fact detrimental to his psychological health. The psychologist considered that there had been a “negative impact on his marriage of 20 years, and relationships with his children culminating in a 3 month separation from his wife over November, December and January [2009-2010]”. I accept that unnecessary delay by the QPS in processing the matter has contributed to his distress.
[25] I am indebted to counsel who have attempted to provide comparable past decisions which might afford some guidance to the Tribunal as to an appropriate level of sanction for the misconduct in question. At the outset counsel conceded that there is no precedent to be found in decisions of the former Misconduct Tribunal which could provide such guidance.
[26] Counsel for the applicant submitted that the nearest comparable matters are drink-driving offences committed by members of the Police Force. Counsel referred to three instances dealt with by Assistant-Commissioner Rynder. Two of them resulted in mere reprimand (re Senior Constable MB Brisbane watch-house, (October 2009), and re Senior Constable MD (Inala) (October 2009)), while in the third there was a paypoint reduction from 2.3 to 2.1 for 12 months (re Senior Constable MJ, Cairns) (late 2009).
[27] But the circumstances in all those cases were very different, and I do not accept the submission that such cases afford any guidance for a matter like the present one.
[28] Reference was made to an incident involving a police sergeant and four senior constables who stopped a vehicle at traffic lights and ran around the vehicle “in a state of full undress”. These were decisions of Deputy Commissioner Stewart. The sanctions ranged from a reduction of two paypoints, suspended for 12 months (in the case of two of the senior constables) to demotion of the sergeant to the rank of senior constable for 12 months, with reduction in paypoint from 3.4 to 2.9.
[29] The above instances are helpful examples of how disciplinary officers within the QPS are handling alcohol-related disciplinary breaches, but once again I do not think that those cases afford any sound basis for comparable orders.
[30] Perhaps the most helpful example is the decision of this Tribunal (Ms Joanne R Browne and Ms Peta Stilgoe) in McKenzie v Acting Assistant Commissioner Wright OCR034-10, 18 November 2010. This was a case of forcible detention and assault upon a female police officer with whom the offending police officer had had a sexual relationship. In the course of a dispute in the Police Officer’s living quarters he applied handcuffs to her with excessive and inappropriate force and caused a number of injuries to her face, neck and wrists. The discipline imposed by the disciplining officer, and confirmed by the Tribunal was that the Police officer be reduced in rank from Sergeant paypoint 3.5 to Senior Constable 2.9 for a period of 2 years. On the whole this may be regarded as a slightly heavier penalty than that imposed on the present applicant. It is true that the present applicant’s reduction is one paypoint greater than that in McKenzie, but the 2 years of reduction in rank and paypoint produces a more serious financial consequence than the present order. It was said that McKenzie’s financial detriment was equivalent to a $33,697 fine, but that figure seems to have been premised upon the same assumptions as those of the applicant’s counsel in the present case, and to lack actuarial assistance in calculation of its present value.
[31] McKenzie was obviously a case of serious misconduct. It involved physical violence in the course of a private dispute and an attempted arrest with which he did not proceed. But once again it is impossible to regard it as a precedent or an equivalent of the conduct which it falls to me to assess.
[32] I share the view of the disciplining officer in the present case that this was “a very serious aberration” and that the applicant conducted himself in a totally unacceptable manner. I also consider that the conduct was of the kind that lowers public confidence in the reputation of the service. It is aggravated by the fact that in recent years the police service has been conducting high profile campaigns to reduce the harm caused by alcohol consumption. The applicant must have been aware of the information sessions directed to this end, to problems in the enforcement of liquor licensing laws, to campaigns against drink-driving and many other campaigns to reduce binge drinking, violence and antisocial behaviour.
[33] More than this, I am concerned that the essence of his misconduct concerned misuse of the prestige and power of his office.
[34] Conduct of this kind cannot be swept under the carpet as an alcoholic aberration. I totally reject his counsel’s submission that the appropriate sanction for such conduct should be a reprimand or a fine of 2 penalty units.
[35] But for the mitigating circumstances which have been set out above and the fact that this can be regarded as an isolated aberration, dismissal from the force would have been a serious option. But given all the circumstances, it seems to me that demotion and a substantial reduction in paypoint was the appropriate response.
[36] The most difficult part of this exercise is to fashion an order which affords an adequate deterrent, and at the same time does not produce undue hardship, or render his future service in the force ineffective.
[37] In determining the sanction, in accordance with the principles of Aldrich v Ross, I accord considerable respect to the view taken by the disciplining officer. It will already be apparent that I agree with his general approach to the matter. However in the end I must impose the sanction that I consider best meets the situation, even if it involves only a relatively slight variation of the original order.
[38] The fact of demotion has a symbolic as well as a practical effect. Demotion is, I think, an essential ingredient of an appropriate response in the present matter, and a mark of community disapproval of abuse of this kind.
[39] The applicant had reached the second top payment level for a Sergeant (paypoint 3.5), and demotion would at the minimum result in a paypoint level of 2.9, which must result in a very severe financial penalty. In such circumstances demotion could only be an option if a very serious view were to be taken of the matter, as I do.
[40] The least severe paypoint impact would be achieved by fixing a new paypoint level of 2.9. In the present matter the disciplining officer sought fit to go further than this and impose a new paypoint level of 2.8. Having achieved a demotion and a serious financial impost on the applicant, I do not think it necessary to go the extra step and reduce his level to 2.8. It is true that the demotion is for a period of only 12 months, and that by reason of an enterprise bargaining agreement award the applicant is entitled to progress from Senior Constable to Sergeant paypoint 3.1 upon the completion of certain forensic qualifications, and his promotion back to sergeant was automatic without the need for an application. In other words the return from Senior Constable to Sergeant was less difficult for this applicant than might ordinarily be the case. Even so, the humiliation of the demotion remains and so does the ongoing financial and career disadvantage.
[41] The sanction which, after due consideration, I think most appropriate in this matter is demotion to Senior Constable paypoint level 2.9 for a period of 12 months from 11 November 2009, and a direction that the applicant not be eligible for automatic progression to the next paypoint level or rank until the expiration of that period.
Orders
[42] Section 26 of the Misconduct Tribunals Act 1997 contemplates an order that the decision appealed against be confirmed, set aside, substituted or returned to the original decision maker. In this instance although my determination is close to the original sanction it will be necessary to set aside the decision and substitute an amended decision.
[43] The order will be:
a)Set aside the decision of Assistant Commissioner AG Davey of 11 November 2009.
b)Order that the applicant Wesley Errol Hetherington be demoted to the rank of Senior Constable paypoint level 2.9 for a period of 12 months and that he not be eligible for automatic progression to the next paypoint level or rank until the expiration of that period.
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