Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384

CITATION: Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 PARTIES: Joshua Douglas Compton v Deputy Commissioner Ian Stewart Queensland Police Service APPLICATION NUMBER: OCR082-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 29 July 2010 HEARD AT: Brisbane DECISION OF: Hon J B Thomas DELIVERED ON: 17 August 2010 DELIVERED AT: Brisbane ORDERS MADE: It is ordered that: 1. Upon review, the sanction imposed by Deputy Commissioner Stewart upon the appellant of dismissal on 22 March 2010 is set aside; 2. In its place it is ordered that the appellant be dismissed from the Queensland Police Service and that such dismissal be suspended on the conditions following: (a) the period of suspension is two years commencing as at the date of this order; (b) during the suspension period the appellant must perform community service not to exceed 150 hours as directed by the prescribed officer of the Queensland Police Service; (c) during the suspension period the appellant must undergo voluntary counselling and treatment and attend any program as reasonably directed by the prescribed officer of the Queensland Police Service; and (d) if the appellant is found to have committed an act of misconduct or to -- 1 of 12 -- OCR082-10 / Page 2 of 12 have contravened a condition during the two years suspension period, then the suspension is revoked and the decision to dismiss the appellant from the Queensland police service has immediate effect. 3. The level of the appellant’s salary entitlements is to be reduced from constable pay-point 1.2 to constable paypoint 1.1 for the period of two years commencing from 22 March 2010; 4. The appellant’s entitlement to apply for salary level at constable paypoint 1.2 is deferred for a period of two years commencing from 22 March 2010. CATCHWORDS : Police Officers -- discipline -- drink-driving conviction – Review by QCAT of disciplinary order of dismissal- Nature of ―review‖ by QCAT-"fresh hearing on the merits"-applicable principles when issue is penalty- Whether "Commissioner’s Circular‖ a "direction" under s 4.9 of Police Service Administration Act 1990- effect of direction- tribunal’s power to depart from "policy" directions- whether dismissal appropriate in the circumstances - importance of intrinsic character of person charged - Power to suspend disciplinary orders on conditions- Crime and Misconduct Act 2001, secs 219G, 219H, 219L(1),(2) and (3); Queensland Civil and Administrative Tribunal Act 2009, secs 17, 20; Police Service Administration Act 1990 s 4.9; Police Service (Discipline) Regulation 1990 reg 10. APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Joshua Douglas Compton represented by Mr P Smith RESPONDENT: Deputy Commissioner Ian Stewart Queensland Police Service represented by Mr M Nicholson -- 2 of 12 -- OCR082-10 / Page 3 of 12 REASONS FOR DECISION Issue 1. This is an application to review a decision by a deputy commissioner of police in which it was determined that the appellant was guilty of misconduct and was ordered to be dismissed from the police force. 2. There is no challenge to the finding of misconduct. The only contested issue is the penalty. Jurisdiction 3. On 8 September 2009 constable Compton was convicted in the Magistrates Court of a drink driving offence. Disciplinary proceedings were commenced within the police service, and he was charged with improper conduct in that he drove a vehicle while under the influence of liquor. On 22 March 2010 an order was made by deputy commissioner Stewart that misconduct had occurred and he imposed a penalty of dismissal. His power to do so was conferred by section 7.4 of the Police Service Administration Act 1990, and regulations 5 and 9(1)s of the Police Service (Discipline) Regulations 1990. 4. The present proceeding is constable Compton’s application to the Queensland civil and administrative tribunal to review that decision. This tribunal has jurisdiction to conduct such a review. The principal provisions conferring it are sections 219G and 219H of the Crime and Misconduct Act 2001 and sections 17 – 20 of the Queensland Civil and Administrative Tribunal Act 2009 (―the QCAT Act‖). 5. The evidence before me consisted of material originally placed before deputy commissioner Stewart, supplemented by additional details supplied by consent, mainly directed to assisting me to understand relevant aspects of the police service system. 6. This is not an appeal in the strict sense such as one to which the principles of House v The King1 apply. It is a proceeding in which the tribunal is bound to make its own decision on the evidence before it, whether or not new evidence is received. Section 20 of the QCAT Act describes the present proceedings as ―a fresh hearing on the merits‖. I do not think that there is any tension or inconsistency between the enabling act (Crime and Misconduct Act 2001 sections 219G and 219H) and the review jurisdiction provisions in the QCAT Act (sections 17 – 24). Further aspects of the nature of this review will be discussed below at paragraphs 28 to 31. Facts and circumstances 7. In the following paragraphs I will attempt to summarise the material evidence that was presented to the tribunal during the present review. I shall refer to former constable Compton as the appellant and to deputy commissioner Stewart as the respondent. 1 (1936) 55 CLR 499. -- 3 of 12 -- OCR082-10 / Page 4 of 12 8. The appellant is of indigenous origin and was born in the Tweed Heads area in 1979. After various employments, including work as a Police Liaison Assistant in Lismore, he was accepted as a recruit at the Police Academy at Oxley. On 10 October 2006, having completed 8 months of study and training he was inducted into the police force. He was then 27 years old. 9. He was posted to the Sunshine Coast district. He served at a number of stations and established a commendable service record over the following years. 10. After the incident which is the subject of these proceedings, he was assigned to watch-house duties where he continued to perform commendably. His service record includes a letter of thanks from the Coolum Primary School. There is also evidence that he saved the life of a person in custody who suffered a severe hypoxia attack. 11. In the months leading up to his transgression, he suffered significant setbacks and adversity which could fairly be described as extraordinary. They included: The departure of his wife, taking their infant son with her, with consequential ongoing child access problems; The death of a very close personal friend about a fortnight before the incident from an overdose of drugs; The suicide of his cousin at Tweed Heads on the following day; and Another distressing family problem. 12. In particular it would seem that during the appellant's service on the Sunshine Coast his wife had not coped well with isolation from her family and social network which was at Tweed Heads, and had returned to her community in that district taking their young son with her. Her relatives showed hostility to the appellant when he tried to make contact with her and his son. By the relevant time, at best he was able to see his son once every 3 weeks. On a number of occasions he drove to Tweed Heads and when nearly there his wife called to advise that she would not permit him to see his son, upon which he had to turn around and drive back to the Sunshine Coast. 13. His position is perhaps best described in his own words in response to interrogation from investigating officer, Inspector Schulz. ―The only thing I can make as the reason to why I done it – just a lot of the issues in July that.. just crept up all of a sudden on me. My mate dying on the Tuesday and then Curtis dying the next day ... and after that it was, my relationship with my ex. Travelling to Tweed Heads all week, you know every week travelling back and forwards and getting down to Tweed, which is a two and a half hour drive and then she’d say you can’t have, you can’t have Zane, my boy. Um the mind games was getting to me I suppose, and instead of getting proper help [I thought] I was feeling fine.. dealing with it myself, but obviously in hindsight when I look at it now, obviously I needed to see someone because I wasn’t really coping too well..‖ -- 4 of 12 -- OCR082-10 / Page 5 of 12 14. On the day in question, 18 July 2009, he ceased duty at 4pm. He had been scheduled to play football but the opposing team forfeited and he and a friend went to the friend’s home in his own vehicle. There they consumed alcohol. Considerably later he made the very wrong decision to drive home. 15. In the course of doing so Police travelling in an unmarked car in the opposite direction noticed him dip his lights and veer slightly right before correcting. They performed a u-turn and intercepted him. A roadside breath test was positive and he was taken to Maroochydore Police Station where he was breathalysed. The reading was .235%. 16. He was charged with drink driving and dealt with in the Magistrates Court on 8 September 2009 where he was fined $1400 and his license suspended for 9 months. 17. A disciplinary investigation also proceeded in parallel, leading to the disciplinary hearing before deputy commissioner Stewart on 1 March 2010, in consequence of which an order was made on 22 March 2010 dismissing him from the police force. 18. Some further relevant surrounding circumstances relevant to the discussion of issues raised by counsel during the review will now be mentioned. Commissioner’s Circular 19. High on the list of these relevant surrounding circumstances is the Commissioner’s Circular issued on 30 June 2009, only a few weeks before the relevant incident. It dealt with the subject of ―indicative sanctions for disciplinary matters involving Police Officers prosecuted for drink driving offences.‖ The circular asserted that it had been ―approved by the Board of Management‖. 20. Although it is titled "Commissioner’s Circular" the document in evidence purports to have been issued on 30 June 2009 by the present respondent under the name "Ian Stewart, Deputy Commissioner (Specialist Operations)". In the proceedings before me it seems to have been assumed that this was a regular Commissioner’s direction. No point was taken in relation to the need for such a direction to emanate from the Commissioner or of due delegation of the power to issue it. Assuming its due making and issue, the "Commissioner’s Circular" would seem to be a "direction" issued under section 4.9 of the Police Service Administration Act 1990, the effect of which is that "every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.‖2 21. The circular commences with an explanatory section which is an obvious attempt to stiffen the disciplinary response on such matters and increase the level of punishment to be meted out in such cases. It was noted in the circular that in the past the sanctions for drink driving by police officers had usually been a reprimand or a caution, and it expressed the opinion that this did not seem to have acted as an effective deterrent. 2 S 4.9(3), Police Service Administration Act 1990. -- 5 of 12 -- OCR082-10 / Page 6 of 12 22. Under the heading "Policy" it went on to state – A decision maker in a disciplinary proceeding where the subject member has committed or apparently committed a drink-driving offence is to take into consideration the matrix outlining the indicative sanctions for drink-driving offences prior to making their decision with respect to penalty or sanction. The decision maker will also have regard for all circumstances of the individual case before implementing any such penalty or sanction. 23. The "matrix‖ to which the policy statement referred was an appendix in tabular form which listed ―indicative sanctions‖ that should be imposed in such cases. The table identified relevant criteria such as: whether the police officer was on duty or off duty whether he or she used a police vehicle or private vehicle specified levels of alcohol such as ―less than .10‖, ―.10 - .15‖ and ―more than .15‖ aggravating factors such as second offence and serious injury and damage. The circular was directed to "decision makers‖ such as the present respondent. As a direction it was binding on every member of the police force to whom it was addressed unless it was inconsistent in some way with the Police Service Administration Act3. But this circular did not purport to impose any mandatory requirement that a particular sanction must be imposed in any given group of circumstances. What it directed was that the matrix be "taken into consideration‖. Importantly the matrix left open the discretion to take all relevant circumstances into account, describing its range of sanctions as ―indicative only, and may serve to guide a prescribed officer in his/her deliberations, having regard to all the circumstances of the individual matter.‖ 24. Four notes were appended to the schedule, namely: 1. The attached names of sanctions are indicative only and may serve to guide a prescribed officer in his/her deliberations, having regard to all the circumstances of the individual matter. 2. A person’s senior level within the service and supervisory nature of their role will be considered by a prescribed officer as part of the disciplinary process. Such matters may serve to increase the level of sanction that would otherwise have resulted. 3. In cases where a sanction would cause (sic) for a reduction in level/s and where the subject member is on the bottom or second bottom pay point, then the prescribed officer may consider a broader range of sanctions to effectively deal with this situation. 4. A prescribed officer may as part of any sanction imposed consider a broad range of issues which include, but are not limited to, removal or limitation from relieving duty, removal or limitation from internal/external 3 Sec 4.9 (2). -- 6 of 12 -- OCR082-10 / Page 7 of 12 courses, and limitation from supervisory and development opportunities, as are appropriate. 25. The relevant ―indicative sanction‖ for the circumstances pertaining to the Appellant was ―demotion”. 26. To the extent to which the circular is an expression of policy, it appears to be a responsible attempt by those in command of the Queensland Police Service to maintain public confidence and respect. This tribunal has the right, if it chooses to do so, of declining to follow policy directives of this nature4. However there are powerful practical reasons why courts and tribunals are very cautious about intervening in policy formulation. These reasons include the difficulty of policy review in an adjudicative setting, especially an adversarial one5. In the present case I think the content of the matrix is completely acceptable, although I consider this would not have been the case had the policy purported to preclude decision-makers from considering each case on its individual merits. However it is unnecessary to pursue this point further. 27. I therefore think that this tribunal should attempt to give effect to the content of the circular. Nature of the present review 28. Aldrich v Ross6 lays down the approach to be taken by a misconduct tribunal constituted under the Misconduct Tribunals Act 1997, which was the predecessor of the present tribunal in such matters. Both counsel submitted that the applicability of those principles has not been materially affected by the present legislation which creates QCAT along with the relevant provisions of the current enabling act, i.e. sections 219G and 219H of the Crime and Misconduct Act. 29. There are of course differences in the respective statutory formulations. The discussion in Aldrich recognises the chameleon nature of ―appeals by rehearing‖ and calls for careful analysis of the actual statutory provisions in characterising the nature of the relevant appeal. In the present matter I do not propose to present a further excursus of the nature of the present tribunal or to describe point by point its functions compared with those of the former misconduct tribunal. I have examined the relevant legislation and concluded that the present ―appeal‖ or ―review‖ is not one to which the principles of House v The King7 apply, and that for present purposes the provisions of section 20 of the QCAT Act only serve to fortify the interpretation of the nature, function and powers of the reviewing tribunal as expressed in Aldrich. 30. The remarks in Aldrich as to the approach to be taken when the issue is the penalty to be imposed upon a review are of assistance. Those remarks 4 See for example Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, and Attorney-General (NSW) v Quin (1990) 170 CLR 1,37, per Brennan J. 5 This and other relevant factors are discussed in Aronson Dyer and Groves Judicial Review of Administrative Action 4th edn, Law Book Co, 2009, 165 et seq. 6 (2001) 2 Qd R 235.. 7 (1936) CLR 499. -- 7 of 12 -- OCR082-10 / Page 8 of 12 appear in paragraph 45 of the judgment in Aldrich, the last sentence of which reads: ―If the misconduct tribunal has the same view of the facts and inferences as the original tribunal, it would again 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.‖ 31. In short, the question of appropriate penalty is in the end one for this tribunal to determine. In doing so it may be appropriate to pay considerable respect to the view of the original decision maker, but it must be this tribunal’s decision. Aggravating factors 32. Counsel for the Respondent drew attention to 3 matters – (a) the level of .235% is very high (b) The Appellant’s manner of driving was the factor that led to the police interception (c) His record of service is ―not unblemished‖ in that while he was a student at the police academy he was guilty of ―inappropriate behaviour‖. The evidence of the "inappropriate behaviour" is lacking in detail. There is an allegation that on 14 July 2006 the appellant had been involved in an altercation at the QPSA recreation club, punching two recruits. A show cause hearing was then conducted in which it was charged that ― [he] failed to observe administrative arrangements issued by the Human Resources Division and/or the Queensland Police Service Academy and/or the relevant codes of conduct as updated and issued to applicants by the commissioner from time to time‖. All that is known of the proceedings is that there was a formal finding of "reprimand". No evidence was presented before me as to the merits of the actual incident or what led up to it. 33. The police authorities at the time apparently did not regard it as rendering him unfit to be admitted into the force and he was duly inducted into the police force after successfully completing his course. In the absence of any further evidence I can only assume that the incident was minor, and do not regard it as a serious point of aggravation. Mitigating factors 34. I foreshadow that the combination of these mitigating factors is unusually strong. 35. It is not uncommon for Police officers to be tempted to use their status to avoid consequences when apprehended by colleagues. The appellant did none of this. Instead he submitted to arrest and only disclosed his occupation when questioned about it on the way to the police station. He revealed genuine remorse at all stages of investigation both in relation to the -- 8 of 12 -- OCR082-10 / Page 9 of 12 court proceedings and the disciplinary proceedings. He did not contest the allegation of misconduct in any of these proceedings. 36. He was not on duty at the time and was in his own vehicle. 37. There was no accident, or damage to any person or property, although it is true that there was an irregularity in his driving. 38. There were four extremely stressful situations which he encountered in the weeks preceding the incident, and these have been sufficiently detailed in paragraph 11 above. These factors, including his failed relationship and the impediments that deprived him of access to his son, climaxed at this point. Collectively they indicate that he had reached a genuine crisis point. That of course does not excuse, but it helps to explain. 39. He has an excellent service record. As earlier mentioned at the relevant time he was a third year constable and was (and still is if permitted to remain in the force) capable of rendering valuable public service. He is described as having been proud to be a police officer having come from the aboriginal community. Prior to joining the Queensland Police Service he had been employed in the NSW Police department in Lismore as an Aboriginal Community Liaison Officer. 40. A report from Mr Chandler, a psychologist, confirms the stresses mentioned above. Having profiled the appellant he commented: ―His results suggest him to be an even tempered, outgoing, strong- willed person, with the ability to be an active team player. This profile would suggest an ideal measurement for the qualities that one would expect of a police officer‖ Mr Chandler also expressed an optimistic prognosis: ―I believe that officer Compton remains competent to discharge his duties as a police officer, although I believe that appropriate intervention to assist officer Compton maintain appropriate impulse control, relationship issues, and parenting access issues which would significantly assist him to enhance and maintain his fitness to discharge his duties, as well as normalise his life situation. 41. Apart from his one lamentable lapse, the appellant has shown an excellent character. It may be mentioned that the approach of our courts in determining whether an errant member of the legal profession or other professional person should be disbarred or not, is to search for the intrinsic character of the person being disciplined. In Ziems v Prothomotary of the Supreme Court of NSW8 a barrister had been sentenced to imprisonment for manslaughter committed in the course of drink driving. The majority opinion was that his misconduct did not reflect on his character to such an extent to require general disbarment, and an order was made that he be suspended from practice limited to the period of his imprisonment. Kitto J said: 8 (1957) 97 CLR 279. -- 9 of 12 -- OCR082-10 / Page 10 of 12 ―It is not a conviction of a premeditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connection with nor significance for any professional function. Such a conviction is not inconsistent with the previous possession of a deservedly high reputation.. I cannot think that, when he has undergone the punishment imposed upon him for the one deplorable lapse of which he has been found guilty, any real difficulty will be felt, by his fellow barristers or by judges, in meeting with him in the life and work of the bar.9 42. I do not suggest that the disciplinary systems of the legal profession and the police force can be properly compared, or even that the attitude of the High Court towards conduct such as that displayed by Ziems would be so tolerant today. I cite the case simply to underline the importance of intrinsic character in such assessments. Proceedings of the present kind, in my view, require sharp focus upon an appellant’s fitness to remain a member of the force, and I consider the apparently very good intrinsic character of the appellant in the present matter to be a highly relevant factor. Discussion 43. The above factors suggest that it is desirable that the appellant's services be retained in the police force unless other factors render his discharge necessary. He is a trained officer who, with suitable guidance and support, is capable of rendering further valuable service to the community. 44. The point which I think tilts the balance heavily in the appellant’s favour is the fact that the Commissioner’s Circular, from which I see no good reason to depart, does not specify dismissal as the indicative penalty. 45. The circular is by no means a ―one strike and you are out‖ directive. Its indicative penalty for this appellant’s misconduct, having regard inter alia to the fact that he was driving his own vehicle, in his own time, with an absence of damage, is ―demotion‖. That, prima face, is the appropriate level of penalty. 46. Because the appellant held only the rank of constable and was on the second bottom paypoint, actual demotion was not possible. Deputy commissioner Stewart seems to have taken the view that in all the circumstances the only other suitable order was dismissal. He was also concerned to impose a penalty with sufficient general deterrent effect. However with respect I do not think that it followed that the appropriate penalty was dismissal. 47. There is a giant leap from demotion to dismissal. Demotion does not deprive the offender of his or her livelihood. Its effect is essentially a financial one, associated with a loss of salary and status, and a deferment of normal progression. 9 Ziems v Prothomontary of the Supreme Court of NSW (1957) 97 CLR 279, at pages 299 – 300. -- 10 of 12 -- OCR082-10 / Page 11 of 12 48. In my view it is possible to fashion an order of similar overall severity to demotion without the permanent loss to the Police force and community of constable Compton’s services. 49. The available penalties are set out in regulation 10 of the Police Service (Discipline) Regulation 1990 – 10 Disciplines that may be imposed Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are— (a) cautioning or reprimand; (b) a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units; (c) a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank); (d) forfeiture or deferment of a salary increment or increase; (e) a reduction in the officer’s rank or classification; (f) dismissal from the police service. Suspension of Sanction 50. The power of suspension is available to the tribunal in the present case by virtue of the Crime and Misconduct Act sections 219L(1)(c), 219L(2) and 219L(3). If the appellant commits any further act of misconduct during the prescribed period, a finding to that effect will revoke the suspension, and the dismissal will become immediately effective. Counsel for the respondent submitted that the power of suspension is one that should be ―rarely used‖, echoing the statement of deputy commissioner Stewart in his statement of reasons that such an order ―ought to be a relatively rare occurrence‖. That may or may not be so. His power to suspend was conferred by regulation 12 of the Police Service (Discipline) Regulations in quite general terms, and QCAT’s power to suspend is equally unfettered by the above-stated provisions of the Crime and Misconduct Act. Certainly the power to suspend is not to be used as a means of avoiding an unpleasant duty. But and it is a power that the Crime and Misconduct Act permits to be used whenever ―appropriate‖, and the tribunal has an unfettered power to use it.10 51. The order set out below will have the effect of reducing the appellant’s pay level, and continuing his pay at that reduced level for a period of 2 years from the date when the initial order was made dismissing him from the police force, that is to say from 22 March 2010. During that period the appellant would in the normal course have become entitled to pay rises. I have not been supplied with the precise loss which this will entail, but it will mean that the Appellant will suffer a monetary penalty of at least an additional $4164.00 on top of the $1400.00 fine that was imposed on him in the Magistrates 10 Spencer v Baulch (2004) QCA 234 -- 11 of 12 -- OCR082-10 / Page 12 of 12 Court. It will also include an order for his dismissal, but this will be suspended for an operational period of 2 years during which he must undergo such counselling as is prescribed, and in this respect I recommend that the authorities give due consideration to the inclusion of alcohol management. The order will also require the appellant to perform voluntary community service as directed by a superior officer. These are by no means minor burdens for a serving police officer to bear. 52. The combination of these orders will inflict upon the appellant a considerable burden in addition to his having been subjected to the normal sanctions imposed on citizens by the criminal law for such misconduct. The combined order in my view is sufficiently stringent to provide a general deterrence to other members of the police force against like conduct. Orders 53. It will be ordered that: 1. Upon review, the sanction imposed by Deputy Commissioner Stewart upon the Appellant of dismissal on 22 March 2010 is set aside; 2. In its place it is ordered that the appellant Joshua Compton be dismissed from the Queensland police service and that such dismissal be suspended on the conditions following: (a) the period of suspension is two years commencing as at the date of this order; (b) during the suspension period the appellant must perform community service not to exceed 150 hours as directed by the prescribed officer of the Queensland Police Service; (c) during the suspension period the appellant must undergo voluntary counselling and treatment and attend any program as reasonably directed by the prescribed officer of the Queensland Police Service; and (d) if the appellant is found to have committed an act of misconduct or to have contravened a condition during the two years suspension period, then the suspension is revoked and the decision to dismiss the appellant from the Queensland police service has immediate effect. 3. The level of the appellant’s salary entitlements is to be reduced from constable pay-point 1.2 to constable paypoint 1.1 for the period of two years commencing from 22 March 2010; 4. The appellant’s entitlement to apply for salary level at constable paypoint 1.2 is deferred for a period of two years commencing from 22 March 2010. -- 12 of 12 --