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Scott v Assistant Commissioner Martin[2015] QCAT 423

Scott v Assistant Commissioner Martin[2015] QCAT 423

CITATION:

Scott v Assistant Commissioner Peter Martin [2015] QCAT 423

PARTIES:

Lyane Scott
(Applicant)

 

v

 

Assistant Commissioner Peter Martin
(Respondent)

APPLICATION NUMBER:

OCR066-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 September 2015

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

21 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of Assistant Commissioner Peter Martin is confirmed.

CATCHWORDS:

DISCIPLINARY PROCEEDINGS - POLICE - SANCTION - Where senior constable presented for work under the influence of alcohol - where officer was subjected to targeted alcohol testing and returned readings of .121% and .118% - where officer untruthfully told a senior officer she had caught a bus to work - where officer’s motor vehicle later seen in vicinity of police station - where officer admitted on next working day having driven to work - where out of character for officer who was subject to significant stressors - where officer initiated and completed rehabilitation course and counselling - where officer has largely completed sanction imposed by the respondent - where officer otherwise has meritorious record and references

Crime and Corruption Act 2001 (Qld), s 291A, s  219H, s 219J, s 219L

Police Service (Discipline) Regulations 1990 (Qld), reg 3, reg 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 17, s 18, s 19, s 20

Aldrich v Ross [2001] 2 Qd R 235

Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Hume v Acting Assistant Commissioner Michael Keating [2015] QCAT 202

Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590

O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148

Police Service Board v Morris (1985) 156 CLR 397

Queensland Police Service v Compton (No 2) [2011] QCATA 246

Re Bowen [1996] 2 Qd R 8

Teacher J v Queensland College of Teachers [2012] QCATA 115

Yabsley v Acting Assistant Commissioner Michael Keating (No 2) [2015] QCAT 359.

APPEARANCES:

APPLICANT:

Mr T Schmidt of Counsel appeared for Ms Scott

RESPONDENT:

Mr C Capper, Public Safety Business Agency, in-house lawyer appeared for Assistant Commissioner Peter Martin

REASONS FOR DECISION

  1. [1]
    Ms Lyane Scott was a Senior Constable in the Queensland Police Service on 3 August 2013. She did not arrive for duty that morning at her scheduled shift commencement time of 7am. Another officer telephoned her. She subsequently arrived at work at about 7:30am, at which time she took possession of her accoutrements and loaded her service revolver. 
  2. [2]
    Shortly after her arrival, she was informed by Inspector Cryer that she was to undergo a targeted alcohol (breath) test. Two tests were taken, the first between 7.30 and 7.40 am. The second test was taken at about 8 am. On those tests, her alcohol readings were 0.121% and 0.118% respectively. When later interviewed, she admitted consuming alcohol until perhaps, 3 or 4 am.[1] Shortly afterwards, in response to Inspector Cryer’s question about how she had travelled to work, she said ‘bus.’ She was stood down from her duties for two days and recommenced duty on 5 August 2013. Later, but before she returned to work on 5 August, other officers saw her car parked near the police station. It has a distinctive number plate, ‘LYANE.’
  3. [3]
    When she attended on 5 August 2013, Ms Scott spoke with Sergeant Rebecca Martin in a welfare interview about the events of 3 August. Sergeant Martin sought clarification about how Ms Scott had travelled to work. Ms Scott admitted that she had driven her private vehicle to work. Sergeant Martin reported that Ms Scott was very forthcoming. She says Ms Scott wanted to ‘set the record straight,’[2] admitting that she drove to work. She said that Ms Scott explained that she panicked when she was woken by the phone call, realised she was late for work and when Inspector Cryer asked her how she travelled to work, as she had not stopped to think she would be over the limit.[3]
  4. [4]
    On 27 August 2013, Ms Scott gave a letter of apology, expressing her shame and embarrassment, and outlining the personal circumstances that she faced at the time of the events. In particular, her mother had passed away a little over a year earlier; her father had suffered two heart attacks that required hospitalisation in Sydney, and his failing health was constantly on her mind; she had a back injury in late 2012 and was coming to terms with pain management. She also had an unresolved concern about what she describes as unwarranted workplace behaviour by another (more senior) officer, in respect of whom she had made a formal notification, and with whom she continued to work. She explained that following the events of 3 August, she had sought the assistance of the Queensland Police Service Alcohol and Drug Testing Co-ordination Unit and was following all of their recommendations to address her alcohol use.[4] She underwent counselling as part of those recommendations.
  5. [5]
    Disciplinary proceedings were commenced. The disciplinary charge was framed in the following terms:

Matter 1:

That on 3 August 2013, at Indooroopilly your conduct was improper in that you:

  1. Drove a motor vehicle whilst you were over the prescribed alcohol limit;
  2. Consumed alcohol prior to the commencement of a rostered shift that adversely affected your ability to conduct official duties; and
  3. Were untruthful to Inspector Cryer stating that you caught the bus to work.
  1. [6]
    The specified particulars of the misconduct are set out in later paragraphs of these reasons for decision.
  2. [7]
    Ms Scott was formally interviewed on 27 August 2013. She admitted, and took full responsibility for, her actions.
  3. [8]
    In April 2015, Assistant Commissioner Peter Martin, acknowledging that Ms Scott admitted all of the facts and accepted that the conduct was misconduct, found that matter 1 was substantiated against her and amounted to misconduct.
  4. [9]
    Assistant Commissioner Martin imposed a sanction reducing Ms Scott from the rank of Senior Constable to Constable for a minimum period of six months. He further directed that she was eligible to return to Senior Constable pay-point 2.9 if she successfully completed 120 uniformed operational general duties shifts as a Constable, coupled with a successful Performance Development Agreement (‘PDA’) for that period. Assistant Commissioner Martin considered whether to, but did not, suspend the sanction under Regulation 12 of the Police Service (Discipline) Regulations 1990 (Qld).
  5. [10]
    Ms Scott seeks review of the sanction imposed upon her.[5] The Assistant Commissioner submits that the sanction imposed should be confirmed by the Tribunal. Generally, the review must be conducted on the basis of the evidence that was before the original decision-maker (in this case, the Assistant Commissioner).[6] However, at the hearing of this review, I granted leave[7] for Ms Scott to rely upon new evidence, namely an affidavit sworn by her on 29 September 2015.
  6. [11]
    Although the facts and inferences that I draw from them are not in all respects the same as Assistant Commissioner Martin’s, for the reasons explained in the following paragraphs, I have concluded that orders should be made confirming his decision on sanction.

The review process

  1. [12]
    Section 219G and s 219H of the Crime and Corruption Act 2001 (Qld) (‘CCC Act’) and ss 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provide that the Tribunal’s function on the review application is to make the correct and preferable decision on the evidence, in this case, which was before the decision-maker and the new evidence, allowed by leave.[8] If the Tribunal has the same view of the facts and inferences, it is appropriate to give considerable respect to the views of the decision-maker as to the disciplinary sanction.[9] However, the Tribunal must reach its own decision on the review. It brings the public perspective to bear on the disciplinary process.[10]
  2. [13]
    The purpose of police disciplinary proceedings in Queensland encompasses deterrence, protection of the public,[11] maintenance of proper standards[12] and promoting and maintaining public confidence in the police service.[13] The sanction imposed must signify the disapproval with which the conduct is viewed.[14] It plays a role in specific (in respect of the officer concerned) and general (in respect of other officers) deterrence.[15]
  3. [14]
    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 internal discipline is the primary means of ensuring individuals do not jeopardise public confidence.[16]
  4. [15]
    Although the Tribunal stands in the shoes of the decision-maker in conducting the review, the CCC Act includes specific power for QCAT to suspend a sanction if it considers it appropriate to do so in the circumstances.[17]  

Particulars of the conduct specified in the disciplinary charge

  1. [16]
    The misconduct was particularised as follows:

In relation to matter 1(a)

  • At about 7.30am on 3 August 2013, you arrived at Indooroopilly Police Station to commence your rostered shift;
  • Upon arrival at the station, Inspector Sean Cryer conducted a targeted alcohol test under the Police Service Administration Act 1990 using Lion Alcolmeter 075129D;
  • You provided a breath test reading of .121%;
  • On 5 August 2013, you made admissions to Inspector Rebecca Martin that you had driven your own private motor vehicle to work on the morning of 3 August 2013.

In relation to matter 1(b)

  • In an interview with Detective Senior Sergeant Chris Fenelon you admitted to consuming a bottle of wine on the night of 2 August 2013 which extended into the early hours of 3 August 2013;
  • You knew you were rostered to commence duty at 7am on 3 August 2013; and
  • At 7.30am on 3 August 2013 you provided a breath test reading of .121% and a secondary test at 08.00am indicating a reading of .118%.

In relation to matter 1(c)

  • After you arrived at Indooroopilly Police Station to commence duty at 7.30am on 3 August 2013, Inspector Cryer questioned you regarding how you travelled to work;
  • You replied you caught a bus; and
  • You admitted to Inspector Rebecca Martin on 5 August 2013, that you had driven your own private motor vehicle to work on the morning of 3 August 2013.

Findings of fact made and inferences drawn

  1. [17]
    In finding misconduct, Assistant Commissioner Martin drew inferences in respect of the particulars in 1(c), which are challenged by Ms Scott. He considered that Ms Scott did not of her own volition set the record straight about having driven to work.[18] In particular, Assistant Commissioner Scott found that it was

… highly unlikely that had your private motor vehicle not been discovered to have been parked in the rear street off Indooroopilly Police Station, you would have given little (sic) thought to correcting your original lie. It was only after this revelation was brought to your attention that you acknowledged the untruthfulness of your statement.[19]

  1. [18]
    He concluded that by ‘deliberately’[20] telling a lie, she sought to avoid the probable consequences of a prosecution and the consequences of being convicted of a serious traffic offence.[21]
  2. [19]
    Ms Scott submits that there is no evidence to support these inferences, and challenges them as far as they are relevant to the sanction imposed.
  3. [20]
    Assistant Commissioner Martin noted Ms Scott’s regret, personal circumstances, and dedicated work history, as well as favourable references from her senior officers and positive comments on her service history. He also acknowledged that she had taken positive steps to deal with her issues.
  4. [21]
    However, Assistant Commissioner Martin was scathing of Ms Scott’s behaviour, describing it as ‘deplorable.’[22] He considered that although the incident of misconduct was ‘somewhat isolated’[23] in her 10 year career as a police officer, it was a serious transgression. He considered that her ‘poor choices’ had been compounded by the cumulative effect of driving after drinking, attending work in an unfit state and being untruthful about how she travelled to work.[24] As a sworn officer, she had taken an oath of service to tell the truth. As discussed earlier, he considered the lie was deliberate, to avoid and/or compromise probable prosecution for drink-driving and the disciplinary consequences. 
  5. [22]
    He considered she had ‘ample opportunity’[25] to correct her untruthfulness, but did not until confronted. Having regard to the inferences he drew about why she had been untruthful and whether she would have corrected her untruth if her vehicle had not been discovered nearby, he appears to have regarded the lie as calculated, finding that Ms Scott unlikely to have admitted her wrongdoing if it had not been independently uncovered.
  6. [23]
    Noting that she was a senior member of any general duties crew, and had acted as a Sergeant, he considered she held a leadership role regarding constables.  He considered this an aggravating factor, and that her actions undermined the disciplinary system.
  7. [24]
    He referred to her awareness, as a Police officer, of the consequences of her actions. He refers to outlining her personal circumstances in her apology letter as reinforcing her lack of insight into her behaviour. Because she was not fit for duty but attended in that state, he considered that any operational decision she made in that state as a police officer would have been compromised by her intoxication. 
  8. [25]
    Assistant Commissioner Martin had regard to sanction applied in a number of circumstances concerning officers who drove motor vehicles while over the general alcohol limit. All of these related to behaviour which occurred off duty. All but one involved driving a private motor vehicle. One involved driving a police dog van when off duty. He also considered several precedents concerning untruthfulness by officers. Unfortunately, these appear to be drawn from internal records and not from reported QCAT decisions. Accordingly, the details are not available publicly. Counsel noted that one of them is an internal police decision which was reviewed in the Tribunal, resulting in a different (and lesser) sanction in Tolsher v Commissioner of Police Ian Stewart (No 2)[26].

Seriousness of the conduct

  1. [26]
    Ms Scott’s Counsel argues on her behalf that all of the events occurred within about an hour on 3 August 2013. At the time, he submits, she had extenuating circumstances, which, although not an excuse, provide an explanation for the brief lapse in judgment on that particular day. 
  2. [27]
    It was argued on behalf of Assistant Commissioner Martin that Ms Scott knew when she was drinking until 3 or 4 am that she was on duty at 7am. He submits that driving to work; presenting for duty under the influence of alcohol; taking possession of her accoutrements and arming her revolver;  knowing that she may be required to drive a police vehicle (although it seems uncontroversial that she was rostered on 3 August for a counter shift), placed Ms Scott, her colleagues and the public potentially at serious risk of harm.
  3. [28]
    Although the events as particularised occurred within an hour, it is reasonable to infer that the lapse of judgment resulting in the misconduct occurred over a more lengthy period. The decision to consume a significant amount of wine until 3 or 4 am occurred sometime during the evening of 2 or 3 August, when Ms Scott was aware that she was rostered for duty at 7am.
  4. [29]
    The actions involved in the misconduct in parts (a), (b), and (c) would be serious individually. Police officers are in a unique position with respect to drink-driving because they are responsible for upholding and promoting the drink-driving laws[27] and members of the community are ‘sensitive to the possibility of double standards.’[28] Also, her breath tests reveal that Ms Scott recorded in excess of twice the legal driving limit.
  5. [30]
    Presenting for duty in an intoxicated state as a police officer carries particularly serious implications. Ms Scott had a loaded firearm as part of her accoutrements. She may have been called upon to make a snap decision about whether to use her firearm in an incident. She may have been required to drive a police vehicle. It is reasonable to infer that decisions made in the course of operational police duties would likely be compromised by an intoxication level of more than twice the legal driving limit. This had the potential to compromise of the safety of members of the public, other police officers and Ms Scott.
  6. [31]
    Untruthfulness is contrary to the oath of a sworn officer. It would be worse if calculated to avoid prosecution for and other consequences of drink-driving. It would also be more serious if it was not corrected. Ms Scott has an exemplary service history apart from these incidents. She says that she panicked when she realised she was late and in advising Inspector Cryer that she caught a bus, having not considered until then that she may be over the limit. Given her level of intoxication, it is reasonable to infer that she was not thinking with her usual degree of clarity at this time.
  7. [32]
    Although she could perhaps have telephoned and advised a senior officer earlier, she admitted the untruth on the first occasion that she attended for duty subsequent to the events. Sergeant Rebecca Martin describes her a very forthcoming, and wanting to set the record straight. Further, her vehicle was distinctive, with the personalised number plate, ‘LYANE.’ Yet it remained near the police station for several days following the events. It does not appear Ms Scott sought to have it removed to minimise the prospects of it being discovered that she had driven to work.
  8. [33]
    Other than on 3 August 2013 when Ms Scott untruthfully said she had travelled by bus, Ms Scott’s actions have demonstrated a willingness to co-operate fully and take responsibility for her actions. She has no other history of untruthfulness. Rather, she has by all accounts, other than for these events, exemplary service. In the circumstances, I am not satisfied that the evidence supports an inference that Ms Scott was ‘highly unlikely’ to have disclosed the untruthfulness of her 3 August response had her vehicle not been discovered nearby. For similar reasons, I do not infer that she lied to avoid prosecution for drink-driving and other potential disciplinary consequences.
  9. [34]
    That said, I am satisfied, as Assistant Commissioner Martin found, that the misconduct is compounded by the cumulative actions[29] of Ms Scott driving while intoxicated, presenting for duty in that state, and then being untruthful about how she travelled to work. They represent a very serious lapse of judgment by an officer of 10 years’ experience, who is, as a senior constable, in a leadership role for more junior officers, and who plays an integral role in maintaining discipline within operational police ranks.
  10. [35]
    I would not describe it in the somewhat emotive terms used by Assistant Commissioner, as ‘deplorable’. However, it is entirely unacceptable, inappropriate and very serious because of the risks to safety it presents; the potential it has to undermine public confidence in the police service; and the potential risks it poses to the maintenance of appropriate standards of behaviour and discipline amongst officers of the police service.

Comparable decisions

  1. [36]
    (Consistently with the general objects of the QCAT Act),[30] the Appeal Tribunal has held in decision-making about police disciplinary matters that ‘consistency and reasonable comparability is important’.[31] Slavish adherence is not necessary: however, ‘when a certain level of response is discernible from past decisions, there should be some reason that justifies departure from it.’ [32]
  2. [37]
    Ms Scott submits that the Assistant Commissioner, in considering past decisions, did not have regard to relevant QCAT decisions and had regard to a decision in Tolsher v Commissioner of Police Ian Stewart (No 2)[33]  which had been set aside by the Tribunal on review. I make the observation that it would have been appropriate for any relevant QCAT decisions to be considered by him. That said, despite the references to comparatives in his decision, the legal representatives for Assistant Commissioner submit that none of the drink-driving cases are comparable because none of them involved officers presenting at work under the influence. Rather, they concerned off-duty behaviour.
  3. [38]
    In Hume v Acting Assistant Commissioner Michael Keating,[34] the Tribunal recently helpfully summarised drink-driving cases decided in the Tribunal to date. That said, I do not consider precedents concerning police disciplinary decisions about officers driving under the influence of alcohol while off-duty helpful here. The misconduct concerned is, in my view, more serious because it involves not only driving under the influence of alcohol, but consumption of alcohol that affected Ms Scott’s ability to perform her official police duties when she presented for them, as well as, being untruthful about how she travelled to work. Similarly, decisions that contain an element of untruthfulness alone, or in combination with other behaviour that is dissimilar to the behaviour here, are not reasonably comparable.
  4. [39]
    I was not referred to, and nor have I located, any decisions which are reasonably comparable.  

Purposes of disciplinary proceedings

  1. [40]
    Ms Scott’s Counsel submits that the purposes of discipline have been served because Ms Scott has undertaken rehabilitation. Therefore, he argues on her behalf that public confidence has been restored. Also, he submits that there is no possibility that the stressors concerning her parents can be repeated. Accordingly, he submits that there is no risk to public safety.
  2. [41]
    Assistant Commissioner Martin submits that because of the seriousness of the conduct of Ms Scott in placing herself, her colleagues and the public at risk that the sanction must demonstrate the appropriate level of opprobrium as to have a general deterrent effect. I agree.
  3. [42]
    I find that Ms Scott is unlikely to commit similar misconduct in the future or present a risk to safety. However, the extent to which public confidence in the police service may be eroded by actions such as those involved here must not be underestimated, particularly in light of Ms Scott’s level of experience and role in the overall maintenance of police discipline in supervising junior constables in their operational duties.
  4. [43]
    Accordingly, the sanction imposed on Ms Scott must demonstrate appropriate disapproval of such conduct. It is appropriate that the sanction is sufficiently significant to assure the public that such behaviour will not be tolerated in the police service, whatever the personal circumstances of the officer. It must also serve as a general deterrent to other officers in order to maintain the internal discipline necessary to ensure public confidence in the police service.

Conclusions and Orders

  1. [44]
    In conclusion, the matter of misconduct is a serious one.
  2. [45]
    It is uncontroversial in mitigation that Ms Scott has, apart from this matter of misconduct, an otherwise meritorious record as a police officer. She has no history of adverse matters on her service history, and indeed has favourable comments on it. Also, as discussed earlier, she voluntarily initiated a rehabilitation program and attended counselling to address her issues. She provided glowing references from her superiors in the disciplinary proceedings. They were each aware of the details of the disciplinary proceedings. They could not speak more highly of Ms Scott’s skills and dedication as a police officer, and clearly consider the events of 3 August 2013 an aberration.
  3. [46]
    I accept, as did the Assistant Commissioner, that having regard to her overall service history, that the events are ‘somewhat isolated’.[35] I find they were an aberration. Ms Scott was experiencing personal and work-related stressors around the time of the events. However, I give these circumstances no weight in mitigation, (which quite properly she concedes through Mr Schmidt provide only an explanation, not an excuse), for the aberration. As the Court of Appeal has said, the expectation of the public and the QPS is that police officers ‘will continue to behave with propriety regardless of stress.’[36] Although this may seem harsh, neither the police service nor the public should tolerate behaviour from an officer which puts safety at risk, however explicable the behaviour may be in the circumstances and whatever personal sympathy the circumstances may invoke. The public must be assured that such behaviour will not be tolerated if confidence in the police service is to be maintained.
  4. [47]
    There has been some delay in finalising the disciplinary proceedings, but I do not consider it overly significant. The misconduct occurred in August 2013 and the Assistant Commissioner’s decision was made in April 2015, a little over 18 months later. This decision is now made by the Tribunal a little under 6 months later. Therefore, it is distinguishable from cases in which delay has been, for example, 6 years[37] or 3 years.[38]
  5. [48]
    The Tribunal has previously considered the impact of delay ‘affords the opportunity to assess what the officer has learned from the salutary experience of these disciplinary proceedings.’[39] I am satisfied that Ms Scott has learned a lesson from these proceedings. Her performance, as discussed earlier, has been exemplary since the events and she was quick to make admissions, and take responsibility for her actions and rehabilitative steps. To her credit, Ms Scott has worked continuously following the incident and the disciplinary decision. She had completed 111 of the 120 shifts as a constable at the time of the hearing. By the date of this decision, it is anticipated that she will have completed all 120.
  6. [49]
    Ms Scott’s Counsel submitted that the humiliation she has suffered since the sanction decision, in working while as a constable and wearing the uniform accompaniments of a junior officer during the 120 shifts is relevant to any decision made about sanction, as she can not be compensated for that, (although any change to pay levels would result in back-pay). Mr Schmidt submits that this has constituted a very public embarrassment and constant reminder to Ms Scott, that has been obvious to her colleagues. He referred to Teacher J v Queensland College of Teachers[40] where Member Dr Forbes considered unwanted negative publicity a significant ‘punishment’ in itself. In Yabsley v Acting Assistant Commissioner Michael Keating (No 2),[41] the Tribunal considered humiliation was a mitigating factor in considering appropriateness of sanction.[42] I have not been referred to a police disciplinary decision of the Appeal Tribunal on this point.
  7. [50]
    Ms Scott says that she has been very embarrassed by her loss of rank. The constable’s uniform has epaulettes but no stripes; whereas, a senior constables uniform has two stripes on the epaulettes. She knows from conversations with colleagues that they know she is serving a temporary demotion, which has been a visible and very public reminder. I accept that the requirement to work at the rank of constable has been a source of significant humiliation and embarrassment to Ms Scott, who has, apart from this misconduct, dedicated and meritorious service. I accept that for the duration it applied it has been a constant reminder to her and of her colleagues of the consequences imposed for her misconduct.
  8. [51]
    Teacher J is distinguishable: it concerned a teacher and broad coverage in the local press of the relevant misconduct of a teacher in a provincial town, not humiliation in the workplace (that is not to say that I would view it differently here if Ms Scott had been subject to media coverage). Yabsley (No 2) is also distinguishable, even though it concerned humiliation occasioned by a senior sergeant whose sanction involved demotion to the rank of sergeant and wearing the uniform of sergeant for a period of time. In that case, on review, the Tribunal had formed different conclusions about whether (some of) the misconduct alleged was substantiated than the original decision-maker.[43] The learned Member decided that a demotion was not warranted for the misconduct which she accepted as substantiated. She imposed a sanction of 2 penalty units to be suspended, provided that Mr Yabsley completed 8 hours unpaid community service within 6 months of her order. Accordingly, the humiliation of serving a period of reduced rank was considered relevant, in circumstances where a reduction of rank was not ultimately considered appropriate or imposed.
  9. [52]
    I do not accept, and nor do I accept that the Tribunal’s decision in Yabsley (No 2) indicated, that humiliation is generally a mitigating factor. It was only one of a variety of factors relevant in the particular circumstances which involved less serious conduct, more lengthy delay and ultimately imposing a sanction which did not involve demotion. It is not the case that where a sanction involves reduction in rank for a period of time, that on review the fact that the sanction has been served and caused humiliation to the officer is a mitigating factor deserving of a lesser sanction. In the circumstances of this proceeding, I find that the humiliation suffered in Ms Scott’s circumstances is merely an incident of sanction imposed. It is not a mitigating factor.
  10. [53]
    Police officers occupy a special, and in some senses, privileged position in society. Legislation gives them power and authority to do all manner of things in their role of maintaining law and order which members of the public generally cannot do, including carry loaded firearms and other weapons while on duty. With power comes responsibility. They are responsible for upholding and promoting drink driving laws. Therefore, transgressing those laws erodes public confidence and respect for the authority of police officers to do so. Neither the police service nor the public can tolerate police officers attending for duty or seeking to discharge these onerous duties in an unfit state. This would potentially compromise the safety of members of the public and the police officers. Integrity and truthfulness are also essential to public confidence in the police service and discipline within it. Accordingly, the sanction must signify significant disapproval of the misconduct here. I find that a sanction which visually and openly signifies the level of disapproval with which the conduct is viewed is required, to deter other officers from similar behaviour and to assure the public that such conduct will not be tolerated.
  11. [54]
    There are no true comparable decision/s.
  12. [55]
    I find that the sanction imposed by Assistant Commissioner Martin achieves the aims which the sanction must meet, and adequately takes into account the mitigating factors in the circumstances of the seriousness of Ms Scott’s misconduct.
  13. [56]
    Ms Scott’s Counsel submits that, at the very least, the sanction should be suspended. The effect, if a suspension was imposed now, would be to back-pay Ms Scott for the period of her reduction of rank, presuming she has now met the requirements to return to Senior Constable pay-point 2.9. I am not persuaded that it is appropriate to suspend the sanction. This is because of the seriousness with which I view the misconduct and the role of discipline in maintaining internal discipline and public confidence.
  14. [57]
    Accordingly, I find that the correct and preferable decision is to confirm the decision of Assistant Commissioner Martin. I make orders to this effect.

Footnotes

[1]Exhibit 2, page 86.

[2]Exhibit 2, page 50.

[3]Exhibit 2, page 50.

[4]Exhibit 2, page 29.

[5]For completeness, I granted leave at the hearing for Ms Scott to amend her review application to limit the review to sanction. The review application originally specified that she also sought to challenge finding/s of fact and inference (but not the finding of misconduct) drawn by the Assistant Commissioner which did not form part of the disciplinary charge and are relevant to sanction.

[6]Crime and Corruption Act 2001 (Qld) s 219H(1).

[7]Ibid, s 219H(2) provides that leave may be granted for new evidence in specified circumstances.

[8]Ibid, s 219H(3).

[9]Aldrich v Ross [2001] 2 Qd R 235, at 257-258, per Thomas J.

[10]Ibid. See also, Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590 at [15].

[11]Aldrich v Ross [2001] 2 Qd R 235, 247; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3.

[12]Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3.

[13]Aldrich v Ross [2001] 2 Qd R 235, 247.

[14]Police Service Board v Morris (1985) 156 CLR 397; Queensland Police Service v Compton (No 2) [2011] QCATA 246, [25].

[15]Ibid.

[16]Police Service Board v Morris (1985) 156 CLR 397 at 412.

[17]CCC Act, s 219L - whereas Assistant Commissioner Martine considered suspension under Regulation 12.

[18]Exhibit 2, page 7.

[19]Ibid, page 8.

[20]Ibid, page 9.

[21]Exhibit 2, pages 7-9.

[22]Exhibit 2, page 14.

[23]Exhibit 2, page 14.

[24]Ibid, page 15

[25]Ibid, page 7.

[26][2013] QCAT 590.

[27]O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148; Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590; Hume v Acting Assistant Commissioner Michael Keating [2015] QCAT 202.

[28]O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148 at [33].

[29]Exhibit 2, page 15, referring to a decision of Justice Demack in the former Misconduct Tribunal in Re Bowen [1996] 2 Qd R 8.

[30]QCAT Act s 3(c) and (d).

[31]O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148 at [48].

[32]Ibid.

[33][2103] QCAT 590.

[34][2015] QCAT 202.

[35]Exhibit 2, pages 13-14.

[36]Deputy Commissioner Stewart v Dark [2012] QCA 228, at [35].

[37]Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490.

[38]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 359.

[39]Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490, at [24].

[40]Teacher J v Queensland College of Teachers [2012] QCATA 115, [39].

[41][2015] QCAT 359.

[42]Ibid, [20, 34].

[43]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258.

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Editorial Notes

  • Published Case Name:

    Lyane Scott v Assistant Commissioner Peter Martin

  • Shortened Case Name:

    Scott v Assistant Commissioner Martin

  • MNC:

    [2015] QCAT 423

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    21 Oct 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
4 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Cite 3 - [2001] 2 Qd R 235
Cite 4 - [2001] 2 Qd R 235
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490
3 citations
Jump To
Cite 1 - [2010] QCAT 490
Cite 2 - [2010] QCAT 490
Cite 3 - [2010] QCAT 490
Deputy Commissioner Stewart v Dark [2012] QCA 228
1 citation
Jump To
Cite 1 - [2012] QCA 228
Hardcastle v Commissioner of Police (1984) 53 ALR 593
2 citations
Jump To
Cite 1 - (1984) 53 ALR 593
Cite 2 - (1984) 53 ALR 593
Hume v Acting Assistant Commissioner Keating [2015] QCAT 202
3 citations
Jump To
Cite 1 - [2015] QCAT 202
Cite 2 - [2015] QCAT 202
Cite 3 - [2015] QCAT 202
O'Brien v Assistant Commissioner Stephen Gollschewski [2103] QCAT 590
1 citation
Jump To
Cite 1 - [2103] QCAT 590
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
4 citations
Jump To
Cite 1 - [2014] QCATA 148
Cite 2 - [2014] QCATA 148
Cite 3 - [2014] QCATA 148
Cite 4 - [2014] QCATA 148
Police Service Board v Morris & Martin (1985) 156 CLR 397
3 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
Cite 3 - (1985) 156 CLR 397
Queensland Police Service v Compton (No 2) [2011] QCATA 246
2 citations
Jump To
Cite 1 - [2011] QCATA 246
Cite 2 - [2011] QCATA 246
Re Bowen [1996] 2 Qd R 8
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 8
Cite 2 - [1996] 2 Qd R 8
Teacher J v Queensland College of Teachers [2012] QCATA 115
2 citations
Jump To
Cite 1 - [2012] QCATA 115
Cite 2 - [2012] QCATA 115
Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590
4 citations
Jump To
Cite 1 - [2013] QCAT 590
Cite 2 - [2013] QCAT 590
Cite 3 - [2013] QCAT 590
Cite 4 - [2013] QCAT 590
Yabsley v Acting Assistant Commissioner Keating (No 2) [2015] QCAT 359
4 citations
Jump To
Cite 1 - [2015] QCAT 359
Cite 2 - [2015] QCAT 359
Cite 3 - [2015] QCAT 359
Cite 4 - [2015] QCAT 359
Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258
1 citation
Jump To
Cite 1 - [2015] QCAT 258

Cases Citing

Case NameFull CitationFrequency
Anderson v Crime and Corruption Commission [2021] QCATA 681 citation
Cavanagh v Deputy Commissioner Gollshewski [2021] QCAT 1624 citations
Cavanagh v Gollschewski (No 2) [2023] QCATA 362 citations
Crime & Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 5101 citation
Crime and Corruption Commission v Assistant Commissioner Maurice Careless [2021] QCAT 3233 citations
Officer JGB v Deputy Commissioner Gollschewski [2017] QCAT 1462 citations
Rohweder v Acting Assistant Commissioner Keating [2016] QCAT 3473 citations
SS v Assistant Commissioner Marty Mickelson [2021] QCAT 732 citations
1

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