Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488

CITATION: Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488 PARTIES: Crime and Corruption Commission (Applicant) v Deputy Commissioner Stephan Gollschewski Robert Majewski (Respondents) APPLICATION NUMBER: OCR306-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Howard DELIVERED ON: 1 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The sanction imposed by the decision- maker is set aside. 2. The following sanction is substituted: Senior Constable Majewski’s pay point is reduced from 2.3 to 2.1 from 16 October 2014 for 6 months until 16 April 2015. Thereafter, Senior Constable Majewski is eligible to apply for pay point 2.4 from 16 July 2015, subject to the normal industrial requirements of the Queensland Police Service. CATCHWORDS: OCCUPATIONAL REGULATION - POLICE – SANCTION – where sanction imposed by decision-maker of reduction in pay points for 12 months was suspended on the condition that there was no further misconduct and 80 hours of community service – where review of sanction by CCC – where joint submissions for substitution of sanction Crime and Corruption Act 2001 (Qld), s 219G, -- 1 of 5 -- 2 s 219H Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20 Aldrich v Ross (2001) 2 Qd R 235 Belz v Assistant Commissioner Wilson [2012] QCATA 185 Belz v Assistant Commissioner Wilson [2011] QCAT 632 Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490 Hardcastle v Commissioner of Police (1984) 53 ALR 593 McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 Police Service Board v Morris (1985) 156 CLR 397 Queensland Police Service v Compton (No 2) [2011] QCATA 246 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr E. Mac Giolla Ri of Counsel, instructed by the Official Solicitor of the Crime and Corruption Commission, represented the Crime and Corruption Commission FIRST RESPONDENT: Queensland Police Service Solicitor, represented Assistant Commissioner Stephan Gollschewski SECOND RESPONDENT: Mr M. Black of Counsel, instructed by Gilshenan and Luton Lawyers, represented Mr Majewski 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] On 6 January 2010, Senior Constable Majewski (then Constable Majewski) was on duty at the Fortitude Valley Police Beat when he restrained a person, who had briefly entered the Police Beat to enquire about an acquaintance. Senior Constable Majewski told him that for privacy reasons he could not assist. As the person was leaving the Police Beat, he called Senior Constable Majewski an offensive name. As the person walked away, Senior Constable Majewski placed him in a lateral vascular neck restraint (LVNR), and then dragged him to a nearby police vehicle to attempt to position him to apply handcuffs. -- 2 of 5 -- 3 [2] Arising out of the circumstances of the restraint, Senior Constable Majewski faced disciplinary charges to the effect that his conduct did not meet the standard of conduct the community reasonably expects of a police officer in that he used excessive force namely: (a) During an arrest he applied a LVNR hold on the person; and (b) Forced the person against a motor vehicle which caused his head to impact with the front right hub of the police vehicle. [3] With the consent of Senior Constable Majewski, Assistant Commissioner Gollschewski determined the disciplinary matter against him as an Administrative Consensual Disciplinary Process (ACDP). The charge, characterised as misconduct, was accepted by Senior Constable Majewski. [4] By way of sanction, Senior Constable Majewski was reduced in rank from Senior Constable 2.2 to Constable 1.6 for a period of 12 months from 26 November 2013, and was then to be returned to Senior Constable 2.2. Thereafter he was to be eligible to progress subject to normal industrial requirements. However, the sanction was suspended from its imposition date on the condition that he not commit any further acts of misconduct within the following 12 months and perform 80 hours of voluntary community service within that period. [5] Senior Constable Majewski has since completed 61 hours of the 80 hours of community service imposed. [6] The Crime and Corruption Commission (CCC) has reviewed the sanction decision of Assistant Commissioner Gollschewski contending that it does not properly reflect the purposes of discipline, nor the seriousness of the misconduct. [7] The parties have each filed submissions in the review proceeding. They each submit that the sanction imposed should be set aside. Further, they each submit that Senior Constable Majewski’s pay point should be reduced from, his current pay point, 2.3 to 2.1 from 16 October 2014 for 6 months until 16 April 2015, and that he then be eligible to apply for pay-point 2.4 from 16 July 2015, subject to the usual industrial requirements. [8] 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 (QCAT Act), provide that the Tribunal’s function on the review application is to make the correct and preferable decision on the evidence which was before the decision-maker. The decision must be the Tribunal’s independent decision. -- 3 of 5 -- 4 [9] Police disciplinary proceedings in Queensland serve a purpose which 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 The effectiveness of police in protecting the public relies upon public confidence in their integrity: internal discipline is the primary means of ensuring individuals do not jeopardise public confidence.5 [10] The Deputy President of the Tribunal has held in disciplinary proceedings that when parties jointly propose a sanction, the Tribunal ought not depart from the proposed sanction, unless it falls outside of the permissible sanction range for the conduct in the particular circumstances.6 [11] The proposed sanction would see Senior Constable Majewski suffer a financial penalty by way of 2 pay point reduction for a period of 6 months. He would, of course, not be required to complete the balance of the community service imposed. [12] The CCC submits that the lowest sanction that would reflect the seriousness of the conduct would be a reduction of 2 pay points for 12 months, even having regard to Senior Constable Majewski’s insight and prior and subsequent good conduct. In making this submission, it relies upon the sanctions imposed in Belz v Assistant Commissioner Wilson7 and McKenzie v Acting Assistant Commissioner Wright8. In Belz, a handcuffed person in the care of the police was dragged by her hair, while she was clearly vulnerable. The officer, a sergeant who therefore had a greater level of responsibility than a constable or senior constable, was demoted from sergeant 3.3 to senior constable 2.9. [13] It argues that here, once the LVNR was inappropriately applied, the complainant was vulnerable. LVNR is a subject control technique for establishing control over a violent or physically strong struggling person. LVNR is considered to be ‘lethal force’.9 It creates risk of injury or death if incorrectly applied. [14] That said, the CCC concedes that the delay between the misconduct and the disciplinary hearing in this case is extraordinary, and is not attributable 1 Aldrich v Ross (2001) 2 Qd R 235, 247; see also Police Service (Discipline) Regulations 1990, 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, [91-93]; Medical Board of Australia v Grant [2012] QCAT 285, [55, 60-63]. 7 [2012] QCATA 185; Belz v Assistant Commissioner Wilson [2011] QCAT 632. 8 [2011] QCATA 309. 9 Section 21(2) Documents, pages 222-274 consisting of a statement of Acting Senior Sergeant Hayden (Officer in charge of the Operational Skills and Tactic Program); QPS Operational Skills and Tactic Program, LVNR and Associated Issues, Good Practice Guide, and Appendix 14.2 QPS Operational Procedures Manual. -- 4 of 5 -- 5 to Senior Constable Majewski. It acknowledges that delay has resulted in adverse psychological, social and workplace implications for him. In particular, any reduction in pay-points will have greater effect now than if the sanction had been imposed closer to the date of the misconduct, because the pay differential between 2 pay-points has increased at his current level. At the time, he was a constable 1.6, whereas now he is a senior constable 2.3, with prospects of advancing to 2.4 within 4 months. [15] In addition, it acknowledges that the 61 hours of completed community service must be considered. [16] Having regard to these matters, it proposes orders in the terms earlier discussed. [17] Senior Constable Majewski supports the orders proposed. He accepts that an appropriate starting point for consideration of sanction is reduction of 2 pay points for 12 months. It was adopted by the Assistant Commissioner. He also adopts the mitigating circumstances outlined by the CCC. In addition, he points out that during the extraordinary delay, he has continued with his policing career, and has demonstrated behaviour beyond reproach and has the support of his senior officers.10 [18] The Deputy Commissioner submits that the other parties have adequately outlined the issues for the Tribunal and supports the orders proposed. [19] I am satisfied that the sanction proposed reflects the appropriate level of disapproval of Senior Constable Majewski’s actions and protects the reputation and standards within the police service, while recognising the appropriate mitigating factors. Further, I am satisfied that it is the correct and preferable decision in the circumstances of the matter. I make orders setting aside the sanction imposed by the decision-maker, and substitute the orders proposed by the parties. Non-Publication Order [20] On 19 December 2013, a non-publication order was made prohibiting publication of any names or identifying particulars of third parties. 10 Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490 at [24]. -- 5 of 5 --