O'Brien v Assistant Commissioner Gollschewski
[2013] QCAT 612
| CITATION: | O’Brien v Assistant Commissioner Gollschewski [2013] QCAT 612 |
| PARTIES: | Kelly Patricia O’Brien (Applicant) |
| v | |
| Assistant Commissioner Stephen Gollschewski (Respondent) |
| APPLICATION NUMBER: | OCR264-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member McLennan |
| DELIVERED ON: | 8 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision as to misconduct is confirmed; 2. Kelly Patricia O’Brien’s salary is reduced to senior constable pay point 2.8 for a period of nine months; and 3. Publication of the names of two police officers and the details contained in CSS File No.2011/02607 and CSS File No.2011/01406 is prohibited. |
| CATCHWORDS: | Disciplinary proceedings – Police – Misconduct – Off duty officer – drink driving matrix Queensland Civil and Administrative TribunalAct 2009 ss 20, 21, 24, 28, 66 Travis Garth v Queensland Police Service (Unreported, QCATA, C Brabazon QC, Judicial Member and K O’Callaghan, Senior Member, 21 June 2013) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr CR Gnech, solicitor, Office of Queensland Police Service Union |
| RESPONDENT: | Mr SA McLeod, counsel, instructed by Ms B Wadley, Office of the Queensland Police Service Solicitor |
REASONS FOR DECISION
In a Notice[1] issued by Assistant Commissioner Stephen Gollschewski (the respondent) to Ms Kelly Patricia O’Brien (the applicant) it was alleged:
That on the 20th day of May 2012 at Mooloolaba your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you, whilst off duty, drove a private motor vehicle whilst you were over the general alcohol limit contrary to the provisions of section 79(2)(a) of the Transport Operations (Road Use Management) Act 1995.
[Sections 1.4.and 7.4 Police Service Administration Act 1990 (PSAA), section 9(1)(f) Police Service (Discipline) Regulations 1990 (PS(D)R)]
[1]Material Provided Pursuant to section 21(2) QCAT Act: Form A Notice to undertake an Administrative Consensual Disciplinary Process (ACDP) at page 32.
The basis of the respondent’s allegation was that on 20 May 2012 at approximately 8.50pm, whilst off duty and in a private motor vehicle the applicant was stopped in a Random Breath Test (RBT) line and at 8.55pm required to submit to a RBT which was positive. At 9.10pm a further RBT indicated a positive result. At 9.47pm at the Maroochydore Police Station an analysis of a specimen of the applicant’s breath resulted in a certificate being issued indicating a blood alcohol concentration of 0.070 grams of alcohol in 210 litres of breath (0.070%).[2]
[2]Material Provided Pursuant to section 21(2) QCAT Act: Form A Notice to undertake an ACDP at page 33.
On 8 June 2012, the applicant who pleaded guilty was fined $400 in the Maroochydore Magistrates Court. A one month driver licence disqualification was imposed in respect to the offence of driving a motor vehicle over the legal alcohol limit. No conviction was recorded.[3]
[3]Material Provided Pursuant to section 21(2) QCAT Act: Verdict and Judgment Record page 17.
On 23 July 2012, the respondent found that the applicant’s conduct amounted to:
…a breach of the criminal law (albeit a simple offence) which you have a responsibility to enforce and community expectations of an officer. Accordingly, I find your conduct amounts to misconduct.[4]
[4]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of ACDP dated 23 July 2012 page 74.
He determined to reduce the applicant’s salary from pay point 2.9 to pay point 2.8 pursuant to s 10(c) of the PS(D)R for a period of time not greater than 12 months. Upon completion of the sanction period, the applicant was eligible to return immediately at pay point 2.9 ‘subject to completion of all relevant progression requirements’.[5]
[5]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of ACDP dated 23 July 2012 page 72.
The application for review in this tribunal is twofold: that the applicant’s conduct on 20 May 2012 was not misconduct but constituted a breach of discipline but, if the tribunal determined that misconduct was substantiated, the sanction imposed was excessive in the circumstances.
The tribunal notes that its jurisdiction is enlivened by the definition of “reviewable decision” in s 219BA of the Crime and Misconduct Act 2001 (CM Act 2001) the enabling Act which provides for review of reviewable decisions in this tribunal.[6] Broadly, a reviewable decision is a decision made in relation to an allegation of misconduct against a prescribed person of whom the applicant is one.[7]
[6]CM Act 2001 s 219G.
[7]Ibid s 219BA(1).
Were the tribunal in its review function to make a finding that misconduct is not substantiated, it has the power to set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.[8]
[8]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 24(c). See also Mr Travis Garth v Queensland Police Service (Unreported, QCATA, C Brabazon QC, Judicial Member and K O’Callaghan, Senior Member, 21 June 2013) [72].
Applicant’s submissions
The applicant contended that she had 17 years in the QPS with no adverse finding and on this one occasion, she had consumed two and a half glasses of wine, a fact she did not contest. On 20 May 2012, she had made a conscious decision to drive to and from a particular police social event. The submission was that the applicant had considered the law and made a reasonable assessment of her level of sobriety. It was a mistake on her part. There was no underlying alcohol problem.
[10]The magistrate had acknowledged the error:
The reading is 0.07%, it seems like you were trying to do the right thing in terms of quantity of alcohol and like a lot of people that come through here you got it wrong, and that is an error of judgement no more than that and many, many people come through here and make that error of judgement, particularly women drinking wine, it just, it just happens.[9]
[9]Material Provided Pursuant to section 21(2) QCAT Act: Transcript In the Magistrates Court page 23.
Mr Gnech submitted for the applicant that an Acting Magistrate can make the same error with a blood alcohol reading of 0.075%.[10] The tribunal notes, however, a conviction was recorded.[11]
[10]Submissions on Behalf of the Applicant dated 7 June 2013 [30].
[11]Transcript of Proceedings Magistrates Court: Police v Arthur Gordon Dean 29 June 2009 page 2.
He also submitted that the early admission of guilt and the acceptance of the ACDP should have acted as mitigating factors in the applicant’s favour in relation to sanction imposed. It meant that the disciplinary process was expedited without the need for lengthy internal investigation.[12]
The benefits of the ACDP include the timely provision in writing of a nominated sanction in anticipation of a subject member’s early acceptance for responsibility of their conduct. . . The nominated sanction may be reduced on the provision of mitigating circumstances by the member. . . The ACDP is only applicable to more serious matters where a sanction is considered to be warranted . . .[13]
[12]Material Provided Pursuant to section 21(2) QCAT Act: Appendix A 2011/19 Disciplinary Hearing (Police Officers) 19 December 2011 at page 120.
[13]Material Provided Pursuant to section 21(2) QCAT Act: Appendix A 2011/19 Disciplinary Hearing (Police Officers) 19 December 2011 at pages 120 - 122.
The officer appointed to administer the ACDP is required to have regard to a “realistic assessment of the facts.”[14]
[14]Material Provided Pursuant to section 21(2) QCAT Act: Appendix A 2011/19 Disciplinary Hearing (Police Officers) 19 December 2011 at pages 122 and 123.
The respondent conceded:
The Service agrees with the concept that if an officer accepts, early in the disciplinary process, both the conduct itself, alleged in the Form A, and that the officer is liable to receive a sanction for that conduct, then that officer receives a reduction in sanction, the amount of reduction to be at the discretion of the prescribed officer.[15]
[15]Letter from respondent dated 19 October 2013 clarifying [24] of the respondent’s outline of submissions filed 28 June 2013.
Mr McLeod submitted for the respondent, however, and the tribunal accepts, that any mitigation in sanction is discretionary and only one factor in the considerations involved in the ACDP. The tribunal notes that the respondent, in administering the ACDP was required under the ACDP policy to ‘provide written reasons for accepting or rejecting any mitigating circumstances’.[16]
[16]Material Provided Pursuant to section 21(2) QCAT Act: Circular No. 9/2012 dated 16 May 2012 at 18.3.13.2.9 page 127.
The tribunal considers that the respondent decision maker had fulfilled that requirement[17] by the range of factors which he took into consideration in reaching his determination as to sanction.[18] In particular in relation to the mitigating circumstances he stated:
You mention . . . the incident arose from a miscalculation of alcohol consumed. . . This miscalculation has caused both personal consequences and adverse criticism towards the Queensland Police Service as reported in the Courier Mail (Saturday June 9 2012). In nearly every road safety message the following is broadcasted to decrease the impacts of the ‘Fatal Four’ on the community: Police stress the importance of organising a designated driver or finding alternative transport. Don’t try to guess your limit (emphasis). If you’ve had anything to drink, don’t drive.[19]
[17]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of an ACDP page 72 and page 75.
[18]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of an ACDP page 75 (a) to (j).
[19]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of an ACDP page 72.
The respondent expressed concern that the applicant, in pressing for a sanction that was two penalty units or a pay point reduction of three months, appeared to diminish responsibility for her conduct by attributing it to miscalculation. In considering the totality of the conduct and the applicant’s rank, he was not persuaded the lighter sanctions were appropriate.[20]
[20]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of an ACDP page 76.
Discussion
The applicant has had up to this time an unblemished record within the QPS. The tribunal accepts that the applicant was, at the time of the offence, mindful of her obligations and made, as the magistrate stated ‘an error of judgement’ in the quantity of alcohol which she had consumed. This error, however, was made by a police officer of 17 years’ experience and as one who had served from 2000 to 2003 in the Forensic Crash Unit.[21] Service in that unit, one might safely assume, is highly salutary as to the consequences of alcohol consumption.
[21]Material Provided Pursuant to section 21(2) QCAT Act: Notice of Determination of an ACDP page 75.
It is an unfortunate but ironic incident of the applicant’s QPS history that she has had significant experience ‘in regard to traffic offences and detecting those who commit offences such as these’.[22] This experience nevertheless should heighten awareness of the potential to make an error of judgement in the quantity of alcohol consumed.
[22]Material Provided Pursuant to section 21(2) QCAT Act: Transcript in the Magistrates Court of Maroochydore page 20.
Because it was a matter involving a charge against a police officer, it attracted media scrutiny and embarrassment for the applicant as acknowledged by the magistrate.[23] Mr Gnech submitted that this embarrassment constituted significant penalty just on its own and thus was a mitigating factor that the tribunal should take into account in its assessment of the level of conduct by the applicant.
[23]Material Provided Pursuant to section 21(2) QCAT Act: Transcript In the Magistrates Court page 23. See also Courier Mail article 9 June 2012 “Drink-driving cop escapes conviction” page 25.
“Trying to do the right thing” however, does not detract from the fact that being mistaken about the quantity of alcohol nevertheless constitutes a breach of the law. It is the law which police officers are obliged to uphold and the community reasonably expects that police officers set the example by themselves upholding the law. The tribunal accepts that publication in the media is embarrassing but considers that the media attention is itself indicative of how the community reacts to news that a police officer has breached the law. The fact that the applicant was required to face the Magistrates Court and pleaded guilty was sufficient to draw upon herself unwanted media attention. The community possibly derives a certain malign pleasure from seeing a police officer receive the same penalty that members of the public themselves receive not infrequently.
In order to constitute misconduct, the conduct must come within an element of the definition. Section 1.4 of the PSAA defines “misconduct” as conduct that:
(a)is disgraceful, improper or unbecoming 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.
Furthermore, in making a finding of “misconduct” that conduct does not have to relate to the performance of a police officer’s duties. [24] It may constitute “misconduct” even though the event giving rise to the conduct was in an “off duty” capacity. The applicant in this matter was off duty and in a private vehicle.
[24]Henry v Ryan [1963] Tas SR 90.
In relation to the applicant being off duty, it is a consequence of being a police officer that his or her off duty behaviour may be taken into account because of the public office position that is held by that police officer. There are differential expectations required of police officers because of the public confidence that resides in them.[25] Off duty behaviour by a police officer may constitute misconduct.[26]
[25]See also Re Bowen [1996] 2 Qd R 8 per Demack J.
[26]See PSAA section “7.2 Duty concerning misconduct or breaches of discipline
The disciplinary function is protective not punitive.[27] There are authoritative statements as to the purpose of discipline in the police. His Honour Brennan J stated in Police Serve Board v Morris:
The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.[28]
[27]New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 paragraph 9.
[28](1985) 156 CLR 397 at 411 – 412.
Similarly in Hardcastle v Commissioner of Police the Full Court of the Federal Court stated in relation to the relevant Australian Federal Police (Discipline) Regulations:
The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body.[29]
[29](1984) 53 ALR 593 at 597.
There must be public confidence that there are proper standards of conduct in the QPS.
It is clear that the respondent, in formulating his decision as to sanction, had regard to examples of misconduct formulated by the Commissioner[30] and drink driving either on or off duty is included as an example of misconduct.
[30]Material Provided Pursuant to section 21(2) QCAT Act Commissioner’s Circular No.02/2009 pages 73 - 75.
The tribunal is mindful of the deterrence contained within the sanction of misconduct. Mr McLeod submitted that the QPS takes “drink driving” by any officer very seriously.
The tribunal notes the respondent decision-maker’s statements in relation to the sanctions potentially applicable for drink driving offences:
Due to community expectations and the apparent failure of current disciplinary action to curb the incidence of drink driving by police officers, the Service revised the range of potential sanctions for disciplinary matters in circumstances where an officer commits a drink driving offence, whether on or off duty. Indicative sanctions were listed on a matrix and published on the QPS Bulletin Board as Commissioner’s Circular No.02/2009 commencing 1 July 2009. Depending on the circumstances these sanctions include dismissal from the Service and demotion. . . Specific and general deterrence principles are important considerations when attempting to satisfy the purpose of discipline.[31]
[31]Material Provided Pursuant to section 21(2) QCAT Act Notice of Determination of an ACDP page 72.
The respondent was required, in his decision and his consideration of mitigating factors that would lead to the relevant sanction, to take notice of the Commissioner’s policy outlined in the matrix of indicative sanctions for police officers and drink driving offences.[32] The applicant conceded that the matrix existed at the time of the breach. There is no evidence before the tribunal, nor was it suggested to the tribunal, that the respondent applied the matrix inflexibly or fettered his discretion.
[32]Material Provided Pursuant to section 21(2) QCAT Act Notice of Determination of an ACDP page 74.
The tribunal itself may have regard to the matrix but is not bound by any policy directive contained within the matrix.[33]
[33]Travis Garth v Queensland Police Service (Unreported, QCATA, C Brabazon QC, Judicial Member and K O’Callaghan, Senior Member, 21 June 2013) [83].
The point is that the applicant did breach the law. While the applicant characterised the breach as a mistake, it is better characterised as a calculated risk that was misconceived. Her breach was indisputably at the lower end of the drink driving scale and the penalty she attracted in the Magistrates Court was proportionately also at the lower end of the scale. She co-operated by pleading guilty in the Court and co-operated in the expedited ACDP.
The public must however have confidence that police officers themselves are not breaching the law. In this matter the applicant even by being off duty and in a private vehicle at the time of the breach, did not escape media scrutiny and identification. On the contrary, she was specifically identified as a senior constable in the QPS.[34] The attention of itself is unfortunate for her but the attention is indicative of the community expectations.
[34]Material Provided Pursuant to section 21(2) QCAT Act Courier Mail article 9 June 2012 “Drink-driving cop escapes conviction” page 25.
To drink even marginally in excess of the law, as has occurred in this matter, is not within that standard of conduct which the public reasonably expects of police officers who must uphold and implement the law. The breach of the criminal law, no matter how unintended or minor, constitutes misconduct.
The tribunal finds misconduct by the applicant.
Application to file fresh evidence
At the outset of the hearing Mr Gnech sought pursuant to section 219H of the CM Act 2001 to adduce further evidence to the documentation before the tribunal. This evidence consisted of:
a) a QPS media release dated 21 May 2012; and
b) 10 pages of printouts from QPS Facebook relevant to the media release.[35]
[35]Fresh evidence application submission on behalf of the applicant dated 7 June 2013.
Mr Gnech submitted that certain material that was before the respondent decision-maker had not been provided to the applicant. This included material such as the Courier Mail article naming the applicant and detailing the charge before the Magistrates Court.[36] He conceded in the hearing of the matter before the tribunal that the fresh hearing cured any perceived deficit in procedural fairness on the part of the respondent.[37]
[36]Material Provided Pursuant to section 21(2) QCAT Act Courier Mail article 9 June 2012 “Drink-driving cop escapes conviction” page 25.
[37]Section 219H(1) CM Act and section 20(2) QCAT Act.
He submitted that the new material he sought to adduce went to the issue of additional humiliation and embarrassment of the applicant and would constitute mitigating factors for consideration of sanction.[38]
[38]Submissions on behalf of the applicant dated 7 June 2013 paragraphs 62-64.
In conducting the proceeding, the tribunal exercises its discretion subject to the QCAT Act, the enabling Act and the rules.[39]
[39]Section 28(1) QCAT Act
Section 219H(2) of the CM Act provides that the tribunal may give leave to adduce fresh evidence if satisfied:
a)the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or
b)in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.
The tribunal notes that the QPS media release is dated 21 May 2012. Mr Gnech informed the tribunal at the hearing that the last comment on the Facebook page is dated 6 July 2012. The respondent made his determination on 23 July 2012. Mr Gnech conceded that the material did not meet the criteria in section 219H(2)(a) but brought his submission under section 219H(2)(b) of the CM Act.
The respondent states that there is no unfairness since the applicant was not identified in the media release on the QPS Facebook page and that any embarrassment suffered by the applicant was a consequence of the charge itself.
The tribunal considers that there is no unfairness in rejecting Mr Gnech’s application. Public material identifying and photographing the applicant is already before the tribunal and the proposed fresh evidence adds nothing to factors already considered in this decision.
Sanction
Mr Gnech submitted that, were the tribunal to make that finding of misconduct, then the level of sanction applied by the respondent was excessive.
It is established that a sanction which follows disciplinary action in the QPS is not punitive in emphasis but protective.[40] A sanction must signal deterrence but should also contain a level of proportionality and consistency.
[40] See also Aldrich v Ross [2001] 2 Qd R 235, at 257 paragraph 42.
Mr Gnech provided for the tribunal two particular examples of police officers who had breached the drink driving law and who were sanctioned within the ACDP after pleading guilty in the relevant Magistrates Courts. In both cases the disciplinary assessment was misconduct.
In one, an off duty sergeant with a blood alcohol concentration of .078% had been stopped with two children as passengers in his private car. He was convicted in the Brisbane Magistrates Court, fined $350 and disqualified from driving for a period of one month. He was, pursuant to the ACDP, reduced one pay point from Sergeant pay point 3.5 to Sergeant pay point 3.4 for a period of nine months from where he was entitled to progress pay levels.[41]
[41] Exhibit 1 Notice to Undertake an ADCP: CSS File No.2011/02607
In the second example, the police officer who wore a combination of plain and uniform clothes contrary to QPS policy, attended licensed premises without official purpose. He had left his duty shift 10 minutes early. He had been advised twice by the District Duty Officer not to drive but to take a taxi home. His blood alcohol after detection in his private vehicle was .085%. In the Gold Coast Magistrates Court, he was fined $400 and disqualified from driving for a period of three months. His salary was reduced pursuant to the ACDP from Senior Constable pay point 2.7 to Senior Constable pay point 2.6 for a period of 12 months upon completion of which period, he was entitled to progress to the original pay point 2.7.[42]
[42] Exhibit 3 Notice to Undertake an ADCP: CSS File No.2011/01406.
Arguably the sergeant was the more reckless since he had the greater seniority and was driving with two children in his vehicle yet he attracted a nine month period of pay point reduction.
The applicant’s misconduct was no more objectionable than in either of these examples provided by Mr Gnech. In the first example the misconduct was compounded by seniority and children in the vehicle. In the second example the misconduct was compounded by departing early from a duty shift; use of the police uniform (albeit mixed) in licensed premises without official reason and acting contrary to senior officer advice not to drive.
The applicant’s misconduct should attract a commensurately lower sanction in some conformity with the lower level breach. This is not to underestimate in any way the fact that the applicant’s breach of the law was such that she was required to attend the Magistrates Court to answer the charge, pleaded guilty and suffered the penalty imposed by the court. This is a serious matter for any individual but in a police officer a breach attracts other equally serious policy considerations such as those alluded to above in public confidence in the standards of the QPS.
In relation to disciplinary sanction, as Dr Forbes commented in the previous Misconduct Tribunal:
Perfect consistency of sanctions imposed by this tribunal, or by the courts, is beyond human endeavour but reasonable comparability is vital. [43]
[43] Flegg v Aldrich Misconduct Tribunal TA No.6 of 1996 page 5.
The tribunal considers that a sanction period of nine months is appropriate in the circumstances of this matter. Thus, pursuant to section 24(1) the tribunal amends the respondent’s sanction and orders a reduction in the applicant’s salary from pay point 2.9 to pay point 2.8 pursuant to s 10(c) of the PS(D)R for a period of time not greater than 9 months. Upon completion of the sanction period, she is eligible to return immediately at pay point 2.9 subject to completion of all relevant progression requirements.
Other matter
Mr Gnech provided two ACDP examples similar to the present matter for comparison in sanction by the tribunal. [44] Pursuant to section 66(2)(d) of the QCAT Act there is no public interest in identifying the names of these two police officers whose names arise only incidentally in this matter. The tribunal pursuant to section 66(1) prohibits the publication of:
[44] CSS File No 2011/02607 and CSS File No 2011/01406
a) the names of the two police officers; and
b) any detail of the relevant CSS files.
(1) In this section —
conduct means conduct of an officer, wherever and whenever occurring, whether the officer whose conduct is in question is on or off duty at the time the conduct occurs.”
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