Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37

CITATION: Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37 PARTIES: Crime and Corruption Commission (Applicant) v Assistant Commissioner Alistair Dawson Andrew Jacob Bayley (Respondents) APPLICATION NUMBER: OCR078-16 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 1 February 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision about sanction made by Assistant Commissioner Dawson is set aside. 2. The following sanction is substituted: (i) Andrew Jacob Bailey is reduced from pay-point 1.4 to pay-point 1.2 for the period of 12 months from 9 August 2016; (ii) Subject to completion of the usual industrial requirements, Andrew Jacob Bailey may progress to pay- point 1.5 from 9 August 2017. CATCHWORDS: DISCIPLINE- POLICE – SANCTION FOR MISCONDUCT- where officer used excessive force against a prisoner by striking him in the face with a closed fist- where officer remorseful and proactive in admitting and dealing with the conduct- where junior officer with otherwise unblemished service record- -- 1 of 6 -- 2 where parties make joint submissions as to proposed sanction- whether sanction within permissible range Crime and Corruption Act 2001 (Qld), s 219A, s 219G, s 219H Police Service Administration Act 1990 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20 Police Service (Discipline) Regulations 1990 (Qld), reg 3 Belz v Assistant Commissioner Wilson [2011] QCAT 632 Belz v Assistant Commissioner Wilson [2012] QCATA 185 Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488 Hardcastle v Commissioner of Police (1984) 53 ALR 593 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 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). [1] Mr Jacob Andrew Bayley is a police constable. He faced a disciplinary charge under the Police Service Administration Act 1990 (Qld) (PSA Act). Assistant Commissioner Alistair Dawson (the Assistant Commissioner) heard the allegation of misconduct. He found, on the basis of admissions made by Mr Bayley, that the allegations were substantiated and amounted to misconduct. Although Mr Bayley admitted the conduct, the Assistant Commissioner was satisfied that the evidence, in any event, supported the finding. [2] The substantiated charge (except that I have de-identified the prisoner’s name) was specified as follows: Matter 1: That on 25 October 2015 at Rockhampton your conduct was improper in that you used excessive force against (a prisoner) in the Rockhampton Watchhouse. Further and better particulars: Investigations have identified that: -- 2 of 6 -- 3  On 25 October 2015 you were performing duty in the Rockhampton Division;  At about 2.15 am you transported (a prisoner) to the Rockhampton Watchhouse;  At about 3.00 am while you were assisting in lodging (the prisoner) in a cell, he spat out through the closing door of the cell;  You responded by entering the cell and striking( the prisoner) to the face with a closed right fist. [3] In particular, Assistant Commissioner Dawson found that on 25 October 2015, Mr Bayley assisted another officer with the movement of an abusive, but compliant, prisoner to a cell. The officers placed the prisoner in a cell and then withdrew. As the door to the cell was closed, the prisoner lunged forward and spat out of the doorway. The spittle struck the other officer in the face and Mr Bayley in the arm. [4] Mr Bayley immediately opened the door and entered the cell. He then struck the prisoner in the face with his closed right fist. A scuffle occurred before Mr Bayley could be separated from the prisoner. [5] The Assistant Commissioner decided to impose a sanction of two (2) penalty units on Mr Bayley for the misconduct. [6] The Crime and Corruption Commission (CCC) filed an application in the Tribunal for review of the Assistant Commissioner’s decision on sanction, submitting that the sanction imposed by the Assistant Commissioner did not reflect the seriousness of the conduct engaged in by Mr Bayley; does not properly reflect the purpose of discipline proceedings under s 219A of the Crime and Corruption Act 2001 (Qld) (CCC Act); and is disproportionate to the misconduct involving an excessive and inappropriate use of force. [7] All three parties to the proceeding submit that the appropriate sanction is reduction of Mr Bayley’s pay point Constable 1.4 to Constable 1.2, from 9 August 2016 for 12 months. Subject to Mr Bayley’s completion of the usual industrial requirements to progress to pay point 1.5, parties submit that Mr Bayley should be eligible to move to pay point 1.5 from 9 August 2017. The parties have provided joint submissions in support of the proposed sanction. [8] Pursuant to sections 219G and 219H of the Crime and Corruption Act 2001 (CCC Act) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal’s function on the review application is to make the correct and preferable decision. The decision must be the Tribunal’s independent decision, although in an appropriate case it may give due regard to the views of the decision-maker about what is required for internal police discipline. -- 3 of 6 -- 4 [9] The purpose of police disciplinary proceedings in Queensland encompasses deterrence, protection of the public,1 maintenance of proper standards2 and public confidence in the police service.3 The sanction imposed must reflect appropriate disapproval.4 As the High Court has said, the effectiveness of police in protecting the public relies upon public confidence in the integrity of its members, and that internal discipline is the primary means of ensuring individuals do not jeopardise public confidence.5 [10] Disciplinary proceedings cannot be resolved by consent or consensually. The Tribunal must exercise its discretion in determining the proceeding. This is so, irrespective of whether the Tribunal decides to confirm or amend the original decision, and whether, if amended, any amendments to it are large or small in nature, and whether or not the parties filed joint or individual submissions. [11] That said, it has been held in disciplinary proceedings that where parties jointly propose a sanction, the Tribunal ought not depart from the proposed sanction unless it falls outside of the permissible range for the conduct in the particular circumstances.6 [12] The parties submissions refer to other police misconduct decisions. In particular, three decisions which are discussed briefly in the following paragraphs. [13] In Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2),7 misconduct was substantiated against a police constable, who was at the time at pay-point 1.6 (although by the time of sanction he was a senior constable at pay-point 2.3). The disciplinary charge relating to excessive use of force arose out of the officer’s restraint of a person who had entered a police beat to make an enquiry. As he was leaving, the person had called the officer an offensive name. The officer placed the person in a lateral vascular neck restraint and forced him against a motor vehicle, causing his head to hit the vehicle. The officer did not dispute the charge. [14] On review, the Tribunal imposed a reduction from pay point 2.3 to pay point 2.1 for six months taking into account all of the circumstances. The officer demonstrated insight and had good prior and subsequent conduct. The 1 Aldrich v Ross (2001) 2 QD R 235, 247; see also Police Service (Discipline) Regulations 1990 (Qld), Regulation 3. 2 Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597; see also Police Service (Discipline) Regulations 1990, Regulation 3. 3 Aldrich v Ross (2001) 2 QD R 235, 247. 4 Queensland Police Service v Compton (No 2) [2011] QCATA 246, [25]. 5 Police Service Board v Morris (1985) 156 CLR 397 at 412. 6 Medical Board of Australia v Martin [2013] QCAT 376, at paras [91]-[93]; Medical Board of Australia v Grant [2012] QCAT 285, at paras [55], [60] and [63]. The principle has been applied in other police disciplinary proceedings. See for example, Crime and Misconduct Commission v Acting Deputy Commission Barron & Alexander [2014] QCAT 241, at para [11]. 7 [2014] QCAT 488. -- 4 of 6 -- 5 officer had completed 61/80 hours of community service initially imposed on the officer by the Deputy Commissioner (as a condition of suspension of a reduction from senior constable 2.2 to constable 1.6 for 12 months). There were very significant delays in the matter whereby reduction in pay- point had a greater financial impact (than would have been the case when the conduct occurred). [15] In the matter of Belz v Assistant Commissioner Wilson [2011] QCAT 632 and Belz v Assistant Commissioner Wilson [2012] QCATA 185, a more senior officer, a police sergeant, dragged a handcuffed prisoner by the hair in a holding cell. The officer was demoted from Sergeant 3.3 to Senior Constable 2.9 for 12 months. [16] In McKenzie v Acting Assistant Commissioner Tony Wright,8 a police sergeant inappropriately used excessive force in a private off-duty dispute with another officer with whom he had previously had a brief sexual involvement. In particular, they fought and he then forced her face down onto a bed with his knees in her back, then pulled her hands behind her back and handcuffed her. As a result of the incident, she sustained a comminuted fracture of the right eye area, swelling and bruising on the face. The officer was not remorseful. For the misconduct, the sergeant was reduced in rank from pay-point 3.5 to senior constable 2.9 for 12 months. [17] The rationale for the proposed sanction for Mr Bayley is explained by the parties’ submissions as follows. Mr Bayley was a relatively junior officer at the time, having been inducted into the police force some two years prior to the incident and was subject to provocative behaviour by the prisoner. Nevertheless, police officers are required to be restrained and professional when they encounter behaviour of this nature. The parties acknowledge that the nature of the misconduct by Mr Bayley was serious. In the circumstances, they submit that the two penalty unit sanction imposed by the Assistant Commissioner was inadequate and did not reflect the seriousness of the force used by Mr Bayley. [18] Having regard to circumstances and the comparative judgments, they submit that the sanction proposed is appropriate, noting that there will be financial detriment to Mr Bayley in terms of both salary and superannuation contributions for the twelve month period during which he is at pay point 1.2. [19] For completeness, I note that Mr Bayley has no prior substantiated disciplinary matters on his service record. Nor is there evidence of prior commendations, awards or favourable records or comments from community members. Also, it is relevant that Mr Bayley immediately admitted the misconduct, demonstrating insight into the seriousness of the matter. He also arranged for a one-on-one training session with an instructor to improve his responses in such circumstances. He also 8 [2011] QCATA 309, see especially paras [39] – [41]. -- 5 of 6 -- 6 provided references from supervisors indicating that the incident was a one- off event and unlikely to be repeated. [20] The proposed sanction is not inconsistent with Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2). That case also involved a police constable, who had responded to undesirable behaviour by using excessive force. It is apparent from the reasons for the Tribunal’s decision that the parties acknowledged that a longer 2 pay-point reduction for 12 months (rather than 6 months) would have been appropriate, if not for the particular lengthy delay and part- completion of the community service. The Tribunal imposed the sanction proposed in the circumstances. [21] Belz and McKenzie both concerned more senior officers. They are therefore less helpful, but the proposed sanction here is not inconsistent with the sanctions imposed in those instances, given the leadership role played by sergeants in the police service makes the misconduct more serious in those cases. [22] That said, the misconduct under consideration here is serious. Nevertheless, in light of Mr Bayley’s relative inexperience; immediate recognition of the inappropriateness of his behaviour; his actions to admit and address the behaviour; as well as his otherwise unblemished service record, I accept that the proposed sanction is within the permissible sanction range for the conduct in the circumstances. [23] I am satisfied that it is appropriate to make orders as proposed by the parties, and that the orders sought are the correct and preferable decision in the review. [24] I make orders accordingly. -- 6 of 6 --