Exit Distraction Free Reading Mode
- Unreported Judgment
Rohweder v Acting Assistant Commissioner Keating QCAT 347
Rohweder v Acting Assistant Commissioner Keating  QCAT 347
Acting Assistant Commissioner Keating
Occupational regulation matters
26 April 2016
27 September 2016
POLICE- POLICE DISCIPLINE- REVIEW- SANCTION- where officer failed to stop at red traffic signal; furnished misleading report; and engaged in unjustified pursuit- where officer on suspension for other driving related disciplinary matter at time- where officer of 20 years experience- where officer assigned to Road Policing Command-where officer demoted for three months- whether sanction excessive- whether sanction should be suspended
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17-20
Crime and Corruption Act 2001 (Qld), s 219A, s 219G, s 219H, s 219L
Police Service Administration Act 1990 (Qld)
Police Service (Discipline) Regulations 1990 (Qld), reg 3
Briginshaw v Briginshaw (1938) 60 CLR 336
Aldrich v Ross  2 Qd R 235
Tolsher v Commissioner of Police Ian Stewart (No 2)  QCAT 590
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Police Service Board v Morris (1985) 156 CLR 397
Queensland Police Service v Compton (No 2)  QCATA 246
CMC v Barnett & Eaton  QCAT 161
Scott v Assistant Commissioner Peter Martin  QCAT 423
Lee v CCC  QCATA 326
Legal Services Commissioner v Madden (No 2) (2009) 1 Qd 149
Melling v O'Reilly  MTA
CMC v Nikola & Hoffman  MT
Flegg v CMC & Anor  QCA 42
Mr T Schmidt of Counsel represented Mr Rohweder
Mr C Capper, in-house lawyer, Public Safety Business Agency represented Acting Assistant Commissioner Keating
REASONS FOR DECISION
- Paul Rohweder is a Senior Constable in the Queensland Police Service. He has over 20 years policing experience. A disciplinary charge against him was found to be substantiated (although not all of the particulars were made out) by Acting Assistant Commissioner Keating (the ‘decision-maker’ or ‘the Assistant Commissioner’), who imposed a sanction demoting Mr Rohweder from Senior Constable 2.9 to Constable 1.6 for three months. Provided he completed a positive Performance Development Agreement for the period with no further reported breaches of discipline or misconduct, he was eligible to return to the rank of Senior Constable 2.9 at the end of the three-month period.
- Mr Rohweder has filed an application for review of the disciplinary decision in the Tribunal. Although his application was initially broader, it is now confined to review of the sanction imposed. He submits that the sanction imposed is excessive and, at the very least, should have been suspended.
- At the time of the Tribunal hearing, the period of demotion had been served. At the time of the disciplinary decision made by the Assistant Commissioner, Mr Rohweder was within the suspension period for reduction in pay level imposed as a disciplinary sanction following another disciplinary hearing. Although I have limited information about that earlier disciplinary process and the substantiated charges involved, it was again related to a pursuit at high speed in breach of policy. Although not apparent from the documents filed, it is common ground that the earlier suspended sanction was a reduction of two pay points from 2.9 to 2.7 for twelve months. It was not activated by the Assistant Commissioner. Instead, the sanction under review was imposed.
- It is also of note that Mr Rohweder has other discipline history, which includes engaging in other conduct contrary to policy.
The Disciplinary Charge
- The disciplinary charge and particulars are set out in full below:
That between 17 March 2014 and 16 September 2014, your conduct was improper in that you:
a) Failed to stop at a red traffic signal;
b) Furnished a misleading report; and
c) Engaged in an unjustified pursuit.
[Section 1.4 of the Police Service Administration Act 1990 and s .9 (1) (b), (c), (d) and (f) of the Police Service (Discipline) Regulations 1990; sections 2 (Personal Conduct) and 10 (Performance of Official Duties) of the Human Resources Policies, Standard of Practice Professional Conduct; sections 10.3.4 and 10.5.2 of the Traffic Manual]
Further and better particulars
Investigations have identified that:
In relation to matter 1(a)
- On 18 March 2014, you were driving a marked police vehicle conducting patrols in Warana;
- While following a vehicle, you proceeded through the intersection of Nicklin Way and Wyandra Drive Warana against a red traffic control light signal; and
- You failed to come to a stop before proceeding through the intersection.
In relation to matter 1(b)
- Your vehicle was detected going through the red traffic control light signal on 18 March 2014 and you were subsequently required to report about the matter;
- On an unknown dated in April 2014 you completed a Camera Detected Offence form; and
- On the form you state, ‘After Stopping at stop line, followed offending vehicle through intersection’.
In relation to matter 1(c)
- On 15 September 2014 you attempted to intercept a vehicle 649SUO being driven on Arundell Avenue Nambour after the vehicle registered a hit on the Automatic Number Plate Recognition (ANPR) system;
- The vehicle failed to stop and you engaged in a pursuit by continuing to follow the vehicle with your lights and siren activated;
- At the time of engaging in the pursuit you had no known information or reasonable belief to support the order for pursuable matters;
- During the pursuit you proceeded through Arundell and Mill Lane against a red traffic control signal;
- You proceeded through the intersection of Arundell and Mill Lane against a red traffic control light signal without firstly stopping at the intersection; and
- You continued the pursuit until you received advice from police communications that the ANPR hit was for cancelled registration.
- The Assistant Commissioner’s reasons for decision acknowledge that he bears an onus of proof, on the standard commonly referred to as the Briginshaw standard. Mr Rohweder admitted the conduct, but denied it was misconduct (as opposed to a breach of discipline). In finding the charge was substantiated, the Assistant Commissioner accepted Mr Rohweder’s admissions that he engaged in the conduct alleged, and with one exception, he considered there was sufficient evidence to find it substantiated independent of the admissions. The exception relates to matter 1(c). He found that Mr Rohweder did not, during the pursuit, proceed through Arundell and Mill Lane, against the red traffic signal. He found that the pursuit had not commenced at that stage.
- In relation to 1(b), Mr Rohweder was obliged to provide an internal report because the infraction of a camera-detected offence emerged. In his report, he indicated that he had stopped at the intersection before proceeding. He acknowledged at interview that his written performance was lacking and he was finding it difficult to concentrate because of depression. The Assistant Commissioner found it difficult to accept that he did not seek support and assistance for his depression. Also, he suggested it did Mr Rohweder no credit to deflect responsibility in suggesting his supervisor should have pointed out he had ticked the box, noting that it was not a matter of only ticking a box, as Mr Rohweder also inserted details in the free text box to similar effect. He drew the conclusion that it was Mr Rohweder’s intention to mislead the reader.
- In relation to matter 1(c), the Assistant Commissioner referred to the internal pursuits policy, in the QPS Traffic Manual, which in section 10.5.2, sets out circumstances which are accepted as justification for pursuits, as well as circumstances in which officers are not permitted to engage in pursuit. The policy specifies that safety of all persons is the primary consideration.
- The Assistant Commissioner observes that Mr Rohweder first tried to intercept the vehicle on Arundell Avenue, but then commenced pursuit of the vehicle at high speed, when his only relevant knowledge was that the vehicle returned a positive hit on the Automatic Number Plate Recognition (ANPR) system. He then contacted Police Communications to ascertain whether the vehicle was stolen. He observed that at no time did Mr Rohweder advise the operator that he was already engaged in a pursuit with lights and sirens attempting to catch the vehicle. After 1.23 minutes of pursuit, upon confirmation that the vehicle was not stolen, he ceased pursuit.
- The Assistant Commissioner considered the conduct showed a blatant disregard for the pursuits policy, which Mr Rohweder had confirmed, during interview, that he was familiar with and knew the pursuit was for a matter that was not pursuable. Further, he considered that Mr Rohweder engaged in an unjustified pursuit, holding no reasonable belief that there was a basis for the pursuit. He rejected Mr Rohweder’s explanation that he had no intention of pursuing it, that he was just waiting for information back for communications, considering, ‘This very action is contrary to Service policy of reasonable belief for commencement of a pursuit…’.
- The Assistant Commissioner was satisfied that the conduct did not meet the standard of conduct reasonably expected of a police officer and, was therefore, misconduct as defined in the Police Service Administration Act 1990 (PSA Act).
The Tribunal’s review
- Sections 219G and 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 purpose of the Tribunal’s review is to produce the correct and preferable decision on the evidence (which was before the decision-maker and any new evidence, allowed by leave of the Tribunal). If the Tribunal has the same view of the facts and inferences, it may be appropriate to give due respect to the views of the decision-maker as to what is required for internal police discipline. However, the Tribunal must reach its own decision on the review. It brings the public perspective to bear on the disciplinary process. The CCC Act includes specific power for QCAT to suspend a sanction if it considers it appropriate to do so in the circumstances.
- The purpose of police disciplinary proceedings in Queensland encompasses deterrence, protection of the public, maintenance of proper standards, and promoting and maintaining public confidence in the police service. The sanction imposed must signify the disapproval with which the conduct is viewed. It plays a role in specific (in respect of the officer concerned) and general (in respect of other officers) deterrence.
- 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.
The pursuits policy
- At this point, it is useful to note the key points of the Commissioner’s pursuits policy. It forbids police officers from pursuing suspected offenders unless an officer has a reasonable belief that an occupant of the vehicle:
- (1)Will create an imminent threat to life; or
- (2)Has or may commit an act of unlawful homicide or attempt to murder; or
- (3)Has issued threats to kill any person and has the apparent capacity to carry out the threat; or
- (4)Has committed an indictable offence prior to any attempt to intercept the vehicle; AND
- (5)The imminent need to apprehend the person is considered justifiable given the risks of pursuing.
- The policy recognises that pursuit driving is inherently dangerous; that it is secondary to alternate options; and that it must be undertaken only where it is justified. Non-pursuable matters include for license, vehicle and street checks; routine traffic interceptions; random breath tests; simple offences; and indictable offences based only on instinct or suspicion by the officer. Officers are required to conduct a risk assessment prior to commencing a pursuit. Local police communications are to be immediately advised when a pursuit is initiated.
- Reasonable belief is defined to mean a factual foundation (that is, not mere suspicion), although actual knowledge is not required.
The parties’ submissions
- Mr Rohweder and the Assistant Commissioner agree that matter 1(c) pertaining to the pursuit is the most serious aspect of the disciplinary charge.
- On Mr Rohweder’s behalf, it is submitted that the sanction is excessive and therefore, punitive, ignoring the protective function of the disciplinary process. It is submitted that he was overzealous in the pursuit, as the Tribunal found the officer had been in CMC v Barnett & Eaton. In Eaton’s case, a senior sergeant in charge of Pine Rivers Traffic Branch exceeded the speed limit by a considerable margin, offending both the intercept and pursuits policy. He was reduced two pay points for nine months.
- Also on behalf of Mr Rohweder, it is argued that the Assistant Commissioner improperly used precedent. In particular, he says that the decision-maker lists a series of precedent decisions he considered in arriving at the sanction. The precedents considered include a number of traffic related disciplinary charges. They also include a number of sanctions where dishonesty was an element of the charge against the officer concerned, despite the fact that here dishonesty is not alleged or found against Mr Rohweder. Precedent relating to submitting misleading information was also discussed. Mr Rohweder submits that these matters involve a reduction of pay points, without demotion, and in some cases reprimands. He argues that despite having regard to those precedents, the Assistant Commissioner then imposed a sanction that is far in excess of that set by the precedents he refers to, without distinguishing them.
- The Assistant Commissioner argues that each matter must be considered on its merits and, although precedents may be taken into account for consistency purposes, the nature of the sanction must necessarily turn on the facts of the particular matter.
- He argues that Mr Rohweder had earlier incidents, including an earlier matter where a disciplinary charge was brought in relation to a pursuit. He remained on suspension for the charges relating to the earlier pursuit at the time that the incident concerned in the current charge occurred. None of the precedents referred to occurred in this same way. He submits that the sanction acts as both a general and specific deterrent to police officers, given that Mr Rohweder was serving at the rank of Constable 1.6 and therefore without his stripes for three months. It is a very public display of the disciplinary action taken.
- In response, it is argued for Mr Rohweder that disciplinary sanctions are public in that the Tribunal publishes its decisions, whilst it was acknowledged that decisions of Assistant Commissioners (and the Commissioner and Deputy Commissioners) are not published in that same way. As noted, although the Assistant Commissioner acknowledged that Mr Rohweder was suffering from depression at the time, and considered it, he says he found it difficult to accept that someone with over 20 years policing service did not seek support. Mr Rohweder submits that the fact help may have been available does not detract from the effect of his depression.
"…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.’ 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".
- Mr Rohweder submits that although the Assistant Commissioner considered whether the sanction should be suspended, he misinformed himself as to the test to be applied, because he noted comments from a review wherein it was said that inappropriate use of the suspension power downgrades the disciplinary process, and suspensions ought to be relatively rare. He submits that the Court of Appeal recently considered that there is no requirement that there be special or exceptional circumstances demonstrated before a suspension may be ordered. Mr Rohweder submits that had the correct test been applied then the Assistant Commissioner would have identified this as an appropriate case to suspend the sanction. He says that, in the circumstances, the decision to temporarily demote Mr Rohweder from Senior Constable to Constable is punitive and does not achieve the purposes of discipline. Despite that, he says it must be punitive because after the temporary period of demotion, he remains a Senior Constable and he was not retrained as to the duties of a Senior Constable.
- The Assistant Commissioner says that there is no inconsistency between the statements made in the report and the decision of the Court of Appeal. He acknowledges that discipline is not intended to be punitive, and that sanctions, including suspended sanctions, need to give effect to the purposes of discipline. In all of the circumstances, he submits that the sanction imposed ‘reflects due consideration of deterrence, and opprobrium for the misconduct as well as the public purpose requirements that inform the disciplinary jurisdiction’.
What should the sanction be?
- I agree that matter 1(c) (as far as the Assistant Commissioner found it substantiated) is the most serious aspect of the charge.
- Depression and stress are not synonymous, although the two may often go hand-in-hand, nor is stress a diagnosed mental health condition. The Tribunal held in Scott that irrespective of stress, an officer’s behaviour which places safety at risk, however explicable (and despite personal sympathy evoked for the officer), should not be tolerated. On the other hand, depression is a recognised mental health condition.
- I accept that if Mr Rohweder was depressed, his depression may well have impacted negatively on his performance as a senior constable. However, there is no evidence before me of diagnosed depression. Even so, in respect of matter 1(b), as the Assistant Commissioner found, it was not a situation where the inattention to detail led to marking the incorrect box. In completing his report, Mr Rohweder also inserted the words ‘After stopping at the stop line, followed offending vehicle through intersection...’. The Assistant Commissioner drew the inference that Mr Rohweder intended to mislead. I agree and draw the same inference.
- Even if Mr Rohweder had a diagnosis of depression, I would not consider it a mitigating factor in respect of matter 1(a) or 1(c), although that does not seem to be argued for Mr Rohweder. The public is entitled to expect a standard of conduct which does not place the safety of the members of the public at risk, whatever an officer’s personal circumstances.
- In respect of matter 1(a), Mr Rohweder conceded that contrary to the policy concerning urgent duty driving, he failed to comply, proceeding through a red light without stopping.
- In respect of matter 1(c), the pursuit undertaken contrary to the policy and in disregard of the inherent risks of injury to members of the public, had the potential to cause significant harm. Thankfully, on this occasion, it did not, but the risk was inherently present in the conduct. Mr Rohweder did not hold the reasonable belief that an occupant of the vehicle was an imminent threat to life, had killed a person or threatened to do so, or had committed an indictable offence before commencing the pursuit. The vehicle had returned an ANPR positive registered vehicle hit, but the reason for that was unknown. Many of the possible reasons (including traffic offences, simple offences; indictable offences based only on suspicion or instinct) were non-pursuable matters.
- Mr Rohweder admitted during interview that he knew the pursuit did not meet the pursuable matters requirements. As the Assistant Commissioner held, it was an unjustified pursuit. I do not accept that Mr Rohweder’s conduct was a display of ‘overzealousness’ in the performance of his duties. He was aware that he acted in disregard of the policy. There is no evidence that it was a matter of overzealousness, and nor do I consider it is an inference reasonably drawn from the facts.
- Consistency and reasonable comparability is important, but precedents are not to be slavishly followed. In any event, none of the precedents, either those referred to by the Assistant Commissioner in his reasons for decision (which unhelpfully, he does not identify by QCAT case reference or any other reference although the parties submissions seek to do so) or those I have been referred to in submissions, are comparable. There are three aspects to matter 1 in Mr Rohweder’s case. Accordingly, cases involving only one similar aspect are not especially helpful here.
- Mr Rohweder relies particularly on Eaton’s case. The charges arose out of events in 2009. It appears from the Tribunal’s reasons for decision that the pursuits policy and requirement to comply with the Commissioner’s Directions was then relatively recent. The Tribunal refers to a change in police culture.
- Mr Rohweder’s charges arise out of events in 2014. The pursuit policy and requirement to follow directions of the Commissioner was by then well entrenched. I am satisfied that public expectations around police pursuits have evolved since Eaton’s case and entitle me to view Mr Rohweder’s non-compliance in a more serious light than Mr Eaton’s may have been. In any event, although Mr Eaton had been involved in a previous serious incident some years earlier, he was not, as far as the reasons disclose, under suspension for similar events at the time of the events leading to the charges under consideration.
- It is the subject conduct which is subject to sanction. It is an aggravating factor that Mr Rohweder was charged with this disciplinary matter involving further breaches of road policing policy (which carry potentially serious safety risk, irrespective that none may have actually occurred), while then under a suspension period for other such charges. It is a further aggravating factor that Mr Rohweder is employed at Road Policing Command. As a Senior Constable with 20 years experience who is engaged at Road Policing Command, it is reasonable to infer that his conduct may have considerable influence on the conduct of less experienced officers.
- In the context of Mr Rohweder’s then current suspended sanction, to achieve specific and general deterrence; and to maintain public confidence that members of the police service will conduct themselves in performing their duties, in a manner which has appropriate regard to safety, I am satisfied that the appropriate sanction is the sanction imposed by the Assistant Commissioner.
- I do not accept the submission that the sanction as imposed by the Assistant Commissioner is a punishment, rather than protective, because Mr Rohweder was subsequently returned to his same duties and position following his three-month demotion. The charges do not concern Mr Rohweder’s ability to perform his duties. They go to the requirement that police duties be performed in accordance with the Commissioner’s directions and the applicable policy. Similarly, the sanction imposed goes to the purposes of achieving internal police discipline; as far as possible ensuring public safety; and maintaining public confidence in the police service that its officers will discharge their duties in a manner that has proper regard to public safety.
- In relation to Mr Rohweder’s submission to the effect that if the sanction is unchanged it should be suspended. I do not accept that argument. In the circumstances, it is important for both specific and general deterrence that the period of demotion was served by Mr Rohweder and observed publicly by other officers.
Conclusions and Orders
- The correct and preferable decision is to confirm the Assistant Commissioner’s decision. I make orders accordingly.
 Exhibit 4, Part B, p. 45 and see Part A, p.20
 Exhibit 4, Part B, pp. 44-45.
 See Briginshaw v Briginshaw (1938) 60 CLR 336.
 Exhibit 4, Part A, p 15.
 Ibid, s 219H(3).
 Aldrich v Ross  2 Qd R 235, at 257-258, per Thomas J.
 Ibid. See also, Tolsher v Commissioner of Police Ian Stewart (No 2)  QCAT 590 at .
 CCC Act s 219L.
 Aldrich v Ross  2 Qd R 235, 247; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3.
 Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3.
 Aldrich v Ross  2 Qd R 235, 247.
 Police Service Board v Morris (1985) 156 CLR 397; Queensland Police Service v Compton (No 2)  QCATA 246, .
 Police Service Board v Morris (1985) 156 CLR 397, 412.
 QPS Traffic Manual, Pursuits s 10.5.2
 QPS Traffic Manual, Pursuits s 10.5.1.
 QPS Traffic Manual, Pursuits s 10.5.2.
 QPS Traffic Manual, Pursuits s 10.5.5.
 QPS Traffic Manual, Pursuits, s 10.5.3.
 QPS Traffic Manual, 2. Definitions and Legislation, s 2.1 ‘Reasonable belief.’
 Exhibit 4, Part A, pp 5 and 6.
  QCAT 161.
 Lee v CCC  QCATA 326,  – ; Legal Services Commissioner v Madden (No 2) (2009) 1 Qd R 149; Melling v O'Reilly  MTA (Unreported Appeal 6 of 1991 per Dr Forbes, Member); CMC v Nikola & Hoffman  MT (Unreported decision of 2 April 2008) per Member Richards at .
 Exhibit 4, Part A, p 19.
  QCAT 423.
 Scott v Assistant Commissioner Peter Martin  QCAT 423, .
 Honourable WJ Carter QC, Review of QPS Disciplinary Process 1996.
 Flegg v CMC & Anor  QCA 42.
 Queensland Police Service v Compton (No 2)  QCATA 246.
 Exhibit 4, Part B, p12 under heading ‘Driver Summary of facts’.
 O'Brien v AC Gollschewski  QCATA 148, .
 Exhibit 4, Part A, page 16-17.
 CMC v Barnett & Eaton  QCAT 161, .
- Published Case Name:
Rohweder v Acting Assistant Commissioner Keating
- Shortened Case Name:
Rohweder v Acting Assistant Commissioner Keating
 QCAT 347
27 Sep 2016