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
The appellant, Senior Constable McKenzie, was found to have acted inappropriately during a confrontation with a fellow police officer while off-duty.
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.
The appellant sought review in QCAT of both the finding of substantiation and the sanction.
On 17 January 2011 a two Member Tribunal confirmed both of the original decisions.
The appellant now appeals to this Appeal Tribunal, but only against the Tribunal’s decision as to sanction.
Charge
The charge was that the appellant on 1…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
Case
[2011] QCATA 309
Decision Date
CaseChat Overview and Summary
The appeal arose from a disciplinary action against a police sergeant, McKenzie, who was found to have assaulted a female colleague while off duty, using handcuffs and causing bodily harm. The disciplinary panel demoted McKenzie from Sergeant 3.5 to Senior Constable 2.9 for a period of two years. The decision was reviewed by the Queensland Civil and Administrative Tribunal (QCAT), which upheld the demotion, leading to McKenzie's appeal to the court. The key legal issue was whether the level of the sanction imposed on McKenzie was manifestly excessive, taking into account the circumstances of the incident, McKenzie's early guilty plea, and the relevance of the fact that the incident occurred while he was off duty. The court also considered the use of comparative judgments in similar cases.
The court determined that the sanction imposed by the disciplinary panel was indeed manifestly excessive. The court emphasised that while the assault was serious, the fact that it occurred off duty and that McKenzie had entered an early guilty plea should have been given significant weight. Additionally, the court noted that the comparative judgments used by the panel did not fully account for the off-duty nature of the incident or the early plea. These factors, when considered together, led the court to conclude that a demotion for a period of two years was disproportionate to the circumstances of the case. Consequently, the court reduced the period of demotion to 12 months.
In light of the above, the court allowed the appeal and set aside the QCAT Tribunal's orders and the respondent's orders. The court ordered that McKenzie 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. The decision underscores the importance of considering all relevant circumstances, including the timing of the offence and the offender's remorse, in determining appropriate disciplinary sanctions.
Orders
Orders of the court
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.