Crime and Corruption Commission v Assistant Commissioner Maurice Careless & Anor [2021] QCAT 323

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Assistant Commissioner Maurice Careless & Anor [2021] QCAT 323 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER MAURICE CARLESS SENIOR CONSTABLE BKA (respondent) APPLICATION NO/S: OCR207-20 MATTER TYPE: General administrative review matters DELIVERED ON: 23 September 2021 HEARING DATE: 5 May 2021 HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: The decision of Assistant Commissioner Maurice Careless dated 16 June 2020 is set aside and the following decision is substituted: Senior Constable BKA be placed on probation for a period of three (3) years effective from 16 June 2020 on the following conditions: 1. Senior Constable BKA may be asked to show cause as to why he should not be dismissed if- (i) He breaches the probation; or (ii) The Commissioner reasonably believes he is unsuitable to continue to be a police officer. 2. Senior Constable BKA will not be able to perform policing duties with any First Year Constables until the period of his probation has come to an end unless authorised by a Commissioned Officer due to an emergent situation arising. 3. Senior Constable BKA will not commit misconduct. 4. Senior Constable BKA will enter into a Professional Development Strategy (PDSD) in -- 1 of 20 -- 2 writing designed to manage risk and to help with his rehabilitation and assist in his development of mechanisms to cope with any anxiety, depression and stresses identified in any report supplied by an accredited mental health specialist or worker. The strategies include: (i) Senior Constable BKA will contact the Southern Region Senior Psychologist within 14 days and prepare a treatment plan (in writing) as recommended by the Senior Psychologist (at QPS expense); and (ii) Review the treatment plan with the Senior Psychologist every six (6) months. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where allegations of misconduct – where subject officer accepts the charges of misconduct – where disciplinary sanction imposed – where the Crime and Corruption Commission applied to review the sanction decision – where allegations of misconduct were found to be substantiated – where subject officer accessed official and confidential information without an official purpose and engaged in conduct unbecoming of a police officer – whether sanction imposed is correct and preferable Crime and Corruption Act 2001 (Qld), s 219L, s 219P, s 219Q, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 66 Police Service Administration Act 1990 (Qld), s 1.4, s 7.36(7) Aldrich v Ross [2001] 2 Qd R 235 Austin v Deputy Commissioner Peter Martin [2018] 120 Briginshaw v Briginshaw (1938) 60 CLR336 Chadwick v Acting Deputy Commissioner DA Wright [2020] QCAT 66 Crime and Corruption Commission v Acting Deputy Commissioner Barron and Anor [2015] QCAT 96 Crime and Corruption Commission v McCarthy & Anor [2020] QCAT (10 November 2020) Constable Vann v Deputy Commissioner McGibbon [2001] MT Appeal 4 of 2001 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 Compton v Deputy Commissioner Stewart [2010] QCAT 384 Deputy Commissioner Stewart v Dark [2012] QCA 228 McGinn v Condon [2019] QCAT 15 -- 2 of 20 -- 3 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 Murray v Deputy Commissioner Stewart [2011] QCAT 583 Officer TXS v Acting Deputy Commissioner Colin McCallum [2011] QCAT 739 Police Service Board v Morris (1985) 156 CLR 397 Price v Deputy Commissioner Gee [2019] QCAT 179 Scott v Assistant Commissioner Peter Martin [2015] QCAT 423 APPEARANCES & REPRESENTATION: Applicant: Z Valeska, Principal Lawyer, for the Crime and Corruption Commission Respondent: I Fraser, Senior Legal Officer, Office of the Queensland Police Service Solicitor for Assistant Commissioner Careless C Gnech, Managing Director, Gnech & Associates for Senior Constable BKA REASONS FOR DECISION [1] On 4 April 2017, Senior Constable BKA took prescription medication and drove a marked police vehicle with his firearm. He was alone at the time and his body worn camera was activated. The camera recorded BKA’s comments about his driving getting worse and sexual ideations regarding a child. [2] On other occasions BKA accessed information on the Queensland Police Service (QPS) QPRIME system without an official purpose. [3] On 12 September 2019, BKA was stood down from active service as a police officer and directed to perform administrative duties for two charges of alleged misconduct. [4] Prior to being stood down, BKA’s career as a police officer was unblemished. He has a QPS medal of honour and awards in recognition of his dedication and many years of service to the QPS. [5] BKA accepts he accessed confidential and official information on the QPS QPRIME system from 30 March 2016 to 6 June 2019, inclusive; and engaged in conduct on 4 April 2017 more generally described as unbecoming of a police officer.1 [6] Following a disciplinary hearing, Assistant Commissioner Careless (the prescribed officer) ordered a 12 month period of probation on conditions that BKA may be asked to show cause as to why he should not be dismissed if he breaches the probation, or the Commissioner reasonably believes he is unsuitable to continue to be a police 1 Disciplinary proceedings notice dated 27 March 2020, Exhibit 2, p 1. -- 3 of 20 -- 4 officer.2 Further to that, BKA was transferred to another station to perform duties other than policing duties with any First Year Constable until the period of probation expires unless authorised by the Commissioned Officer due to an emergent situation arising; and ordered not to commit misconduct. [7] BKA was also required to enter a Professional Development Strategy (referred to as ‘PDSD’) that was said to manage risk and to help with his rehabilitation and assist in his development of mechanisms to cope with the anxiety, depression and stresses identified in a report supplied by an accredited mental health social worker (Mr Kent Smith). The strategies include that BKA contact the Southern Region Senior Psychologist within 14 days and consider any treatment plan as recommended by the Senior Psychologist (at QPS expense).3 [8] The Crime and Corruption Commission now applies for a review of the sanction decision dated 16 June 2020.4 The Commission contends that the sanction does not reflect the gravity of the misconduct engaged in, the need for specific and general deterrence and does not meet the purpose of disciplinary proceedings.5 The Commission seeks an order on review that the sanction decision be set aside and by way of substituted order, BKA be dismissed from the QPS.6 The allegations of misconduct [9] It is convenient to set out below the particulars of the conduct that BKA accepts, as reflected in the disciplinary proceeding notice dated 27 March 2020: Matter One (CSS2018/01832) That between 30 March 2016 and 6 June 2019 at [Queensland] your conduct was improper in that you accessed official and confidential information contained within the Queensland Police Service computer system without an official purpose related to the performance of your duties as a member of the Queensland Police Service. Better and Further Particulars: 1. On 26 December 2018 a complaint was received that information had been released to potential persons of interest, by your wife that police were going to conduct raids in the area. 2. An audit conducted on 9 May 2019 identified that you had accessed information on a restricted Queensland Police Service computer that did not relate to your position at [Queensland] Police Station. 3. You accessed information using a Queensland Police Service computer or a Q-Ute device in relation to the following: a. [NX] - 7 April 2016. 2 The hearing below proceeded as a decision on the papers and without an oral hearing under the Police Service Administration (Disciplinary Reform) and Other Legislation Amendment Act 2019 (Qld) that took effect on 30 October 2019. 3 Decision on disciplinary action dated 16 June 2020, Exhibit 2, p 42. 4 Application for review filed 15 July 2020. See also applicant’s preliminary statement of issues filed 31 August 2020. 5 Ibid. 6 Ibid. -- 4 of 20 -- 5 b. [Queensland address] - 14 November 2017. c. [DJN] - 18 June, 19 June, 28 August, 6 September, 14 October, 15 November and 22 December 2016, 4 March, 4 May, 31 May, 25 June, 9 August, 22 August, 5 September and 18 November 2017, 28 January, 1 April, 30 June, 18 July, 17 November, 14 December and 16 December 2018, 27 March and 5 May 2019 using both station and Q-Lite computers. d. [tx] - 17 March and 2 August 2015, 17 November 2016, 6 September 2017, 20 March, 29 June and 13 December 2018 using both station and Q-Lite computers. e. [BK]- 26 January 2018. f. [CK] - 26 January 2018. g. [BD] - 26 January 2018. h. [Vehicle registration]- 14 March, 3 July and 4 November 2018 and 5 June 2019. i. [Vehicle registration]– 27 March 2019 4. The searches conducted were without an official purpose related to the performance of your duties as a member of the Queensland Police Service. Matter Two: (CSS2019/01004) On 4 April 2017 at Stanthorpe your conduct was improper in that you whilst on duty behaved in a manner unbecoming of a police officer. Better and Further Particulars 1. On 4 April 2017 you accidentally recorded yourself on a body worn camera while you were driving a marked police vehicle. 2. At the time of making the recording you acted in a manner that showed you to be under the influence of prescription medication. 3. At the time of making the recording you made comments where you insinuated you had removed another person's prescription medication without consent, including: a. You discussed, with yourself, that you did a search and 'the last one had no good stuff that I want'. b. You discussed, with yourself, that you went to [SA’s with TJ] and 'took a bit of stuff'. c. You referred to numbers, 10's and 20's when talking about 'the goodstuff'. d. You discussed, with yourself, that you could identify your driving was getting worse and having trouble staying on the road. e. You discussed, with yourself, that the potheads only had pot and normally there are scraps lying around. -- 5 of 20 -- 6 4. You then disclosed some sexual ideations regarding wanting to have sex and commit sexual acts with 'Little TS’ and identified sexually explicit acts you would like to perform. The Tribunal’s role on review [10] The Tribunal is required to make its own decision on the evidence which was before the prescribed officer and is duty bound to bring the public perspective to bear.7 [11] The Tribunal stands in the shoes of the decision-maker, the prescribed officer, exercising the same powers to produce the correct and preferable decision.8 It is appropriate to give ‘considerable weight’ to the findings of the decision-maker on the basis that the decision-maker might be thought to have ‘particular expertise in the managerial requirements of the police force’.9 The Tribunal does, however, have a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.10 [12] In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.11 Further, the Tribunal must be satisfied and find accordingly that the conduct complained of is proven. ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.12 [13] It is common ground in the present matter that the parties are bound by the facts, as found by the prescribed officer because neither the Commission nor BKA challenge the finding that Matters One and Two are substantiated.13 [14] It was uncontroversial at the oral hearing before this Tribunal, that an earlier decision made by this Tribunal prohibiting publication of certain material under s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should remain in force. This decision prohibits publication of any document or thing, or evidence given in the proceeding that could identify or lead to the identification of BKA or any third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.14 [15] At the oral hearing before this Tribunal, Mr Schmidt appearing for BKA applied for leave to rely upon fresh evidence. The fresh evidence, that I allowed to be admitted by the consent of all parties, includes a statement prepared by BKA, the QPS Ignite report relevant to courses completed by BKA, since the conduct and an updated report 7 Crime and Corruption Act 2000 (Qld) (‘CC Act’), s 219P, s 219Q and see s 17, s 18, s 19 and s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). 8 QCAT Act, s 19 (‘QCAT Act’) and see the CC Act, s 452. The matter proceeds under the statutory framework as amended by Police Service Administration (Disciplinary Reform) and Other Legislation Amendment Act 2019 (Qld) and effective from 30 October 2019. 9 Aldrich v Ross [2001] 2 Qd R 235, 257-258 (Thomas J). 10 Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40] (Hon JB Thomas). 11 Briginshaw v Briginshaw (1938) 60 CLR 336. 12 Police Service Administration Act 1990 (Qld), s 1.4 (definition of ‘misconduct’). 13 Submissions on behalf of the applicant filed 2 November 2020, [8] and second respondent’s submissions filed 23 December 2020, [12]. See decision on disciplinary finding and proposed sanction dated 27 May 2020, Exhibit 2, p 31. 14 Decision dated 30 July 2020. -- 6 of 20 -- 7 from BKA’s mental health worker (Mr Kent Smith) in relation to treatment since the imposition of sanction. [16] At the oral hearing Ms Valeska appearing for the Commission submitted that the witness Mr Kent is a mental health worker not a specialist. In relation to the fresh evidence and Mr Kent’s more recent report, Ms Valeska submitted that there is nothing in the fresh evidence to minimise the severity of the conduct and I should give the report of Mr Kent limited weight. [17] On the other hand, Mr Frazer appearing for the QPS submitted at the oral hearing that the prescribed officer accepted the report of Mr Kent and relied upon it in reaching his conclusions. [18] Mr Schmidt appearing for BKA submitted that the further and better particulars of the conduct were accepted by BKA and the prescribed officer accepted the report of Mr Smith even though he had the power to request a psychologist’s report. Mr Schmidt submitted that the Tribunal can take comfort from Mr Smith’s report that BKA complies with the sanction of probation and is continuing to address his mental health successfully. [19] At the conclusion of the oral hearing, I directed the prescribed officer to file in the Tribunal further information about the PDSD undertaken by BKA and his consultation with the Southern Region Senior Psychologist in accordance with the sanction imposed by the prescribed officer. [20] The Tribunal has received further information from the QPS and written submissions from each of the parties that supplement earlier written submissions filed in the proceeding.15 What is the correct and preferable decision? [21] The conduct is serious and calls into question BKA’s fitness to continue in service as a police officer. The particulars of misconduct found to be proven [22] Matter One involves accessing official and confidential information on QPRIME from 30 March 2016 to 16 June 2019, inclusive, including multiple searches on family members, past associates, addresses and motor vehicles. There is no operational reason for the conduct. [23] As reflected in the prescribed officer’s findings document, BKA admits interrogating the computer system and provides further details to the QPS investigators of some of the searches conducted.16 [24] The prescribed officer finds that the inquiries were made after the Commissioner’s direction (about accessing information on QPRIME) and in complete disregard of the 15 See applicant’s submissions in reply filed 18 January 2021, applicant’s cases filed 6 May 2021, applicant’s supplementary submissions filed 3 June 2021, first respondent’s outline of submissions dated 23 January 2020, affidavit of Ian Patrick Fraser sworn 19 May 2021, affidavit of TP sworn 19 May 2021, second respondent’s submissions and cases filed 23 December 2020, application for fresh evidence and material filed 4 May 2021 and reply dated 15 June 2021. 16 Decision on disciplinary finding and proposed sanction dated 27 May 2020, Exhibit 2, p 36. -- 7 of 20 -- 8 legislation.17 Further to that, as reflected in the findings document, BKA expressed remorse (for his conduct), however, indicated he is sceptical the QPS could track everyone’s activity on the system. The prescribed officer notes his concern as to whether BKA can be trusted to comply with privacy policies into the future.18 [25] The conduct on 4 April 2017 involves a monologue of references to sexual comments concerning a minor and stolen medication. BKA accidentally recorded himself on a body worn camera while he was driving a marked police vehicle on his own. When interviewed by investigators on 18 August 2019, BKA accepts that he could have been under the influence at the time of the conduct.19 [26] As reflected in the findings document the camera that recorded BKA’s comments whilst he was driving a police vehicle are of serious concern. The prescribed officer says: The [BWV] shows you driving a police vehicle while articulating in disturbing detail how you would sexually exploit a child if you had the chance to have two weeks alone with her. I don’t intend to exhaustively detail the statements you made. Suffice to say they are detailed and explicit and if acted upon, could constitute life imprisonment offence.20 [27] The prescribed officer observes the concern from investigators as being ‘sufficiently high’ and acknowledges the child subject of these statements had to be interviewed twice to satisfy any suspicion they had been acted upon.21 Further to that, reference is made to members of the community subject to the investigation. The prescribed officer says they would have been anxious and disturbed by BKA’s statements and ‘by extension the reputation of the QPS was seriously diminished’.22 [28] The prescribed officer acknowledges BKA’s acceptance of the conduct stating that he himself describes his behaviour as ‘disgraceful and disgusting’ and that he (BKA) acknowledges the damage done to himself and the reputation of the QPS.23 [29] The findings document reflects the recommendations of the Royal Commission into Institutional Responses to Sexual Abuse and the need to make institutions safer for children. The prescribed officer says, and I agree, that institutions like the QPS have a major role in the child protection system in Queensland as officers have trusted and significant contact with children every day.24 The prescribed officer notes recommendations 6.4, 6.5 and 6.6 and says they discuss the need to ensure leaders and governance structures commit to a child safety culture and mitigate the risks to children.25 [30] The prescribed officer acknowledges that BKA was at the time of the conduct affected by a substance but goes on to say that he (BKA) has ‘clearly stated [his] sexual desire 17 Ibid. 18 Decision on disciplinary finding and proposed sanction dated 27 May 2020, Exhibit 2, p 36. 19 Exhibit 2, Part B, p 36. 20 Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. -- 8 of 20 -- 9 for a child and as such there remains a question as to the risk [BKA poses to children]’.26 The prescribed officer says that the risk to children may be managed though the Working with Children ‘vetting regime’27 and the expectation is police officers will be held to a higher standard of scrutiny and accountability and dealt with more severely, should they fail to meet the high standards required for safely working with children. The prescribed officer describes the conduct as a serious example of misconduct: …For an officer to state so clearly and emphatically how he would sexually exploit a young child is unbecoming, and it is hard to imagine a more serious example of misconduct.28 [31] The prescribed officer refers to the camera recording and says you can hear BKA talking, his speech is slurred, and he appears to drive and speak aimlessly at one point looking and talking about his thumb,29 about the effects of Codeine and his disappointment that no-one has any of the good stuff. He also talks about having gone to a number of locations and stolen medication from people who were prescribed it.30 [32] BKA is heard to make observations about his own driving saying on the recoding that it is getting worse. The prescribed officer refers to BKA’s driving as ‘a course of conduct and you know it is worsening’ and his driving appears reckless. The relevant extract from the findings document is set out below: During the BWV, the camera jolts around and at one point you say words to the effect ‘driving getting worse, trying to stay on the road, used to be able to look down and look around and stay on the road, I can’t anymore’. Your observations of your driving getting worse and the fact you used to be able to look down and around without getting off the road, suggest this is a course of conduct and you know it is worsening. It also shows you are in control of some of your conscious decision-making skills and are totally impaired. Your speech is sometimes slurred and at one point you appear to drive into a driveway mistakenly. You also appear to be driving at speed in other parts of the video and at times your driving appears reckless.31 The prescribed officer’s findings on sanction [33] As reflected in the sanction decision, BKA commenced employment with the QPS on 14 May 2001 and achieved the rank of Senior Constable on 24 July 2009. The prescribed officer acknowledges favourable comments between 2003 and 2017, inclusive and notes that on BKA’s service history there are two local managerial resolution plans where strategies were implemented to assist in guiding his behaviour towards a member of the public and the unauthorised use of a police service vehicle. The prescribed officer notes that BKA is the recipient of the QPS medal and 15-year 26 Ibid, p 37. 27 Referring to the Working with Children (Risk Management and Screening) Act 2000 (Qld). 28 Exhibit 2, p 37. 29 Ibid. 30 Ibid. 31 Ibid. -- 9 of 20 -- 10 clasp, National Medal and National Police Service Medal and received the 2010-2011 Queensland Flood and Cyclone Citation.32 [34] The prescribed officer finds the conduct to be serious such that it requires a severe disciplinary sanction.33 The prescribed officer considers that the allegations are both integrity and behaviourally based with a high risk to the public and other members and potentially highly damaging to the reputation of the service: I am of the view the seriousness of your conduct requires severe disciplinary sanction. Whilst allegations of this nature are not new to law enforcement agencies, the allegations subject of this hearing are both integrity and behaviourally based with an inherently high risk to the public and other members; and potentially highly damaging to the reputation of the Service.34 [35] The prescribed officer says that members are required to possess the physical and mental capability to enable them to undertake their duties and make appropriate assessments and respond as required, during the performance of those duties.35 Further to that, the Commissioner and the community are entitled to expect members of the QPS will always perform their duties to a high standard of integrity and competence.36 [36] The prescribed officer says that a member’s failure to comply with legislation, practices and orders is considered a poor reflection on the Service.37 The prescribed officer finds that BKA exercised distinctly poor judgment, breached the trust of his colleagues and undoubtedly had an adverse effect on the maintenance of community support the QPS requires to perform its function. Further, the prescribed officer says a senior constable is expected to be aware of the significant impact his actions have on the reputation of the organisation: You exercised distinctly poor judgment, breached trust of your colleagues and undoubtedly had an adverse effect on the maintenance of community support the QPS requires to perform its functions. As a police officer and particularly a Senior Constable, it is reasonable to assume you would be aware of the significant impact your actions have on the reputation of the organisation. These factors should have acted to remind you of the possible repercussions your conduct would have.38 [37] The prescribed officer considers it important to send a clear message to all members of the Service concerning the inappropriate behaviour and the need to maintain public confidence whilst acknowledging the seriousness of the conduct that was considered to be, as stated, ‘in stark contrast to the standards expected of any member’.39 The prescribed officer considers that the sanction reflects appropriate level of disapproval 32 Disciplinary decision, Exhibit 2, p 46. 33 Exhibit 2, p 46. 34 Exhibit 2, p 46. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. -- 10 of 20 -- 11 arising from the misconduct and acts as both a ‘specific and general deterrent against this type of conduct’.40 The Commission’s submissions [38] The Commission contends that whilst the conduct was correctly characterised by the prescribed officer and noting that the prescribed officer did not have the power of dismissal, the sanction was not sufficiently strong to make clear that such conduct is unacceptable within the QPS.41 The conduct is said to undermine public confidence in the QPS and the morale of officers. [39] When the conduct is viewed both separately and together, the Commission says it demonstrates BKA’s predilection for favouring his own interests over the interests of the public, both in unauthorised QPRIME access of personal information on various individuals, and his conduct in performing his shift, and having control of his firearm and car whilst drug affected. The Commission submits that this shows his unfitness to be a police officer.42 [40] The Commission rejects the relevance of alleged delay in finalising the disciplinary proceedings from the date of conduct and submits that whilst the conduct was admitted, there is superficial acceptance of responsibility and it is clear that BKA’s acceptance of the effects of his conduct on his current personal and work situation is limited.43 [41] The Commission refers the Tribunal to a number of cases that are said to provide some guidance as to the correct approach to be taken in this matter, and the principles which may inform the correct and preferable decision, including: Deputy Commission Stewart v Dark44, Compton v Deputy Commissioner Stewart45, Scott v Assistant Commissioner Peter Martin46, Fraser v Assistant Commissioner Condon47, Officer TXS v Acting Deputy Commissioner Colin McCallum48 and Chadwick v Acting Deputy Commissioner DA Wright49, McGinn v Condon50 and McKenzie v Acting Assistant Commissioner Wright51. [42] The Commission says that the particulars of misconduct that are admitted would be sufficient to raise concerns about BKA’s fitness to remain a police officer. Taken together the Commission says the totality of BKA’s conduct is such that dismissal is the only correct and preferable decision available to the Tribunal.52 40 Ibid. 41 Submission on behalf of the applicant filed 2 November 2020, p 7. 42 Submission on behalf of the applicant filed 2 November 2020, p 7. 43 Ibid. 44 [2012] QCA 228. 45 [2010] QCAT 384. 46 [2015] QCAT 423. 47 [2016] QCAT 271. 48 [2011] QCAT 739. 49 [2020] QCAT 66. See applicant’s submissions in reply filed 18 January 2021. 50 [2019] QCAT 15. 51 [2011] QCATA 309. 52 Submission on behalf of the applicant, 2 November 2020, p 7. -- 11 of 20 -- 12 BKA’s submissions [43] BKA says that the Commission’s position adopted is purely punitive described as being akin to the criminal jurisdiction rather than the protective nature of the purposes of discipline and the system does not warrant a ‘one strike and you’re out’ mentality.53 Further to that, it is submitted that BKA is a trained officer otherwise of good character who with suitable guidance and support is capable of rendering further valuable service to the community and the Commission fails to properly understand and take into account the mental health issues BKA was enduring at the time and the impact those issues have on discipline. [44] It is submitted that BKA has returned to duty after the prescribed officer’s decision on 16 June 2020. He has embraced the conditions of the sanction involved and is progressing well with both his professional responsibilities and his personal mental health maintenance. [45] In relation to the cases referred to by the Commission, it is submitted that Dark is not authority for how a formal mental health diagnosis impacts upon discipline.54 BKA refers the Tribunal to the report of Mr Smith who was treating BKA and diagnosed extreme severe anxiety, extreme severe depression and moderate stress. [46] BKA submits that since the conduct in 2017, he has ceased his use of the medication, sought medical assistance and intervention and demonstrated as at the time of the prescribed officer’s decision that the misconduct was a one-off event.55 [47] In relation to Matter Two, BKA says that the charge arose as a consequence of the mental health diagnosis and this was accepted by the prescribed officer as conduct that is ‘disgraceful and disgusting’ and he has admitted to and was remorseful for his actions. [48] BKA refers the Tribunal to further cases including: Crime and Corruption Commission v Acting Deputy Commissioner Barron and Anor56, Austin v Deputy Commissioner Peter Martin57, Price v Deputy Commissioner Gee58, Crime and Corruption Commission v McCarthy & Anor59 and Crime and Corruption Commission v Lee (No. 2)60. [49] BKA says that the sanction of probation coupled with transfer and management strategies is the correct and preferable decision. It is submitted that it is not BKA’s character at the time of the conduct but rather at the time of sanctioning which is important. Here it is submitted that BKA has demonstrated that he is fit to continue as a police officer. [50] The Tribunal is referred to BKA’s references that he says attest to his subsequent good work and professionalism, the subsequent lack of further misconduct and compliance 53 Second respondent’s outline of submissions filed 23 December 2020, p 5. 54 Second respondent’s outline of submissions filed 23 December 2020, p 5. 55 Ibid, p 10- 11. 56 [2015] QCAT 96. 57 [2018] QCAT 120. 58 [2019] QCAT 179. 59 [2020] QCAT (decision dated 10 November 2020). 60 [2019] QCATA 151. -- 12 of 20 -- 13 with the probation order in force. Further, BKA says the sanction of probation is the equivalent of a suspended dismissal and the second highest sanction (after actual dismissal) available in police discipline, introduced following the amendments to the PS Act and the CC Act.61 BKA submits that these reforms were re-focusing of the police discipline system to embrace modern management practices and support officers with a view to increasing their professionalism through guidance and training, with sanctioning occurring only where necessary, and then in combination with professional development strategies. [51] BKA submits that the decision to impose probation, as opposed to dismissal, was the correct and preferable decision. The police disciplinary system [52] Effective from 30 October 2019 the amendments to the PSA Act and CC Act provide considerations that can guide a decision maker as to sanction following relevant conduct found to be proven. At the time of the hearing of this matter no guidelines exist for the purpose of s 7.44 of the Act. [53] At the oral hearing, Mr Frazer for the prescribed officer submitted and I accept that the outcome here in terms of any disciplinary sanction imposed is to be consistent with the purpose of discipline as reflected in s 7.1 of the Act: 7.1 Main purposes of part The main purposes of this part 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. [54] That said the order or sanction imposed must in my view also be consistent with the purposes set out in s 219A of the CC Act. Relevantly, the purposes of providing for disciplinary proceedings under s 219A are mirrored in s 7.1(b) of the PSA Act. [55] There is power under relevant sections of the PSA Act and the CC Act to impose an order in certain circumstances such as, for example, dismissal and probation. [56] Mr Schmidt for BKA submitted at the oral hearing before this Tribunal and I agree that the Tribunal on review has the power to suspend a dismissal under s 219L of the CC Act that does not exist under the PS Act. [57] Section 219L(2) of the CC Act permits the Tribunal to suspend the order or discipline imposed if it considers it is appropriate to do so, in certain circumstances as set out 61 Second respondent’s outline of submissions filed 23 December 2020, [43]. -- 13 of 20 -- 14 under s 219L(1).62 The Tribunal must state the operational period for the period of suspension and the suspension may be given on conditions.63 [58] On the other hand, s 7.34 of the PSA Act identifies a range of disciplinary sanctions that may be imposed in certain circumstances. The most serious discipline is dismissal. Section 7.36 of the PSA Act applies if the disciplinary sanction imposed on the subject officer is probation and provides that the prescribed officer may impose conditions on the probation. [59] The purpose of the probation, as set out under s 7.36(4) of the PSA Act, is to enable the commissioner to assess the subject officer’s suitability to be a police officer, during the period of probation and if, during the period of probation, the subject officer breaches the probation or the commissioner reasonably believes the subject officer is unsuitable to continue to be a police officer, the dismissal of the subject officer after conducting a show cause proceeding. Further to that, s 7.36(5) provides that the subject officer breaches the probation if during the period of the probation the subject officer commits misconduct; or fails without reasonable excuse to comply with a condition of the probation.64 Conclusion [60] I find that the conduct when viewed as a whole is serious such that it falls far short of the standard of conduct the community reasonably expects of a police officer. BKA has put himself and others at risk when he made the decision to drive affected by prescription medication. As reflected in the findings document, this is a serious breach of trust and undermines the reputation of the QPS. [61] An aggravating feature of BKA’s conduct and of particular concern to the Tribunal is the sexualised comments about a child. The conduct is disgraceful and undermines the public confidence in the QPS. [62] The discretionary power to impose a disciplinary sanction involves the balancing of a number of factors to achieve the purpose of discipline as set out in s 7.1 of the PSA and s 219A of the CC Act. The considerations include, amongst other things, the seriousness of the conduct and any relevant mitigating circumstances to ensure standards in the service and the maintenance of public confidence in the QPS.65 [63] In Police Service Board v Morris,66 Brennan J said that police forces in Australia are governed by legislation to achieve an effective and efficient organisation to afford protection to the community and to allow the disciplining of members who breach the code: The Victoria Police, like other Police Forces in Australia, is a force governed by legislation which Crockett J in the Full Court appropriately described in these terms: 62 See s 219L and s 219J of the CC Act. 63 CC Act, s 219L. 64 See also s 7.36(7) of the PSA Act that requires the prescribed officer who conducts the show cause proceeding to give the subject officer and the CCC a QCAT information notice for the decision to dismiss, or not to dismiss the subject officer. 65 See Police Service Board v Morris (1985) 156 CLR 397 at 411-12. 66 Ibid. -- 14 of 20 -- 15 The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective and efficient organisation in which the members are to perform their duties in conformity with a code so as to afford protection to the community and allow the disciplining of members who breach that code.67 [64] In the present case, BKA’s conduct is very serious and brings into question his suitability to remain a police officer. [65] On 4 April 2017, BKA drove a marked police vehicle with his firearm. He was alone at the time and recorded himself talking about his driving, in the context of it getting worse. He discussed prescription medication and disclosed sexual ideations about a child. [66] BKA accessed official and confidential information on QPRIME over a number of years from 30 March 2016 to 6 June 2019, inclusive, that had the potential to compromise two separate criminal investigations.68 There was no official purpose for accessing the information. [67] There is no excuse for BKA’s conduct. In my view the public expects that members of the QPS will keep information contained within the QPS computer system safe and that members of the service will not access protected information without an official purpose. BKA is an experienced officer and as a more senior member of the QPS is expected to set an example to junior officers. The accessing of information on QPRIME without an official purpose is in complete disregard of the standards expected of the QPS and the community. [68] The conduct on 14 April 2017 is disgraceful and it is difficult to understand and indeed there is no justification for making sexualised comments about a child under any circumstances. It is expected that members of the service will serve and protect the community particularly the most vulnerable such as children. BKA’s conduct undermines the public confidence in the QPS and raises concerns about whether he is a risk to children. [69] BKA accepts he was not fit to perform his duties when he drove the police vehicle in 2017.69 He also accepts that he accessed confidential information on the QPS computer system without an official purpose. [70] I accept that BKA was experiencing personal difficulties at the time of the conduct in 2017 having lost his Grandmother and Mother within five months of each other.70 I also accept that BKA was affected by prescription medication that he admits to taking for pain related to his back and that he did not realise the medication was impacting upon him to the extent it did.71 [71] I am not satisfied, however, that the use of prescription medication in any way diminishes the seriousness of the conduct particularly in circumstances where BKA 67 Ibid. 68 See applicant’s submissions filed in the disciplinary proceeding below, Exhibit 2, p 27. 69 Ibid, p 29. 70 Statement of BKA filed 5 May 2021, see Tribunal Direction dated 5 May 2021. 71 See applicant’s submissions filed in the disciplinary proceeding below, Exhibit 2, p 29 and report of Kent Smith dated 11 February 2021. -- 15 of 20 -- 16 acknowledges that family members had, as stated, ‘pulled him up’ in respect of his behaviour whilst he was taking the medication.72 In my view, BKA made the decision to drive the police vehicle with his weapon after he took medication in circumstances where he ignored the warning of family members about his use of the medication. [72] That said, I accept that BKA has taken steps to address his past use of prescription medication and personal stressors in his life. I accept the opinions expressed by Mr Smith, mental health social worker, who saw BKA under a mental health care plan on 27 August 2019. Mr Smith has over 30 years’ experience as a Mental Social Worker and reports that BKA has engaged positively in counselling and appears committed to continuing to address his mental health issues.73 [73] Mr Smith prepared a number of reports about treatment following a referral from BKA’s general practitioner for depression. As at 11 February 2021, BKA continues to see Mr Smith for treatment on a regular basis.74 I accept that BKA had stressors in his personal life at the relevant time of the conduct and has engaged in therapy in the form of counselling with Mr Smith. [74] Mr Smith’s opinions and views expressed about BKA’s commitment to treatment is supported by TP, police officer and supervisor, who attests to BKA’s attendance at sessions as part of a further treatment plan.75 BKA himself says that with the assistance of Mr Smith he has been able to work through personal issues that impacted on his work and workload and he has made choices that he is, as stated, ‘deeply ashamed of’.76 BKA says: With the assistance of my Mental Health Social Worker Kent Smith and the support of my supervising officer EK and colleagues in [the station], I have been able to work through personal issues that impacted on my workload. It has been extremely valuable to be able to work through a period of deep trauma, pain and suffering with my social worker as he has made me understand the choices that I made and which alternatives could have been of greater benefit rather than isolating myself from those who cared about me. The overwhelming grief of losing my Grandmother and Mother within 5 months of each other clouded by judgement and I made choices that I am deeply ashamed of.77 [75] Since the sanction decision, BKA has returned to his duties as a police officer. I accept that he has completed his duties to the required standard and in accordance with current policies and procedures.78 There is evidence before me that BKA has not committed any further acts of misconduct. TP confirms that he has not been required to discipline or correct any actions of BKA. I accept TP’s evidence. [76] The conduct giving rise to these disciplinary proceedings is clearly out of character for BKA. There are many references before me that speak to BKA’s character in both 72 Ibid. 73 Report of Kent Smith dated 11 February 2021. 74 Ibid and see Exhibit 2, p 14 (report dated 5 May 2020). 75 Affidavit of Shane TP, Sergeant, sworn 19 May 2021. 76 Statement of BKA filed 4 May 2021. 77 Ibid, [1]. 78 See reference of TP dated 1 May 2021, filed 4 May 2021. -- 16 of 20 -- 17 a professional and private capacity.79 The references are compelling. BKA has a QPS medal and awards in recognition of his years of service with the QPS. [77] I am satisfied that consideration should be given in this matter to the community’s investment in the training of a police officer such as BKA who has been a serving police officer for 20 years and but for this present matter has a good service history. [78] The imposition of a sanction involves a balancing of many factors to achieve the purpose of discipline as set out in s 7.1 of the PSA Act and s 219A of the CC Act. Each case will ultimately ‘turn on its own facts’ because no two cases are identical and there are a number of factors to be considered. 80 A sanction of dismissal is serious and should not be arrived at lightly. [79] The sanction to be imposed must balance relevant considerations as at the present time, not the time the conduct took place. The question before me now is whether BKA is presently fit for continued service in the QPS.81 [80] Here, the public interest weighs heavily against BKA’s fitness to continue as a police officer without a period of supervision and support. In my view the seriousness of the conduct including the sexualised comments made about a child during a time when BKA was taking prescription medication and experiencing personal stressors is not to be ignored. On the other hand, BKA accepts the conduct, is remorseful, has taken steps to address his behaviour, has many years of good service and a QPS medal of honour and awards in recognition of his years of service. In my view, there is considerable investment in BKA’s years of service and training that should not be ignored.82 These are considerations that also weigh heavily against a sanction of dismissal. [81] I am satisfied that BKA continues to show progress in his commitment to rehabilitation and is dedicated to his duties as a police officer. I do note, however, that there is no written PDSD before me and as at 16 June 2020 BKA was to return to his treating professional for another 6 sessions. In my view it is difficult to predict with any certainty whether further support such as ongoing sessions with BKA’s treating professional will be required beyond 16 June 2020 when the sanction decision and period of probation comes to an end. [82] That said, the decision to impose a period of probation for only 12 months is in my view not a sufficient period of time to ameliorate concerns about BKA’s fitness to continue as a senior constable of police that at the expiration of 12 months allows him to supervise junior officers without supervision and support, given the mental health issues that BKA continues to address through counselling sessions. [83] A period of probation for a period of 3 years subject to conditions that continue to monitor BKA’s ongoing rehabilitation and continued fitness to serve as a police officer is in my view appropriate in all of the circumstances of this matter. [84] I have considered the seriousness of the conduct, the possible need for BKA to attend further sessions with his treating health professional to address his mental health and 79 Exhibit 2, pages 6 to 13, inclusive. 80 Crime and Corruption Commission v Acting Deputy Commissioner Barron and Anor [2015] QCAT 96, [72]. 81 Lee (No 2), p 15. 82 Constable Vann v Deputy Commissioner McGibbon [2001] MT Appeal 4 of 2001. -- 17 of 20 -- 18 personal stressors, BKA’s length of service and the public’s investment in him as a senior police officer, BKA’s otherwise unblemished record, award of honour and recognition of service, the early acceptance of the conduct and BKA’s willingness to participate in treatment for his mental health issues. [85] I am not satisfied that dismissal from the QPS is in all of the circumstances the correct and preferable decision particularly in circumstances where BKA has demonstrated good conduct since the commencement of the disciplinary proceedings and has engaged in his rehabilitation to address his personal issues. I accept some years have elapsed since the conduct. I do not consider, however, that the delay in this matter as submitted by BKA in the disciplinary hearing below is significant and wholly unexplained.83 [86] Since the presentation of the misconduct charges, BKA participated in interviews on 16 August 2019 and 21 November 2019, respectfully. The subject child and other relevant individuals were interviewed. BKA was stood down from service on 12 September 2019 and was directed to attend a hearing on 27 March 2020. BKA admitted the allegations and a sanction decision followed on 16 June 2020. [87] I have also considered the cases referred to by the parties. In my view there are no cases that involve similar conduct to the present matter of BKA. [88] In Scott,84 the subject officer accepted conduct involving driving a motor vehicle over the prescribed limit. The subject officer consumed alcohol prior to the commencement of a rostered shift. She was reduced in rank from Senior Constable to Constable for 6 months. The decision was confirmed on review. [89] In Austin,85 the subject officer was criminally charged with two counts of common assault and wilful damage. He was intoxicated and had issues with alcohol related behaviour. He was dismissed from the QPS and the dismissal was suspended by the Tribunal for 2 years on review. [90] In Price,86 the subject officer was dismissed wholly suspended for 3 years for conduct described as completely out of character. He consumed alcohol while on duty and drove a patrol car at an excessive speed. He lost control of the vehicle which was written off. He was a constable at the time. The Tribunal on review took into account the officer’s mental health at the time. [91] In McCarthy,87 the subject officer weas reduced in rank from Sergeant 3.6 to Senior Constable 2.10 for a period of 12 months for sexualised and inappropriate conduct. The Tribunal on review did not consider a suspension appropriate referring to embarrassment or humiliation as a result of the demotion and the final loss suffered as being experienced by the subject officer. The matter is presently on appeal. 83 See submissions for the subject officer, Exhibit 2, p 25. 84 [2015] QCAT 423. 85 [2018] QCAT 120. 86 [2019] 179. 87 [2020] decision dated 10 November 2020. -- 18 of 20 -- 19 [92] In Compton,88 the subject officer was convicted of drink driving whilst off duty and driving his own vehicle. On review the Tribunal suspended the officer’s dismissal for 2 years on conditions. [93] In Frazer,89 a senior constable of police accessed and released confidential information from QPRIME without an official purpose. On review the Tribunal confirmed the decision to reduce the officer from senior constable pay point 2.9 to senior constable pay point 2.5. [94] In TXS,90 the subject officer was dismissed from the QPS for off-duty conduct that was serious and involved violence against her ex-partner. The officer pleaded guilty to charges in the Magistrates Court. She had a poor service record and favourable references. The decision to dismiss was confirmed. [95] Public confidence in the QPS weighs heavily in this matter as does the need to protect the public. In my view a period of probation for 3 years is an appropriate period of time to ameliorate any concerns about BKA’s ongoing treatment of his mental health issues and personal stressors that were present at the time of the conduct. The correct and preferable decision is a period of probation for 3 years with conditions that will permit the QPS to monitor BKA’s suitability to continue to be a police officer. [96] Balancing the seriousness of the conduct, the personal issues experienced by BKA at the time of the conduct, BKA’s length of service, his senior position in the QPS and the investment in his service with the QPS, I also consider a period of probation for 3 years with conditions is sufficient to achieve the purpose of discipline.91 [97] The conditions I propose to impose here will reflect some of the conditions imposed by the prescribed officer at first instance such as the development of a PDSD. It is expected that a PDSD will be put in writing and reviewed regularly to ameliorate any concerns about BKA’s past abuse of prescription medication and in managing any personal stressors that were present at the time of the conduct. The PDSD should contain strategies that are put in writing to monitor and support BKA in his rehabilitation and support the continued performance of his duties as a police officer. I do not consider any further training in relation QPS courses relevant to the conduct here including accessing information on the secure QPS QPRIME system is necessary. BKA has recently completed a number of courses including ‘Accessing QPS Information’ and amongst other things, ‘Psychological Health and Fitness’.92 [98] The correct and referable decision is a period of probation for 3 years with conditions. The conditions include that BKA may be asked to show cause as to why he should not be dismissed if there is a breach of the probation; or the Commissioner reasonably believes he is unsuitable to continue to be a police officer. [99] BKA will not be able to perform policing duties with any First Year Constables until the period of his probation has come to an end unless authorised by a Commissioned Officer due to an emergent situation arising; and will not commit misconduct. 88 [2010] 384. 89 [2016] 271. 90 [2011] 739. 91 See s 7.1 of the Act and s 219A of the CC Act. 92 Fresh evidence and material filed by BKA on 5 May 2021. -- 19 of 20 -- 20 [100] BKA will enter into a Professional Development Strategy (PDSD), in writing, designed to manage risk and to help with his rehabilitation and assist in his development of mechanisms to cope with the anxiety, depression and stresses identified by any accredited mental health specialist or worker. The strategies include: (a) Meeting with the Southern Region Senior Psychologist within 14 days to prepare a treatment plan (in writing) as recommended by the Senior Psychologist (at QPS expense); and (b) Reviewing the treatment plan with the Senior Psychologist every six (6) months. [101] I order accordingly. -- 20 of 20 --