Atkinson v Horton [2025] QCAT 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Atkinson v Horton [2025] QCAT 39 PARTIES: GRAHAM ATKINSON (applicant) v GLENN HORTON (first respondent) AND CRIME AND CORRUPTION COMMISSION (second respondent) APPLICATION NO/S: OCR231-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 31 January 2025 HEARING DATE: 13 November 2024 HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: 1. Decision of the first respondent of 2 July 2021 so far as it imposed a sanction on the applicant under the Police Service Administration Act 1990 (Qld) be set aside. 2. In lieu thereof, impose on the applicant a sanction under that Act of demotion from Senior Constable 2.10 to Constable 1.6 for a period of three months, to take effect from the day on which the sanction imposed by the first respondent took effect. 3. There be no order as to costs. CATCHWORDS: POLICE — INTERNAL ADMINISTRATION — DISCIPLINE AND DISMISSAL FOR MISCONDUCT — QUEENSLAND – Review of decision by Tribunal – nature of review – whether failure to apply purpose of police discipline – whether demotion from Senior Constable to Constable manifestly excessive – whether matters treated as aggravating circumstances properly so regarded – sanction varied Crime and Corruption Act 2001 (Qld) s 219Q Police Service Administration Act 1990 (Qld) s 7.1 CCC v Didsman [2022] QCAT 35 CCC v Jeffries [2016] QCAT 331 -- 1 of 12 -- 2 CMC v Chapman [2011] QCAT 530 CMC v Eaton (No 2) [2011] QCAT 161 McKenzie v Wright [2011] QCATA 309 Police Service Board v Morris (1985) 156 CLR 397 Rohweder v Keating [2016] QCAT 347 Willmott v Carless [2024] QCA 115 APPEARANCES & REPRESENTATION: Applicant: C Gnech solicitor of Gnech & Associates Respondents: M C O’Brien legal officer for the Queensland Police Service Legal Service for the first respondent. P J Cardiff instructed by the second respondent, for the second respondent REASONS FOR DECISION [1] This is in form a review by the Tribunal of certain disciplinary action taken against the applicant, a serving police officer, by the respondent.1 On 17 May 2021 the respondent, then Acting Assistant Commissioner, made a disciplinary finding against the applicant pursuant to Part 7 of the Police Service Administration Act 1990 (Qld) (“the Act”), namely, that on 19 April 2020 at Maroochydore his conduct was improper in that he drove a Police Service motor vehicle in a manner which recklessly exposed himself and other road users to unjustified risk of injury. Very lengthy particulars of the matter alleged were provided to the applicant, all of which were found substantiated by the respondent. [2] After receiving submissions as to sanction, on 2 July 2021 the respondent imposed the following sanctions on the applicant: (a) Demotion from Senior Constable pay point 2.10 to Constable pay point 1.6. (b) The demotion to be suspended after six months conditional on his not committing any grounds for discipline for the twelve month period from the date of the demotion. (c) After six months to return to Senior Constable pay point 2.10, subject to the continuing satisfaction of the condition of the suspension. [3] Apart from this, when the decision on sanction was made, a six month Professional Development Strategy (“Strategy”) was imposed, in addition to but not as part of the sanction, focused on an understanding of the Police Service Pursuit Policy, with the condition that he not be the primary vehicle driver on a pursuit matter until the Strategy had been completed. During the demotion period he was not to perform higher duties. It appears from the respondent’s reasons that this was in addition to a Professional Development Strategy imposed earlier, in 2010. This was said to have been completed successfully. The reasons of the respondent explain why he considered that a sanction was still appropriate;2 they do not explain why a second 1 For my convenience I shall refer to Senior Constable Atkinson as the applicant, to Chief Superintendent Horton as the respondent, and to the Crime and Corruption Commission as the CCC. 2 This is something required by the Act s 7.35(3)(c). -- 2 of 12 -- 3 Professional Development Strategy was imposed. It appears however that, as this is not part of the sanction, it is not within the scope of this review. It does strike me as odd. [4] On 2 August 2021 the applicant filed in the Tribunal an application to review the decision dealing with the sanction. A police disciplinary decision is subject to review by the Tribunal under the Crime and Corruption Act 2001 (Qld) s 219O. Although described as a review, this has been held by the Court of Appeal to be in substance an appeal by way of rehearing, on the evidence before the decision maker, and any fresh evidence admitted under s 219Q(2): Willmott v Carless [2024] QCA 115. In that matter, it was held (at [40]) that s 219Q displaced the Queensland Civil and Administrative Tribunal Act (2009) (Qld) s 20, and that as a result it was necessary for the applicant to show some legal, factual or discretionary error before the reviewing Tribunal could interfere: [43].3 It follows that the review of the sanction imposed becomes a process similar to an appeal against sentence in a criminal matter. Because the selection of a particular sanction is a matter of discretion, it is necessary for the applicant to show that the respondent’s discretion miscarried, through some legal factual or discretionary error. There is however a difference between the approach to the imposition of a sentence for a criminal offence, and to the imposition of a sanction under the Act. [5] The applicant also sought to rely on additional material on the appeal, and on 14 September 2022 a Member gave leave to the applicant to rely on a financial report prepared by an accountant, but refused leave to rely on additional character evidence. On 4 October 2022 the applicant filed an applicant for leave to appeal or appeal against that decision, but on 18 July 2024 a Senior Member, at the request of the applicant, waived the requirement to file a notice of withdrawal, and treated the application for leave to appeal as withdrawn. It follows that I have available the financial report, but not the additional character evidence. [6] The financial report indicated that the financial effect of the demotion imposed for a period of six months was $12,404.03, although consideration of some potential sources of income was disregarded in the calculation, which probably has the effect of understating the actual loss. This may be compared with the estimate set out in submissions to the respondent prior to his decision on sanction, of $10,946.26.4 In the matter of Heuston v Horton (No 2) [2025] QCAT 10 I have set out my views on reports of this nature, and will not repeat what I said there. I regard it as of some relevance and assistance, but not great. Background [7] The applicant was sworn into the Police Service in July 1985, and had served at Maroochydore since 1994 at the time of the respondent’s decision. The respondent referred in his reasons to the applicant’s dedicated years of service, and that he had eleven favourable comments between 1989 and 1995, and a further five from 2013 to 2019.5 He had however two substantiated disciplinary matters on his service record, one in 2008 and one in 2010, in each case for failing to follow pursuit procedures. 3 As a result a decision of the Tribunal that did not adopt that approach has been set aside, and the matter remitted for re-hearing: ABC v Assistant Commissioner Carless [2024] QCATA 75. 4 Section 21(2) documents p 158. 5 The respondent described his material as one of the most comprehensive dossiers of good police work by an individual officer he had been presented with as a Prescribed Officer: [2]. -- 3 of 12 -- 4 The first resulted in a reprimand; the second brought a reduction in the level of salary, although the sanction was suspended. [8] It appears that on the first occasion the applicant failed to notify the control centre that he was pursuing a speeding trail bike.6 How he failed to comply with the pursuit policy on the second occasion does not appear in the material, although it appears he was at the time under a direction not to drive a police vehicle.7 The respondent described this as similar conduct (#8(v)) and as a pattern of behaviour (#7). It may be that he had additional details of these incidents, or was speaking very generally, but three incidents having something to do with the pursuit policy over twelve years, with a ten year gap between the second and third, is not something I would describe as a pattern of behaviour. I take it these are the only incidents involving the pursuit policy in a Police career of thirty-five years. It is nevertheless a relevant factor to take into account, and does act to some extent as an aggravating circumstance. [9] The present matter arose out of a pursuit at Maroochydore on 19 April 2020 when the applicant was performing single officer patrols in a marked police vehicle. At 4.49 pm he began to pursue a stolen Kia sedan, activating his siren and lights. He continued the pursuit for sixteen minutes, around the Maroochydore area, including on a motorway and on a major connecting road. At one point the driver of the Kia drove onto the wrong side of a divided road, and the applicant followed; at another point the driver of the Kia drove on the incorrect side of the road, but the applicant followed on the correct side of the road. The pursuit was at high speed, well over the speed limits, sometimes at more than double the applicable limit. During the course of the pursuit the applicant drove through red traffic lights on sixteen occasions without coming to a complete stop. At one point the stolen car slowed down, and a passenger bailed out; the applicant was able to advise the Police Communications Centre of where this occurred. It was alleged and sustained by the respondent that the applicant during the pursuit failed adequately to advise the Police Communications Centre of the progress of the pursuit at regular intervals. The pursuit was eventually terminated by the pursuit controller, without the driver of the Kia being apprehended. [10] The details of what happened during the pursuit were recorded on a dashcam in the police vehicle, and were played during the hearing. The dashcam was, I was told, fitted just behind the front windscreen, and it was obvious from the video that it was fitted with a wide angle lens, with the consequence that objects at a distance looked smaller than they would have looked in real life. As well, the lens was evidently unshielded from the sun, which at times dazzled part of the screen; I doubt that this would have had the same effect on the applicant, whose face would have been some distance behind the windscreen, and who had a sun-visor available if required. There was also an audio recording, which generally captured the conversation with the Police Communications Centre. The dashcam recorded, I suppose using GPS, the speed of the vehicle, displayed on the video; hence the precision of the speeds alleged in the particulars. It would have been difficult for the applicant, concentrating on his driving, to have monitored his speed to that extent. [11] When I saw the video, it was obvious that at times there were other vehicles around, and occasionally pedestrians, but that in general the traffic was quite light.8 At some 6 Section 21(2) documents p 324. 7 Section 21(2) documents p 325. The reason for that direction does not appear. 8 This occurred at the height of the “lockdown” approach to dealing with the Covid virus. -- 4 of 12 -- 5 places other vehicles had to take evasive action to avoid the Kia, which seemed to take them out of the path of the applicant’s vehicle as well. At at least one intersection there were one or more vehicles which had stopped to let the police vehicle pass. Other vehicles would no doubt have been alerted by the lights and the siren on the police vehicle. The intersections with lights varied: in some there were other vehicles stationary at the lights, or on the intersection; others were deserted and offered good visibility, and it looked obvious that it was safe to proceed. My impression from the soundtrack was that the applicant was advising the Police Communications Centre pretty regularly of what was happening, but I have no experience of what amount of communication would be usual in such a situation for an officer who was also driving the vehicle; there was no challenge to the findings on substantiation in the review of the sanction. Grounds of the review [12] Originally the material prepared on behalf of the applicant was directed to a review under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20. As argued, the applicant relied mainly on the ground that the sanction imposed was manifestly excessive. Another ground was that the respondent misapplied the purposes of the discipline system. The remaining grounds were either encompassed in the “manifestly excessive” ground, or no longer appropriate in the light of Willmott (supra). [13] The Act s 7.1 provides that the purposes of Part 7, dealing with the disciplinary processes, are: (a) to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and (b) to ensure appropriate standards of discipline are maintained within the service to— (i) protect the public; and (ii) uphold ethical standards within the service; and (iii) promote and maintain public confidence, and officers’ confidence, in the service. [14] It was submitted on behalf of the applicant that this provision was inserted in 2019 as part of a review of the Police Service disciplinary system so as to refocus it to provide support for officers to increase their professionalism through guidance and training, with sanctions being imposed only where necessary. That is the effect of s 7.1(a), but it remains part of the purposes to maintain appropriate standards within the Police Service, including standards of discipline: s 7.1(b). It is apparent from the reasons of the respondent that he was concerned by the need to impose discipline in relation specifically to the issue of the pursuit policy, a somewhat controversial area. I do not consider that the reasons of the respondent reflect any misunderstanding of the terms and effect of s 7.1, or that a finding that a disciplinary sanction was necessary in the circumstances of this matter involved any misapplication of the purposes of Part 7 of the Act. Previous decisions [15] There have been a number of decisions of the Tribunal involving breaches of the pursuit policy. In CMC v Eaton (No 2) [2011] QCAT 161 a senior sergeant who was -- 5 of 12 -- 6 the officer in charge of a District Traffic Branch began to pursue a motorcyclist detected travelling at 208 kph on the Bruce Highway in the early hours of the morning, but after a burst of high speed he lost contact with the motorcycle. He did not report this until after he had realised he had lost contact. He left the highway and later came upon it again in a suburban area. He activated his lights and siren but the motorcycle sped off, he pursued it at high speed for a short time until he identified its registration number, then discontinued the pursuit. The sanction imposed initially was a reduction in one pay point for twelve months, which was said to be reasonable on the evidence at that time: [58]. There was new evidence that the officer had been involved in a pursuit in 2003, six years earlier, as a result of which two people in the fleeing vehicle had died. This was not said to have involved any disciplinary action, but the fact that it occurred was said to have rendered his conduct on this occasion somewhat more serious: [59]. The Tribunal increased the sanction to a reduction of two pay points for a period of nine months, a shorter period. The Hon J B Thomas QC, who constituted the Tribunal, added: Senior Sergeant Eaton’s conduct must be seen in the broader prospective that in essence he had to make a quick decision and was guilty of overzealousness in the performance of duties. This is not at the more serious end of the spectrum of police misconduct and I must be careful not to over-react. [16] CMC v Chapman [2011] QCAT 530 involved a senior constable who pursued a speeding motorcycle after it left the Pacific Motorway at Nerang. For some kilometres after the pursuit commenced he failed to advise the Police Communications Centre that it was in progress, and had continued the pursuit after he had decided to terminate it because of the nature of the road; it ended when the motorcyclist ran off the road and died. These were described as serious matters, the loss of life being relevant to this: [32]. The circumstances were said to be more serious than in Eaton, and a fine of $200 was regarded as manifestly inadequate. The Tribunal imposed a sanction of a reduction in two pay points for two years: [41] The officer was said to have had an exemplary record prior to the incident, and had pleaded guilty to the charge. [17] In Rohweder v Keating [2016] QCAT 347 a senior constable with over twenty years service had two matters sustained against him: one involved going through a red traffic light where he later falsely claimed that he had stopped before following another vehicle through the intersection, and, on a different day, pursuing a vehicle which failed to stop but for which he had no reasonable grounds for a pursuit under the pursuit policy. He did not advise the Communications Centre that he was engaged in the pursuit, which lasted over one minute. The pursuit involved high speed and going through a red traffic light without stopping. The pursuit stopped after he received information from the Communications Centre. The officer had earlier incidents, including a prior disciplinary charge in relation to a pursuit shortly before this conduct. The sanction imposed was demotion from Senior Constable 2.9 to Constable 1.6 for three months, with a Performance Development Agreement to be completed before he returned to his former rank. This was confirmed by the Tribunal. The Member declined to find that the conduct was overzealousness in the performance of duties, said that precedents were of less value because the matter involved three aspects, and regarded it as aggravating circumstances that there had been an earlier incident the sanction for which he was still working through, and that he was attached to the Road Policing Command. [18] In CCC v Jeffries [2016] QCAT 331 a senior constable was dealt with for misconduct in relation to driving an unmarked police vehicle recklessly in a way that exposed road -- 6 of 12 -- 7 users to unjustified risk. He was following a vehicle but without emergency lights or siren; he did not attempt to intercept it, but followed for about twenty five kms at high speeds, well above the speed limits, and drove through four intersections against red traffic lights without stopping completely. This occurred in March 2016 in the early hours of the morning, and followed two earlier incidents, in 2013 and in June 2015, in respect of which guidance was provided on what the Tribunal described as exactly the same issue, activation of emergency lights while engaging in urgent duty driving or pursuit, and giving accurate information to the pursuit controller. For part of the time there were difficulties in police radio communications. [19] The Tribunal said that the sanction must be adequate to reflect the community disapproval of the impugned conduct, and to deter the officer and others from such conduct: [14]. The reasons consider various earlier decisions of the Tribunal, and accepted the joint submission of the parties that a sanction in the form of the deferral of the next salary increment of one pay point for a period of two years, and to undertake a one day training session on the pursuit policy, should be substituted for the original sanction of a reprimand. [20] In CCC v Didsman [2022] QCAT 35 a senior constable had a disciplinary matter sustained involving negligent driving while conducting unauthorised and unjustifiable pursuit of vehicles, and driving so as to expose himself and other road users to unjustifiable risk of injury. The CCC challenged as inadequate a sanction of a fine of 12 penalty units, about $1,600, and the Tribunal substituted a suspended demotion for twelve months, a temporary local transfer to a position which should not involve urgent duty driving, a period of mentoring and training, and a ban on higher duties for twelve months.9 The behaviour related to two incidents on the same day, on the Bruce Highway in a rural area, involving pursuits. A vehicle detected speeding failed to stop despite the activation of lights and siren, and was pursued for three minutes at high speed, including an attempt to stop the vehicle by overtaking and pulling in front of it, then braking, which he was not authorised to perform. I take it he was unsuccessful in this, as he then stopped and provided details of the evasion to the Communications Centre. This was said to be a non-pursuable matter under the pursuit policy. [21] Later he came upon a stolen vehicle which also failed to stop, and engaged in another high speed chase for about four minutes, involving another attempt at the blocking manoeuvre, before giving up the chase. On this occasion he did not advise the Communications Centre of the pursuit. The Tribunal agreed that this was an example of overzealous policing, rather than integrity related issues: [45]. It noted that the officer had undertaken self-education on the requirements of the pursuit policy, said to indicate some insight, and demonstrate self-improvement: [49]. It approved the sanction which the parties had agreed on, after considering a number of earlier decisions. The Tribunal also referred to a decision10 which resulted in the dismissal of the officer, which was regarded in that case as too different to be useful; I reach the same conclusion in this case. Manifestly excessive [22] It will be apparent that the sanction imposed by the respondent in the present case is significantly more severe than in any of the other comparable decisions. There are of 9 The actual sanction was more complicated than this, but this is the essence of it. 10 DA v Martin [2018] QCAT 10. -- 7 of 12 -- 8 course differences between the present case and each of them, but the disparity suggests that the sanction imposed was manifestly excessive. Apart from that, there are matters in the reasons of the respondent which give me cause for concern. At para [163] in the reasons for substantiation he said it was difficult to see how the pursuit could have ended in the apprehension of the offender. Clearly he was not going to stop voluntarily, but it is clear from the soundtrack of the video, which recorded the radio communications, that police were attempting to arrange an interception by another unit. At one point another unit was in position, but the Kia arrived before the officers in that unit were set up. One function the applicant performed was keeping track of what the driver of the Kia was doing, to assist the pursuit controller to arrange this. This tactic was largely frustrated by the driver of the Kia however, by changing direction regularly.11 [23] There is also the consideration that the applicant was reporting to the pursuit controller what was occurring, even if this was not done adequately, and to some extent that seems to spread responsibility for the length of the pursuit between them. The applicant may have felt in the circumstances that the fact that he had not been told to discontinue the pursuit provided some support for his not deciding independently to discontinue it.12 I am not saying this is an excuse, but I note that the respondent also found, at [162]: I believe you were acting in what you considered good faith in performing your duty, however, I believe with a level of exuberance overriding the adequacy of the risk assessment you were required to continually undertake – in this case the lengthy extended pursuit at high speed through suburban streets, which, although it may have been done in a deliberate manner by you, was of such a nature it was reckless and exposed all road users to unjustifiable risk. [24] I regard this as tantamount to a finding of over-zealousness on the part of the applicant, which I would endorse. The exercise of balancing the importance of apprehending an offender against the risk of harm to oneself or others is essentially a matter of judgment, and what the respondent found here was that the applicant’s assessment of the risk of harm to people by the manner of driving of both vehicles was seriously inadequate. I do not question that assessment;13 but in view of it the comment in the reasons as to sanction at [4] – [5], that the submissions that the conduct was deliberate and that it reflected a lapse in judgment, were contrary, that is, inconsistent, does not seem to me to be correct. The proposition that what occurred was a lapse, that is a failing in, judgment by the applicant seems to me to be correct, and to be consistent with the findings at [162] and [163]. [25] The respondent said the applicant’s over-zealousness was not of a sudden or spontaneous nature, but was a constant feature throughout a prolonged pursuit: [4]. That was so, but once it had manifested itself in the pursuit, I would not expect it to abate until the conclusion of the pursuit. One other matter of concern is that at [6] the respondent referred to “your continued non-acceptance of my findings against you.” If this was not based on the “lapse in judgment” submission (which did not justify it), it is not clear on what it was based. In the submissions provided to the respondent on 11 That suggested to me that the driver of the Kia was familiar with the tactic, and taking steps to avoid it. 12 He did discontinue the pursuit as soon as he was told to do so. 13 Nor indeed did the applicant in this proceeding. -- 8 of 12 -- 9 behalf of the applicant14 there is nothing which appears to me to amount to non- acceptance of the findings in relation to substantiation. [26] The respondent rejected, correctly, a submission that the earlier disciplinary matter was deserving of no significant weight,15 but the reference to “pattern of behaviour” suggests to me that the incident ten years earlier may have been given too much significance by the respondent. The applicant did not have the sort of history that was present in the matter of Jeffries (supra). As well, the respondent said that “the attitude displayed by [the applicant] throughout the investigation and hearing” was an aggravating factor, because he had “consistently denied improper conduct during the pursuit, and doggedly argued that your actions were appropriate and in line with policy.”16 There are problems with that proposition: it is not entirely true, as the applicant admitted during the investigation that he had breached a Police Service Directive by going through red traffic lights without coming to a complete stop.17 [27] As well, there is authority in the Appeal Tribunal that defending the allegation made against an officer in a disciplinary matter is not to be regarded as an aggravating circumstance: McKenzie v Wright [2011] QCATA 309, at [23]. That decision is binding on me, and it appears that the principle was not applied by the respondent in the present matter. Apart from this, the respondent noted that the applicant had successfully completed the Performance Development Strategy imposed earlier, but then imposed a further such Strategy without, as noted earlier, providing any express justification for this. Submissions for the respondents [28] The first respondent supported the analysis in the reasons for sanction, stressing the serious aspects of the driving. It was submitted that the sanction imposed was consistent with the sanction in Didsman (supra). That matter, which involved two separate incidents of inappropriate pursuits, involving dangerous and unauthorised manoeuvres in an attempt to intercept vehicles, resulted in a wholly suspended demotion, and other matters I have referred to, with potentially no financial detriment. Allowing for the fact that in that matter the events occurred on a highway and each incident was shorter, and there were no prior disciplinary matters, I do not regard that matter as being broadly consistent with the sanction here. [29] The CCC made submissions supporting the proposition that the respondent had properly applied the disciplinary powers for the purposes of Part 7 of the Act, as outlined in s 7.1 quoted earlier. This was in response to the argument of the applicant in support of the first ground of the review. Since I do not consider there is any substance in the applicant’s argument on this ground, I do not need to deal further with this part of the CCC’s submissions. [30] In further written submissions the CCC submitted that the sanction was justified by the seriousness of the misconduct, the previous like misconduct findings, and the 14 Section 21(2) documents p 151+. 15 That was the effect of the submissions on sanction at [20]. In the Reasons at [8](iii) the submission was incorrectly described as being that they be given no weight. 16 Reasons at [7]; see also [8](ii). 17 Reasons on substantiation at [10]. That was also conceded in the original submissions as to substantiation, at [18], where it was admitted that that amounted to misconduct. Although this was distinct from the pursuit policy as such, breach of this order was the basis of sixteen of the particulars, was relied on in the reasons on substantiation at [12], and loomed large during the hearing before me. -- 9 of 12 -- 10 continuing denial of any improper conduct. I have already said something about the last point. Indeed, the CCC went further, and submitted that the argument that the sanction was excessive itself reflected a continuing lack of insight into the misconduct. In effect, the submission was that, for the applicant to exercise his right to have the sanction reviewed, and to advance a submission which was at least arguable, was itself an aggravating feature which helped to justify the sanction imposed. It is sufficient to say that I regard this as within the principle in McKenzie (supra): if defending a matter is not an aggravating feature, I do not see how reviewing it can be. [31] The written submissions accepted that the applicant’s conduct was less serious than that in Eaton (supra).18 It was submitted that the conduct in Chapman (supra) was not comparable, being a failure to provide timely notification, and a failure to discontinue the pursuit in fact when he was characterised as having decided to do so, but the submission overlooks the factor, which was regarded as of some importance, that the result of continuing the pursuit was that the fleeing driver crashed, killing him and seriously injuring his passenger.19 I do not regard the matter as irrelevant. It was submitted by the CCC that the decision in Didsman (supra) was a useful support for the sanction; I have dealt with that proposition already. I agree that in that matter the Member set out a useful discussion of various earlier decisions of the Tribunal dealing with pursuit issues. The CCC submitted that the conduct was more serious than in Rohweder (supra) and Jeffries (supra), and there were mitigating circumstances there that are not present in this case, so they were not inconsistent with the present sanction. [32] In oral submissions the CCC said that the length of service of the applicant made the conduct more serious, because his experience should have made him more conscious of the policies, and more used to applying them. There is that, but on the other hand, he did a lot of creditable police work during that period, and it means that his disciplinary issues were more unusual. I think it is a mistake to treat his length of service just as an aggravating factor. The CCC also made submissions which I regard as seeking to treat as an aggravating feature the fact that the applicant had disputed the issue of substantiation. This may have been something which was difficult in view of the available evidence, but it was not an aggravating feature that the applicant sought to defend himself. I do not think that it becomes one just by labelling it a lack of insight. [33] The fact that the applicant has expressed disagreement with the policy about stopping completely at red traffic lights before proceeding through them also does not, strictly speaking, show a lack of insight into his misconduct, nor is it an aggravating feature. What matters is not whether he disagrees with the Commissioner’s direction, but whether he will obey it. There was nothing in the material identified which demonstrated continuing defiance as distinct from disagreement. In those circumstances, it is inappropriate for a sanction to be applied on the assumption that he will disobey the directive in the future. [34] As I indicated at the hearing, if it comes to that, I would criticise the directive myself, which strikes me as arbitrary and inflexible to the point of being silly. No doubt there 18 At the hearing it was said that the pursuit policy had at the time of the relevant conduct in Eaton had only recently been implemented; but it is not clear that this was regarded as significant by the Tribunal in that matter. 19 The Tribunal in Chapman said that the case was more serious than Eaton: [38]. -- 10 of 12 -- 11 are plenty of circumstances where it can be seen to be a useful approach, if visibility is limited and there are other road users about, but there must often be situations where, because of the open nature of the intersection and the lack of traffic, it is quite obvious that there is no risk in going through the red light without stopping. I suspect that the directive has been framed less with a view to risk abatement than to facilitate ease of enforcement, which in itself has nothing to do with risk. I note from observation that paramedics driving ambulances with lights and siren activated do not stop at red lights, unless of course they are obstructed by other traffic, although they do slow down to ensure they are being accorded right of way. Either they do not have such a rule, or it is widely ignored. I consider that the red light rule should be reconsidered by the Commissioner, or perhaps by the new Police Minister. [35] Nevertheless, the Police Service is a body under discipline, and it follows that orders must be obeyed, even the silly ones. It was certainly appropriate for the respondent to treat the disregard of this directive during this pursuit as a feature which rendered the applicant deserving of a significant sanction. The imposition of sanctions in order to enforce discipline in the Police Service is an important part of ensuring public confidence in the maintenance of proper standards of behaviour by officers.20 I note that he did not stop at any red light; the conduct would have been less serious if he had stopped at red lights except at those intersections where it was obvious that there was no risk in proceeding through the light. [36] The respondent was entitled to find that on this occasion the applicant had disregarded the red light rule completely, and treat that as a serious matter. But I do not consider that that seriousness was further aggravated by any disagreement he expressed with the rule, or by his advancing the submission that before entering the intersections in questions he had carefully checked to detect any risk actually presented there. That issue was made relevant by the formulation of the allegation against him: recklessly exposing himself and other road users to unjustifiable risk of injury. The fact that the argument did not prove persuasive does not change that.21 [37] It was said for the CCC that the sanction was deliberately severe, but not inappropriately severe. The submission was also advanced that it was not outside the permissible range. There were submissions about the other decisions I have discussed earlier, largely with a view to showing that they had circumstances justifying a less severe sanction than in the present case. I have already discussed those decisions, and do not need to say anything further about them. Conclusion [38] As I said earlier, I consider that overall the sanction in this matter was out of line with those imposed in other decisions, even taking into account the various differences in the behaviour and other relevant circumstances. I accept that no two cases are alike, and that there is some limit to the value of other decisions, but the only way to establish whether a decision is inconsistent with other decisions is to have regard to them. Although there are differences between this matter and the other decisions discussed, I do not consider that overall this matter is so much worse that the conduct in them justifies what appears to me to be a substantially heavier sanction. Nor has 20 Police Service Board v Morris (1985) 156 CLR 397 at 412; CCC v Jeffries (supra) at [14]. 21 Apart from anything else, the argument does not take into account the risk of any lack of care on the part of the driver of the Kia, which is part of the risk likely to have been generated, or more likely aggravated, by the pursuit. -- 11 of 12 -- 12 any factor been identified to change the general level of sanctions for breaches of the pursuit policy, or driving in a way to endanger road users. [39] As well, there are aspects of the respondent’s reasons for the sanction imposed which give me cause for concern, and support the proposition that the sanction imposed was excessive, as discussed. I acknowledge that reasons for administrative decisions, particularly those not prepared by a lawyer, should not be scrutinised too carefully to find error, but in this matter there are several things said giving rise to concern. I consider that the sanction imposed in this matter was outside the limits of the proper exercise of the discretion as to sanction. I consider that there are grounds to interfere on the basis that the respondent’s discretion as to sanction miscarried. [40] Evidently the respondent found the applicant’s conduct on this occasion very unsatisfactory. Certainly the pursuit was prolonged, at high speeds, and at times in relatively narrow suburban streets, where the risk from a pedestrian or motorist emerging into the path of one of the vehicles would have been significant. The applicant repeatedly disobeyed the direction about stopping at red traffic lights. Although there was what seemed to me like a good deal of communication with other police, I accept that the amount of detail advised was inadequate. The applicant had some history in relation to breaches of the pursuit policy, and had previously been temporarily demoted, but that was ten years earlier. In other respects he had an impressive record of service over thirty-five years. I would characterise this as a case of over-zealousness in policing. He had already completed one Professional Development Strategy, and a second was imposed along with the sanction, which I assume was also completed. In fact there were no harmful consequences from the pursuit.22 The risks did not materialise. [41] I do not accept the submission that just a reprimand, or a fine, would be an adequate sanction in the circumstances. Some demotion, which I assume includes a reduction in pay points, has been fairly common in prior cases, and was justified by the seriousness of the conduct and such disciplinary history as he had. I am conscious of what was said about demotion in McKenzie (supra) at [49], but consider it was justified in this case, although I regard the combination of the extent and the duration of the demotion imposed as excessive in all the circumstances. I consider that, for the duration of the demotion imposed, a reduction in three or four pay points would have been a sufficient sanction, allowing for the suspension of the demotion as imposed. [42] I assume that there were no further grounds for discipline during the twelve month period, and that the suspension of the sanction after six months was effective. Given that the sanction has been implemented, and all that can happen now is an adjustment to the financial consequences of the sanction, for the sake of simplicity I will set aside the sanction imposed, and substitute a demotion from Senior Constable 2.10 to Constable 1.6 for a period of three months. That is to take effect as from the date on which the demotion imposed by the respondent in fact took effect. No party sought costs in submissions, and there will be no order as to costs. 22 Apart from damage to the flora on a traffic island. -- 12 of 12 --