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  4. Swenson v Assistant Commissioner Hopkins; Byles v Assistant Commissioner Hopkins; Braunberger v Assistant Commissioner Hopkins - [2015] QCAT 441

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Swenson v Assistant Commissioner Hopkins; Byles v Assistant Commissioner Hopkins; Braunberger v Assistant Commissioner Hopkins[2015] QCAT 441

Swenson v Assistant Commissioner Hopkins; Byles v Assistant Commissioner Hopkins; Braunberger v Assistant Commissioner Hopkins[2015] QCAT 441

CITATION:

Swenson v Assistant Commissioner Les Hopkins; Byles v Assistant Commissioner Les Hopkins; Braunberger v Assistant Commissioner Les Hopkins [2015] QCAT 441

PARTIES:

Alec Swenson

(Applicant)

 

v

 

Assistant Commissioner Les Hopkins

(Respondent)

PARTIES:

Matthew Byles

(Applicant)

 

v

 

Assistant Commissioner Les Hopkins

(Respondent)

PARTIES:

Liam Braunberger

(Applicant)

 

v

 

Assistant Commissioner Les Hopkins

(Respondent)

APPLICATION NUMBER:

OCR278-13; OCR279-13; OCR280-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

10 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Alec Swenson v Assistant Commissioner Les Hopkins

  1. The Respondent’s sanction decision dated 22 October 2010 is set aside.
  2. The following sanction is substituted:
  1. (a)
    Mr Alec Swenson’s pay point is reduced from Senior Constable 2.6 to Senior Constable 2.5 for the nine-month period from 4 November 2010 until 3 August 2011 inclusive.
  2. (b)
    On and from 4 August 2011, Mr Swenson is returned to pay point Senior Constable 2.6.
  3. (c)
    Thereafter, Mr Swenson is eligible to advance to pay point Senior Constable 2.7 from 21 February 2012, subject to the normal industrial requirements of the Queensland Police Service.
  1. The parties have liberty to apply to the Tribunal about any matter arising in relation to the implementation of these orders.

Matthew Byles v Assistant Commissioner Les Hopkins

  1. The Respondent’s sanction decision dated 20 October 2010 is set aside.
  2. The following sanction is substituted:
    1. (a)
      Mr Matthew Byles’ pay point is reduced from Sergeant 3.5 to Sergeant 3.3 for the six-month period from 4 November 2010 to 3 May 2011 inclusive.
    2. (b)
      On and from 4 May 2011, Mr Byles is returned to pay point 3.5.
  3. The parties have liberty to apply to the Tribunal about any matter arising in relation to the implementation of these orders.

Liam Braunberger v Assistant Commissioner Les Hopkins

  1. The Respondent’s sanction decision dated 20 October 2010 is set aside.
  2. The following sanction is substituted:
    1. (a)
      Mr Liam Braunberger’s pay point is reduced from Constable 1.4 to Constable 1.3 for the nine-month period from 4 November 2010 to 3 August 2011 inclusive.
    2. (b)
      On and from 4 August 2011, Mr Braunberger is returned to pay point Constable 1.4.
    3. (c)
      Thereafter, Mr Braunberger is eligible to advance to pay point Constable 1.5 from 4 June 2012, subject to the normal industrial requirements of the Queensland Police Service.
  1. The parties have liberty to apply to the Tribunal about any matter arising in relation to the implementation of these orders.

CATCHWORDS:

DISCIPLINARY PROCEEDINGS – POLICE – PARITY PRINCIPLE – LEVELS OF SANCTION

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA

DA v Deputy Commissioner Stewart [2011] QCATA 359

Garth v Queensland Police Service (Unreported, QCAT Appeal Tribunal, 21 June 2013).

Murray v Deputy Commissioner Stewart [2011] QCAT 583

Staples v Deputy Commissioner Stewart [2011] QCAT 582

Swenson v Assistant Commissioner Les Hopkins [2014] QCAT 37

Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318

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’).

REASONS FOR DECISION

  1. [1]
    There are three closely related applications before the Tribunal, arising from the same unfortunate episode of police misconduct.  In all three matters, the Tribunal must determine the appropriate sanction to apply to each of the officers involved, Senior Constable Alec Swenson, Constable Liam Braunberger, and Sergeant Matthew Byles.
  2. [2]
    Whilst the Tribunal will make separate orders in respect of each officer, these reasons are the collective rationale for the Tribunal’s decisions in all three matters.
  3. [3]
    On 20 October 2010, the Respondent decided that Sergeant Byles’ pay level should be reduced from Sergeant 3.5 to 3.1, with no advancement to pay level 3.2 for 12 months.  On the same date, the Respondent decided that Constable Braunberger’s pay level should be reduced from Constable 1.4 to 1.2 with no advancement to pay level 1.3 for 12 months.
  4. [4]
    A few days later, on 22 October 2010, the Respondent decided that Senior Constable Alec Swenson’s pay level should be reduced from Senior Constable 2.6 to 2.5 with no advancement to pay level 2.6 for 12 months.
  5. [5]
    On 31 October 2013, all three officers applied to the Tribunal for an extension of time within which they could seek review of the sanctions imposed upon them by the Respondent. Initially, the applications were refused,[1] but were then granted on appeal.[2]
  6. [6]
    Helpfully, the parties have worked together to provide the Tribunal with joint submissions in relation to the circumstances of each officer’s misconduct, and facts relevant to sanction.

The misconduct

  1. [7]
    These proceedings arise from an unfortunate episode of lapsed judgement whereby a number of officers on duty in Fortitude Valley during a festival came to be photographed with a young woman who offered to display her newly acquired breast implants.  Proper decorum, and common sense, mandated that the invitation be declined.
  2. [8]
    The facts alleged against (and admitted by) Senior Constable Swenson are as follows:[3]

… on Sunday the 12th day of September 2010 at about 5am you were the shift supervisor and senior officer at the Indooroopilly Police Station when First Year Constable Perks showed other police officers a photograph of a semi-naked unknown female… you admitted viewing the photographs of the semi-naked female and being made aware of the circumstances under which the photographs were obtained. At that time you told Constable Perks to ensure the photograph does not get sent to anyone else, does not end up of Face Book and to delete the photograph. You further admitted that on your next shift at the Indooroopilly Police Station you became aware that First Year Constable Perks was showing other police officers the photo of the semi-naked unknown female. At no time did you comply with your obligation… to report the misconduct of your fellow police officers.

  1. [9]
    The facts alleged against (and admitted by) Constable Braunberger are as follows:[4]

… on Sunday the 12th day of September 2010 you took a number of photographs of a semi-naked unknown female outside the Fringe Bar, Fortitude Valley, on Constable Garth’s mobile phone, at his request. …you allowed the semi naked female to wear your official police baseball cap whilst the photographs of her were being taken, whilst she was standing next to a police officer in uniform. …you permitted a first year constable to be present when the photographs of the semi-naked female were being taken and did not prevent the first year constable taking photographs of the semi-naked female with his mobile phone, hence you failed in the performance of your supervisory responsibilities. … you admitted to showing the photograph on a mobile phone of the semi-naked female to a number of officers at the Indooroopilly police station.

  1. [10]
    The facts alleged against (and admitted by) Sergeant Byles are as follows:[5]
  2. [11]
    ….on Sunday the 12th day of September 2010 you were the senior officer of a team of police present in the vicinity of the Fringe Bar, Fortitude Valley, when a number of police officers took photographs of a semi-naked unknown female, during which time you were situationally unaware of what was happening. When you were made aware of the actions of police under your supervision and viewed the photographs taken, your only action was  to ask Constable Garth to delete the photographs from his mobile telephone. Further you were present when Constable Garth showed the photographs taken on his mobile telephone to other police officers travelling in a police vehicle. At no time did you comply with your obligation…to report the misconduct of your fellow police officers.
  3. [12]
    The conduct of Constable Garth (who is not an applicant in these proceedings) was described in an unreported decision of the QCAT Appeals Tribunal as follows:[6]

[2] At about 1:00pm on 12 September 2010 Constable Travis Garth entered a bar in Brisbane’s Valley precinct… He had with him two junior Constables. They were all in uniform.

[3] An attractive woman was dancing with a female friend. She stopped and spoke to him. She told him she had recently had “a boob job”. She asked him if he wanted to see her breasts.

…

[5] He made a mistake. He agreed to look at her breasts. He, the girl, her female friend, and the two other offices [sic] went out into Constance Street. They walked to a spot underneath a street light.

[6] She twice pulled her dress down to her waist. She and her friend were laughing. Constable Garth allowed her to wear another officer’s cap. He held out his handcuffs, pretending to handcuff her. One of the other constables used him mobile phone to take a photo of them. The other constable used his phone to take a photo. The girlfriend took a photo.

Sanction

  1. [13]
    His Honour Justice J B Thomas, AM QC, in his appeal decision allowing Constable Braunberger an extension of time to review the sanction imposed, pointed out that in disciplinary proceedings, there is a ‘need for comparability and proportionality’ between ‘co-offenders’ in events of misconduct.[7] As such, the sanction imposed upon Constable Garth is relevant to the determination of an appropriate sanction for Senior Constable Swenson, Constable Braunberger and Sergeant Byles in these proceedings arising from the same episode.
  2. [14]
    It is also relevant that, when allowing the extension of time within which to seek review of the sanctions now under review, the QCAT Appeal Tribunal described Constable Garth as ‘the most culpable offender.’[8]
  3. [15]
    The QCAT Appeal Tribunal sanctioned Constable Garth by ordering that his advancement from Constable pay level 1.5 to Senior Constable pay level 2.1 was to be deferred for a 12 month period (August 2011 to August 2012).[9] The financial impact of Constable Garth’s sanction was about $6,000.00.
  4. [16]
    The QCAT Appeal Tribunal referred to Senior Constable Swenson’s conduct as the least serious of those before the Tribunal and ‘very substantially less than that of the principal offender Constable Garth.’[10] The QCAT Appeal Tribunal further observed that the financial impact of Senior Constable Swenson’s sanction was between $8,000.00 to $13,000.00.[11]
  5. [17]
    The initial sanction imposed upon Constable Braunberger was described by the QCAT Appeal Tribunal as being “not objectively supportable,” and “more than four times more severe than that of his more serious so-offender” (Garth).[12] The financial impact upon Constable Braunberger of the sanction was around $25,000.00.
  6. [18]
    With respect to Sergeant Byles, the QCAT Appeal Tribunal said that, “it is difficult to think that [Byles’s] conduct in the end should be categorised as more serious than that of the principal offender, Constable Garth”.[13] The financial impact of the sanction upon Sergeant Byles was in the order of about $21,000.00.
  7. [19]
    In reviewing the sanction imposed on Constable Garth, the QCAT Appeal Tribunal (His Honour J B Thomas AM QC) considered two QCAT decisions that were ‘perhaps the closest’ in terms of comparable misconduct. Helpfully, the parties have summarised the salient points raised in those decisions as follows:
    1. In Staples v Deputy Commissioner Stewart [2011] QCAT 582, the officer was one of five officers who jumped out of a police minivan and ran nude around the vehicle in public on five different occasions during a single journey. A number of members of the public witnessed the incidents and made reports to the authorities. The officer contested the charges, but QCAT found the charges were substantiated. The sanction imposed by QCAT was a 1-pay level reduction for a 12-month period (i.e., reduction from pay level Senior Constable 2.3 to 2.2).
    2. In Murray v Deputy Commissioner Stewart [2011] QCAT 583, the officer was a Sergeant who had participated in the same incidents. He was the more senior officer involved and his participation was ‘slightly more enthusiastic’ than the others. The sanction imposed by QCAT was a 2-pay level reduction for a 12-month period (i.e., reduction from Sergeant pay level 3.4 to 3.2).[14]
  8. [20]
    The circumstances in Murray have been described by the QCAT Appeal Tribunal in Constable Garth’s case as ‘misconduct that was more serious than the present case.’[15]
  9. [21]
    The Tribunal agrees with the parties that, in having regard to Staples and Murray, as well as the significantly lesser sanction imposed on Constable Garth, that the original sanctions imposed upon Senior Constable Swenson, Constable Braunberger and Sergeant Byles should be set aside.
  10. [22]
    In their joint submissions, the parties have set out the factors they say are relevant to the Tribunal’s imposition of a new sanction as follows:
    1. Constable Garth was the primary ‘offender’ in the misconduct. Neither Senior Constable Swenson or Sergeant Byles were directly involved in (or immediately aware of) the Fortitude Valley incident. Constable Braunberger’s conduct was less serious than that of first-year Constable Garth, although he did have a supervisory role in relation to Constable Garth at the time of the incident.
    2. Senior Constable Swenson and Sergeant Byles both told Constable Garth to delete the photographs when they became aware of them, and both accept that they could and should have done more (including formally reporting the misconduct).
    3. Senior Constable Swenson, Constable Braunberger and Sergeant Byles have all admitted their misconduct from the outset, and have since continued with their policing career in positive manners and without further incident.
    4. The purpose of police discipline is not punitive.  Rather, its primary objectives are to protect the public, uphold ethical standards within the Queensland Police Service, and to promote and maintain public confidence in the Service.[16]
  11. [23]
    Having considered these submissions, the Tribunal considers that the appropriate sanctions to impose are as follows:

Senior Constable Swenson and Constable Braunberger

Imposition of a 1-pay level reduction for a period of 9-months – this is a more severe sanction than the deferral of a pay increase imposed upon Constable Garth.

Sergeant Byles

Imposition of a 2-pay level reduction for a period of 6-months – again, this is a more severe sanction than the deferral of a pay increase imposed upon Constable Garth. This sanction reflects Sergeant Byles’ “excessive tolerance where firm action was required” in relation to Constable Garth.[17]

The Tribunal considers that these sanctions reflect the importance properly attributed to the requirement for supervisory officers to report misconduct that comes to their attention. Further, the reduction in pay levels to the officers sanctioned serves as a public denouncement of the misconduct in issue.

Orders

OCR278-13

Swenson v Assistant Commissioner Les Hopkins

  1. The Respondent’s sanction decision dated 22 October 2010 is set aside.
  1. The following sanction is substituted:
  1. (a)
    Mr Alec Swenson’s pay point is reduced from Senior Constable 2.6 to Senior Constable 2.5 for the nine-month period from 4 November 2010 until 3 August 2011 inclusive.
  1. (b)
    On and from 4 August 2011, Mr Swenson is returned to pay point Senior Constable 2.6.
  1. (c)
    Thereafter, Mr Swenson is eligible to advance to pay point Senior Constable 2.7 from 21 February 2012, subject to the normal industrial requirements of the Queensland Police Service.
  1. The parties have liberty to apply to the Tribunal about any matter arising in relation to the implementation of these orders.

OCR279-13

Byles v Assistant Commissioner Les Hopkins

  1. The Respondent’s sanction decision dated 20 October 2010 is set aside.
  1. The following sanction is substituted:
  1. (a)
    Mr Matthew Byles’ pay point is reduced from Sergeant 3.5 to Sergeant 3.3 for the six-month period from 4 November 2010 to 3 May 2011 inclusive.
  1. (b)
    On and from 4 May 2011, Mr Byles is returned to pay point 3.5.
  1. The parties have liberty to apply to the Tribunal about any matter arising in relation to the implementation of these orders.

OCR280-13

Braunberger v Assistant Commissioner Les Hopkins

  1. The Respondent’s sanction decision dated 20 October 2010 is set aside.
  1. The following sanction is substituted:
  1. (a)
    Mr Liam Braunberger’s pay point is reduced from Constable 1.4 to Constable 1.3 for the nine-month period from 4 November 2010 to 3 August 2011 inclusive.
  1. (b)
    On and from 4 August 2011, Mr Braunberger is returned to pay point Constable 1.4.
  1. (c)
    Thereafter, Mr Braunberger is eligible to advance to pay point Constable 1.5 from 4 June 2012, subject to the normal industrial requirements of the Queensland Police Service.
  1. The parties have liberty to apply to the Tribunal about any matter arising in relation to the implementation of these orders.

Footnotes

[1]Swenson v Assistant Commissioner Les Hopkins [2014] QCAT 37.

[2]Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318.

[3]Notice to undertake an administrative consensual disciplinary process dated 21 October 2010.

[4]Notice to undertake an administrative consensual disciplinary process dated 20 October 2010.

[5]Notice to undertake an administrative consensual disciplinary process dated 20 October 2010.

[6]Garth v Queensland Police Service (Unreported, QCAT Appeal Tribunal, 21 June 2013).

[7]Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320, [62]-[63].

[8]Ibid, [51]; Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318.

[9]Garth v Queensland Police Service (Unreported, QCAT Appeal Tribunal, 21 June 2013).

[10]Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318, [11].

[11]Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318, [10].

[12]  Ibid, [59]-[60].

[13]  Ibid, [10]-[11].

[14]  Joint submissions filed in QCAT on 16 June 2015.

[15]Garth v Queensland Police Service (Unreported, QCAT Appeal Tribunal, 21 June 2013).

[16]  Joint submissions filed in QCAT on 16 June 2015; DA v Deputy Commissioner Stewart [2011] QCATA 359, [35] and [119].

[17]Byles v Hopkins [2014] QCATA 322, [11].

Close

Editorial Notes

  • Published Case Name:

    Alec Swenson v Assistant Commissioner Les Hopkins; Matthew Byles v Assistant Commissioner Les Hopkins; Liam Braunberger v Assistant Commissioner Les Hopkins

  • Shortened Case Name:

    Swenson v Assistant Commissioner Hopkins; Byles v Assistant Commissioner Hopkins; Braunberger v Assistant Commissioner Hopkins

  • MNC:

    [2015] QCAT 441

  • Court:

    QCAT

  • Judge(s):

    Member Cullen

  • Date:

    10 Nov 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
Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320
2 citations
Jump To
Cite 1 - [2014] QCATA 320
Cite 2 - [2014] QCATA 320
Byles v Assistant Commissioner Les Hopkins [2014] QCATA 322
1 citation
Jump To
Cite 1 - [2014] QCATA 322
DA v Deputy Commissioner Stewart [2011] QCATA 359
2 citations
Jump To
Cite 1 - [2011] QCATA 359
Cite 2 - [2011] QCATA 359
Murray v Deputy Commissioner Stewart [2011] QCAT 583
2 citations
Jump To
Cite 1 - [2011] QCAT 583
Cite 2 - [2011] QCAT 583
Staples v Deputy Commissioner Stewart [2011] QCAT 582
2 citations
Jump To
Cite 1 - [2011] QCAT 582
Cite 2 - [2011] QCAT 582
Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318
7 citations
Jump To
Cite 1 - [2014] QCATA 318
Cite 2 - [2014] QCATA 318
Cite 3 - [2014] QCATA 318
Cite 4 - [2014] QCATA 318
Cite 5 - [2014] QCATA 318
Cite 6 - [2014] QCATA 318
Cite 7 - [2014] QCATA 318
Swenson v Assistant Commissioner Les Hopkins [2014] QCAT 37
2 citations
Jump To
Cite 1 - [2014] QCAT 37
Cite 2 - [2014] QCAT 37

Cases Citing

Case NameFull CitationFrequency
Heuston v Horton (No 2) [2025] QCAT 101 citation
1

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