Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169

CITATION: Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 PARTIES: Daniel Caesar (Applicant) v Deputy Commissioner Brett Pointing (Respondent) APPLICATION NUMBER: OCR007-16 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 26 May 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Deputy Commissioner Pointing is confirmed. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer had diagnosis of mental illness at time of charge – where multiple false and/or misleading statements made in applications for advertised vacancy – where admission of the further and better particulars of charge -whether diagnosis of mental illness provides defence against charge - whether diagnosis of mental illness can mitigate sanction Crime and Corruption Act 2001 (Qld) s 219BA, s 219G Police Service Administration Act 1990 (Qld) s 7.4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Aldrich v Ross [2001] 2 Qd.R 235 Briginshaw v Briginshaw (1938) 60 CLR 336 Compton v Deputy Commissioner Stewart [2011] QCAT 583 -- 1 of 14 -- 2 Deputy Commissioner Stewart v Dark [2012] QCA 228 Hardcastle v Commissioner of Police 53 ALJR 593 Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 86 Law Society of New South Wales v Farr [2009] NSWADT 108 Melling v O’Reilly [1991] MTA (unreported Appeal 6 of 1991) Murray v Deputy Commissioner Stewart [2011] QCAT 583 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1991] 67 ALJR 170 Re Bowen [1996] 2 Qd. R 8 Wadham v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 578 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Introduction [1] Mr Caesar, was a Senior Constable in the Queensland Police Service (‘QPS’). On 22 January 2016, Deputy Commissioner Brett Pointing (‘the Deputy Commissioner’) decided that a disciplinary charge (Matter 1) brought against Mr Caesar was substantiated, and was misconduct1. The sanction that the Deputy Commissioner ordered2 was that Mr Caesar be dismissed from the QPS effective at 4.00pm that day. Mr Caesar was dissatisfied with the decision and has applied to the tribunal to have it reviewed3. Jurisdiction [2] When reviewing a police disciplinary decision the Tribunal does so by way of a rehearing on the evidence given in the proceeding before the original decision-maker4, unless the Tribunal grants leave to adduce fresh 1 Police Service Administration Act 1990 (Qld) (PSA Act), s 7.4(2). 2 PSA Act, s 7.4(3). 3 Crime and Corruption Act 2001 (Qld) (CC Act), s 219BA, s 219G. 4 CC Act s219H (1) -- 2 of 14 -- 3 evidence5. The purpose of the review is to produce the correct and preferable decision6. [3] The primary purpose of misconduct and discipline proceedings within the police force have been identified as the protection of the public, the maintenance of public confidence and the maintenance of integrity in the performance of police duties7. [4] The purpose of public confidence was considered by Brennan J, as he then was, in the decision of Police Service Board v Morris8 when he stated: “The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the exercise of their powers. Internal disciplinary authority over members of the police force is a means- the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duties, nor abuse their powers.” [5] It is noted that the object of disciplinary proceedings is not to punish and is protective in nature9. [6] These purposes are reflected in the objects of the Police Service (Discipline) Regulation 1990 (Qld) at s 3. [7] The tribunal in externally reviewing disciplinary decisions is expected to bring a perspective from the public point of view10. Considerable respect though should be paid to the perceptions of the decision-maker as to what is needed for the maintenance of internal discipline. It is appropriate for the Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.11 [8] The Tribunal in hearing a review application in regard to police misconduct must first determine whether the charges are substantiated and whether they constitute police misconduct and then consider the appropriate sanction. [9] Police Misconduct is defined in the Dictionary Schedule 2 of the CC Act to mean Conduct, other than corrupt conduct, of a police officer that— (a) is disgraceful, improper or unbecoming a police officer; or 5 CC Act, s 219H(2). 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1). 7 Aldrich v Ross [2001] 2 Qd. R. 235 at 257. 8 (1985) 156 CLR 397. 9 Hardcastle v Commissioner of Police 53 ALJR 593 at [11], Re Bowen [1996] 2 Qd. R 8. 10 Aldrich v Ross [2001] 2 Qd. R. 235 at 257. 11 Ibid. -- 3 of 14 -- 4 (b) shows unfitness to be or continue as a police officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. [10] The Tribunal must be satisfied on the balance of probabilities as to whether the charges are substantiated12, that requires that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal and the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are consideration which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. [11] The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. For example where fraud was alleged clear or cogent evidence was required and this was not directed to the standard of proof but as reflective of a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct13. [12] In regard to the penalty to be imposed upon review, “if the misconduct tribunal has the same view of the facts and inferences as the original tribunal, it would be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the misconduct tribunal.”14 [13] Thomas J has made it clear that in regard to penalty while considerable respect should be paid to the original decision maker. It must be the Tribunal’s decision.15 [14] If the Tribunal is satisfied Mr Caesar’s conduct is police misconduct the Tribunal would then normally address the question of sanction. The Tribunal has similar powers to the decision maker in regard to the sanctions which may be ordered.16 [15] In this case there is a preliminary question to be determined, that is whether Mr Caesar can have the misconduct allegation substantiated against him, and then be sanctioned in relation to the substantiated matter, in circumstances where the medical evidence from his psychiatrist is he did not appreciate the wrongness of his actions (which are alleged to constitute the misconduct) as he was suffering from a mental illness at the time of committing those actions. 12 Briginshaw v Briginshaw (1938) 60 CLR 336. 13 Neat Holdings Pty Ltd v Karajan Holding Pty Ltd [1991] 67 ALJR 170. 14 Aldrich v Ross [2001] 2 Qd. R 235 at 258. 15 Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 at [30] and Murray v Deputy Commissioner Stewart [2011] QCAT 583 at [40]. 16 CC Act, s 219I. -- 4 of 14 -- 5 The Disciplinary charges [16] The disciplinary charge of misconduct was as follows:- Matter 1: That between 27 July 2010 and 18 February 2014 at Brisbane or elsewhere your conduct was improper in that you knowingly provided false and/or misleading information in your applications for advertised positions. (Section 1.4 and 7.4 of the Police Service Administration Act 1990, s.9(1)(f) of the Police Service (Discipline) Regulations 1990 and sections 2,10 and 12 of the Standard of Practice as contained in the Human Resources Policies.) Further and better particulars: Investigations have identified that: You submitted 46 applications for various advertised positions; In those applications you provided examples alleging work you performed which had in fact been copied from the applications of eight other police officers; You changed the various dates, comments, names and locations of the other officer’s examples alleging you had performed the work or attended the incidents and the relevant comments related to yourself; You used these examples on 574 occasions in your applications; You falsely stated in your applications: In response to essential selection criteria regarding personal integrity that you had ‘no substantiated complaints’ and never having ‘behaved’ in a manner that could be construed as misconduct; You were studying or had completed a Bachelor of Science at Curtain University; You were a Justice of the Peace in Queensland; You were a Senior Constable with the New South Wales Police Force; You had performed as an Acting Sergeant with the New South Wales Police Force; and When providing examples addressing key selection criteria: that you had performed various duties and undertaken specific roles with the New South Wales Police Force and the Queensland Police Service. Substantiation [17] Mr Caesar admitted the further and better particulars but denied the alleged actions constituted misconduct on the basis that he had a diagnosed mental condition at the relevant time. -- 5 of 14 -- 6 [18] The following history was provided on Mr Caesar’s behalf: a) In July 2010, a resume for the position of Sergeant, manager of the Ayr PCYC was submitted by Mr Caesar (“the Ayr PCYC resume”). That resume contained material which was in part plagiarised from another officer’s resume. The plagiarism particularised examples the applicant used to support his statements he satisfied the relevant key election criteria for promotion to the Ayr PCYC. The officer from whom he plagiarised was a referee for the applicant in respect to this resume and promotion, and was required to supply a referee report after being provided a copy of the Applicant’s resume. No allegations of plagiarism or dishonesty were raised at the time by any person, including the referee, and the Applicant was successful in his application, being promoted to Sergeant. b) In May 2013, Mr Caesar was demoted to the rank of Senior Constable following finalisation of unrelated disciplinary matters. As a consequence of that hearing, Mr Caesar was removed from the Ayr PCYC and subsequently commenced duty as a Senior Constable in general duties at Ayr Police Station. c) Between May 2013 and 18 February 2014, Mr Caesar performed duties in a full time capacity at Ayr Station. During that period: i) He submitted a further 45 applications for various advertised positions. ii) In those applications, on 574 occasions he provided examples alleging work he performed but which was examples of work performed by eight other police officers; iii) In those applications he attributed examples of work performed and the relevant comments of others to his own performance. iv) He falsely stated in various applications: (1) In response to various selection criteria regarding personal integrity that he had no substantiated complaints’ and never having ‘behaved in a manner that could be construed as misconduct.; when Deputy Commissioner Barnett substantiated a matter of misconduct against him on 22 May 2013 and imposed a sanction of demotion; (2) He was studying or had completed a Bachelor of Science at Curtain University (when he was neither studying for, nor had he completed any such degree); (3) He was a Justice of the Peace in Queensland (when he was not); (4) He was a Senior Constable with the New South wales Police Force (when he was only ever a constable); (5) He had performed as an acting sergeant with the NSW Police Force (when he had not performed such duties). [19] Mr Caesar was diagnosed by Psychiatrist, Dr Likely as suffering an Adjustment Disorder with Depressed Mood. The Doctor opined this disorder -- 6 of 14 -- 7 arose in part as a consequence of, and following the May 2013 discipline action (including its lead up investigation) and workplace bullying post that discipline action at Ayr Station. [20] It was submitted on behalf of Mr Caesar that the Doctor held the opinion the condition most likely prevented Mr Caesar from fully appreciating the wrongness of his actions when submitting the 45 resumes between May 2013 and February 2014. That the Doctor also opined Mr Caesar was suffering from depression when he submitted the Ayr PCYC resume following a marriage breakdown which would have prevented him appreciating the seriousness of his actions in submitting that resume at the time. [21] The Deputy Commissioner’s representative acknowledged a report of Dr Likely dated 10 September 2014 outlining Mr Caesar’s medical condition and summarised the contents of a further short report from Dr Likely dated 12 November 2015 which was in the terms set out above. [22] The Deputy Commissioner also included a short report Dr Likely sent to Mr Troy Schmidt, Barrister for Mr Caesar, by email dated 5 November 2015 which stated: Further to my letters regarding Mr Dan Caesar, I hereby confirm:- Mr Caesar has been suffering from a work related injury, namely Adjustment Disorder with Depressed Mood. This injury would have impacted on Mr Caesar’s ability to appreciate the wrongness of the submission of the misleading applications to ‘escape Ayr’. Mr Caesar’s mental condition would have compromised his capacity to fully appreciate that his actions were wrong. [23] It is noted on behalf of Mr Caesar that it is not suggested that Mr Caesar did not appreciate his submission of the Ayr PCYC application was wrong and it is accepted that the submission in July 2010 of the Ayr PCYC resume constitutes misconduct and that the discipline matter can be substantiated on the basis of that resume alone. [24] The conduct which is in dispute is therefore the submission between May 2013 and 18 February 2014 of the additional 45 applications. Mr Caesar accepts that the conduct occurred, it is denied that the conduct constitutes misconduct because at the time Mr Caesar was suffering a mental illness. [25] Having regard to the definition of Misconduct, it was submitted on behalf of Mr Caesar that the decision of Dr Forbes in Melling v O’Reilly [1991] MTA (unreported Appeal 6 of 1991) shows that “there is a strong presumption that misconduct proscribed by law involves a culpable state of mind”. In that case the only charge was that the police officer made a false report without an assertion that it was made wilfully. It was held that the appellant could not lawfully be found guilty of misconduct upon the charge laid against him. Dr Forbes stated that the charge “is not only devoid of any assertion of -- 7 of 14 -- 8 dishonesty, it also lacks any suggestion of negligence, let alone recklessness” [26] The decision in Re McNaghten’s Case (1843) 8 ER 718, which still summarises the legal position in criminal trials in Queensland was cited on behalf of Mr Caesar , in that case it was held: The jurors ought to be told that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the grounds of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from the disease of the mind, as to not know the nature and quality of the act he was doing; or if he did not know it, that he did not know he was doing was wrong. [27] It was submitted on behalf of Mr Caesar that misconduct can only be committed in circumstances where the actions of the subject officer are as a consequence of a guilty mind in that they must be intentional, negligent or reckless. [28] In the case of Mr Caesar it was submitted that the medical evidence is such that in regard to the relevant resumes, Mr Caesar, due to a mental illness was incapable of fully appreciating the wrongness of his actions. That the only evidence in relation to Mr Caesar’s state of mental health is that of Dr Likely and his evidence is clear. In the circumstances Mr Caesar did not appreciate the wrongness of his actions. [29] Accordingly, while he did the wrong acts constituting the further and better particulars supporting the misconduct charge, he did not and could at the time appreciate his conduct amounted to misconduct. [30] It is submitted such an approach is consistent with the definition of misconduct and the purposes of police discipline. Right minded members of the public cannot hold a police officer’s actions as improper or not meeting appropriate standards in circumstances where that officer is unable to control and/or appreciate their actions. [31] It is submitted that it is clear from the case law and statute that the purposes of discipline are not to punish, but rather are directed at maintaining community (and fellow officer) confidence in the members of the police service as they go about their duties. The purposes are directed towards disciplining officers for intentional misconduct or recklessness in respect to whether their actions amount to misconduct. There is no purpose in disciplining an officer who is sufficiently ill from a mental condition as to not appreciate their actions are wrong. It is submitted the QPS has alternative processes pursuant to the statute for dealing with such cases. PSAA s 8.3, unfitness for duty on medical grounds. [32] The submissions on behalf of the Deputy Commissioner note Mr Caesar’s submissions made in reliance on Melling v O’Reilly and state that however the observations are irrelevant when regard is specifically had to Mr -- 8 of 14 -- 9 Caesar’s circumstances, namely admitting all the particulars the subject of the charge. [33] It is submitted for the Deputy Commissioner that Mr Caesar’s contention that he did not and could not at the time appreciate his conduct amount to misconduct conflates matters. That it is for the Deputy Commissioner to determine whether the nature of the conduct in question could amount to misconduct and he did this. It is not for Mr Caesar to now “assess” how the conduct in question could have been thought to be seen and the “level” of that conduct in the context of the disciplinary hearings. [34] The Deputy Commissioner’s submits that the opinion of Dr Likely only goes so far to conclude that Mr Caesar did not fully appreciate the wrongness of his actions. [35] The Deputy Commissioner cites the decision of Demack J in Re Bowen highlighting the effect of a police officer lying in the erosion of public confidence and that it may destroy the trust other members of the police service should have in him. [36] It is submitted by the Deputy Commissioner that the fact that the conduct occurred when the applicant was suffering from a medical condition may give some context to understanding his conduct. That said, however, it does not bear strongly on the conclusions capable of being drawn about his character and integrity: Deputy Commissioner Stewart v Dark [2012] QCA 228 at [35]. [37] The full quotation from Muir J is as follows: “The fact that the conduct occurred when the respondent was suffering from stress may engender some understanding of his conduct and sympathy for him, but it does not bear strongly on the conclusions capable of being drawn about his character and integrity, the great majority of people behave with propriety and integrity in the absence of stress, adversity or temptation. However, it is often when a person is tested by such conditions and circumstances that his or her character is fully revealed. Police officers are commonly placed in situations of considerable stress and may also be subjected to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.” [38] It is then submitted that the said conduct was ongoing, was plainly dishonest and on occasions disadvantaged Mr Caesar’s QPS colleagues who were also applicants for positions. The conduct was one for personal gain and to the detriment of others. Discussion [39] The disciplinary charge in this case states “your conduct was improper in that you knowingly provided false and/or misleading information in your applications for advertised positions”. The charge therefore does not suffer the defect that arose in Melling v O’Reilly. In admitting the further and better -- 9 of 14 -- 10 particulars Mr Caesar has admitted that he knew that he was providing false and/or misleading information in regard to 46 separate applications. I am satisfied on Mr Caesar’s admission of the further and better particulars that Matter 1 is substantiated. [40] He submits that this cannot constitute misconduct because at the time he was suffering a mental illness and he did not know that what he was doing was wrong. [41] Dr Likely’s medical evidence is the only evidence as to Mr Caesar’s mental health at the time of him submitting the applications for advertised positions. That evidence is that Mr Caesar was suffering an adjustment disorder with depressed mood. In the email of 5 November Dr Likely stated “Mr Caesar’s mental condition at the time would have compromised his capacity to fully appreciate that his actions were wrong”. I accept Dr Likely’s evidence. [42] The submissions on behalf of Mr Caesar though go to say “that he could not appreciate his conduct amounted to misconduct and that he was unable to control and/or appreciate his actions”. The Deputy Commissioner’s submissions make the point that this goes beyond Dr Likely’s opinion and that it is for the Deputy Commissioner, now the Tribunal, to assess whether the conduct amounts to misconduct. [43] I note that Muir J was in his statement above considering the factors to be taken into account when determining whether an act of dishonesty constituted misconduct he outlined these as “the nature of the act and the circumstances in which it took place with a view to determining whether the conduct reveals such a lack of integrity or want of character as to substantially erode the trust and confidence that the officers colleagues and/or the members of the public are entitled to repose in him or her”17. [44] The act in question here is that Mr Caesar over a period of many months submitted 45 applications for advertised vacancies within the QPS which included material which he knew to be false and he had done so on 574 occasions within the documents. He had taken examples form other officers work and appropriated them as his own and provided false details about his career accomplishments his academic record and s to whether he had any substantiated complaints. Mr Caesar accepts that he knew these applications contained false and misleading information. [45] In and of themselves there is a sustained and calculated level of dishonesty involved of making these applications with the goal of promotion or at least transfer away from his current posting. It has not been suggested that Mr Caesar innocently made these false statements they required effort from him to appropriate as his own the work of other officers or they were about matters where he knew the truth in regard to his record and he did not tell the truth. 17 Deputy Commissioner Stewart v Dark at [33]. -- 10 of 14 -- 11 [46] The circumstances that surround the doing of these acts according to Dr Likely is that Mr Caesar had been disciplined in May 2013 and demoted from Sergeant to Senior Constable and had experienced workplace bullying which resulted in him suffering an adjustment Disorder with Depressed Mood. One of the effects of the adjustment disorder with depressed mood was that Mr Caesar did not fully appreciate the wrongness of his actions in submitting the 45 applications for advertised vacancy which were false and or misleading. [47] This is not a case where a defence of insanity is made available. There is no evidence that he did not know his actions were wrong as asserted on his behalf. It is a question of degree, he did not fully appreciate his actions were wrong. [48] He repeated the act 574 times in 45 applications and the question is whether the fact he had a workplace related mental condition which affected his moral compass can be sufficient to outweigh the expectation within the police service and the general public that he would always act with integrity. [49] It is not as submitted for Mr Caesar a question of whether or not he knew that his conduct amounted to misconduct. There is no requirement that he needed to appreciate that his actions were not only wrong but also that they constituted misconduct. [50] Clearly in this case Mr Caesar has not with acted integrity on numerous occasions in his dealings with superior officers. One can sympathise with his position in terms of him being in a position where he became unwell as a result of his circumstances at his police station. His actions though were premeditated and repeated. I accept that he did not fully appreciate the wrongness of making these applications. He was though a serving police officer who knew that he was expected to act with integrity at all times. In a similar manner to the situation in Deputy Commissioner v Dark, Mr Caesar’s integrity was tested in the circumstances he found himself. Unfortunately it resulted in him resorting to dishonesty on a large scale as means of dealing with his situation. While not fully appreciating the wrongness of his actions his actions were sophisticated and repeated. [51] I agree that the purpose of police discipline is not to punish it is to ensure that the police force and the community have confidence that police officers will act with integrity. Mr Caesar while not fully appreciating that his actions were wrong acted dishonestly on many occasions. He knew that he was making false and or misleading statements. In his case it is the number of these instances of dishonesty and the effort he put into which weighs against the mitigation which could be expected having regard to his mental health condition. [52] I am satisfied that as a result Mr Caesar’s actions are misconduct as they are improper being dishonest in his dealings with his superiors in regard to the selection committees to whom he made the applications and that these actions show that he has not acted with the integrity that the community would expect of someone in all of his circumstances. -- 11 of 14 -- 12 Sanction [53] It was accepted on behalf of Mr Caesar that if the Tribunal was satisfied that his conduct in regard to the additional 45 applications constituted misconduct that with the misconduct in regard to the application for the position in Ayr where he was the successful applicant then the sanction of dismissal which was ordered by the Deputy Commissioner was appropriate. It is accepted on behalf of Mr Caesar that the correct and preferable decision of the Tribunal would be to confirm the Deputy Commissioner’s decision. [54] As discussed earlier if the Tribunal makes the same finding on the facts as the Deputy Commissioner then it should have due regard to the decision of the Deputy Commissioner on sanction. [55] The reasons of the Deputy Commissioner in regard to sanction summarises Mr Caesar’s service record and disciplinary history. They note Mr Caesar’s not guilty plea in regard to the applications submitted while in Ayr as a result of him suffering a work related injury, Adjustment Disorder with depressed mood. Though he acknowledges there is acknowledgment the application for the position as sergeant of the Ayr PCYC contained false information. [56] The Deputy Commissioner took cognisance of the fact that Mr Caesar asserted in his submissions that he had demonstrated high degree of insight and remorse for his actions, where he made full admissions to his actions during his disciplinary interview. Further that he submitted that he fully appreciated the seriousness of his conduct and apologised for his actions. [57] The Deputy Commissioner states that “having carefully considered the gravity of your conduct, I find your actions with respect to these Matters have completely undermined my confidence in your suitability to remain a member of the Service. I consider your conduct is in stark contradiction to the standards of behaviour expected of any officer and warrants a sanction that signifies strong disapproval and which serves as a deterrent to you and others.”18 [58] The Deputy Commissioner found that “Mr Caesar’s actions from the initial application for the sergeant position at the Ayr PCYC demonstrate your propensity to lie, to promote yourself through dishonesty and untruths designed to falsely promote your merit which was the case in this selection process the outcome of which resulted in your appointment to the position. The remaining applications in my view serve to demonstrate your propensity to continue with a similar course of dishonest conduct over an extended period of time. The use of dishonest use of colleague’s work achievements 18 Statement of reasons page 8. -- 12 of 14 -- 13 to pursue personal gain on your part is conduct that cannot be tolerated in a police officer.”19 [59] The Deputy Commissioner considered various decisions that were referred by Mr Caesar in Wadham, Dark and Kennedy and attempts made by Mr Caesar to distinguish from his own conduct. The Deputy Commissioner finds “Your actions in my view, are far more serious and far more significant in terms of professional conduct than a simple circumstance of misleading information. In your applications you have used other officer’s examples, intentionally misrepresented your length of service, rank, qualifications and importantly, the fact that you had been demoted as a result of previous serious misconduct.”20 [60] The Deputy Commissioner noted the decisions of Law Society of New South Wales v Farr21 where it was sated ‘character is tested not by what one does in good times but in bad” and referred to Muir J’s decision in Dark at [33], [35] and [36] discussed above in regard to Mr Caesar’s submissions in respect of the circumstances of stress which influenced his actions. He states “I am unequivocally left in no doubt your actions amount to misconduct. Your dishonesty in my view is directly related to your work, and is conduct that breached the trust bestowed in you as a police officer eroding any confidence that your colleagues or a member of the community could have in you as a police officer.”22 [61] The Deputy Commissioner having determined that the conduct amounted to misconduct and had regard to the comments in Police Service Board v Morris23 that “the sanction must therefore reflect public disapproval of the conduct subject of the current determination and act as a deterrent to both yourself and other police officers who may aver to similar conduct.” [62] He then stated “having carefully considered the gravity of your conduct, I find the sanction for this matter is dismissal. Your dishonest conduct was ongoing, it was not a ‘one off’ incident. Your personal and professional judgment was clearly affected for some time. Consequently, after consideration of all materials before me, I find there is a valid reason for dismissal and I believe that it is just, reasonable and not harsh under the circumstances”24. [63] I agree with the Deputy Commissioner that Mr Caesar’s misconduct was very serious and over a prolonged period of time. It is significant that he used false and misleading statements in his application to obtain the promotion to Ayr and then the same pattern of behaviour on many different occasions in an attempt to leave Ayr. When he was tested he resorted to dishonesty in an attempt to alleviate his position this cannot be tolerated in 19 Statement of reasons page 9. 20 Statement of reasons page 10. 21 [2009] NSWADT 108 at [38]. 22 Statement of reasons page 11. 23 (1985) 156 CLR 397 at 412. 24 Statement of reasons page 11. -- 13 of 14 -- 14 a police officer and the police service and the general public would expect that despite his mental health issues he would be able to deal with the matter in a way which did not damage his integrity to the extent it was here. [64] I agree that for the sanction to fulfil the requirements of disapproval and deterrence it needs to be the strongest sanction of dismissal so that it is made clear that this type of conduct will not be tolerated in the police service. [65] The Tribunal may suspend the sanction in accordance with s219L of the CC Act. The Deputy Commissioner gave consideration to suspending the sanction and found that it was not justified. [66] The submissions on behalf of Mr Caesar were as mentioned were that if misconduct is found then the correct and preferable decision of the Tribunal would be to confirm the Deputy Commissioner’s decision. I take this to mean that it is sought to disturb the decision in regard to suspension. [67] Having regard to the circumstance where there has been such a large number of instances of dishonesty over a number of years I also do not consider that it is appropriate to suspend the sanction. Order [68] The decision of Deputy Commissioner Pointing is confirmed. -- 14 of 14 --