Crime and Corruption Commission v Acting Assistant Commissioner M.J. Keating & Anor [2015] QCAT 176

CITATION: Crime and Corruption Commission v Acting Assistant Commissioner M.J. Keating & Anor [2015] QCAT 176 PARTIES: Crime and Corruption Commission (Applicant/Appellant) v Acting Assistant Commissioner M.J. Keating Michael Ivan Sperling (Respondents) APPLICATION NUMBER: OCR280-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 18 May 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Acting Assistant Commissioner M.J. Keating dated 3 December 2014 is set aside. 2. Senior Constable Sperling is demoted from Senior Constable 2.9 to Constable 1.6 but such demotion is wholly suspended for a period of 12 months commencing 3 December 2014. CATCHWORDS: OCCUPATIONAL REGULATION – POLICE – where officer on traffic interception duties – where car failed to stop – where officer threw torch at car – where second car failed to stop – where officer discharged firearm – where officer reprimanded and Service imposed a reduction of one pay point – whether sanction adequate 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 [1] On 22 June 2012, Senior Constable Sperling was on traffic duty at a service road adjacent to the Bruce Highway at Beerburrum. Part of his -- 1 of 6 -- 2 duties was to intercept vehicles identified as stolen by an Automatic Number Plate Recognition Unit (ANPR unit). [2] Just after midnight, the ANPR unit advised officers that an approaching car might have been stolen. Senior Constable Sperling stepped out onto the road to direct the car to stop. The car did not stop. Senior Constable Sperling threw his torch at the car as it passed through the interception site. Later, the torch was found inside the car, which was stolen. [3] Six minutes later, the ANPR unit identified another car approaching which might have been stolen. Again, it notified the officers. Again, Senior Constable Sperling stepped onto the road to direct the car to stop. Again, the car did not stop. [4] This time, however, Senior Constable Sperling drew his firearm and fired at the car. One bullet hit the driver’s side rear door. Two bullets hit the rear of the car. One of those bullets passed through the boot, perforated the rear seat, passed through the cabin between the car’s passengers and perforated an air vent on the dashboard. [5] Senior Constable Sperling was charged with two counts of improper conduct: 1. Using an inappropriate use of force option; and 2. Recklessly discharging his Service firearm at a vehicle. [6] Acting Assistant Commissioner M.J. Keating was satisfied that the charges were substantiated and constituted a breach of discipline. For the charge of using an inappropriate use of force option, he imposed a reprimand. For the charge of recklessly discharging a Service firearm at a vehicle, he imposed a reduction in pay point from Senior Constable 2.9 to 2.8 without the ability to progress to a higher pay point for a period of 12 months. Her also directed Senior Constable Sperling undertake a minimum of three sessions with the Road Policing Command Human Services Officer to discuss and recognise the gravity of the potential consequences of his conduct. [7] The Crime and Corruption Commission (CCC) filed an application in the tribunal to review that decision. It submitted that Senior Constable Sperling’s conduct was misconduct, not a breach of discipline. It submitted that the sanctions imposed did not reflect the purpose of disciplinary proceedings, were disproportionate to the evidence, did not reflect the seriousness of Senior Constable Sperling’s conduct and did not reflect the potential danger to which members of the public were exposed by Senior Constable Sperling’s conduct. [8] Sections 219G and 219H of the Crime and Corruption Act 2001 (Qld) states that, on review, the tribunal must make its own decision based on the evidence that was before Acting Assistant Commissioner M.J. Keating. -- 2 of 6 -- 3 In the exercise of its discretion, the tribunal does not need to find an error in Acting Assistant Commissioner M.J. Keating’s decision.1 [9] The application for review came before me in a compulsory conference on 25 March 2015. The parties have consented to me deciding the application. They have agreed that the decision of Acting Assistant Commissioner M.J. Keating should be set aside and they have proposed alternative sanctions. [10] I appreciate the parties’ cooperation in reaching consensus. However, the parties understand that I must be satisfied that the proposed sanctions are, in fact, the correct and preferable decision. [11] On any view, Senior Constable Sperling’s actions were serious. The parties agree that Senior Constable Sperling’s actions were not consistent with the Queensland Police Service Operational Procedure Manuals. The parties also agree that no Queensland Police policy or procedure provided a justifiable basis for Senior Constable Sperling’s actions. Legislative background [12] Section 615 of the Police Powers and Responsibilities Act 2000 (Qld) allows an officer to use force reasonably necessary to exercise a power under the Act. However, s 615 does not authorise the use of force that may cause grievous bodily harm or death. [13] Section 616 of the Police Powers and Responsibilities Act 2000 (Qld) deals with the use of force against individuals in critical situations. A police officer must reasonably suspect that a person is committing, or is about to commit an offence punishable for life imprisonment2 or that a person is doing, or about to do, something that was likely to cause grievous bodily harm that could not be prevented in any other way3. [14] Section 283 of the Criminal Code provides that use of more force than is justified by law under the circumstances is unlawful. [15] Section 14.7 of the Operational Procedures Manual provides that officers should refrain from using firearms in the performance of their duties unless there exists an apparently unavoidable necessity which would be justified at law. In particular, officers should not fire at moving vehicles. [16] The national guidelines for the use of lethal force by police expand the prohibition in s 616 of the Police Powers and Responsibilities Act. Guideline 39 states that officers shall not use firearms except: in self- defence or defence of others against the imminent threat of death or 1 Aldrich v Ross [2001] 2 Qd R 235 at 254 – 255. 2 Police Powers and Responsibilities Act 2000 (Qld) (Police Powers and Responsibilities Act) s 616(1). 3 Police Powers and Responsibilities Act s 616(2). -- 3 of 6 -- 4 serious injury; to prevent a particularly serious crime involving grave threat to life; and only when less extreme measures are insufficient. [17] Guideline 40 states that, if the use of a firearm is warranted, officers shall, if possible: a) Identify themselves; b) Give a clear verbal warning of their intent to use firearms; c) Ensure sufficient time for the warning to be acted upon. [18] Guideline 41 states that, if lethal force is necessary, officers shall: exercise restraint and only use sufficient force to achieve their objectives; minimise injury to human life; and minimise material damage. [19] Section 10.7.2 of the Traffic Manual states that officers should comply with s 14.7 of the Operational Procedures Manual unless there is good and sufficient reason to depart from those procedures. It goes on to states that firearms should only be used in extreme situations during a motor vehicle pursuit. Officers should consider: the possibility of inaccuracy in firing at a moving vehicle; ricochets; the danger of the pursued vehicle going out of control and injuring bystanders; the safety of the occupants; and the possibility of a member of the public being injured or killed. [20] The Situational Use of Force Model reinforces the underlying principles when officers are choosing to apply force. The use of force must be authorised, justified, appropriate, legally defensible, and tactically sound and effective. Officers are required to consider: the physical attributes of the person concerned; the possibility of injury to the officer, the person concerned and any other person; and the requirement to act quickly and professionally to prevent an escalation of the incident. Discussion [21] Senior Constable Sperling concedes that his actions were not compliant with Queensland Police operational procedure. I understand that officers often need to make split second decisions about the use of lethal force and that the decision-making process set out in the operational procedures manuals is not something that necessarily lends itself to that split second decision. However, the evidence indicates that Senior Constable Sperling gave little, if any, thought to operational procedure. [22] There was no suggestion that the occupants of either car had committed, were committing, or were about to commit an offence punishable for life imprisonment. There was no suggestion that the occupants of either car were doing, or about to do, something that was likely to cause grievous bodily harm that could not be prevented in any other way. Therefore, Senior Constable Sperling’s use of force was not justified under s 616(3). [23] Constable Sperling’s use of his Service firearm was more force than was justified by law. It was, therefore, unlawful. -- 4 of 6 -- 5 [24] Senior Constable Sperling did not comply with Guideline 40. He did not identify himself. He did not give a warning about his intention to use a firearm. He did not ensure sufficient time for his non-existent warning to be acted upon. [25] He can be excused for not following Guideline 40 if to do so would unduly place him at risk. That excuse does not apply in this case. Senior Constable Sperling had other alternatives that would have removed himself from risk. He could have, and did, remove himself from the path of the cars. [26] It is also apparent that Senior Constable Sperling avoided serious consequences by luck, rather than good judgment. The torch he threw did not hit any occupant of the car, nor did it cause the car’s driver to lose control. At least one of the bullets passed through the cabin of the second car but, luckily, none of the occupants was hurt. [27] Misconduct means4 conduct that: 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. The discharge of a firearm in a public place without lawful cause is a serious matter. I am satisfied that Senior Constable Sperling’s actions did not meet the standard of conduct the community reasonably expects of a police officer. I am, therefore, satisfied that Senior Constable Sperling’s actions amounted to misconduct. Sanction [28] Acting Assistant Commissioner M.J. Keating had access to a table of comparative sanctions as follows: Rank Circumstances Sanction Sergeant Threw a torch through the windscreen of a car that failed to stop 2 penalty units Constable Discharged two shots into a car when attempting to detain the driver 2 penalty units Constable Fired two warning shots into the air 1 penalty unit Senior constable Discharged a firearm at an airstrip 2 penalty units [29] Senior Constable Sperling’s actions were more serious than any of these cases. He threw a torch and discharged his firearm. He discharged three bullets, not two. He discharged his firearm into a car, not into the air. The CCC submits, and I agree, that the starting point for a sanction is demotion. [30] There are, however, some mitigating factors. Senior Constable Sperling has an otherwise favourable service history. Between the time of the incidents in 2012 and Acting Assistant Commissioner M.J. Keating’s 4 Police Service Administration Act 1990 (Qld) s 1.4. -- 5 of 6 -- 6 finding on 3 December 2014, Senior Constable Sperling had completed all duties assigned to him without adverse incident. He produced very favourable references from his superiors. One reference, from Sergeant Nathan Richards, records5 that, in October 2014, Senior Constable Sperling again tried to stop a car during interception duties. When the car failed to stop, Senior Constable Sperling moved out of the car’s path. Sergeant Richard opines that Senior Constable Sperling has learnt from the disciplinary procedure. [31] In 1996 Senior Constable Sperling’s brother-in-law Constable Shayne Gill, was killed while on traffic duty. Naturally, Constable Gill’s death was a source of significant trauma to Senior Constable Sperling and his wife, Constable Gill’s sister. Senior Constable Sperling submits that, because of this incident, he has a heightened sense of self-protection whilst on traffic duty. [32] The CCC concedes that this is a substantial feature of mitigation. It therefore submits that Senior Constable Sperling’s demotion should be wholly suspended for a period of twelve months on conditions. [33] I agree with that submission. Senior Constable Sperling experienced two lapses of judgment in a very short space of time. He was not counselled after the incident involving the torch, or removed from duty, even for a short time. His reaction during the second incident, while unacceptable, is understandable. Senior Constable Sperling has since shown that he is a capable and dedicated officer. [34] However, the CCC is concerned that a suspended sanction does not adequately address any ongoing issues that Constable Gill’s death may present in Senior Constable Sperling’s ability to perform traffic duties. It suggests that the sanction include a mechanism that ensures the public is protected from any residual issues arising from Senior Constable Sperling’s response to Constable Gill’s death. I agree that a condition addressing this issue will ensure the protection of the public in the future and will ensure that Senior Constable Sperling continues to be a capable and dedicated officer. Orders [35] The orders of the tribunal, to which all parties consent, and which I am satisfied are required to ensure the purpose of the disciplinary proceedings are met, are: a) The decision of Acting Assistant Commissioner M.J. Keating dated 3 December 2014 is set aside. b) Senior Constable Sperling is demoted from Senior Constable 2.9 to Constable 1.6 but such demotion is wholly suspended for a period of 12 months commencing 3 December 2014. 5 Reference dated 4 November 2014, page 37 of the s 21(2) material. -- 6 of 6 --