McKenzie v Acting Assistant Commissioner Wright

[2011] QCATA 309

CITATION: McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309

PARTIES:	Mark McKenzie (Applicant/Appellant)
v
Acting Assistant Commissioner Tony Wright (Respondent)

APPLICATION NUMBER: APL041-11

MATTER TYPE: Appeals

HEARING DATE: 12 September 2011

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Hon JB Thomas AM, QC, Judicial Member

DELIVERED ON: 10 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:

Appeal allowed; 1.    

Orders of QCAT Tribunal of 17 January 2011, and of the respondent, that the appellant be reduced in rank from Sergeant paypoint 3.5 to Senior Constable paypoint 2.9 for two years from 2 February 2010 are set aside;2.    

It is ordered that the appellant be reduced in rank from Sergeant paypoint 3.5 to Senior Constable paypoint 2.9 for a period of 12 months from 2 February 2010.3.    

CATCHWORDS:

APPEAL – OCCUPATIONAL REGULATION – POLICE DISCIPLINE – where off-duty violence by a police Sergeant to female colleague, using handcuffs and causing bodily harm – where the Sergeant was demoted from Sergeant 3.5 to Senior Constable 2.9 for a period of two years – whether level of sanction manifestly excessive – relevance of early plea of guilty – relevance of whether officer on-duty or off-duty – use of comparative judgments

Crime and Misconduct Act 2001, ss 219G, 219J, 219L
Police Service Administration Act1990, s 7.4(3)
Police Service (Discipline) Regulations 1990, s 10
Queensland Civil and Administrative Tribunal Act 2009, s 19(c)

Aldrich v Ross [2001] 2 Qd R 235, cited
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, cited

Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161, cited

Crime and Misconduct Commission v Chapman & Assistant Commissioner Wilson, 20 October 2011, OCR030-11, cited

Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564, cited

Harman v R [1989] 1 Qd R 414, cited
Henry v Ryan [1963] Tas SR 90, cited
Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82, cited

Murray v Deputy Commissioner Stewart, 19 September 2011, OCR237-10, cited

R v Teachers Appeal Board; Ex parte Bilney (1984) 35 SASR 492, cited

Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr C Gnech
RESPONDENT:	Mr McLeod of Counsel

REASONS FOR DECISION

1. The appellant, Senior Constable McKenzie, was found to have acted inappropriately during a confrontation with a fellow police officer while off-duty.

1. The decision-maker, Acting Commissioner Wright, imposed a sanction demoting the appellant from Sergeant paypoint 3.5 to Senior Constable paypoint 2.9 for a period of 2 years from 2 February 2010.

1. The appellant sought review in QCAT of both the finding of substantiation and the sanction.

1. On 17 January 2011 a two Member Tribunal confirmed both of the original decisions.

1. The appellant now appeals to this Appeal Tribunal, but only against the Tribunal’s decision as to sanction.

Charge

1. The charge was that the appellant on 1 March 2008 at Mt Isa inappropriately and forcibly detained Jane Sonya Moran.  The particulars of the charge were –

a)     Grabbing her by the right wrist in a firm grip and struggling with her.

b)    Forcing her face down on the bed with your knees in her back.

c)     Pulling her hands behind her back and handcuffing her, with QPS handcuffs.

d)    Telling her she was detained for domestic violence.

e)     Lifting her off the bed by the handcuffs, causing pain to her wrists.

f)     Placing pressure around her neck with a lateral vascular neck restraint.

g)    Forcing her to walk by pushing and twisting the handcuffs up her back.

h)     Your actions resulted in Jane Sonya Moran sustaining injuries including a comminuted fracture to the lateral posterior margin of the right eye socket, bruising on the lower left cheek, abrasion and haematoma to the right cheek, tenderness to the right neck, tenderness to the inside of both forearms and tenderness in both wrists.

Facts and circumstances

1. Different versions were given in the evidence of the two persons involved, mainly concerning the behaviour of Ms Moran which is said to have precipitated the violence.  A summary of the evidence is contained in [11] to [32] of the QCAT Members’ Reasons for Decision of 17 January 2011.

1. The following is a short summary of the main facts as we see them.

1. Shortly after Ms Moran moved into police residence units in Mt Isa in 2007, a friendly relationship commenced with Sergeant McKenzie and a short-term sexual relationship ensued.  McKenzie formed the view that she was mentally unstable and their relationship ceased although they remained in contact.  Ms Moran sought help from McKenzie to make a case against someone involving inappropriate behaviour with Ms Moran’s daughter, but McKenzie refused to allow his own daughters to become involved.  This issue was clearly the catalyst for the events of 1 March 2008.

[10]  The night before the incident McKenzie had invited her to speak to him after work, in the early hours of the morning when he returned home.  He went to bed and fell asleep.

[11]  He was woken by Ms Moran sitting on the side of the bed talking to him about her daughter.  An argument developed and Ms Moran raised her fists, McKenzie ordered her out and Moran yelled and screamed.  McKenzie was aware of the existence of a knife not far from his bed and believed it to be within the reach of Ms Moran.  She did not know that the knife was there.  McKenzie says that his fear of the knife influenced him in his later restraints of Moran.

[12]  Perhaps the best account of the incident is that of Ms Moran in the following edited summary of her evidence at page 130 of the record.  She described them as pushing at each other ‘and we've got into a fight’.  She continues:

He then said “don’t threaten me or I’ll fuckin snap you”

I then leant into him and said “don’t threaten me, you don’t fuckin scare me, I’m just trying to sort this out with [my daughter]”

Mark then grabbed my right wrist in a firm grip.  I tried to pull my arm away, however he held onto my wrist.

I said “what the fuck are you doing, I’m not threatening you, I just want to get this sorted out with [my daughter]” I continued to pull my arm out of his grip.  I struggled against him.  I don’t recall the exact events as it all happened so quickly and Mark ended up with me face down on the bed with his knees in my back.  He pulled my hands up behind my back. I screamed at him “what the fuck are you doing, this is fucking ridiculous”

The next thing I remember was hearing the click of handcuffs when they get pushed through the locking latchet.

He then told me that I was detained for domestic violence.

[13]  McKenzie made contact with police headquarters, but in the event did not proceed with any charges against Moran.

[14]  The injuries sustained by Ms Moran included a peri-orbital oedema around the right eye and right zygoma, bruising to the lower left cheek and right lower lip, tenderness in other areas of the face and neck and tenderness of the distal forearms and wrists.  An x-ray showed no fracture of the right eye area, but a later CT scan showed a comminuted fracture with no significant displacement.

[15]  After applying the handcuffs McKenzie walked Ms Moran while applying pressure around her neck, and twisting the handcuffs behind her back in a procedure known as pain compliance.

[16]  McKenzie’s actions were clearly excessive and inappropriate.

The appeal

[17]  This is an appeal, not a review.  So far as the present application is concerned, practically speaking, in order to succeed the appellant must show some error of law or principle in the Tribunal’s judgment, or that the sanction was manifestly excessive.

Alleged errors

[18]  The alleged errors of law raised by the appellant are:

(a)  The Tribunal erroneously took into account the fact that the appellant contested the matter;

(b)  The Tribunal erred in regarding the applicant’s being off-duty as an aggravating factor;

(c)  Error in application of comparative judgements.

[19]  We will deal with each of these separately.

Effect of contesting matter

[20]  At [72] of the Presiding Member’s Reasons for Decision, the fact that the appellant defended the disciplinary proceedings was described as ‘a relevant factor’, with the added comment ‘although Sergeant McKenzie was within his legal rights to do so’.  A plea of guilty or an early acceptance of responsibility is always capable of being a relevant factor in these matters because it can signify remorse and acceptance of responsibility.  There is therefore no apparent error in the statement of the Presiding Member to which exception has been taken.

[21]  However Mr McLeod for the decision-maker submitted that clearer recognition should be given to the benefit of early pleas of guilty, pointing out that such conduct saves the disciplinary process time and trouble, and relieves the Tribunal from the process of decision.  These factors are said to involve a considerable saving of resources and of ‘cost and trouble’, and it was submitted that persons facing disciplinary charges should be encouraged by some tangible benefit to facilitate the process.  Implicitly, Mr McLeod's submission is that the appellant should get no such benefit or consideration in the present case.

[22]  Counsel were unable to refer to any instance in which specific credit for a plea of guilty was granted in the former Misconduct Tribunal, or indeed in the cases determined by this Tribunal since 2009.

[23]  Measurable discounts are now of course a recognised part of the criminal justice system, having been accepted into the court system after initial concerns (as for example in Harman v R [1989] 1 Qd R 414). We would however be reluctant to see a discount system transposed to the disciplinary process in which the range of types of misconduct that may be charged are legion and where every police officer ought to be able to challenge a charge without the fear of additional penalty if he or she does so.

[24]  In disciplinary proceedings the main relevance of an early indication of acceptance of the charge is that it indicates honesty and remorse, and a willingness to face up to obligations.  We are not at this stage prepared to attempt to introduce any system comparable to that in the criminal courts where substantial and measurable discounts are allowed for early pleas of guilty.  The main relevance of such conduct in this disciplinary jurisdiction is its indication of remorse and responsibility.  It is worth mentioning that these can be very significant and influential factors.

[25]  There was no error on the part of the Tribunal in its response to the fact that the appellant pleaded not guilty before the original decision-maker.

Relevance of being off-duty

[26]  Counsel for the appellant submitted that the Tribunal treated the appellant’s off-duty conduct as more serious then if he had been on-duty.  Reliance was placed upon the following statement in the Reasons for Judgment –

The comparatives referred to by SC McKenzie can be distinguished on the basis that SC McKenzie was off duty at the time of the incident…

[27]  That statement however was in respect of only one of several points of distinction which the Tribunal saw fit to make when considering penalties in cases that were said to have been comparable.  There is no premise in the Tribunal’s Reasons to the effect that off-duty conduct by a police officer is more serious than conduct on-duty.

[28]  The distinction between on-duty and off-duty misconduct, or between misbehaviour in office and out of office, has been noted in all occupational disciplinary systems, starting with the professions.

[29]  In the context of legal ethics, the term ‘personal misconduct’ was used by Fullagar J in Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 290 in relation to a barrister who was convicted of manslaughter through reckless driving. The impact of ‘personal misconduct’ in the regulation of an occupation is founded on the fact that personal misconduct (that is, conduct unrelated to performance of duty) may reflect upon a person's character, and show that his or her capacity to perform the functions of the office will be tainted by lack of trust of others in the same occupation, or by a lack of trust on the part of the public.

[30]  Originally professional misconduct was recognised as something done in the course of professional duty.  It was confined to conduct by a ‘[man], in the pursuit of his profession’ which would reasonably be regarded as disgraceful or dishonourable ‘by his professional brethren of good repute and competency’ (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 761, 763). In time it came to be recognised that personal misconduct could also render a person unfit to practise (Henry v Ryan [1963] Tas SR 90; R v Teachers Appeal Board; Ex parte Bilney (1984) 35 SASR 492).

[31]  Usually, misconduct in the course of duty is a more direct and obvious matter of concern to the public than private or off-duty misbehaviour, though of course each case depends on its own facts.  Breaches committed under the badge of office are often associated with abuse of power, and they strike directly at the proper administration of the police force.  Of course, this is not to say that off-duty misconduct cannot be as serious as on-duty misconduct or that it cannot attract an equally high sanction.

[32]  In the present case, there was a reprehensible off-duty skirmish.  Similar conduct in the course of performance of police duties would, we think, have been even more reprehensible.  There is however nothing in the Tribunal’s Reasons for Judgment to suggest that it misunderstood this aspect of the case.

Inappropriate use of comparative decisions on sanction

[33]  Commonly in these matters counsel provide details of other decisions, such as internal decisions by decision-makers within the police force, Misconduct Tribunal decisions, and QCAT decisions.

[34]  Unfortunately there is no satisfactory system of gathering these decisions, especially those within the police force, which keeps records of such decisions but protects the confidentiality of those involved.  Sometimes redacted copies of such decisions are made available to the Tribunal on the basis they are not to be made available for public inspection.  Of course decisions of the Misconduct Tribunal and of QCAT are published and can be gathered and used in an attempt to obtain some consistency of result.

[35]  The range of sanctions that may be imposed by QCAT upon a review are limited.  The relevant statutory sources are Police Service Administration Act 1990, s 7.4(3); Police Service (Discipline) Regulations 1990, s 10; Crime and Misconduct Act 2001, ss 219G, 219J, 219L; Queensland Civil and Administrative Tribunal Act 2009, s 19(c). The basic range is that stated in s 7.4(3) of the Police Service Administration Act 1990, which comprise:

(a)     Dismissal;

(b)     Demotion in rank;

(c)     Reprimand;

(d)     Reduction in an officer’s level of salary;

(e)     Forfeiture or deferment of a salary increment or increase;

(f)      Deduction from an officer’s salary payment of a sum equivalent to a fine of two penalty units.

[36]  Significantly, there is no power to fine, other than deduct a fine of two penalty units ($200) from the officer’s salary.

[37]  Because of industrial arrangements, the only means of reduction of an officer’s level of salary is to designate a reduction in the level of prescribed ‘paypoints’.  These cover various levels within the ranks of Constable, Senior Constable, Sergeant and Senior Sergeant.

[38]  One advantage of this system however is that a major financial penalty may be enforced automatically and paid off over an extended period.

[39]  Two internal decisions were referred to by counsel for the appellant as providing some indication of an appropriate penalty in the present matter, namely Sergeant M, a decision of Deputy Commissioner Rynders of September 2009, and Senior Constable B, a decision of Acting Deputy Commissioner Barron of 31 July 2008.

[40]  Each of those cases involved excessive force by police during arrests.  In M the police officer punched the face of the person being arrested.  The sanction was a reduction in paypoint from 3.2 to 3.1 for two years and a requirement that he attend an anger management course.  In the matter of B the police officer struck a suspect on the face and administered hand slaps to the back of the head; he suffered a reduction in paypoint from 2.9 to 2.7.  The period of the reduction was not specified in the available material.  In addition, on each of two supplementary charges he was fined $200.

[41]  Both of those cases were serious and manifested conduct of the kind which causes the public to lose confidence in the police force.  In our respectful opinion the penalties imposed in the internal system in these instances were too low, and they do not form a satisfactory basis for fixation of sanctions in such cases.

[42]  Consistently with observations made in Aldrich v Ross [2001] 2 Qd R 235, at 257, QCAT is now the vehicle by which a public perspective is brought to bear in police disciplinary matters, and this aspect must always be borne in mind. Despite the respect that is accorded to the knowledge and views of the original decision-maker in these cases, it is necessary for us to endeavour to bring a public perspective into the result, along with a concern for police operational needs.

[43]  Since 2009 a number of disciplinary cases have been determined by QCAT and it will be useful to mention some of them with a view to ascertaining a level of response in such matters.  Of the following cases Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 is by far the most indicative. The other cases are mentioned to illustrate levels of sanction in individual instances of misconduct.

(a)     Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161 – breach of pursuit policy and lack of care during pursuit; no damage or mishap; reduced from Senior Sergeant 4.4 to 4.2 for nine months.

(b)     Murray v Deputy Commissioner Stewart, 19 September 2011, OCR237-10 – nude run; Senior Officer; early plea reduced Sergeant 3.4 to 3.2 for twelve months.

(c)     Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 – assault on suspect and subsequent cover up; dismissal (per disciplinary declaration following Chapman’s resignation).

(d)     Crime and Misconduct Commission v Chapman & Assistant Commissioner Wilson, 20 October 2011, OCR030-11 – serious breaches of pursuit policy; loss of two paypoints for two years.

(e)     Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 – drunken invasion of hotel by off-duty police Sergeant who used police badge to gain entry; scuffles when police arrived; demotion and reduction of paypoint from 3.5 to Senior Constable 2.9 for 12 months.

[44]  The sanction imposed in the present matter was reduction in rank from Sergeant paypoint 3.5 to Senior Constable 2.9 for a period of two years. 

[45]  It has proved impossible to obtain reliable estimates of the actual financial impact of reductions in paypoint.  During the Tribunal proceedings it was submitted that the effect upon the appellant of the sanction was a financial detriment of $33,697 and that it would take the appellant six years to progress back to his position as Sergeant.  However on this appeal counsel for the appellant submitted that the effect would be an initial economic loss of about $14,000, and that this would be increased by a reduction in superannuation benefits.  It was contended (without any supporting material) that the overall effect would be an economic loss of about $30,000.

[46]  This however was contradicted by an exercise undertaken by the respondent, who conceded that it is almost impossible to project losses accurately because there are so many variables including tax and superannuation, with the further complication of midyear incremental adjustments.  Details were obtained from Queensland Shared Services (QSS) which is the externally contracted company that controls Queensland Police Service pay system.  The ultimate submission for the respondent was that the total loss over two years by reason of the present penalty is somewhere between $13,738 and $15,197.71.

[47]  The information so far available to this Tribunal concerning the practical effect of paypoint reduction is unsatisfactory.  We suggest that the parties should, in future matters, if necessary with the assistance of a forensic accountant, provide details that give an indication of the probable ultimate financial loss suffered by a police officer through reduction of specific paypoints for specific periods.

[48]  The immediate effect on the appellant's pay packet was a reduction of $238.20 per fortnight.  The overall effect of the present sanction, on the information available to us, is a financial loss of between $14,000 and $30,000, suffered over an extended period something like six years.

[49]  The effect of demotion must be recognised as very severe.  Apart from the disgrace associated with it, the demotion is accompanied by what is on any view a serious financial sanction.

[50]  Of course in more serious cases dismissal will be called for.  In the present case we think that the appropriate response is demotion, accompanied by the equivalent of a serious fine.  The only question is whether that which has been imposed is too great.

Summary

[51]  The circumstances involve deliberate physical violence which resulted in bodily harm which was by no means minor.  It involved the inappropriate use of handcuffs and excessive violence in a private dispute.  The conduct was probably not as serious as that in the two cited cases of M and B (violence and punches during arrests) but as indicated earlier we think that the penalties imposed in those two matters were too light.

[52]  It is of course necessary to endeavour to achieve consistency.  The level of seriousness of conduct in Hetherington has some similarities, and is we think the closest indicator in reduction, from Sergeant 3.5 to Senior Constable 2.9, but the reduction was only for a period of 12 months.

[53]  Counsel for the appellant submitted that the effect of changing the sanction from 24 months to 12 months would produce ‘a reduction in the economic impact of approximately $23,000’.  However the basis of this was not clarified.

[54]  Regard should also be had to the fact that the appellant has performed good service both before and after the incidents.  He is a senior prosecutor and was permitted to transfer to a Sergeant’s position at Toowoomba following this incident.  There does not seem to be any realistic chance, or discernible risk, of any repetition of the incident in question.

[55]  All things considered we are persuaded that the present penalty was too heavy and that, in the interests of consistency, it should be replaced with a reduction in rank from Sergeant paypoint 3.5 to Senior Constable 2.9 for a period of one year.