b. Sergeant Tolsher be demoted in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.4, being eligible to progress paypoints under normal industrial arrangements.

CATCHWORDS:

POLICE DISCIPLINARY REVIEW – SANCTION – Where Senior Sergeant disciplined for drink driving and attempting to avoid breathalyse – whether sanction excessive – where decision maker erred in applying more than one sanction for one matter – where matrix of indicative sanctions for drink driving considered – whether demotion appropriate.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Gnech of Solicitor Police Union Group

RESPONDENT:

Mr Merrell of counsel

REASONS FOR DECISION

In July 2012 Sergeant Tolsher was promoted to the rank of Senior Sergeant (officer in charge Oxley District Child Protection and Investigation Unit). The promotion however was short lived.
On 12 August 2012 whilst off duty and after attending a work social function, Sergeant Tolsher made the wrong decision to drive home intoxicated. He was pulled over by police. He made a number of comments/requests to the Constables in an attempt to avoid being breathalysed. He was nonetheless breathalysed and recorded a reading of .15.
On 20 August 2012 he pleaded guilty in the Magistrates Court to a charge of drink driving. He was fined and disqualified from driving for 6 months.
A disciplinary hearing was conducted in relation to the incident and Commissioner Stewart found a charge of misconduct substantiated.
In relation to the drink driving the Commissioner imposed a sanction of demotion from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.4. He considered the attempt to avoid the breath analysis to be a more serious breach of conduct and demoted Sergeant Tolsher to Senior Constable 2.9. He then suspended the sanction for 2 years on the condition that he not commit any further acts of misconduct within that period; be demoted in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.1 and within 3 months he participate in an information session delivered by the Ethical Standards Command about the importance of ethical decision making and professional conduct.
Sergeant Tolsher seeks to review the sanctions on a number of grounds.

The conduct

There are 2 components to the disciplinary charge. It was presented as follows:
Matter one: That on the 12^th day of August 2012 at Brisbane your conduct was improper in that you, whilst off duty:
a)Drove a private motor vehicle whilst under the influence of alcohol.
b)Effectively made requests and comments to Constables S and C to avoid being required to submit to a breath analysing test.
The first component relates to the drink driving. It is not disputed that around 1:45am Sergeant Tolsher was driving home from a social function. He was pulled over by police and provided a roadside breath test of .16. A little over an hour later a reading of .15 was recorded as the official reading.
The second component relates to the words spoken by Sergeant Tolsher to the Constables after they pulled him over. The words spoken are not in dispute. They are recorded. Sergeant Tolsher has only a patchy recollection of what was said because of his level of intoxication.
Whilst not disputing that the words were said, Sergeant Tolsher initially took the view that the charge could not be substantiated because in order to establish that the purpose of the comments were to avoid undergoing a breath test, an intent to do so would have to be established. He considered that because of his level of intoxication such an intent could not be established.
Sergeant Tolsher has since withdrawn his review of substantiation of this part of the charge and accepts that the words were said for the purpose of avoiding the breath test.
The transcript of the conversation records the following exchange:[1]
[1] Section 21(2) documents Part B P143-152.
Sergeant Tolsher: “… I’ll, I’ll go, I’ll, I’ll walk away for two hours, three hours.”
Officer: “… then you nearly, and then you, took out this pole… just here as you were pulling over…”
Tolsher: “… That’s not right. I, I’ll, I’ll go away, I’ll go away for the next two and a half hours.”…
Tolsher: “I’d really appreciate it. I know what you mean, I, I, I know what ah this is but.. I’ll go and sit in the park over here for about 3 hours.”…
Constable: “… Senior you know we’ve got to do our job.”
Tolsher: “Just step away from the vehicle I’ll go away, I’ll go for an hour and a half.”
Constable: “And Senior you know we can’t do that and even if we could”
Tolsher: “Why can’t you?”…
Tolsher: “You know its going to happen, its going to happen, my jobs going to be fucking put on … I wouldn’t do that to youse guys.”…
Tolsher: “If I was in your I would, I would there would be no hesitation about worrying about …
Constable: “Senior we’d rather not be doing this as well you know, but it is what it is and …
Tolsher: “… you don’t have to do it, you don’t have to do it.
Constable: “mate we do have to do it we do.”
Tolsher: “You don’t have to do it.”
Constable: “We do.”
Tolsher: “You and I know we don’t.”
Sergeant Tolsher regrets his actions. In his disciplinary interview in August 2012 he expressed remorse for this conduct. He said he understood that he had placed the two Constables in a difficult situation. He says however that his actions were completely out of character and that his decision making was overtaken by alcohol.

The legislative framework

This review is a fresh hearing on the merits with the purpose of the review being to reach the correct and preferable decision.[2]
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) ss 20(1), (2).
The settled view in these matters is that the review by the Tribunal brings to bear a public perspective: but if the Tribunal has the same view of the facts and inferences as the original decision maker, it would be appropriate to give considerable respect to the views of the original decision maker as to the appropriate disciplinary sanction. The ultimate determination however must be that of the Tribunal.[3]
[3]Aldrich v Ross (2010) 2 Qd R 235, Murray v Deputy Commissioner Stewart [2011] QCAT 583, Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384.

Did the respondent err by imposing separate sanctions for matter 1(a) and 1(b)?

This submission by Sergeant Tolsher was based on the provisions of the “Disciplinary Hearing (Police Officers) Policy 2011/19”.
The relevant part of the policy document is headed Format of Discipline Matter – Misconduct. It sets out how a disciplinary matter for misconduct should be framed and provides the following format.
That on (date) day of (month) (year) at (place) your conduct was:
(select one of the following to establish misconduct).
§    disgraceful;
§    improper;
§    unbecoming of an officer;
§    shows unfitness to be a police officer; or
§does not meet the standard of conduct that the community reasonably expects of a police officer in that you:
(particularise each allegation in separate paragraphs below)
(a)   (first allegation)
(b)   (second allegation etc)
(identify the lawful basis for the disciplinary action below)
[Sections 1.4 and 7.4 of the Police Service Administration Act 1990 section 9 (1) (f) of the Police Service (Discipline) Regulations 1990.]
The above examples indicate one disciplinary with one or more particulars (or allegations). Prescribed officers should be aware only one of the particulars needs to be proven to substantiate the matter.
Prescribed officers should also be aware that no matter how many of the particulars or allegations are found substantiated only 1 sanction may be imposed. (My emphasis)
Sergeant Tolsher pointed out that the charge that was presented against him included only one matter with two particulars or allegations set out in the form provided in the policy. He says in accordance with the policy it was not open to the Commissioner to impose two sanctions. The policy provides for there to be only one sanction regardless of how many allegations make up the matter.
The respondent submits that whilst only one disciplinary matter was preferred against Sergeant Tolsher, there were two separate and distinct episodes of misconduct identified (drink driving and the attempt to influence) and therefore no error has been made by the Commissioner imposing two sanctions.
The policy is not binding on the Tribunal, however, there would need to be a reason for the Tribunal to depart from the policy. I am not convinced here that there is any cogent reason.
I accept there are two episodes of misconduct and as such it would have been open to the respondent to draft the charges in the form of matter one for the drink driving and matter two as regards the attempt to avoid the breathalyser in which case two sanctions could have been imposed. However, having drafted the charge to refer to only one matter, the Commissioner has erred in imposing two separate sanctions.
The decision to impose those sanctions therefore should be set aside and I order accordingly.
It is open now for the Tribunal to substitute its own decision.[4] The question is what is the correct and preferable decision regarding sanction.
[4] QCAT Act s 23(b).
The Commissioner took the view that the attempt to influence was the more serious conduct.
I agree. I have set aside the decision not on the merits of the decision as such but rather on a technical point. In those circumstances I consider that the principles outlined in the Aldrich v Ross[5] test are still applicable. Is there a reason to conclude that the higher sanction imposed (which would also include the drink driving) is not the preferable sanction?
[5] (2010) 26 Qd R 235.
Sergeant Tolsher argues that demotion in all of the circumstances of this case is not preferable.
Although I have set aside the sanction imposed it is still relevant to consider the other grounds of review to assist in considering whether a sanction, other that intended to be imposed by the Commissioner, is preferable.

The sanction is inconsistent with disciplinary actions in other relevant occupational discipline jurisdictions.

It was submitted on behalf of Sergeant Tolsher that if one compares the sanctions imposed in a number of other professions for drink driving offences, it is apparent that police officers are treated more harshly.
He referred to examples of drink driving cases involve a Magistrate, politician, teacher and lawyer. He said that like police officers these persons hold trusted positions in the community yet they were not held accountable within a disciplinary regime for private conduct related to drink driving.
In my decision refusing a stay of the demotion[6], I commented that it was not the case that disciplinary action in other professions would never be relevant in considering an appropriate sanction.
[6] Tolsher v Commissioner Stewart [2013] QCAT 47.
I do not resolve from this view, however, police officers are in a unique situation when it comes to disciplinary action with respect to drink driving. They are responsible for upholding, and are heavily involved in promoting the drink driving laws in Queensland (unlike teachers, lawyers and politicians) which does place them in a different position when considering disciplinary action for a breach of drink driving laws.
I accept Magistrates are also in that position. Sergeant Tolsher points to a decision where a Magistrate was charged with drink driving and the acting Chief Magistrate, whilst noting the Magistrate’s position, accepted the offence was ‘in no way related to his position as a Magistrate’ and therefore did not impose a heavier sentence.[7]
[7] Section 21(2) documents Part C page 75.
The distinguishing point is that those comments were made in the course of sentencing, not in any professional disciplinary procedure. The Magistrate was not disciplined.
The police disciplinary regime is unique. Once misconduct is established (and here Sergeant Tolsher concedes it was) then the prescribed officer must impose a sanction which can range from reprimand to dismissal. The disciplinary sanction that could have been taken against the Magistrate was suspension or dismissal.[8] I agree with the respondent that because the sanctions available to be applied against police officers are much more diverse, the case is not a compelling comparative.
[8] Magistrates Court Act 1991 ss 43, 46.
It would not be a preferable decision to impose no disciplinary sanction as apparently occurred with the Magistrate.

The matrix

In 2009 a matrix was issued by Commissioner Stewart setting out indicative sanctions for disciplinary matters involving police officers prosecuted for drink driving offences.
In his decision the Commissioner explains that the matrix was developed to reflect the serious view which is taken by the service and by society generally with respect to police officers and drink driving offences.
He said the matrix was considered an appropriate way of sending an unambiguous message to officers about expected behaviour and the consequences of failing to meet those expectations.
The matrix does not purport to be mandatory. It lists ‘indicative sanctions’ that should be imposed depending on the circumstances. For example whether the officer was on duty; whether a police vehicle or a private vehicle were used; the level of intoxication and whether any serious damage or injury occurred.
Sergeant Tolsher submits that the Tribunal should give no weight to the matrix in coming to the correct and preferable decision. He says that the Tribunal should not be influenced by a matrix that was issued by the decision maker in these proceedings.
I disagree with this approach. The matrix (although issued under the hand of the decision maker in this instance) has a broad impact. It would take away from one of the purposes of the document namely consistency in outcomes if it was to be ignored in those circumstances where Commissioner Stewart was the decision maker.
The matrix should be given the same weight as any non mandatory government policy in coming to the correct and preferable decision. I agree with the approach taken by Tribunal Member the Honourable JB Thomas, in the decision of Compton v Deputy Commissioner Ian Stewart.[9] (It is noted that Commissioner Stewart was also the decision maker in that matter.) He said:
To the extent to which the circular is an expression of policy, it appears to be a responsible attempt by those in command of the Queensland Police Service to maintain public confidence and respect. This Tribunal has the right, if it chooses to do so, of declining to follow policy directives of this nature. However there are powerful practical reasons why courts and tribunals are very cautious about intervening in policy formation. These reasons include the difficulty of policy review in an adjudicative setting, especially in an adversarial one…
Therefore I think this Tribunal should attempt to give effect to the content of the circular.[10]
[9] [2010] QCAT 384.
[10] Compton v Deputy Commissioner Ian Stewart QPS [2010] QCAT 384 at [26], [27].
In that case, the indicative sanction for the officer was demotion. Because the officer was only at the rank of constable, demotion was not possible and he was dismissed. The Tribunal set aside that decision and found if the matrix was followed (and the Member saw no reason not to) dismissal was not an indicative sanction. The Tribunal found dismissal was excessive and it was possible to impose a sanction that had a similar overall severity to demotion.
In this case, the indicative sanction for Sergeant Tolsher is demotion/or reduction in pay level. It is noted that Sergeant Tolsher’s reading was at the high end of the range.
Sergeant Tolsher says that even if the matrix is given weight then demotion is not required and the preferable outcome is a sanction amounting to something less.

Comparable cases

Sergeant Tolsher submits that the penalty he received was excessive compared to comparative QPS disciplinary decisions.
He has referred the Tribunal to cases before and after the issue of the matrix.
I consider that the pre matrix cases are not relative comparatives. The objective of the matrix was to increase the level of sanctions in disciplinary matters involving drink driving.
Member Thomas in Compton observed ‘it was noted in the circular that in the past the sanctions of drink driving by police officers had usually been a reprimand or a caution which did not seem to have provided an effective deterrent’.[11]
[11] Ibid [21].
Sergeant Tolsher has referred the Tribunal to a number of previous police disciplinary decisions.

Deputy Commissioner Barnett v Senior Constable R [2012]

Here the officer was a police dog handler. He was attending a work function and was on call. He drove a police vehicle home with a blood alcohol reading of 0.116. He crashed the vehicle.
He was demoted from Senior Constable 2.7 to Constable 1.6 to progress automatically back to Senior Constable 2.7 after 12 months.

Commissioner Stewart v Senior Constable M [2013]

The Senior Constable had previously been convicted of drink driving in 2009 and a consequence he was placed on P plates.
Whilst driving with his probationary license he was again charged with drink driving with a blood alcohol level of 0.137.
He was sanctioned with a demotion from Senior Constable 2.6 to Constable 1.6 for 12 months. The sanction was suspended for 24 months with conditions.
Sergeant Tolsher submits that the circumstances of both of these cases are more serious than his. The Commissioner’s submission is that these cases are not appropriate comparators because they involved Senior Constable’s not a Senior Sergeant in charge of a particular unit.
The matrix provides for certain factors to be taken into account when considering the indicative sanctions. One of which is ‘a person’s senior level within in the service and supervisory nature of their role will be considered by a Prescribed Officer as part of the disciplinary process. Such matters may serve to increase the level of sanction that would otherwise have resulted’.

Assistant Commissioner Taylor v Sergeant D [2012].

In June 2012 Sergeant D was off duty driving a private vehicle with a blood alcohol level of 0.122%. As a result of the consensual disciplinary process a sanction of a reduction in salary from Sergeant paypoint 5 to Sergeant paypoint 3 for a period of 12 months and a return to Sergeant paypoint 5 at the conclusion of 12 months was imposed.
Sergeant Tolsher says that these circumstances are similar to his yet his sanction is much higher which results in an injustice.
On its face, the circumstances of the conduct are similar. As this is not a Tribunal decision I have not had the benefit of seeing in any detail what the other circumstances were which had a bearing on the sanction. The Acting Commissioner noted that in coming to this sanction he had taken into account ‘your medical condition and family circumstances’.

The Tribunal decision of Hetherington v Assistant Commissioner of QPS[12]

[12] [2011] QCAT 82.

This case is relevant to the second limb of the charge mainly the attempt to influence the officers to avoid being breathalysed.

In that case the police officer had gained entry into a nightclub after “lockout curfew” by producing his QPS badge to staff. After an altercation with security, police were called and he was subsequently arrested.
The Tribunal on review found that an appropriate sanction was a temporary demotion from Sergeant to Senior Constable.
Sergeant Tolsher submitted that this case was more serious than his which again indicated that his penalty was excessive. The Commissioner on the other hand considered Sergeant Tolsher’s conduct to be more serious in attempting to use his position as a police officer to influence not members of the public but other lower ranked officers in the course of the officers performing their duties. In his decision the Commissioner commented:
As a Senior Sergeant with 21 years service, you provide a critical role promoting the ethical health of the police service through leadership and supervision of junior members. Because of your rank, you are well positioned to influence culture and performance at an operational level. As such, your conduct should at all times send a powerful message to members about expected standards of behaviour. This was not the message sent by you on the night you were intercepted by police for a roadside breath test. In fact, it is starkly the opposite. Your conduct towards the junior officers undermines my confidence in your ability to be a senior supervisor.[13]
[13] Section 21(2) documents Part A Page 26 – 27.

Mitigating circumstances

Sergeant Tolsher says that the sanctions imposed by Commissioner Stewart indicate that the Commissioner failed to apply sufficient weight to his personal mitigating factors.
In considering what the appropriate sanction should be, the following mitigating circumstances are relevant:
Good work history
There is no doubt Sergeant Tolsher has a commendable work history. He had 21 years service at the time of the incident. Apart from 2 negative entries very early in his career he has an unblemished record.
The Commissioner in his decision noted that Sergeant Tolsher had 17 favourable records and letters of appreciation and 20 performance planning assessment reports attesting to his good work history. He also produced glowing references which supported his position that his conduct was out of character.
Personal circumstances
Sergeant Tolsher suffered a marriage breakdown in 2010 and since that time has had primary custody of his 6 year old son.
He says that the principal reason he sought the promotion to Senior Sergeant was because he would not have to work shift work. He wanted to be able to home with his son morning and evening.
He says that this is a significant factor which should be taken into account and in doing so the Tribunal should conclude that demotion (which means a return to shift work) is not an appropriate sanction.
Public shaming
Sergeant Tolsher says that the posting of the media release about his charges on facebook by QPS has resulted in unnecessary humiliation and embarrassment. He refers to a Tribunal decision concerning a disciplinary action against a teacher where the Tribunal found that publicity in itself was a significant punishment.[14]
[14] Teacher J v Queensland College of Teachers (2012) QCATA 115.
Sergeant Tolsher concedes that a media release from QPS is appropriate to provide transparency, but the posting of it on facebook has lead to an unnecessary degree of humiliation and embarrassment which should be taken into account.
QPS submit that the posting on facebook was legitimate to maintain public trust and confidence in the service. Further, as Sergeant Tolsher was not named, the general public would not have been able to identify him. The teacher on the other hand was in a provincial town where there was publicity in the local paper. This scenario was more likely to lead to public humiliation.

Community expectations

Sergeant Tolsher says that a permanent demotion goes beyond what the public would expect.
He says that one of the stated objects of disciplinary proceedings is to ensure that appropriate standards of discipline within the QPS are maintained[15] and that ensuring appropriate standards are maintained must be related back to public expectations.
[15] Regulation 3 Police Service (Discipline) Regulations 190.
He says that community expectations in regard to drink driving would be that a police officer should be treated like any other member of the public and that a permanent demotion is not in line with those expectations.
I do not agree with this proposition. It is accepted that the object of disciplinary proceedings is not to punish the officer but is to protect the public, including, by maintaining public confidence in the service.
When the police play such a pivotal role in promoting and enforcing responsible driving, the maintenance of public confidence in the service warrants an appropriate sanction which may be harsh compared to that imposed on a member of the general public. It must be kept in mind that this sanction imposed is as a result of a unique discipline regime for police officers which is not applicable to the general public.
Sergeant Tolsher submits that the community expectations about appropriate sanctions would likely be different if his conduct had a direct nexus with the performance of his duties and the ability to confidently perform his duties.
Whilst I don’t accept Sergeant Tolsher’s position on community expectations, I agree with his submission that in relation to the drink driving, the conduct did not directly reflect on any ability to competently perform his duties. There is no indication of any likelihood that such an event would occur whilst on duty. Indeed Sergeant Tolsher’s references indicate excessive drinking was out of character.
The attempt to influence the junior officers however is a different matter. The public expectation of a Senior Sergeant in charge of a unit would be that he would promote ethical standards to junior officers. I consider his conduct in this regard does reflect and have a nexus with his performance of his duties as a senior supervising officer.

The fresh evidence

Sergeant Tolsher was given leave to adduce fresh evidence at the hearing.
This evidence related to the duties that he has been performing since the disciplinary sanction was imposed. It consisted of a statement from Sergeant Tolsher; a statement from Gary Patterson (a director of QPS employee relations) and a statement from Detective Senior Sergeant Lacey (Sergeant Tolsher’s current supervisor). Detective Senior Sergeant Lacey also gave oral evidence at the hearing.
Sergeant Tolsher indicated that the purpose of producing this fresh evidence was to illustrate that since his demotion he has been working in a supervisory role as Sergeant. He says this destroys the premise in the Commissioner’s original decision that the demotion was the appropriate sanction because Sergeant Tolsher’s conduct meant he was not capable of acting in a supervisory role.
It is apparent that since his demotion and return to work Sergeant Tolsher has been in a position of Sergeant Senior Investigator Oxley CIB – he is the team leader of the Oxley CIB property team. Detective Senior Sergeant Lacey is the officer in charge. Sergeant Tolsher as a team leader has a role of supervising 10 staff, allocating tasks and resources and attending management meetings. He also reports directly to the detective inspector in charge of the Oxley District Crime Services.

Findings

Having found that the decision imposing 2 sanctions should be set aside I can now substitute my own decision on sanction.[16] In doing so I am to produce the correct and preferable decision.[17]
[16] QCAT Act s 24(1)(b).
[17] QCAT Act s 20(1).
Sergeant Tolsher says that the sanction imposed by Commissioner Stewart was excessive for a number of reasons.
He says that compared to other professions the bar is set to high for police officers when considering sanctions for drink driving.
I have rejected that notion. Sergeant Tolsher has accepted that his conduct amounted to misconduct in that it did not meet the standards of conduct the community expects of a police officer.
Police officers are in a unique position in that they play a pivotal role in apprehending offenders and promoting the message that drink driving is not to be tolerated. Further, the internal disciplinary system for police officers provides for options of sanctions depending on the circumstances.
I consider that the matrix of indicative sanctions is an appropriate starting point.
The indicative sanction for Sergeant Tolsher conduct of driving whilst drunk is demotion/or a reduction in pay points.
As Sergeant Tolsher was at the bottom rung of Senior Sergeant a reduction in paypoints is not an option. This in itself does not mean that the sanction must be demotion. I accept that if demotion was not appropriate, a freeze on a paypoint advance may have been an alternative appropriate outcome.
His seniority is an aggravating factor. I consider that his failure as a Senior Sergeant to lead by example results in tipping the balance in favour of demotion. This distinguishes Sergeant Tolsher’s conduct from those of the Constables in the comparative cases referred to above.
Even if (as Sergeant Tolsher submits) this raises the bar too high in respect of the drink driving charge, the cumulative effect of the second act of misconduct, namely attempting to influence the 2 young constables, brings his conduct well below community expectations. In order to maintain public confidence in the service the conduct warrants a sanction of demotion.
The negative effect on the junior officers was clear in their interviews. They made the following comments:
I felt sick knowing we had pulled over a police officer.[18]
It made me feel like I was doing the wrong thing because he was a Detective Senior Sergeant and I’m only a Constable.[19]
[18] Section 21(2) documents Part B Page 60.
[19] Section 21(2) documents Part B Page 80.
Sergeant Tolsher refers to the case of Compton in support of his argument that the penalty was too harsh.[20]
[20] Page 25 transcript of proceedings.
It is noted in that case that Member Thomas made specific mention of the fact that the Constable did not attempt to influence the arresting officers. The Member said ‘it is not uncommon for police officers to be tempted to use their status to avoid consequences when apprehended by colleagues. The appellant did none of this. Instead he submitted to the arrest and only disclosed his occupation when questioned about it on the way to the police station’.[21]
[21] Compton v Deputy Commissioner Ian Stewart QPS [2010] QCAT 384 at [35].
Sergeant Tolsher on the other hand as a senior officer set a very poor example to the junior officers and placed them in a difficult position.
He accepts that his behaviour was unacceptable. He says his level of intoxication is the explanation for his poor choice. He says it was out of character.
I accept on the basis of the references provided that this conduct was out of the ordinary for Sergeant Tolsher. I also accept that he does not have a clear recollection of the event. The transcript of his conversation with the officers however reveals that he was quite lucid. He clearly understood the gravity of the situation in that his concern was that the outcome could have a negative impact on his career.
Sergeant Tolsher submits that the penalty imposed suggests that the Commissioner had no regard to the mitigating factors. He says if the mitigating factors were taken into account the starting sanction must have been higher than that imposed and that it is not conceivable in view of the fact that the actual penalty is so excessive.
I disagree. Commissioner Stewart in his reasons states the opposite:[22]
I am mindful of the need to send a clear message to all members of the service concerning the necessity to address inappropriate behaviour by fellow officers.
I am also mindful of the need for the service to maintain community confidence. However I must balance this against your previous good work history and your personal circumstances.
[22] Section 21(2) documents Part A Page 27.
For the more serious offence of attempting to influence, Commissioner Stewart formed the view that the conduct undermined his confidence in Sergeant Tolsher’s suitability to be a supervisor at the level of Sergeant or Senior Sergeant.
He imposed a sanction demoting Sergeant Tolsher to Senior Constable 2.9. He then however suspended that sanction on certain conditions because of the mitigating factors. The ultimate result being that Sergeant Tolsher was demoted to Sergeant 3.1.
The question for this Tribunal is whether another sanction is preferable.
For the reasons set out above I consider a demotion to be a preferable sanction.
I consider however that in light of the duties undertaken by Sergeant Tolsher since the disciplinary action was taken that it is not preferable to demote him to Senior Constable.
The seriousness of his conduct however, particularly the attempt to influence the junior officers warrants a permanent demotion. His conduct was not of a standard the community would expect of a Senior Sergeant in charge of the unit. The sanction of demotion meets the objects of the disciplinary process in providing a deterrent to other members of the force and to maintain public confidence in the service. The preferable sanction is the demotion to Sergeant 3.1.
The mitigating factors then need to be considered. I regard Sergeant Tolsher’s previous work history and to some extent his personal circumstances to be relevant factors. Sergeant Tolsher suggests that the fact that his desire to spend more time with his young son will be effected by demotion is a strong mitigating factor. Whilst I have some sympathy for Sergeant Tolsher I consider this to be an unfortunate consequence of his actions rather than a strong mitigating factor. I also have not had significant regard to the embarrassment he felt in the incident being posted on facebook. This too is a foreseeable consequence of the misconduct.
Taking into account the relevant mitigating factors in particular Sergeant Tolsher’s good work history and personal circumstances; it is appropriate that sanction is suspended for 2 years on conditions:
1.that he does not commit any further acts of misconduct during that period and
2.he be demoted in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.4, being eligible to progress paypoints under normal industrial arrangements.

Details

AGLC: Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590
Case: [2013] QCAT 590
Decision Date

CaseChat Overview and Summary

David Tolsher, a Senior Sergeant of the Queensland Police Service, applied to the Queensland Civil and Administrative Tribunal (QCAT) to review sanctions imposed by the Commissioner of Police following a disciplinary hearing. The Commissioner had demoted Tolsher from Senior Sergeant to Senior Constable and suspended the sanction for 2 years on the conditions that Tolsher not commit any further acts of misconduct and be demoted in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.1. The Tribunal was required to determine whether the Commissioner erred in imposing separate sanctions for two incidents of misconduct, and if the sanctions were appropriate in all the circumstances. The Tribunal found that the Commissioner had erred in imposing two sanctions for one disciplinary matter, as the policy allowed for only one sanction regardless of how many allegations made up the matter. The Tribunal also found that the sanction of demotion was appropriate in all the circumstances, taking into account the seriousness of the misconduct and the matrix of indicative sanctions for drink driving offences. However, the Tribunal considered the mitigating factors, such as Tolsher's good work history and personal circumstances, and suspended the sanction for 2 years on the conditions that he not commit any further acts of misconduct and be demoted in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.4, being eligible to progress paypoints under normal industrial arrangements. The Tribunal set aside the sanctions imposed by the Commissioner and ordered that Tolsher be demoted from Senior Sergeant 4.1 to Sergeant paypoint 3.1, suspended for 2 years on the conditions that he not commit any further acts of misconduct and be demoted in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.4, being eligible to progress paypoints under normal industrial arrangements.

Orders