Hume v Acting Assistant Commissioner Keating
[2015] QCAT 202
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- Unreported Judgment
- Hume v Acting Assistant Commissioner Keating[2015] QCAT 202
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Hume v Acting Assistant Commissioner Keating[2015] QCAT 202
Hume v Acting Assistant Commissioner Keating[2015] QCAT 202
CITATION: | Hume v Acting Assistant Commissioner Michael Keating [2015] QCAT 202 |
PARTIES: | Colin Hume (Applicant) v Acting Assistant Commissioner Michael Keating (Respondent) |
APPLICATION NUMBER: | OCR249-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Browne |
DELIVERED ON: | 1 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | POLICE DISCIPLINARY PROCEEDINGS – SANCTION – where Senior Constable drink driving off duty – blood alcohol level of 0.14% – where mitigating circumstances – whether period of 100 hours community service is excessive Police Service Administration Act 1990 (Qld), s 1.4 Police Service (Discipline) Regulations 1990 (Qld), s 3, s 6, s 12, s 19 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 19, s 20, s 21, s 24 Aldrich v Ross [2010] 2 Qd R 235; cited Crime and Misconduct Commissioner v McLennan & Ors [2008] QSC 23; cited Hardcastle v Commissioner of Police (1984) 53 ALR 593; cited McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309; cited Murray v Deputy Commissioner Stewart [2011] QCAT 583; cited O'Brien v Assistant Commissioner Steven Gollschewski, Queensland Police Service [2014] QCATA 148; cited Police Service Board v Morris (1985) 156 CLR 397; cited Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590; cited Queensland Police Service v Compton (No 2) [2011] QCATA 246; cited |
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). |
REPRESENTATIVES: | |
APPLICANT: | Colin Hume represented by Mr T E Schmidt of Counsel |
RESPONDENT: | Acting Assistant Commissioner Michael Keating represented by Mr Craig Capper, Senior Legal Officer, Legal Service, Public Safety Business Agency |
REASONS FOR DECISION
- [1]In April 2013 Colin Hume left the Windaroo Tavern and made the decision to drive his motorcycle home. Shortly after leaving the Tavern he was pulled over by police who were conducting random breath testing.
- [2]Mr Hume’s decision to drive home was the wrong decision because he had been drinking and police recorded his blood alcohol reading as 0.14%. He was a Senior Constable of the Queensland Police Service (QPS) and was off duty at the time.
- [3]Mr Hume appeared before the Magistrates Court on 26 July 2013. He was fined in the amount of $700 and disqualified from holding or obtaining a drivers licence for a period of 4 months. No conviction was recorded against him.
- [4]A disciplinary hearing was conducted by the QPS as a result of the drink driving incident. On 22 October 2014 the respondent determined that Mr Hume’s conduct amounted to misconduct and imposed a sanction of a reduction in paypoint Senior Constable 2.9 to 2.8 for 12 months and that the sanction be suspended upon him successfully completing 100 hours community service at a Police Citizens Youth Club within 12 months of receipt of the notice.[1]
- [5]Mr Hume seeks a review of the respondent’s decision. He argues that the imposition of 100 hours community service contradicts the mitigation of sanction purportedly provided by the suspension of the order.[2] He says 100 hours community service is excessive in the circumstances and equates to over 2.5 weeks of unpaid work at paypoint Senior Constable 2.9. He also argues that there are mitigating circumstances that should be considered in relation to imposing a sanction including his diagnosed medical condition, the fact that he is unlikely to reoffend and that the offending arose out of a consequence of ‘tragic circumstances’.[3] Senior Constable Hume also says that his case is ‘unique’ because of the circumstances and this makes his case an ‘inappropriate vehicle for general deterrence’.[4]
What is the Tribunal’s role on review?
- [6]This is a review of the respondent’s decision made on 22 October 2014. The hearing proceeds by way of a fresh hearing on the merits and the Tribunal’s role is to produce the correct and preferable decision.[5]
- [7]The Tribunal on review brings the public perspective to bear.[6] It is well settled law that considerable respect should be given to the views of the original decision maker (the respondent),[7] but if the Tribunal clearly reaches a different view ‘its duty is to act in accordance with its own views’.[8]
- [8]In determining sanction the Tribunal should consider other cases involving similar misconduct to ensure ‘consistency’ and ‘comparability’ in decisions made.[9] In O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service[10] the Honourable J B Thomas said that the Tribunal is not required to follow all previous decisions including the ‘same level’ chosen by police decision makers but there should be a reason that ‘justifies departure from it’.[11] He said:
The need for consistency and reasonable comparability is important in these matters…This is not to say that past decisions must be slavishly followed, or that QCAT is bound to adopt the same level as that chosen by police decision-makers. But when a certain level of response is discernible from past decisions, there should be some reason that it justifies departure from it.[12]
What was the conduct?
- [9]Mr Hume has accepted the conduct as set out in the particulars of the disciplinary charge and he has acknowledged that his conduct amounts to ‘misconduct’ for the purposes of the Police Service Administration Act 1990 (Qld).[13] The particulars of the charge are as follows:
Matter 1:
That on 21 April 2013 at Bahrs Scrub your conduct was improper in that you:
- (a)drove a motor vehicle on Belivah Road Bahrs Scrub while you were over the middle alcohol limit but not over the high alcohol limit.
[Section 1.4 of the Police Service Administration Act 1990 and s.9 (1) (c) and (f) of the Police Service (Discipline) Regulations 1990; sections 2 (Personal Conduct) and 10 (Performance of Official Duties) of the Human Resource Policies, Standard of Practice Professional Conduct]
Further and better particulars
Investigations have identified that:
- You consumed a quantity of alcohol and were intercepted as being the driver of a motor vehicle and upon requirement made supplied a specimen of breath for analysis which showed you had a blood alcohol concentration of 0.141 grams of alcohol in 210 litres of breath.
- On 26 July 2013 you pleaded guilty in the Beenleigh Magistrate Court to an offence under s. 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995.
- [10]Drink driving is an offence in Queensland and as said by the Honourable J B Thomas in O'Brien’s case the community does not expect its law enforcers to commit drink driving offences and members of our community are ‘very sensitive to the possibility of double standards’.[14]
- [11]Mr Hume was dealt with by the Magistrates Court in relation to the drink driving offence and he was ordered to pay a fine and was disqualified from holding or obtaining a drivers licence. His conduct also attracts disciplinary proceedings because he was (and still is) a serving police officer. As said in Tolsher v Commissioner of Police Ian Stewart (No 2)[15] police officers are responsible for upholding and promoting the drink driving laws in Queensland.[16]
- [12]In this case, Mr Hume’s conduct is serious because he had a blood alcohol reading that was nearly three times over the legal limit. I am satisfied his conduct does not ‘meet the standard of conduct the community reasonably expects of a police officer'.[17]
What are the mitigating circumstances?
- [13]Mr Hume’s acknowledgment of his conduct is reflected in the respondent decision maker’s findings and reasons. Acting Assistant Commissioner Keating said that Mr Hume ‘makes full and frank admissions acknowledging the conduct…constitutes misconduct, this insight goes to the very essence of the conduct which is under scrutiny here’.[18]
- [14]The respondent decision maker also refers to Mr Hume’s severe clinical and chemical depression reflected in the report of Dr Matthew Horan that was accepted by the Court.[19] There is also reference in the findings and reasons to Mr Hume’s performance as a police officer as being ‘in a positive manner’ and that he had maintained ‘such attitude’ throughout the process that had been ‘somewhat delayed’.[20]
- [15]The material that was before the respondent decision maker includes the report of Dr Horan, Clinical Psychologist, dated 21 July 2013.[21] Dr Horan refers in his report to Mr Hume’s personal circumstances at the time of his conduct and his diagnosed medical condition.
- [16]Dr Horan reports that Mr Hume was referred to him by a doctor on 22 April 2013 (the day after the drink driving incident). Dr Horan says that when he saw Mr Hume he was ‘distressed and upset’ and ‘shocked and confused’ by his actions on 21 April 2013 because motorbikes are his (Mr Hume’s) ‘passion’ and he felt ‘privileged’ to be a motorcycle police officer. Mr Hume is reported to have been a police officer in Queensland for 15 years and previously served the police in Scotland for 5.5 years. Dr Horan says that this is Mr Hume’s first offence relating to drink driving.
- [17]Dr Horan says there were a number of events that would impacted on Mr Hume’s psychological wellbeing at the time of the incident: Mr Hume being bashed in 2007 while working as a police officer, the passing of his mother in 2009, medical attention to his eyes in 2010 (as a result of the bashing), an operation in 2010 to his sinuses, his marriage in 2011, an operation to his neck in 2012, visiting his father in Scotland in 2012 (who had been diagnosed with cancer), the end of his marriage in 2012, visiting his father again in 2013 (to care for him); and financial stress.
- [18]Dr Horan reports that on the day of the incident Mr Hume had finished work at 4:00 am and returned home when he received a telephone call from his sister to say that his father did not have long to live and that he should return to Scotland if he wanted to spend any time with him. Dr Horan reports that Mr Hume is reported to have gone to the Windaroo Tavern on his Harley Davidson motorcycle and sat alone drinking. He was told by ‘patrons’ that the police were outside doing random breath tests. Mr Hume was close enough to walk home but chose to ride his motorcycle when he was pulled over by police. Dr Horan reports that Mr Hume’s behaviour at that time ‘appear[ed] to make no logical sense, and he appeared to be in a self destruct mode’.[22]
- [19]Dr Horan says Mr Hume was given antidepressant medication and ongoing therapy to treat his diagnosed depression. Dr Horan says that assessments indicated he (Mr Hume) was ‘severely depressed with an elevated anxiety depression and chemical depression. Further assessment indicated that at the time of the incident he would have been extremely depressed’.[23]
- [20]Dr Horan reports that Mr Hume’s behaviour was ‘outside his normal boundaries and [was] secondary to his deep depression’. Dr Horan reports:
The depression was caused by a number of ongoing tragic events that precipitated in a Serotonin drop (chemical depression), and had he been treated earlier the offence would most certainly not have happened, it is highly unlikely he will reoffend.[24]
- [21]Dr Horan also reports that Mr Hume is remorseful and embarrassed by his past actions.
- [22]There are references that were before the respondent decision maker in the disciplinary proceedings in support of Mr Hume’s work as a police officer that attest to Mr Hume’s positive work ethic and his commitment to his duties ‘to the highest standard’.[25] There was also a personal reference from a long standing friend that refers to Mr Hume’s personal circumstances; in particular the ‘constant worry’ he had about his father’s ill health.[26]
- [23]I am satisfied there are mitigating circumstances in this case that must be considered by me in determining sanction, such as Mr Hume’s acknowledgement and acceptance of the charge, his otherwise good service history, the medical evidence (of Dr Horan) that shows Mr Hume was under considerable personal stress (at the time) and had diagnosed depression.
What is the correct and preferable decision?
- [24]Mr Hume’s conduct is serious because he was nearly three times over the legal limit. The report of Dr Horan shows that Mr Hume was drinking alone in a tavern and was warned about police conducting random breath testing in the area but he still made the decision to drink drive.
- [25]The sanction to be imposed by me on review must reflect the seriousness of the charge and I must also consider any prior conduct, length of service and other personal mitigating factors such as Mr Hume’s character, cooperation with the disciplinary process and remorse for his conduct.[27]
- [26]The Tribunal on review has the same powers as the respondent decision maker in determining the appropriate sanction.[28] It is settled law that the object of disciplinary proceedings is to ‘protect the public, to maintain proper standards of conduct … and to protect the reputation of that body. The object … is not to punish or exact retribution’.[29]
- [27]The purpose of police discipline is to ensure the ‘maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency’.[30] The ‘objects’ in the Police Service (Discipline) Regulations 1990 (Qld) refer to appropriate standards of discipline being maintained in the QPS to protect the public, uphold ethical standards within the QPS and to promote and maintain confidence in the QPS.[31]
- [28]Mr Hume’s prior working history is reflected in the transcript of the Magistrates Court criminal proceedings that was before the respondent decision maker at the disciplinary proceedings. The Magistrates Court transcript shows that in July 2013 when Mr Hume appeared before the Magistrates Court he was a 50 year old man who joined the QPS in 1998 following 5.5 years in Scotland where he also worked in the police force. He was a motorcycle traffic branch officer at the time of the offending behaviour where he had worked for a number of years.[32] The transcript shows that Mr Schmidt representing Mr Hume in the criminal proceedings told the Magistrate that Mr Hume had a ‘flawless record’ and this incident was his first ‘fall from grace’.[33]
- [29]I have considered Mr Hume’s early acceptance of the charge and that this incident was out of character given his otherwise good work history. In McKenzie v Acting Assistant Commissioner Wright[34] the Appeals Tribunal said that in disciplinary proceedings an early indication of ‘acceptance of the charge is that it indicates honesty and remorse, and a willingness to face up to obligations’.[35]
- [30]I accept that Mr Hume is remorseful for his actions and has demonstrated insight into his conduct by accepting the charges and seeking assistance from his medical practitioner immediately after the incident.
- [31]I also accept that Mr Hume had a diagnosed medical condition at the time of the conduct as reported by Dr Horan and that there was a series of events referred to as ‘tragic’ that caused a ‘chemical depression’ prior to the incident.[36]
- [32]I have carefully considered all of the mitigating circumstances and the seriousness of the charge. Mr Hume was (and is) a serving police officer and at the time of the offending behaviour he was working as a motorcycle police officer. Mr Hume’s decision to drink drive showed a complete lack of regard for the law that he seeks to uphold and maintain as a serving police officer. The sanction to be imposed by me must reflect the seriousness of the charge and the objects of disciplinary proceedings such as to protect the public, uphold ethical standards within the QPS; and to promote and maintain public confidence in the QPS.
- [33]The respondent in written submissions says that the sanction imposed was proportionate to the misconduct of Mr Hume given his rank, length of service, duties at the time of the offence and the level of blood alcohol concentration. The respondent also says that the sanction imposed is consistent with previous sanctions imposed on other officers charged with drink driving offences although the cases have been ‘structured’ to meet the particular circumstances of the officer.[37]
- [34]In O'Brien v Assistant Commissioner Steven Gollschewski, Queensland Police Service[38] the police officer had a lower blood alcohol reading of 0.070% and had a good disciplinary record. The Appeal Tribunal set aside the sanction imposed by the Tribunal (on review) and ordered that the police officer’s salary be reduced from Senior Constable paypoint 2.9 to 2.8 for a period of 6 months from the date of the original determination. The Honourable J B Thomas said that the officer concerned had made a ‘conscious decision to drive in the belief that she was under the legal limit’.[39]
- [35]In O'Brien’s case the Honourable J B Thomas considered two other cases that had been considered by the Tribunal (on review) identified as Sergeant W’s case and Senior Constable F’s case.
- [36]In Sergeant W the officer had a blood alcohol concentration of 0.078% and had been driving with 2 children as passengers in a private vehicle. The sanction imposed was a reduction of 1 paypoint (from Sergeant paypoint 3.5 to 3.4) for a period of 9 months.
- [37]In Senior Constable F the officer was driving with a blood alcohol reading of 0.085%. There were two matters before the decision maker in the disciplinary proceedings. In relation to the drink driving charge the officer’s salary was reduced from Senior Constable paypoint 2.7 to 2.6 for a period of 12 months.
- [38]Mr Hume’s conduct in this case is more serious than the conduct in O'Brien’s case because of Mr Hume’s blood alcohol reading but there are also mitigating circumstances in Mr Hume’s case.
- [39]I have also considered the sanction in Tolsher v Commissioner of Police Ian Stewart (No 2)[40] that involved an officer driving with a blood alcohol reading of 0.15%. The charges also involved the officer making requests and comments to police so that he could avoid being breathalysed. The Tribunal demoted the officer in rank from Senior Sergeant paypoint 4.1 to Sergeant paypoint 3.4 and suspended the sanction for 2 years on conditions that he not commit any further acts of misconduct and that he be demoted in rank from paypoint 4.1 to 3.4 being eligible to progress paypoints under normal industrial arrangements.
- [40]In Tolsher’s case the officer was of more senior ranking than Mr Hume and had a slightly higher blood alcohol reading.
- [41]The respondent also refers in written submissions to several other comparators that were before the respondent decision maker at the disciplinary hearing.[41] The respondent says the comparators show that where officers engaged in drink driving offences of blood alcohol readings in a range from 0.116% to 0.15% the penalties have included demotions in rank, reduction in salary and in only one case the sanction was suspended for 2 years.[42] The comparators do not however identify mitigating or other circumstances that would also be relevant to determining the appropriate sanction.
- [42]I have considered Mr Hume’s submissions about the financial detriment to him as a result of the sanction. He says that 12 months community service equates to approximately 2.5 weeks of unpaid work and this is approximately $3,874.13 (not including allowances) that would be a wage payable to a Senior Constable paypoint 2.9 for 2.5 weeks.[43] As a comparison Mr Hume says that an actual paypoint reduction from Senior Constable paypoint 2.9 to 2.8 for 12 months is a reduction in annual salary of $1,816.00 (not including allowances).[44] Mr Hume fails to address how he would be entitled to remuneration for community service. Any community service to be performed is unpaid work because it is a voluntary service as part of the conditions of the sanction imposed.
- [43]I am satisfied the respondent decision maker has considered all of the circumstances in this case including the report of Dr Horan. The respondent says in his findings and reasons that he is ‘mindful’ of Dr Horan’s report.[45] The respondent also says that he has considered Mr Hume’s references, the fact that there were no ‘prior infractions’ in Mr Hume’s service history and that he has undertaken his policing duties in a ‘positive manner and maintained such attitude throughout the complaint process’.[46] The respondent has also considered the impact of any reduction in salary and refers to Mr Hume in the findings as being the sole income earner in his household and the respondent says he has considered the ‘impost a previous work injury has had upon his finances’.[47] The respondent says that he is ‘persuaded’ by Mr Hume’s submissions for a suspended sanction under s 12 of the Police Service (Discipline) Regulation 1990 ‘in lieu of any reduction of salary’.[48]
- [44]In this case I am satisfied that a reduction in Mr Hume’s Senior Constable paypoint from 2.9 to 2.8 for 12 months is appropriate. I am also satisfied that the sanction should be suspended and that it is appropriate to order that Mr Hume complete a period of 100 hours community service at a Police Citizens Youth Club within 12 months from the date of the original determination (22 October 2014). A period of 100 hours of community service as part of the condition of the sanction also reflects the seriousness of the offending behaviour and the mitigating circumstances without any financial detriment to Mr Hume.
Tribunal findings
- [45]Mr Hume’s conduct is serious because he was driving with a blood alcohol concentration that was nearly three times over the legal limit. Mr Hume is a serving police officer and is responsible for maintaining and upholding laws in Queensland to ensure that members of the community do not do the very thing he did and that is to put his own life and the life of others in potential serious risk because he was drink driving.
- [46]I accept that Mr Hume acted out of character when he made the wrong decision to drink drive. I accept that there had been a number of personal events that took place in his life prior to the offending behaviour and that Mr Hume had a diagnosed chemical depression.
- [47]I have considered the comparators referred to by the respondent and the cases of O'Brien and Tolsher that also concerned police officer conduct involving drink driving. I have also considered Mr Hume’s submissions about the financial detriment to him as a result of the imposition of 100 hours community service.
- [48]I accept that Mr Hume has demonstrated remorse and has references that attest to his professionalism as a police officer and good work history. Mr Hume has also been dealt with by the Magistrates Court and I accept that he has recognised the consequences of his action by seeking help from his health professional immediately after the incident.
- [49]Taking into account the objects of disciplinary proceedings, including maintaining proper standards of conduct by members and protecting the reputation of the QPS[49] and all of the relevant mitigating factors, the preferable sanction is a reduction in paypoint Senior Constable 2.9 to 2.8 for 12 months. I am satisfied the sanction should be suspended for 12 months on the condition that Mr Hume complete a period of 100 hours of community service at a Police Citizens Youth Club within 12 months from the date of the original determination (22 October 2014). The respondent’s decision made on 22 October 2014 is confirmed.
Footnotes
[1]Disciplinary hearing misconduct notice of formal finding dated 22 October 2014. Suspension of the sanction made pursuant to s 12 of the Police Service (Discipline) Regulations 1990.
[2]Applicant’s submissions dated 2 March 2015 at [13].
[3]Ibid, [18].
[4]Ibid, at [20].
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20.
[6]Murray v Deputy Commissioner Stewart [2011] QCAT 583, at [40].
[7]Aldrich v Ross [2010] 2 Qd R 235.
[8]Murray v Deputy Commissioner Stewart [2011] QCAT 583, at [40].
[9]O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148 at [48].
[10]Ibid.
[11]Ibid.
[12]Ibid.
[13]Section 1.4. See the respondent’s findings and reasons, respondent’s material filed under s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), (respondent’s s 21 material), p 30.
[14]O'Brien v Assistant Commission Stephen Gollschewski, Queensland Police Service [2014] QCATA 148 at [33].
[15][2013] QCAT 590.
[16]Ibid, at [31].
[17]Police Service Administration Act 1990, s 1.4.
[18]Respondent’s findings and reasons, respondent’s s 21 material, p 30.
[19]Ibid, p 36.
[20]Ibid.
[21]Report of Dr Mathew Horan, clinical psychologist dated 21 July 2013, respondent’s s 21 material, p 80.
[22]Ibid.
[23]Ibid, p 81.
[24]Ibid.
[25]Respondent’s s 21 material, p 82 and 84.
[26]Ibid p 83.
[27]Queensland Police Service v Compton (No 2) [2011] QCATA 246; Crime and Misconduct Commissioner v McLennan & Ors [2008] QSC 23.
[28]QCAT Act, s 19; Police Service (Discipline) Regulations 1990 (Qld) s 6.
[29]Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597.
[30]Police Service Board v Morris (1985) 156 CLR 397 at 412.
[31]Police Service (Discipline) Regulations 1990, s 3.
[32]Respondent’s s 21 material, p 87.
[33]Ibid.
[34][2011] QCATA 309.
[35]Ibid, at [23].
[36]Respondent’s s 21 material, p 81.
[37]Outline of submissions on behalf of the respondent filed 18 March 2015, [38].
[38][2014] QCATA 148.
[39]Ibid, at [17].
[40][2013] QCAT 590.
[41]Outline of submissions on behalf of the respondent filed on 18 March 2015 at [32] and see the Respondent’s s 21 material, p 34.
[42]Outline of submissions on behalf of the respondent filed on 18 March 2015, [32].
[43]Submissions for the applicant filed on 2 March 2015, p 3.
[44]Ibid.
[45]Ibid, p 36.
[46]Ibid.
[47]Ibid.
[48]Ibid.
[49]Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597.