Crime and Corruption Commission v Acting Assistant Commissioner Glenn Horton and Anor [2020] QCAT 422

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Acting Assistant Commissioner Glenn Horton and Anor [2020] QCAT 422 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ACTING ASSISTANT COMMISSIONER GLENN HORTON (first respondent) SENIOR CONSTABLE JUSTIN ZUANETTI (second respondent) APPLICATION NO/S: OCR131-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 November 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kent ORDERS: The disciplinary sanction ordered on 22 April 2020 by the First Respondent is set aside; The Second Respondent (Senior Constable Zuanetti) pay a fine of 16 penalty units at the rate of one (1) penalty unit per fortnight deductible from his salary commencing on the date of the next salary payment for Senior Constable Zuanetti that occurs after the date of the Tribunal’s decision until such time as the penalty is paid; and Professional Development Strategy – The imposition of the following Professional Development Strategy under s 7.42 of the Police Service Administration Act 1990 (Qld) (PSAA): completion of the following: (a) Professional Practice within the Queensland Police service CAP (QC1102); (b) Ethics & Ethical Decision-making OLP(QC1022-01-A); (c) Interpersonal Communication OLP (QCC008-01) -- 1 of 9 -- 2 Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the complainant person, referred to in these reasons and decision as GG. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether sanction imposed for misconduct reflects the seriousness of the conduct – where parties jointly agreed on facts and sanction Crime and Corruption Act 2001 (Qld), s 219G, s 219H. Police Service Administration Act 1990 (Qld), s 1.4, s 7.4 Police Service (Discipline) Regulations 1990 (Qld) reg 6, reg 9(1)(f), reg 10. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 24(1)(b), s 32 Aldrich v Ross [2001] 2 Qd R 235 Crime and Corruption Commission v Assistant Commissioner Dawson and Anor [2017] QCAT 37 Crime and Corruption Commission v Inspector Lee D Jeffries and Anor [2017] QCAT 331 Crime and Corruption Commission v Assistant Commissioner Brian J Wilkins and Detective Senior Constable Rebecca Tilse-Leckie [2018] QCAT 338 Hardcastle v Commissioner of Police (1984) 53 ALR 593 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 Medical Board of Australia v Martin [2013] QCAT 376 Police Service Board v Morris (1985) 156 CLR 397 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The Second Respondent, Justin Zuanetti, is a Senior Constable of the Queensland Police Service (QPS). On 11 May 2018, following disciplinary proceedings, there was a finding of misconduct against him by the First Respondent, the particulars of which are summarised as: (a) That on 13 September 2017, the Second Respondent engaged in improper conduct by: (i) using excessive force against a person (“GG”); and (ii) using inappropriate language towards GG. Why the Application to Review the Decision? [2] On 12 May 2020 the Applicant filed a review in the Tribunal on the basis that the sanction: -- 2 of 9 -- 3 (a) was inadequate; (b) did not meet the need for general or personal deterrence; (c) does not reflect the seriousness of Senior Constable Zuanetti’s conduct; (d) does not meet the purposes of disciplinary proceedings.1 Joint Submissions [3] It was jointly submitted by the Applicant and the Second Respondent that the substantiated misconduct involved a lack of integrity and an abuse of the Second Respondent's position. It is accepted by the Second Respondent that his conduct fell below that which is expected by the community of a police officer. Original Penalty [4] Paragraph 2 of the Joint Submissions states: (i) The first respondent found the second respondent had engaged in misconduct on 22 April 2020. The first respondent ordered a sanction of: A. Reprimand; and B. Professional Development Strategy The imposition of the following Professional Development Strategy under s 7.42-PSAA: Within 3 months of the date of this notice, you are to complete or recomplete the following QPS learning products: I. Professional Practice within the Queensland Police Service CAP (QC1002) II. Ethics and Decision-making OLP (QC1022 01 A) III. Interpersonal Communication OLP (QCC008_01) (ii) The second respondent has completed the Professional Development Strategy component of the sanction. Jointly Submitted New Penalty [5] Paragraphs 15 and 16 of the Joint Submissions states: (i) The disciplinary sanction ordered on 22 April 2020 by the first respondent be set aside. (ii) The second respondent (Senior Constable Justin Zuanetti) pay a fine of 16 penalty units at the rate of 1 penalty unit per fortnight deductable (sic) from his salary commencing on 09 September 2020 until such time as the penalty is paid; and 1 Further particulars of the above conduct are contained in the findings of reasons at pages 2-3 and 103 of the section 21(2) material. -- 3 of 9 -- 4 (iii) The imposition of the following Professional Development Strategy under s 7.42-PSAA: A. Senior Constable (sic) Zuanetti is to complete the following QPS learning products: I. Professional Practice within the Queensland Police Service CAP (QC1002) II. Ethics and Decision-making OLP (QC1022 01 A) III. Interpersonal Communication OLP (QCC008_01) Senior Constable Zuanetti’s behaviour [6] The relevant events occurred on 13 December 2017 when Senior Constable Zuanetti was performing duties at the Inala police station. A person who is the victim of these events, GG, was transferred to the station for the purpose of a further search for drugs. Via images from a body worn video, Senior Constable Zuanetti can be seen to strike GG on the right side of the head as he stumbles forward. Senior Constable Zuanetti’s left hand is closed in a fist and it appears that GG was visibly distressed at being searched. Regardless of the outcome of the search being undertaken the complainant was already under police control and did not present as a threat sufficient to warrant the response of being hit in the head. It is also noted that at the same time Senior Constable Zuanetti was hitting GG in the head he looked to be restraining the victim in a thumb lock. Senior Constable Zuanetti appeared to have the person under control without resorting to the violence he used. [7] Using body worn video Senior Constable Zuanetti is observed to say to GG, when he requested the Second Respondent not to touch his head, “calm the fuck down”. After GG responded Senior Constable Zuanetti stated “shut the fuck up cockhead, put your head down”. When moving GG to the ground Senior Constable Zuanetti said “stop fucking resisting you cockhead”. Finally, after GG had been struck and GG indicated he was going to report Senior Constable Zuanetti, the police officer stated, “that's good for you cockhead.”2 Senior Constable Zuanetti’s history and any matters in mitigation [8] Senior Constable Zuanetti has been a member of the police force since 2008. It's noted that prior to the events of December 2017 he had no disciplinary history. After the incident he continued his operational duties and it appears he has done so without any issue to date. The First Respondent noted several references relating to Senior Constable Zuanetti’s good character and that these included the information that Senior Constable Zuanetti takes on board advice and guidance from more experienced officers. Also, it was considered that his acknowledgement of the wrongfulness of his actions indicated that he had developed insight. Overall the impression given was that that Senior Constable Zuanetti was a low risk of behaving in a similar manner in the future as the incident appeared to be isolated and out of character. [9] It is noted that this matter has had quite a long road to this point. The incident occurred on 13 December 2017. The second respondent was interviewed in February 2018 and disciplinary proceedings were finalised on 22 April 2020. Subsequently on 12 May 2 Signed Disciplinary Proceeding Notice (Police Zuanetti) Part A003 filed by First Respondent 25 June 2020. -- 4 of 9 -- 5 2020 the applicant made an application to review the decision in the Tribunal. Between 2017 and now there have been no further issues with the conduct of Senior Constable Zuanetti that have been reported. First Respondent’s Submissions August 2020 [10] The following paragraphs are from the First Respondent’s submissions filed on 31 August 2020: The First Respondent is cognisant of the procedural observations made by the Tribunal in Crime and Misconduct Commission v Deputy Commissioner Stewart and Anor (No 2) [2012] QCAT 382 at [12] to [16] (per Thomas QC and Member Howard) whereby the Tribunal encouraged the decision-maker, when appropriate, to provide assistance to the Tribunal when the submissions, of the applicant and the second respondent, maybe (sic) inadequate in covering the Queensland Police Service's position in relation to the proceedings. The First Respondent has had regard to the joint submissions of the Applicant and the Second Respondent with respect to sanction. The First Respondent maintains its position that the First Respondent's original decision on sanction was the correct and preferable decision and does not adopt the joint submissions. However, the First Respondent does not propose to make any further substantive submissions in this regard and relies upon the reasons for the original decision on sanction as set out in the filed material. The First Respondent submits that the Tribunal should have particular regard to the observations made by Thomas JA in Aldrich v Ross [2001] 2 Qd R 235 namely that the Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision-maker. (at 258 [45]). The First Respondent does not wish to be further heard on the matter and supports the submission of the Applicant and the Second Respondent that the matter be dealt with on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. Joint Submissions of Applicant and Second Respondent [11] On 1 September 2020 joint submissions from the Applicant and the Second Respondent (the parties) were filed in the Tribunal. These submissions indicate the following: (a) Conferencing occurred between the Applicant and the First and Second Respondents independently of the Tribunal in accordance with the functions and objectives of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). (b) The Applicant and Second Respondent agree the sanction imposed in its current form should be set aside. (c) It is agreed between the parties a sanction should be substituted as per the attached draft order which imposes upon the Second Respondent the payment of a fine of 16 penalty units (which equates to $2,135.20) and a Professional Development Strategy. Relevant comparatives - from Joint Submissions [12] The joint submissions put forward several cases as the relevant comparatives. It was highlighted that: -- 5 of 9 -- 6 The proposed sanction falls within an appropriate “range” for cases involving a single act of excessive use of force by police officers in the course of their duty which resulted only in minor injuries. A sanction that provides for a financial penalty that equates to a reduction of the Second Respondent's pay scale by two pay points for a period of six months is open to the Tribunal and is comparable to other police misconduct decisions.3 [13] The submissions cited the decisions of CCC v Deputy Commission Stephan Gollschewski & Anor (No 2) [2014] QCAT 488 and CCC v Assistant Commissioner Dawson & Anor [2017] QCAT 37 (which are discussed in Minns4) as being largely comparable. I accept this to be the case, however I do note that some of the cases cited are more serious in nature such as Minns.5 Other decisions such as Crime and Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 deal with off duty situations and not the reality of being on duty as is the case in this matter. [14] It appears that I have been referred to these cases in an attempt to convince me that ‘the comparative cases establish that for incidences of misconduct involving excessive force being used upon complainants who are restrained, the appropriate sanction is one of a pay point reduction or a sanction that imposes a financial penalty.’6 After reviewing the legislation, the facts in this case, all submissions and all material filed I accept that this is the position and that it is appropriate to apply such a penalty in this case. [15] I accept that it is correct that the pay point reduction, as imposed in referenced decisions, is no longer an available disciplinary sanction under section 7.34 of the Police Service Administration Act 1990 (PSA Act) due to amendments made to the disciplinary regime in October 2019. The comparable sanction is one of a fine of up to 50 penalty units pursuant to section 7.4 (h) PSA Act. The proposed sanction of a fine of 16 penalty units, equates to a pay point reduction of approximately two pay points from Senior Constable 2.7 to Senior Constable 2.5 for just over six months.7 3 Joint Submissions filed 1 September 2020, paragraph 22. 4 Minns v Deputy Commissioner Martin [2018] QCAT 213. Summary from joint submissions: Minns… used excessive force against people in police custody on three occasions whilst they were restrained. At the time, Minns was a Senior Constable. The first incident happened in September 2014. Minns was involved in the arrest of a man. When the man was in custody and restrained by handcuffs behind his back, Mr Minns kneed the man in the chest area as he believed that the man had spat at him. The second incident happened in December 2014. Minns was involved in the arrest of a man. While the man was in custody and restrained by handcuffs, Mr Minns struck the man with his fist in the back of his head and neck area. Mr Minns then pushed the man into the back of a police vehicle, causing the man's face to strike against a metal area in the vehicle after the man had resisted arrest and made a distaste[ful] comment about Minns. The third incident happened in January 2015. Minns was involved in executing a search warrant at a man's home. While the man was in custody and restrained by handcuffs, Minns rushed past other officers who had physical control of the man, grabbed one of his wrists and dragged him to the floor, and struck him with a closed fist to the back of the head. 5 Minns v Deputy Commissioner Martin [2018] QCAT 213. 6 Joint Submissions filed 1 September 2020, paragraph 7. 7 Joint Submissions filed 1 September 2020, paragraph 8. -- 6 of 9 -- 7 Consideration of Senior Constable Zuanetti’s Actions [16] The joint submissions to the Tribunal state the following: (32) The Second Respondent's conduct is serious, [GG] was restrained and in a vulnerable position. The Second Respondent admits the use of force. His conduct can be mitigated in that [GG’s] injury was minor, the Second Respondent feared for his personal safety, he made full admissions to the conduct and he has shown remorse in assisting in resolving the review proceedings and completing the Professional Development Strategy as imposed by the First Respondent.8 [17] I accept the proposition that Senior Constable Zuanetti was engaged in misconduct of a serious nature that fell far below what the public would expect of a police officer. Specifically, in that if a person is in police custody to, amongst other things, be searched one would expect that they would be treated with dignity. This is especially so if they are to be restrained in a vulnerable position. There appeared to be no immediate threat to Senior Constable Zuanetti that would warrant his striking of the victim across the head nor was there any other need for the demeaning language directed towards someone who had already been subdued, was restrained and by any account of things was actually in a powerless position. [18] Senior Constable Zuanetti’s use of language on 17 December 2017 seems to indicate a lack of control and maturity. It appears that he was trying to belittle, threaten or intimidate GG. The transgressions of Senior Constable Zuanetti are serious in nature and I take this into account in coming to my decision about what is the appropriate sanction and outcome for this circumstance. Legislative Framework [19] I refer to the summary of the legislative framework given by the decision maker in Crime and Corruption Commission v Assistant Commissioner Brian J Wilkins and Detective Senior Constable Rebecca Tilse-Leckie:9 [5] By reference to sections 219G and 219H of the Crime and Corruption Act 2001 (Qld) and sections 17 to 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the present review is by way of rehearing on the merits and the purpose of the review is to produce the correct and preferable decision. By s 24 of the latter Act, the Tribunal may (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration by the decision-maker for the decision, with the directions the tribunal considers appropriate. [6] While the Tribunal must make an independent decision, where, as here, the parties jointly propose a sanction, the Tribunal ought not to depart from that proposal unless it falls outside the permissible sanction range for the conduct in question, given that the purpose of disciplinary proceedings is protective rather than punitive.10 In the ‘Findings and Reasons’ of the First Respondent, it is stated that the purpose of disciplinary actions, as reflected in ‘Service Policy’,11 is to maintain 8 Joint Submissions filed 1 September 2020, paragraph 32. 9 [2018] QCAT 338. -- 7 of 9 -- 8 public confidence in the QPS; maintain the self-esteem of members of the QPS; maintain confidence in the ability of the QPS to fulfil its statutory functions; maintain proper standards of conduct for members of the QPS (by specific and general deterrence principles); maintain the efficiency of the QPS; and protect the reputation of the QPS. [7] As to the disciplinary actions that are open, section 7.4(3) of the Police Service Administration Act 1990 (Qld) provides (no longer current version) Decision of the Tribunal [20] After considering the conduct of Senior Constable Zuanetti, his actions in admitting his wrongdoing, the nature of what he did, the mitigating factors, his service history and the material before the Tribunal, I am satisfied that the sanction proposed by the parties in the joint submissions does fall within the permissible sanction range. Therefore, I accept that it is appropriate to adopt the orders proposed by the parties. [21] I note the purposes of discipline within the meaning of section 219A of the Crime and Corruption Act that were referenced in the joint submissions as well as the need provide specific and general deterrence. I agree that it is my task to make the correct and preferable decision on the evidence that was before the decision maker. My decision must be independent; however, as stated in previous disciplinary proceedings, when parties jointly propose a sanction the Tribunal ought not to depart from the consent sanction unless it falls into a category outside the permissible range for similar conduct. This approach is to be coupled with the fact that the acknowledged purpose of disciplinary proceedings is not to be punitive towards the officer themselves but rather it is to be protective of society as a whole. [22] I agree that the sanction reflects what is necessary for a serious matter of misconduct such as this one. I also note the need for Senior Constable Zuanetti himself to be personally deterred from further actions like the ones that took place on 13 December 2017. There is also a need for a more general deterrence of other police officers so they can see that this is not acceptable behaviour. I have considered the acknowledgment by the Second Respondent of the seriousness of his own behaviour. [23] In my view, the correct and preferable decision is to apply a sanction in accordance with the joint submissions and proposed orders of the parties. Orders 1. The disciplinary sanction ordered on 22 April 2020 by the First Respondent is set aside; 2. The Second Respondent (Senior Constable Zuanetti) pay a fine of 16 penalty units at the rate of one (1) penalty unit per fortnight deductible from his salary commencing on the date of the next salary payment for Senior Constable Zuanetti that occurs after the date of the Tribunal’s decision until such time as the penalty is paid; and 3. Professional Development Strategy – The imposition of the following Professional Development Strategy under s 7.42-PSAA: completion of the following: (a) Professional Practice within the Queensland Police service CAP (QC1102); (b) Ethics & Ethical Decision-making OLP(QC1022-01-A); -- 8 of 9 -- 9 (c) Interpersonal Communication OLP (QCC008-01) 4. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the complainant person, referred to in these reasons and decision as GG. -- 9 of 9 --