O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service
[2014] QCATA 148
•24 June 2014
| CITATION: | O’Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148 |
| PARTIES: | Kelly O’Brien (Applicant/Appellant) |
| v | |
| Assistant Commissioner Stephen Gollschewski, Queensland Police Service (Respondent) |
| APPLICATION NUMBER: | APL534-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon JB Thomas, Judicial Member |
| DELIVERED ON: | 24 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Decision of QCAT Member dated 8 November 2013 that the Appellant Kelly O'Brien was guilty of misconduct is confirmed. 2. The sanction of reduction of the Appellant's salary to Senior Constable pay point 2.8 for a period of nine months is set aside. 3. In its place it is ordered that Senior Constable O'Brien's salary is reduced from Senior Constable pay point 2.9 to Senior Constable pay point 2.8 for a period of six months from the date of the original determination (23 July 2012). |
| CATCHWORDS: | DISCIPLINARY PROCEEDINGS – POLICE – definition of "misconduct" – drink-driving off duty – blood-alcohol level of .070% – whether drink-driving "matrix" misused – circumstances of mitigation – need for reasonable comparability – level of sanction consistent with purpose of disciplinary proceedings Crime and Misconduct Act 2001 (Qld), s 219B, s 219BA, s 219C, s 219G, s 219H, s 219BA Aldrich v Ross [2001] 2 Qd R 235, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Jurisdiction
This is an appeal, or alternatively an application for leave to appeal, under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
The original proceeding was a disciplinary proceeding against a police officer (Senior Constable O'Brien) brought pursuant to ss 1.4 and 7.4 of the Police Service Administration Act 1990 (Qld) (‘the PSAA’) and s 9(1)(f) of the Police Service (Discipline) Regulations 1990 (Qld).
The disciplinary proceeding was initiated following her pleading guilty in the Magistrates Court to driving with a breathalyser reading of .070%.
The disciplinary charge was:
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 s 79(2)(a) of the Transport Operations (Road Use Management) Act 1995.
The original decision maker (Assistant Commissioner Gollschewski) found the charge of misconduct substantiated and imposed a sanction of reduction in salary from pay level 2.9 to pay level 2.8 for a period of 12 months.
Senior constable O'Brien then sought a review of that decision by a QCAT Tribunal member, exercising original review jurisdiction under s 17 of the QCAT Act.
The jursidictional basis of such a review was s 219BA of the Crime and Misconduct Act 2001 (Qld) (‘the Crime and Misconduct Act’). It is relevantly confined to cases where “misconduct” is alleged against the relevant police officer, and is determined by way of rehearing on the original evidence unless "new evidence" is allowed.[1]
[1]Crime and Misconduct Act, s 219B, s 219BA, s 219C, s 219G, s 219H; cf QCAT Act ss 17-20.
The QCAT review was required to be heard and determined by way of a fresh hearing on the merits,[2] consistently with the observations made in Aldrich v Ross[3] concerning similar procedures under comparable earlier legislation.
[2]QCAT Act, s 20.
[3][2001] 2 QdR 235.
The QCAT review found the charge of misconduct substantiated, but imposed a reduced sanction of reduction of salary from Senior Constable paypoint 2.9 to Senior Constable paypoint 2.8 for a period of nine months.
The present proceeding is an appeal by Senior Constable O'Brien under s 142 of the QCAT Act against the Tribunal's decision on review.
The principal submissions on behalf of Senior Constable O’Brien are that the Tribunal erred in finding “misconduct” against her, and alternatively that the sanction imposed was manifestly excessive.
There is no suggestion that this Appeal Tribunal should undertake a rehearing under s 147 of the QCAT Act. The present appeal falls under s 146 of that Act. It is an appeal, not a review. In order to succeed, the appellant must show some error of law or principle in the Tribunal’s reasons, or that the sanction was manifestly excessive.[4]
[4]Compare McKenzie v Acting Assistant CommissionerWright [2011] QCATA 309; Mirana Investments Pty Ltd v Coupe [2012] QCAT 187, paras [30] – [33].
The original disciplinary proceeding was brought under a procedure called the Administrative Consensual Disciplinary Process (‘ACDP’), under which, if the charged police officer consents to its use, the prosecuting authority nominates a sanction, and the normal procedure is streamlined. The proposed sanction may be reduced if mitigating circumstances are provided. The present appeal however is not against any decision of the original decision-maker; it is against the decision of the QCAT Tribunal.
Main facts
Senior Constable O’Brien had been a police officer for 17 years at the time of this incident and she had no previous traffic history for like offences. She had not been subject to any previous disciplinary matters and had received eight good work entries and a favourable comment. She is a married woman, and at the time of this event her children were aged 5 and 6 years respectively.
On 20 May 2012 at about 8:50pm whilst off duty and in a private motor vehicle Senior Constable O’Brien was stopped in a random breath test line. The test was positive, and later at the Maroochydore Police Station a breathalyser test resulted in a finding of .070%.
Although described as a “work function”, she attended it voluntarily and was not on duty. The incident was not in the course of her employment, and it concerns off duty conduct.
She stated that she had consumed 2½ glasses of white wine, water and a meal, that she took into account the time involved, and made a conscious decision to drive in the belief that she was under the legal limit and “fine to drive”.
The interception had nothing to do with her manner of driving.
On 8 June 2012 she pleaded guilty in the Maroochydore Magistrates Court, was fined $400.00, was disqualified from holding a licence for a period of 1 month, and no conviction was recorded.
The Magistrate accepted that the driving was “an error of judgment ... no more than that” and observed that “many people come through here and make that error of judgment”.
Was the finding of “misconduct” erroneous?
Both the original decision-maker and the learned Member found that Senior Constable O'Brien's conduct amounted to "misconduct"
The term “misconduct” is defined in the Police Service Administration Act (s 1.4) as follows:
Misconduct means 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”.
The relevant charge in this matter was laid in the words of (c) of that definition.
A similar definition of the term “police misconduct” appears in the Crime and Misconduct Act, Schedule 2. That term falls within the definition of “misconduct” which is the basis of QCAT’s jurisdiction to deal with a “reviewable decision” under s 219BA of the Crime and Misconduct Act.
It was contended on Senior Constable O’Brien’s behalf that her actions were that she made a reasonable and honest assessment of her sobriety. Some reliance was placed on the Magistrates comments “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”.
It was submitted that her error should be characterised as a breach of discipline rather than misconduct. Reference was made to observations that have been made in Misconduct Tribunal cases to the effect that lower level breaches may fall short of “misconduct”, and that “reasonable members of the community do not regard police officers as professionally unfit or substandard just because they fail to obey every jot and title of departmental instructions”.[5] It was contended that a reasonable citizen would not in the present circumstances regard Senior Constable O’Brien’s conduct as morally or socially blameworthy in a police officer.
[5]Observations of Dr Forbes in Shauer v Banham Misconduct Tribunal appeal no 6 of 1991.
The essence of this submission on behalf of Senior Constable O’Brien is that she did not deliberately drive whilst over the legal alcohol limit; that there is no evidence of deliberate disobedience of the traffic law; that there is no evidence of recklessness or carelessness in her decision; that making an honest and reasonable mistake without recklessness or carelessness would be understood by the community and not be condemned as morally or socially blameworthy; and that accordingly such a breach ought not to be rated as “misconduct”.
However some of the premises on which those submissions are made are questionable. The questions whether recklessness or carelessness were involved in reaching her decision are not the true issues.
The learned Member made the following observations in her reasons for judgment:
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.[6]
[6]Member’s reasons for judgment at [33].
The appellant’s solicitor submitted that this was an “unsupported conclusion” by the Tribunal and that it was unsustainable. He submitted that his client's error amounted to an “honest and reasonable mistake that many persons all around the state make on a daily basis”.
The fact that Senior Constable O'Brien fell into the same error as many other law breakers is hardly persuasive. Indeed, the learned Member noted that she had significant experience in the traffic area and in detecting those who commit offences of this kind, and that that experience should have heightened her awareness of the potential to make an error of judgment in the quantity of alcohol consumed.
The scientifically proven level of .07, although not a particularly high reading, is more than marginally over the limit. Her stated consumption of 2½ glass of wine is at best an estimate, or, as the learned member described it, a contention.[7] The dominant factor is her breach of a well-known law concerned with public safety.
[7]Member's reasons for judgment at [9].
Drink driving is an offence that the community does not expect its law enforcers to commit, and about which its members are very sensitive to the possibility of double standards. I do not say that any conviction of a police officer for driving over the prescribed limit must automatically establish misconduct within the definition, but, barring something very exceptional, a police officer who does so fails to “meet the standard of conduct the community reasonably expects of a police officer”.[8]
[8]See (c) of the definition of misconduct in the Police Service Administration Act.
I do not see any error in the description by the Member of Senior Constable O’Brien’s conduct as “a calculated risk that was misconceived”, or in the learned Member's conclusion that Senior Constable O'Brien's conduct did not meet the standard that the community reasonably expects of a police officer.
The first ground of appeal, that the Member erred in finding that Senior Constable O’Brien’s conduct amounted to misconduct, is not made out.
A number of points were made in support of the remaining ground that the sanction imposed was manifestly excessive.
Use of “the matrix”
It was submitted that the learned Member placed weight on training material utilised by the Ethical Standards Command which contains an “example table” for misconduct which includes off duty drink driving. I accept that the definition of misconduct is a matter of law and is not a matter for the Commissioner of Police to dictate, or for Ethical Standards Command to formulate in any binding way. However a close reading of the learned Member’s reasons does not suggest that she was unduly influenced by any such material.
There was no error, either on the part of the original decision-maker or the learned Member, in taking into account “the matrix” published as Commissioner’s Circular 2/2009 commencing 1 July 2009. The effect of that document, as amended, has been noted in a number of QCAT decisions, commencing with Compton v Deputy Commissioner Stewart.[9] It is clear that “the matrix” is a useful, indicative document, and that it may be taken into consideration by a Tribunal in considering appropriate sanctions. It does not bind the Tribunal to reach any particular conclusion, and the decision-maker is expressly required to “have regard to all the circumstances of the individual case” before adopting any indicative sanction.
[9][2010] QCAT 384, at [19]-[27].
The learned Member discussed the extent to which the original decision-maker had used “the matrix”, and noted that neither party suggested that he had applied it inflexibly or fettered his discretion. Indeed, the matrix's suggested sanction for the combination of “Off duty”, “Private vehicle”, and “Less than .10%” is simply “Reduction in pay level/s”. It gives no indication of the amount of the reduction or the period of its application.
Even more pertinently, there is no suggestion that the learned Member inappropriately applied “the matrix” in her reasons for judgment.
“Breach of the criminal law”
It was submitted that the learned Member erred in referring to the offence of drink driving as a “breach of the criminal law”.[10] Senior Constable O’Brien’s solicitor submitted that such an offence is a simple offence under the Transport Operations (Road Use Management) Act, and that to describe it as a breach of the criminal law constituted an error of law.
[10]Member’s reasons for judgment at [35].
I accept the submission of counsel for the respondent decision-maker that the wording used by the Tribunal was simply putting the offence in perspective. In any event the term “criminal law” is capable of being used in many senses and contexts, and I do not regard it as having been used in any narrow technical sense by the learned Member or to constitute a legal error. Even if loosely or incorrectly used, this criticism of the learned Member’s nomenclature would not reveal any error which could have affected the result.
Mitigating circumstances
This case involves a fairly low level reading for an off duty police officer with an excellent service record. There are no circumstances of aggravation, and it must be accepted that it was the product of a miscalculation.
As indicated above she has already been dealt with in the same way as any other citizen under the criminal law and has paid the penalty including a fine of $400. She is now, by virtue of her status as a police officer, subjected to disciplinary proceedings which will further disadvantage her. The main question is how severe the additional order ought to be.
Senior Constable O’Brien’s solicitor contended that she has also been subjected to a degree of unwelcome public attention, and in particular to adverse publicity following her appearance in Court, at which no less than nine journalists attended, and which resulted in a Courier Mail article causing embarrassment. He submitted that the learned Member appeared not to have taken this into account.
The learned Member acknowledged the embarrassment, although she did not specifically describe it as a collateral damage or circumstance of mitigation. The relevant publicity was a likely outcome and an almost inevitable consequence of the process that follows a breach of this kind by a law enforcement officer, and it could not be regarded as a factor of major significance in the present case. The learned Member was aware of the appellant's discomfort and I do not think it can be said that she failed to take it into account or that any error is shown on this score.
Lack of comparability
The last point taken by Senior Constable O’Brien’s solicitor is his best point.
The need for consistency and reasonable comparability is important in these matters.[11] This is not to say that past decisions must be slavishly followed, or that QCAT is bound to adopt the same level as that chosen by police decision-makers. But when a certain level of response is discernible from past decisions, there should be some reason that it justifies departure from it.
[11]Flegg v Aldrich Misconduct Tribunal TA 6 of 1996 page 5; McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309.
In particular two cases were referred to and considered by the learned Member. They were made available to the Tribunal by the QPS, and have not been published, other than to the Tribunal, the parties and their legal representatives, for the purposes of reference in the present matter. For present purposes they will be referred to as Senior Constable F’s case and Sergeant W’s case.
Both have some comparability to present circumstances. Each of them reveals more serious circumstances than the present matter. The learned Member appears to have recognised this,[12] stating that “the applicant’s misconduct should attract a commensurately lower sanction in some conformity with the lower level breach”.[13]
[12]Member’s reasons at [51].
[13]Member’s reasons at [52].
However the sanction that the learned Member then proceeded to impose was of the same order as that which had been imposed on Sergeant W, namely the loss of one pay point for a period of nine months.
Sergeant W had driven with a blood alcohol concentration of .078% and had been driving with 2 children as passengers in his private car. He had been fined $350 in the Magistrates Court and disqualified from driving for one month. His case was more serious than the instant one in that the blood alcohol concentration was slightly greater, he had driven two children as passengers, and he had greater seniority and greater responsibility. More is expected from those entrusted with greater rank and responsibility. The sanction imposed upon him was reduction of 1 paypoint (from Sergeant paypoint 3.5 to 3.4) for a period of 9 months.
Senior Constable F was dealt with for two matters, including leaving his duty shift 10 minutes early. He had been advised twice by his duty officer not to drive and to take a taxi, but he ignored this. His blood alcohol level was .085%. He was fined in the Magistrates Court $400 and disqualified from driving for 3 months. He was reprimanded on the first matter, and on the second his salary was reduced from Senior Constable pay point 2.7 to 2.6 for a period of 12 months. His misconduct was rendered more serious than the instant matter by the higher blood alcohol reading, his early departure from duty, his use of a police uniform in licensed premises without official reason, and acting contrary to senior officer advice not to drive.
These two examples seem to have been the most pertinent ones provided to the learned Member by the legal representatives. No others were brought to the attention of the learned Member, or to this Appeal Tribunal, as being more relevant or more indicative.
It is true that the reduction of 1 pay point for nine months imposed by the learned Member was less than that imposed in Senior Constable F’s case, but it was not less than that imposed upon Sergeant W. In comparing Senior constable F's case and Sergeant W's case one with the other, the differing sanctions are properly reconcilable, as Senior Constable F’s conduct was overall more serious than that of Sergeant W, and both were more serious than the present case. It follows that if comparability is to be maintained, the nearest starting point should be the nine months reduction of one pay point applicable to Sergeant W, and that some lesser sanction than this was necessary in the present case because the circumstances are plainly less serious.
I have concluded that the order formulated by the learned Member was inconsistent with her finding at [52] of her reasons for judgment, and that a lack of comparability resulted from the sanction that was then imposed.
The submissions of counsel for the respondent do not refute this lack of comparability. They include a submission that the Tribunal had “express regard to the decisions” in arriving at the sanction, but do not address the point of inconsistency between the statement quoted in [50] above and the sanction actually imposed.
It appears to me that an error has occurred, and that the appeal should be allowed and a sanction substituted which is consistent with the cases relied on by the parties in these proceedings.
When one looks at the financial impact of these pay point reductions, the additional financial detriment imposed by the nine month loss of a pay point, calculated on base pay and a 21% operational shift allowance, is $1,073.27, along with some further loss of superannuation benefits and overtime losses and a corresponding postponement of future progression.
This is considerably more than twice the amount of the fine imposed on the appellant as an ordinary citizen under the general law, and is of course in addition to it. Looking at the sanction globally, it seems to me that in circumstances such as the present, where there are reasonable mitigating circumstances, the impact of a six month, 1 pay point loss would be a more reasonable result. A six month pay point reduction would result in a financial detriment of approximately two thirds of the above figure, that is to say somewhere between $600 and $700, along with the stated further losses and disadvantages. The blot on the police officer's service record from disciplinary proceedings of this kind, along with this additional financial impost should be sufficient to deter others from similar conduct, and overall it is more consistent with the principle that these proceedings are protective, rather than punitive.
To place the matter in context, it should be noted that the sanction nominated by the original decision maker at the commencement of the proceedings was essentially a 1 point reduction for 12 months. Having heard submissions that included obvious mitigating circumstances, he proceeded to impose the 12 months pay point reduction originally nominated. The matter was then reviewed by the learned Member, who imposed a sanction of 1 pay point reduction for nine months. I have now concluded that an error occurred in the fixation of that sanction, and that the appropriate sanction should be a reduction of one pay point for six months.
The appeal will be allowed under s 146 of the QCAT Act. The decision imposing the sanction will be set aside, and the substituted decision[14] will be that Senior Constable O’Brien’s salary is reduced from Senior Constable pay point 2.9 to Senior Constable pay point 2.8 for a period of six months from the date of the original determination (23 July 2012).
[14]Under s 146(b) of the QCAT Act.
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