Crime and Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241

CITATION: Crime and Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241 PARTIES: Crime and Misconduct Commission (Applicant) v Acting Deputy Commissioner Barron (First Respondent) Stephen John Alexander (Second Respondent) APPLICATION NUMBER: OCR047-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 13 May 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The sanction imposed by the decision- maker is set aside insofar as the conditions imposed; 2. The following conditions are substituted: Stephen John Alexander must: (a) not commit any acts of misconduct for a period of two years from the date the sanction was originally imposed, that is, 24 February 2014; (b) perform 100 hours of community service in the next 12 months; (c) From 24 February 2014, meet with a Human Services Officer (HSO) once each month for six months, or such longer period that is recommended by the HSO, to undergo counselling as assessed and recommended by the HSO; and (d) From 24 February 2014, perform duty at the Mt Gravatt Police station and be mentored by a senior officer at the rank of Senior Constable or Sergeant -- 1 of 5 -- 2 for 100% of his shifts for at least 3 months, subject to a suitable report from the HSO that he is suitable to return to duties without ongoing supervision. 3. That all of the conditions set out above are in place for a maximum of 2 years from 24 February 2014, being the operational period of the suspended sanction. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – POLICE DISCIPLINARY PROCEEDINGS – where constable dismissed on conditions for using excessive force against a member of the public – where officer dismissed and dismissal suspended on conditions – where review by CMC – where parties make joint submissions for substitution of the conditions imposed Crime and Misconduct Act 2001 (Qld), s 219G, s 219H Queensland Civil and Administrative Tribunal Act 2009 (Qld), s17, s 18, s 19, s 20 Aldrich v Ross (2001) 2 Qd R 235 Hardcastle v Commissioner of Police (1984) 53 ALR 593 Queensland Police Service v Compton (No 2) [2011] QCATA 246 Police Service Board v Morris (1985) 156 CLR 397 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Grant [2012] QCAT 285 APPEARANCES and REPRESENTATION (if any): 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] Constable Alexander was on his way to work one evening when he observed a person assaulting a traffic control officer. He stopped to render assistance. He arrested the person responsible for the assault and seated him on the ground. The person was agitated and failed to respond to Constable Alexander’s requests for him to ‘shut up’. -- 2 of 5 -- 3 [2] Constable Alexander put his knee into the head of the person concerned, knocking him unconscious for a brief period. The person concerned was subsequently taken to hospital by ambulance officers. He chose not to receive treatment and there is no evidence of injury to him. [3] Immediately after the incident, Constable Alexander voluntarily sought counselling and supervision. [4] Disciplinary proceedings were brought against Constable Alexander. He faced charges of improper conduct for the use of excessive force against the person concerned. Constable Alexander admitted the charges. [5] In the disciplinary process, the charges were found to be substantiated. In considering sanction, his early admissions and his actions in voluntarily seeking counselling, as well as organising a training session with a sergeant, were considered favourably. His personal circumstances at the time of the incident were noted. By way of sanction, Constable Alexander was dismissed from the police service and the dismissal was suspended on the condition that he:  does not commit any acts of misconduct for a period of two years form the date this sanction is imposed;  performs 100 hours of community service in the next two years;  meets with a Human Services Officer (HSO) once a month for the next six months or such longer period that is recommended by the HSO; and  performs duty at the Mount Gravatt Police station for a period of 3 months during which time he will be required to be rostered to work with and be mentored by a senior officer at the rank of Senior Constable or Sergeant on at least 50% of his shifts. [6] The Crime and Misconduct commission (CMC) applied to the Tribunal seeking review of the sanction imposed. [7] All parties have filed joint submissions on the review. They jointly submit that the sanction imposed should be amended, insofar as the conditions imposed on Constable Alexander in suspending his dismissal. They propose that the conditions imposed on Constable Alexander be substituted with the following conditions that he:  not commit any acts of misconduct for a period of two years from the date the sanction was originally imposed, that is, 24 February 2014;  perform 100 hours of community service in the next 12 months;  from 24 February 2014, meet with a Human Services Officer once a month for six months or such longer period that is recommended by the HSO to undergo counselling as assessed and recommended by the HSO; and -- 3 of 5 -- 4  perform duty at the Mt Gravatt Police station from 24 February 2014 during which time he has been / will be required to be rostered to work with and be mentored by a senior officer at the rank of Senior Constable or Sergeant for 100% of his shifts for at least 3 months, subject to a suitable report from the HSO that he is suitable to return to duties without ongoing supervision. [8] Also, the parties submit that the orders should confirm that the conditions apply for 2 years from 24 February 2014, being the operational period of the suspended sanction. [9] Pursuant to sections 219G and 219H of the Crime and Misconduct Act 2001 (CMC Act) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), 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. [10] 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 [11] The Deputy President of the Tribunal has held in disciplinary proceedings that where parties jointly propose sanction, the Tribunal ought not depart from the proposed sanction unless it falls outside of the permissible range of sanction for the conduct having regard to the particular circumstances.6 [12] The proposed conditions differ from those originally imposed in that the community service imposed must be completed in 1 year rather than two years. They clarify the basis on which counselling is to occur. They also impose a more rigorous mentoring regime. [13] The rationale for the proposed changes to the conditions imposed is based on the contents of the report of Dr Lynagh, a psychologist. [14] I am satisfied that the overall sanction with the proposed conditions reflects an appropriate level of disapproval of Constable Alexander’s actions, and is rehabilitative. It also protects the reputation and standards 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]. -- 4 of 5 -- 5 within the police service and offers appropriate deterrence. I am satisfied that the correct and preferable decision is to set aside the conditions as originally imposed and substitute the conditions jointly proposed by the parties and also confirm the period for which the conditions apply. I make orders accordingly. -- 5 of 5 --