Wheeler v Assistant Commissioner Paul Wilson - [2013] QCAT 519

CITATION:

Wheeler v Assistant Commissioner Paul Wilson [2013] QCAT 519

PARTIES:	Mr Jason Allen Wheeler (Applicant)
v
Assistant Commissioner Paul Wilson (Respondent)

APPLICATION NUMBER:

OCR426-12

MATTER TYPE:

Occupational regulation matter

HEARING DATE:

18 July 2013

HEARD AT:

Brisbane

DECISION OF:

R F King-Scott, Member
Dr B Cullen, Member

DELIVERED ON:

25 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s decision of 10 December 2012 be set aside and in lieu thereof the following decision be substituted.

2. The Applicant be reduced in rank from Senior Constable pay point 2.9 to Senior Constable pay point 2.5 for a period of one year and at the end of the 1 year period, he immediately return to his original rank and salary at Senior Constable 2.9;

3. The reduction in rank be suspended, conditional upon the Applicant:

(a) completing 70 hours of community service;
(b) not performing higher duties relieving during the one year suspension period.

CATCHWORDS:

Police officer – misconduct. Off duty police officer a victim of attempted robbery – robbers arrested and one robber subsequently assaulted by the victim whilst he was still in an agitated state – appropriate sanction

Crime and Misconduct Act 2000 (Qld) ss 219G, 219H
Police Service Administration Act 1990 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 24

Aldrich v Ross [2001] 2 Qd R 235
Murray v Deputy Commissioner Stewart [2011] QCAT 583
Alston v McGibbon Misconduct Tribunal, Member Kay Boulton (undated)
Criminal Justice Commission v Assistant Commissioner Scanlan and Saez Misconduct Tribunal Queensland, No TA6 of 1998, 4 September 1998, Senior Member Long
Mitchell v Assistant Commissioner Barnham Misconduct Tribunal Queensland, No 12 of 2002, 2 May 2003, Senior Member McCarthy

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr G Cranny, Solicitor representing Mr Jason Wheeler

RESPONDENT:

Mr S McLeod of Counsel representing the Queensland Police Service

REASONS FOR DECISION

This is an Application to review the decision of Assistant Commissioner Paul Wilson made on 10 December 2012. That decision was made in respect of a charge of misconduct against Senior Constable Jason Wheeler, namely:
That on or about the 14^th day of December 2010 at Toowoomba your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:
Unlawfully assaulted one X.[1]
[1]Pursuant to a decision of the Tribunal dated 11 March 2013 the names of the juveniles are not to be published.
In relation to this charge, Mr Wheeler accepted the allegation of misconduct at the time of filing his written submissions in response to the initial investigation.
Assistant Commissioner Wilson imposed the following sanction:
a) that the Applicant be reduced in rank from Senior Constable pay 2.9 to Constable pay 1.6 for 2 years and at the end of the 2 year period, he immediately return to his original rank and salary at Senior Constable 2.9;
b) the reduction in rank be suspended for a period of 2 years on condition that the Applicant:
i)does not commit any…

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

Case: [2013] QCAT 519
Decision Date

CaseChat Overview and Summary

In this occupational regulation matter, Mr Jason Allen Wheeler, a Senior Constable of the Queensland Police Service, sought a review of a disciplinary sanction imposed on him by Assistant Commissioner Paul Wilson. The sanction involved a reduction in rank and a period of suspension. The Tribunal, consisting of R F King-Scott and Dr B Cullen, heard the matter on 18 July 2013. The Tribunal found that the sanction imposed by Assistant Commissioner Wilson was excessive and substituted a different sanction. The key issue was whether the original sanction was appropriate given the circumstances of the misconduct.

The Tribunal found that although Senior Constable Wheeler's conduct amounted to misconduct, the sanction imposed by Assistant Commissioner Wilson was too severe. The Tribunal considered the mitigating factors, including that Senior Constable Wheeler had been a victim of an attempted robbery and was still in an agitated state when he returned to the scene and assaulted the complainant. The Tribunal also noted that the assault was minor and did not cause any pain or harm. The Tribunal found that the sanction should reflect the minor nature of the assault and the mitigating factors. The Tribunal substituted a sanction involving a reduction in rank from Senior Constable pay point 2.9 to Senior Constable pay point 2.5 for a period of one year, suspended on conditions including completion of 70 hours of community service and not performing higher duties relieving during the suspension period.

Orders