Malcolm v Assistant Commissioner Pointing
[2010] QCAT 505
•13 October 2010
| CITATION: | Malcolm v Assistant Commissioner Pointing [2010] QCAT 505 | |
| PARTIES: | Rodger John Malcolm | |
| v | ||
| Assistant Commissioner Brett Pointing | ||
| APPLICATION NUMBER: | MSR006-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 13 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 13 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The sanction imposed by the assistant commissioner on 22 September 2009 is set aside. 2. In place of the sanction of 22 September 2009, the officer be subject to a reduction in rank from sergeant pay point 3.1 to senior constable pay point 2.9 but the penalty be suspended on the following conditions: a) The period of suspension is 12 months commencing as at 22 September 2009. b) During the suspension period, the appellant must perform such community service as directed by his superior officer, such service not to exceed 100 hours. c) If the appellant is found to have committed an act of misconduct during the suspension period, then the suspension is revoked and the decision to demote the appellant has immediate effect. |
| CATCHWORDS : | POLICE OFFICERS – DISCIPLINE – where officer disclosed information to journalist in breach of policy – where disclosure did not affect police operations – whether suspended demotion an appropriate sanction Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 Aldrich v Ross [2001] 2 Qd R 235 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P Smith instructed by Robertson O’Gorman |
| RESPONDENT: | Mr S McLeod instructed by the Office of the Queensland Police Service Solicitor |
REASONS FOR DECISION
On 22September 2009, an assistant commissioner of police determined that Sergeant Malcolm’s conduct was improper in that he:
a)Expressed an opinion of culpability;
b)Released official and confidential information without an official purpose related to the performance of his duties;
c)Made public comments which amounted to improper criticism of senior members of the Queensland police service.
The relevant conduct can be summarised as follows:
a)Providing information that included the fact of apprehension of a suspected property offender and that he would be responsible for other offences.
b)Disclosing the names of deceased persons and that one of the deceased had been experiencing marital problems.
c)Information concerning a murder investigation including the location of the body and the cause of death.
d)Commenting that there are separate rules for different people within the police service and that some senior members of the service are circus performers and clowns.
The assistant commissioner ordered that Sergeant Malcolm be subject to a reduction in rank from sergeant pay point 3.1 to senior constable pay point 2.9 but that the penalty be suspended for a period of 24 months on the satisfactory performance of 200 hours community service.
There is no challenge to the finding of improper conduct; Sergeant Malcolm does contest the penalty imposed.
The tribunal’s review powers, and the approach that it should adopt in reviews such as these, has been comprehensively reviewed by Hon J B Thomas[1] and it is not necessary to reiterate the principles here save to note the remarks in Aldrich v Ross[2]:
“If the misconduct tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the misconduct tribunal.”
[1] Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
[2] [2001] 2 Qd R 235 at paragraph 45
Both parties urged me to give appropriate weight to the decision of the assistant commissioner but acknowledged that, ultimately, the tribunal must form its own view.
Submissions
Counsel for the appellant submits that the appropriate sanction should be a fine, reprimand or a combination of both. In support of that submission, Counsel argued:
a)Sergeant Malcolm released the information to a journalist who telephoned the police station and asked for him. The journalist had assisted police in the past. Sergeant Malcolm had known him for about 17 years and considered him a friend.
b)The sergeant was assigned to the role of communications officer (COMCO) at the time. Pursuant to the COMCO duty statement, Sergeant Malcolm was permitted to use his discretion to disclose information to the media.
c)There is a police service policy about the disclosure of information to the media. That policy does allow information to be provided but the service provides no formal training to officers acting in the COMCO role.
d)There is no suggestion that Sergeant Malcolm’s release of information interfered with the police service’s administration of justice. There was no actual prejudice occasioned to any party by the release of the information.
e)In his interview, Sergeant Malcolm was forthright and honest. He did not deny the conduct and he accepted that it was improper.
f)The improper conduct is not serious. Although Sergeant Malcolm accepted that it was misconduct it “only just got there.”
g)A demotion is the most serious penalty that can be imposed by an assistant commissioner. Even though the demotion has been suspended, it represents a very significant penalty.
h)The assistant commissioner also found that Sergeant Malcolm had engaged in improper conduct in a “road rage” incident. Although this conduct was more serious, the assistant commission imposed a fine of 2 penalty units, or $200. The sanction imposed for the conduct the subject of this review is out of proportion to the nature of the conduct.
Sergeant Malcolm had been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. He has personal vulnerabilities such as irritability and impulsivity which become more apparent when he is under stress. This is a mitigating factor.
j)Sergeant Malcolm provided a number of good character references.
10. Counsel for the service argues:
a)The disclosure of information was a serious matter and Sergeant Malcolm should have known better.
b)The sanction imposed by the assistant commissioner was appropriate and the tribunal should give considerable weight to that decision.
c)The underlying psychiatric condition was of the sergeant’s own making and should not be considered a mitigating factor.
Discussion
11. I accept that Sergeant Malcolm had a pre-existing psychiatric condition. I do not accept that this condition is a mitigating factor. Sergeant Malcolm was not under any particular stress when he engaged in the improper conduct. Indeed, a close reading of the transcript of the telephone conversations with the journalist suggests he was relaxed although, clearly, still inclined to impulsivity.
12. I accept that Sergeant Malcolm was forthright in his responses when interviewed and accepted that his conduct was improper.
13. I accept that the disclosure of the information did not affect any police operation, interfere with the police service’s administration of justice, or cause actual prejudice occasioned to any party.
14. I accept that the duty statement for COMCO does give officer discretion to disclose information. The exercise of that discretion is subject to the service’s policy OPM1.10). The policy had been brought to Sergeant Malcolm’s attention in an email dated 11 January 2007. He should have been aware of its requirements and that his disclosures were contrary to the policy.
15. The purpose of imposing a sanction is[3]:
“The protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties…”
Counsel for the service conceded that misconduct proceedings are not to be viewed as punitive in nature.
[3] Aldrich v Ross supra, at page 257
16. Regulation 10 of the Police Service (Discipline) Regulations 1990 sets out the available sanctions in ascending order of severity:
a)Cautioning or reprimand;
b)A fine of 2 penalty units;
c)A reduction in an officer’s salary or wages (not being a reduction to a level outside that applicable to an officer of that rank);
d)Forfeiture or deferment of a salary increment or increase;
e)Reduction in an officer’s rank or classification.
17. The tribunal was provided with a number of cases of comparable misconduct and/or penalty:
a)In re Bowen[4] in which an officer who disclosed the details of an investigation to the offender, lied about the disclosure and signed a false statement on oath, was demoted from inspector to sergeant.
b)Ross v Aldrich in which an officer who disclosed confidential information to the target of a police investigation surrounding possession of illegal drugs, was demoted from senior constable to constable pay point 5.
c)The Crime and Misconduct Commission v McKendry[5] in which the officer who provided advice to civilians at the scene of a serious crime in circumstances where he had a conflict of interest, was demoted from inspector to sergeant pay point 1.
d)Podlich v Superintendent Paul Wilson[6] in which a senior sergeant received a reprimand for accessing information on the police service network without an official purpose relating to his duties. In that case, there was no suggestion that the information was released to any other person.
[4] [1996] 2 Qd R 8
[5] TA05/08, MSR005-08
[6] Appeal 10 of 2003
18. Sergeant Malcolm’s conduct was more serious that that in Podlich, in that he not only accessed the information but disclosed it to a third party, but it is less serious than the other cases in which the disclosure had the potential to affect police operations. A fine and/or reprimand is not an appropriate sanction. I am also concerned that, although Sergeant Malcolm had admitted his actions were improper, his responses in interviews show a lack of insight and/or remorse. It is regrettable that Sergeant Malcolm has not been offered counselling or training in public relations policy.
19. Because Sergeant Malcolm was on pay point 3.1, the sanction of a reduction in his salary is not available. Counsel for both parties agreed that it appeared the assistant commissioner had, therefore, “rounded up” the penalty to demotion, rather than rounded it down to a fine. Counsel for the service told the tribunal that this was appropriate and, probably, was the reason why the sanction was suspended. Counsel for Sergeant Malcolm, citing Compton argued that this resulted in excessive sanction in the circumstances.
20. Compton is not authority for a general principle that, where a particular sanction is not available, the decision maker should choose a lesser penalty rather than a more serious penalty. It is simply a statement of this tribunal’s recognition that the sanction should be appropriate to the misconduct. It does appear, however, that both the assistant commissioner and this tribunal are required[7]:
“…to fashion an order of similar overall severity…”
[7] Compton supra at paragraph 48
21. Counsel for the service was unable to tell the tribunal why the suspension operated for 24 months or how the imposition of community service addressed the particular misconduct except to say that Sergeant Malcolm would need a period of 24 months in which to complete the community service. Sergeant Malcolm is no longer working in COMCO so it is unlikely that the particular misconduct will recur. There in nothing in his service record that suggests he is likely to engage in any other form of misconduct which would trigger the imposition of the penalty. To members of the public, Sergeant Malcolm is still a member of the service and holds the rank that he enjoyed prior to the misconduct. The effective sanction, therefore, appears to be the requirement of community service. I find that linking the number of hours of community service required to the duration of the suspension is improper and results in an excessive sanction.
Conclusion
22. Upon review, the sanction imposed by the assistant commissioner on 22 September 2009 is set aside.
23. In place of the sanction of 22 September 2009, I order that Sergeant Malcolm be subject to a reduction in rank from sergeant pay point 3.1 to senior constable pay point 2.9 but that the penalty be suspended on the following conditions:
a)The period of suspension is 12 months commencing as at 22 September 2009.
b)During the suspension period, the officer must perform such community service as directed by his superior officer, such service not to exceed 100 hours.
c)If the officer is found to have committed an act of misconduct during the suspension period, then the suspension is revoked and the decision to demote the officer has immediate effect.
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