Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2018
  4. Austin v Deputy Commissioner Martin - [2018] QCAT 120

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Austin v Deputy Commissioner Martin[2018] QCAT 120

Austin v Deputy Commissioner Martin[2018] QCAT 120

CITATION:

Austin v Deputy Commissioner Peter Martin [2018] QCAT 120

PARTIES:

Constable Jason Marc Austin

(Applicant)

v

Deputy Commissioner Peter Martin

(Respondent)

APPLICATION NUMBER:

OCR203-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 March 2018

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

27 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of Deputy Commissioner Peter Martin made on 7 September 2017 is set aside.
  1. The following decision is substituted:
  1. (a)
    The improper conduct alleged as matters 1(a), 1(b), 1(c), & 1(d) in the Disciplinary Hearing Notice dated 19 May 2017 is substantiated;
  1. (b)
    The substantiated conduct amounts to misconduct, as defined in s 1.4 of the Police Service Administration Act 1990;
  1. (c)
    In respect of the substantiated misconduct and pursuant to s.219L of the Crime and Corruption Act 2001; s.7.4(3) of the Police Service Administration Act 1990; and Regulation 5 of the Police Service (Discipline) Regulations 1990, the Applicant is sanctioned by means of his dismissal from the Queensland Police Service, with that dismissal wholly suspended pursuant to s.219L(3) of the Crime and Misconduct Act 2001, on condition that:
  1. (i)
    The Applicant does not commit any further acts of misconduct for an operational period of 2 years;
  1. (ii)
    The Applicant meets with a Human Services Officer nominated by the Respondent and participates in any alcohol management program as may be recommended.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where Constable dismissed upon conviction for criminal offences – whether sanction excessive – where decision maker erred in making findings beyond particulars of charged conduct – where decision maker did not attach sufficient weight to mitigating circumstances – diagnosed mental health condition contributing to impugned conduct – disciplinary principles applicable in the case of mental health conditions – role of suspended sanctions in appropriate cases

Crime and Corruption Act 2001, s.219G, s.219H, s.219L

Police Service Administration Act 1990, s.1.4, s.7.4

Police Service (Discipline) Regulations 1990, s.5

QCAT Act s.19, s.20, s.24

Aldrich v Ross [2001] 2 Qd R 235

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

Melling v O'Reilly, Misconduct Tribunal (Qld) (Appellate Division), Appeal No. 6 of 1991

Crime and Corruption Commission v Nikola and Hoffman (Misconduct Tribunal (Qld), Appeal No. 1 of 2007)

Crime and Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510

Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259

Mahon v Air New Zealand [1984] AC 808

Constable Mark Van v Deputy Commissioner McGibbon Misconduct Tribunal No 4 of 2001

Steven Chapman v Crime and Misconduct Commission & Anor [2012] QCATA

Crime and Corruption Commission v Acting Deputy Commissioner Barron [2015] QCAT 96

Koekemoer v Deputy Commissioner Gollschewski [2016] QCAT 355

R v Gooder [2009] QCA 377

R v Yarwood [2011] QSC 367

Quinn v Law Institute of Victoria Limited [2007] VSCA 122

Flegg v CMC & Anor [2014] QCA 42

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Calvin Gnech (solicitor), Queensland Police Union Legal Group

RESPONDENT:

Mr Scott McLeod of Counsel, Instructed by Queensland Police Service Legal

REASONS FOR DECISION

  1. [1]
    Jason Marc Austin, aged 44, is a constable in the Queensland Police Service (QPS), having been sworn in on 27 January 2012. 
  2. [2]
    On 7 September 2017 Deputy Commissioner Peter Martin heard a disciplinary charge against Constable Austin.  The charge was particularised as follows:

Matter One:

On 1 January 2016 whilst off duty at Ningi your conduct was improper in that you:

  1. (a)
    Inappropriately applied force to Mrs Sarah Robinson;
  2. (b)
    Damaged a mobile telephone owned by Mrs Robinson;
  3. (c)
    Made inappropriate comments and remarks to Mr Craig Robinson; and
  4. (d)
    Struck Mr Murray Robinson.

Further and better particulars

Investigations have identified whilst off duty on 1 January 2016 you attended a social gathering at a residence located at 77-79 Peel road, Ningi and consumed a large quantity of liquor.

In relation to Matter One (a) and (b) it is alleged:

  • Mrs Robinson had informed you on a number of prior occasions throughout the evening she did not want any alcohol from you;
  • You approached Mrs Robinson at the residence and without her consent held a glass cup containing vodka to her lips attempting to get her to consume the contents;
  • Whilst holding the glass to her mouth you stated:

‘Drink it, drink it’;

  • You stopped only after your partner Angela Mooney grabbed you on the shoulder and told you to leave Mrs Robinson alone;
  • Later, you entered a room and approached Mrs Robinson who was laying on a mattress with her 23 month old son;
  • After telling you to leave, you closed the door and approached Mrs Robinson by stepping onto the mattress she was laying on;
  • Mrs Robinson was holding her mobile telephone in her left hand and stated she was calling the police;
  • You grabbed the mobile telephone from Mrs Robinson and threw it against the bedroom wall, causing the mobile telephone to smash;
  • You also grabbed Mrs Robinson by the right leg when Mrs Robinson attempted to run from the room;
  • Mrs Robinson broke free from your grasp and ran from the room;
  • Mrs Robinson reasonably feared from the circumstances of your actions and demeanour that you intended to sexually assault her; and
  • On 24 September 2016 you entered a plea of guilty before the Brisbane Magistrates Court to the wilful damage of the mobile phone and the common assault of Mrs Robinson.

In relation to Matter One (c) it is alleged:

  • During the evening you offered a 15-year-old child named Craig Robinson (Date of birth: 23 April 1999) a beer to drink on approximately ten occasions.

In relation to Matter One (d) it is alleged:

  • Mr Murray Robinson entered the guest room shortly after Mrs Robinson had ran from the room;
  • You threw a punch at Mr Robinson striking him on the forearm;
  • Mr Robinson placed his right hand around your throat and left hand on your shoulder and shirt to physically remove you from the room; and
  • On 24 September 2016 you entered a plea of guilty before the Brisbane Magistrates Court to the common assault of Mr Robinson.
  1. [3]
    The charge was substantiated, and a finding of misconduct made. In consequence Constable Austin was dismissed from the QPS.

The application for review

  1. [4]
    Section 219G of the Crime and Corruption Act 2001 provides that police disciplinary determinations may be reviewed, before QCAT.
  2. [5]
    On 16 September 2017 Constable Austin filed an application before the Tribunal for a review of the decision by Deputy Commissioner Martin. The matter came to be heard before me, on 8 March 2018.
  3. [6]
    Prior to the hearing, an application was filed by Constable Austin seeking leave to adduce fresh evidence, pursuant to s.219H of the Crime and Corruption Act.  That fresh evidence was foreshadowed to be an updated psychiatric report from Doctor James Dodds, who had already produced a report (dated 11 June 2017), used in the original disciplinary proceedings before Deputy Commissioner Martin.
  4. [7]
    By a direction given on 8 February 2018, this application was set for determination as a preliminary matter on the day of the review hearing.  In separate oral reasons given on 8 March 2018, I admitted the supplementary report from Doctor Dodds (dated 19 February 2018), pursuant to s.219H(2)(b) of the Crime and Corruption Act (2001).

The Tribunal Review Process

  1. [8]
    Section 219H(3) of the Crime and Corruption Act requires the review to be by way of a rehearing on the original evidence.  In circumstances (as here), where leave is given under s.219H(2), the review hearing is to be conducted by way of rehearing on the original evidence, together with any new evidence.  I take that requirement as slightly modifying the general arrangements as they apply under s.20(2) of the QCAT Act, at least in the sense that fresh evidence in police misconduct matters may only be by leave, first obtained pursuant to s.219H(2) of the Crime and Corruption Act.  Nonetheless, the purpose of the Tribunal review remains the same: to produce the “correct and preferable” decision.[1] 
  2. [9]
    Ultimately, if the Tribunal comes to the same view of the facts and inferences to be drawn from those facts as did the original decision-maker, then it would be appropriate to give deference to the views of the Deputy Commissioner regarding that which is considered necessary for police service discipline.[2]  However the Tribunal must still reach its own decision, and brings to bear a broader public perspective on the requirements for police service discipline.[3] 
  3. [10]
    Section 24 of the QCAT Act provides that when conducting a review the Tribunal may:
    • Confirm or amend the decision;
    • Set aside the decision and substitute its own decision; or
    • Set aside the decision, and then return the matter for reconsideration to the original decision-maker, with any directions the Tribunal considers appropriate.
  4. [11]
    Pursuant to s.19 of the QCAT Act the Tribunal must decide the review in accordance with the QCAT Act and the enabling Act.  In this instance the Tribunal has the power available to the original decision maker to suspend a sanction pursuant to Regulation 5 of the Police Service (Discipline) Regulations 1990, as well as a Tribunal-specific power to suspend a sanction if in all the circumstances the Tribunal decides that to be warranted, pursuant to s.219L of the Crime and Corruption Act.

Grounds of Review

  1. [12]
    Given that these proceedings are conducted by way of a rehearing, grounds for review are strictly unnecessary.  Nonetheless, the QCAT Application for Review (Form 23) does invite applicants to specify why they think the decision under review is wrong, or otherwise improperly made.  The giving of grounds does then at least afford ‘points of embarkation’ for the conduct of the review. 
  2. [13]
    Although here paraphrasing slightly, Constable Austin specified the following as his grounds for review:
    1. The Respondent erred by substantiating misconduct.
    2. The Respondent made findings in regard to conduct that did not form part of the formal particulars of the charge.
    3. The Respondent erred by imposing a sanction that is manifestly excessive because:
      1. (a)
        The imposed sanction does not reflect the protective nature of disciplinary proceedings;
      2. (b)
        Dismissal does not reflect a correct and preferable sanction when balanced against the mitigating factors; and
      3. (c)
        The sanction does not properly apply the required legal principles in circumstances where the applicant is suffering from a mental health condition.
  3. [14]
    The first review ground was not ultimately pursued. I will continue with those remaining, still under the original sequence of numbering. 

(2) Findings in regard to conduct beyond those matters particularised

  1. [15]
    During the original disciplinary proceedings Constable Austin made an unqualified admission to all of the facts on which matters 1(a), 1(b), 1(c) and 1(d) were based; and accepted all of the particulars alleged on pages 2 and 3 of the disciplinary notice.[4]  In this sense it became unnecessary for the Deputy Commissioner to consider the particulars. In these circumstances it would have been perfectly in order to proceed directly to the matter of sanction.  That was not the course adopted, for the Deputy Commissioner elected to analyse the facts of the case in some detail.
  2. [16]
    Now, Constable Austin submits that,[5] at least in respect matter 1(a) of the charged conduct, the Deputy Commissioner fell into error for having made findings of fact going beyond the admitted particulars, thereby denying Constable Austin any opportunity to be heard in relation to those matters.  Further, it is submitted that it is open to conclude that by having found the Applicant to have had an intent to commit a sexual assault the Deputy Commissioner also imposed the sanction of dismissal on that basis, as well.[6]
  3. [17]
    In response thereto, Mr McLeod submits that when reviewing the reasoning of the Deputy Commissioner this Tribunal should not over-scrutinise the reasoning, nor parse it, nor separate it from its context.[7] The written reasons must be read fairly, which includes a requirement to assess the reasoning as a whole, because it is only by this approach that the Tribunal can gain a balanced appreciation of how the Deputy Commissioner understood and applied the facts in issue. When viewed through this lens, Mr McLeod submits that the statement by the Deputy Commissioner now complained about falls within the category of permissible observation, and there is nothing in the reasoning to suggest that the sanction of dismissal was underpinned by it.
  4. [18]
    So far as relevant, the particulars supplied to Constable Austin in the notice of the disciplinary charge alleged:

In relation to Matter One (a) and (b) it is alleged:

“…[whilst heavily intoxicated]  …/

  • Later, you entered a room and approached Mrs Robinson who was laying on a mattress with her 23 month old son;
  • After telling you to leave, you closed the door and approached Mrs Robinson by stepping onto the mattress she was laying on;
  • Mrs Robinson was holding her mobile telephone in her left hand and stated she was calling the police;
  • You grabbed the mobile telephone from Mrs Robinson and threw it against the bedroom wall causing the mobile telephone to smash;
  • You also grabbed Mrs Robinson by the right leg when Mrs Robinson attempted to run from the room;
  • Mrs Robinson broke free from your grasp and ran from the room;
  • Mrs Robinson reasonably feared from the circumstances of your actions and demeanour that you intended to sexually assault her; and
  • On 24 September 2016 you entered a plea of guilty before the Brisbane Magistrates Court to the wilful damage of the mobile phone and the common assault of Mrs Robinson.
  1. [19]
    That being the full extent of the particulars provided (and admitted), Deputy Commissioner Martin however then proceeded to make the following finding:

Whilst you were not criminally charged with sexual assault when examining the material objectively, I believe Sarah Robinson’s fears to have been reasonably grounded. I cannot fathom any other explanation for your behaviour in the circumstances.[8] 

  1. [20]
    Although I accept the strength of the caution given by the High Court in Minister for Immigration and Ethnic Affairs v Wu,[9] ultimately, I conclude that those aspects of the Deputy Commissioner’s reasons that have been highlighted by me (above) do transcend the bounds of permissible commentary, and fall into error for having expressed what amounts to a concluded view in relation to matters of intent; in circumstances where the charged conduct did not particularise any intent; and in respect of which Constable Austin has not been afforded any opportunity to respond.[10] Even on a global reading – the approach as now urged on me by Mr McLeod - I cannot be satisfied that the observation has not been influential, in terms of the final sanction. The role of the Tribunal is to produce the correct and preferable decision.[11] In this instance that must include making a determination that is now uninfluenced by matters that are beyond the particulars of the charged conduct.

(3)(a) The sanction does not reflect the protective nature of disciplinary proceedings

  1. [21]
    Constable Austin submits that his dismissal from the police service is manifestly excessive, for three reasons.  The first of these being that the sanction does not reflect the protective nature of disciplinary proceedings.  Ultimately however argument before me under this sub-heading departed from that theme, and focussed on the fact of delay in the imposition of the sanction.  I will deal with it, as argued. 
  2. [22]
    It is to be observed that Deputy Commissioner Martin did not sign the disciplinary notice until 19 May 2017, more than 17 months after the incident, and some 8 months after the criminal charges had already been dealt with, in the Magistrates Court.  The matter was not then fully adjudicated by the Deputy Commissioner until 7 September 2017.
  3. [23]
    Mr Gnech submits[12] this amounts to an unreasonable and extensive delay; unsatisfactorily explained by the Respondent; in a context where an effective disciplinary process must be administered swiftly and efficiently, because excessive delay creates stress and other adverse effects on the subject officer.[13]
  4. [24]
    Yet, Mr McLeod submits that this complaint conflates the ancillary criminal proceedings with the disciplinary proceedings, which could not ever be commenced until after the conclusion of the criminal proceedings.  Once that time is deducted, Mr McLeod submits that a different view emerges, as the actual time taken by the disciplinary proceedings was only a little more than three months. 
  5. [25]
    Although it be true (at least once the disciplinary notice had been issued), that these proceedings were determined with reasonable expedition, the submission does not deal with the unexplained delay between the finalisation of the criminal proceedings and the eventual issue of the disciplinary hearing notice.  Throughout that period Constable Martin had remained suspended from duty and had, on 13 December 2016, even gone so far as to write to the Ethical Standards Command, requesting that any disciplinary proceedings then under contemplation be convened immediately.[14]  
  6. [26]
    The absence of any explanation from the QPS for the delay between the finalisation of the criminal proceedings and the giving of the disciplinary hearing notice is unacceptable.  Such delay detracts from the efficacy and fairness of a properly functioning system for police discipline.  In the ordinary course, I would expect that the disciplinary hearing notice should have been given within 28 days after the sentencing hearing before his Honour Magistrate Kluck.  That is, within 28 days after 14 September 2016.  In the absence of any explanation from the Respondent I am unprepared to hold that the eight-month delay in giving notice of the disciplinary proceedings is reasonable, notwithstanding prior cases[15] having held that longer delays may sometimes be excusable. 
  7. [27]
    However, I also note that no evidence has been put before the Tribunal to show that the delay has had any specific detrimental effect on Constable Austin.[16] Because of that, am I not prepared to conclude that the delay in this case should now be treated as a factor that becomes relevant to the question of sanction.

(3)(b) Insufficient account for mitigating factors

  1. [28]
    Mr Gnech submits that Deputy Commissioner Martin attached insufficient weight to relevant mitigating factors.  In particular, that insufficient regard was had to Constable Austin’s prior good conduct,[17] and for the 5 character references that had been submitted in support of Constable Austin.  Further, it is submitted that those character references provided by Senior Sergeants Cook and Stanke had been read selectively by the Deputy Commissioner, purely in order to strengthen the decision to dismiss Constable Austin.
  2. [29]
    In her character reference, Senior Sergeant Julia Cook said, in part:

I am also aware that Constable Austin has had issues with alcohol related behaviour in the past and this matter has culminated in him taking steps to address those issues. I have spoken to his partner, [redacted] who is a general duties officer at [redacted] She has continued the relationship following the incident and is very supportive of Constable Austin in his endeavours to address his issues and is positive regarding his future…

…/

If satisfied Constable Austin has addressed his alcohol related issues, I believe he is still an asset to the QPS and will perform at a high standard with outstanding achievements, professionalism and commitment to the goals and standards set by the QPS.[18] [Emphasis included here, by me]

  1. [30]
    In his character reference, Senior Sergeant Stanke said:

The ultimate question is whether Jason Marc Austin’s employment within the QPS is supported by this referee. I believe that a Jason Marc Austin who has successfully addressed his relationship with alcohol is capable of contributing to the QPS and the community in the manner expected. He has the support of his partner, [redacted] who is one of the hardest working officers I have known in 26 years and should there be a level of control in his life in relation to the consumption of alcohol, or preferably abstinence from alcohol, that his continued employment in the QPS would be worth considering.

From speaking briefly with Constable Austin on the telephone recently, it would appear that he has a new appreciation for what it is to be an officer in the Queensland Police Service and the relative responsibilities that go with the role, both on duty and off duty. Should the decision be made to offer Constable Austin a chance to redeem himself and change his behaviours I am confident that he would do this. Certainly he would be under no illusion what the consequences of failing to change his behaviours would be and I would strictly enforce and monitor those behaviours as officer in charge should he be granted continued employment.[19]   [Emphasis included here, by me]

  1. [31]
    Next, Mr Gnech submits that proper regard needs to be had to the psychiatric diagnosis provided by Dr Dodds, which was expressed to have been accepted[20] by the Deputy Commissioner. In his original report,[21] Dr Dodds had said:

…Mr Austin has been regularly reviewed by me and has much better insight into his depression and secondary alcohol problems. He is aware that given his chronic depression prior to treatment and a strong family history of depression that he needs to remain on medication indefinitely.

Mr Austin’s diagnosis of unrecognised and untreated depression and anxiety and the secondary Alcohol Use Disorder was the significant causal factor for the offending conduct being committed.

As a result of successful and complete treatment Mr Austin is extremely unlikely to reoffend in the future.

The community does not need to be protected from Officer Austin to such an extent that he should not be a police officer anymore.

Officer Austin has, as I have stated, expressed real remorse, shame and guilt for his conduct. His conduct was in my opinion related to an undiagnosed and untreated Major Depressive Disorder, which is now in remission. Since his condition has recovered Officer Austin has demonstrated to me an attitude that the community would expect of a police officer.[22]

  1. [32]
    Ultimately, I accept that more weight should attach to this reference material, and to the medical opinion expressed by Dr Dodds, than was previously accorded to it, in the decision now under review.

(3)(c) Incorrect application of the legal principles applicable in the case of mental health conditions

  1. [33]
    Mr Gnech submits that the Deputy Commissioner failed to apply the established principles that are applicable in circumstances where a person is suffering from the effects of a mental illness. In furtherance of that submission, Mr Gnech relies upon R v Gooder[23]; and R v Yarwood.[24] 
  2. [34]
    In R v Gooder the Court of Appeal observed:

This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of generally deterrence upon the sentencing discretion (R v Dunn [1994] QCA 147; R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53).

  1. [35]
    In R v Yarwood, at [33] and [34], the Court said:

The court in Tsiaras [1996] 1 VR 398 at 400 observed that:

“[A] prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence…”

Where a person holds a position of significant trust, such as a solicitor, who abuses that position and offends criminally there is important public interest in deterring others similarly holding positions of trust. Solicitors are given important privileges, which necessarily demand a high standard of conduct in return, both as to professional competence and ethical conduct. Accordingly, where a solicitor departs from those standards in the practice of the profession and in a very public way, the public and fellow practitioners ought not be scandalised by an excessively lenient sentence. However, deterrence in the sense of deterring other practitioners and vindicating the community’s need to punish wrongdoing, particularly if the offender is a member of the privileged group, has limited application where the offender suffers from a mental disorder. Such a person is much less able than others not so afflicted to make sound judgments about conduct.

The courts in Australia, as discussed in Verdins [2007] VSCA 102 at [23]-[26], have readily accepted that moral culpability for an offence as distinct from the offender’s legal responsibility for it might be reduced by mental illness. There seems little doubt that the applicant’s diagnosed psychological and psychiatric conditions contributed directly to his offending. His ability to exercise appropriate judgment, think clearly, and fully appreciate the wrongfulness of his conduct seems to have been grossly impaired. That is not to say (as the applicant comes close to submitting in some places his written submissions) that he was not criminally responsible for his conduct. But if fellow practitioners and the public were aware of the extent for his illness they would not require condign punishment to be imposed, rather the punishment should be ameliorated.

  1. [36]
    These principles have also been held to apply in the case of disciplinary proceedings, by the Victoria Court of Appeal in Quinn v Law Institute of Victoria Limited.[25] At [36], that court stated:

Relevantly, for present purposes, the analogy with sentencing means that the existence of any mental condition, either at the time of the offending or at the time of the Tribunal’s hearing, or both, may be relevant in one or more of the various ways described by this Court in R v Tsiaris and, more recently, in R v Verdins; R v Buckley; R v Vo. In the present cases, is seems to me, very real questions arose as to whether Quinn’s history of depression reduced his culpability for the offending, and hence its gravity, and/or reduced the need for specific deterrence and/or made him an inappropriate vehicle for general deterrence. None of those questions was addressed by the Tribunal.

  1. [37]
    And, at [38]:

…In the present cases, I would admit the fresh evidence, which serves to underline the seriousness of the mental illness which had afflicted Quinn. The presences of the depressive condition meant that both specific and general deterrence had to be “sensibly moderated” in this case, and that the implications for Quinn’s culpability had to be considered.

  1. [38]
    The principles just described are applicable in police disciplinary proceedings in Queensland.  In a context (as here) where the medical opinion given by Dr Dodds is not disputed, the result should therefore be one in which Constable Austin’s case is categorised as an inappropriate vehicle for either specific deterrence or general deterrence.  Yet, this is clearly contrary to that which the Deputy Commissioner had in contemplation, given the specific comments made on page 15 of his reasons for decision.  For that reason the Deputy Commissioner’s decision must be displaced, by one that does now take these principles into account.
  2. [39]
    In the absence of any mitigating factors Constable Austin’s conduct on 1 January 2016 should ordinarily be categorised as sufficiently serious to now warrant dismissal from the QPS.  There are however relevant mitigating factors, and these necessarily change the appropriate categorisation.  Pursuant to regulation 5 of the Police Service (Discipline) Regulations the sanction that is warranted is one that adequately accounts for the impact of Constable Austin’s mental health condition.  Furthermore, the Tribunal now has the additional power available to it pursuant to s.219L of the Crime and Corruption Act 2001 to suspend a disciplinary order, if it considers it appropriate to do so in all the circumstances.  In all the circumstances I do regard a suspension of sanction as appropriate here noting that, as regards suspended sanctions, in Flegg v CMC & Anor,[26] his Honour Gotterson JA (with whom Margaret Wilson J had agreed) observed at [27], that:

A suspended sanction is a sanction.  A comparison may be made with a suspended sentence of imprisonment as to which this Court has reminded that “of course, [it] is not a mere formality and may be regarded as ‘significant punishment“[27] and of which Fitzgerald JA said that it “is punishment”.[28]

  1. [40]
    Having been thrown this career lifeline, Constable Austin will need to keep in mind the guillotine found in s.219L(4) of the Crime and Corruption Act 2001.
  2. [41]
    The order of the Tribunal is that the decision of Deputy Commissioner Peter Martin made on 7 September 2017 is set aside, and the following decision is now substituted:
    1. (a)
      The improper conduct alleged as matters 1(a), 1(b), 1(c), & 1(d) in the Disciplinary Hearing Notice dated 19 May 2017 is substantiated.
    2. (b)
      The substantiated conduct amounts to misconduct, as defined in section 1.4 of the Police Service Administration Act 1990;
    3. (c)
      In respect of the substantiated misconduct and pursuant to s.219L of the Crime and Corruption Act 2001; s.7.4(3) of the Police Service Administration Act 1990; and Regulation 5 of the Police Service (Discipline) Regulations 1990, the Applicant is sanctioned by means of his dismissal from the Queensland Police Service.  Pursuant to s.219L(3), that dismissal is wholly suspended, on condition that:
      1. The Applicant does not commit any further acts of misconduct for a period of 2 years;
      2. The Applicant meets with a Human Services Officer nominated by the Respondent and participates in any alcohol management program as may be recommended.

Footnotes

[1] QCAT Act, s.20(1).

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

[3] Aldrich v Ross, ibid; Tolsher v Commissioner of Police Ian Stewart (No. 2) [2013] QCAT 590, at [15].

[4] See Material provided pursuant to QCAT Act s.21(2), folio A, p. 28, paragraphs 3 & 4.

[5] Applicant’s submissions, paragraph [15].

[6] Melling v O'Reilly, Misconduct Tribunal (Qld) (Appellate Division), Appeal No. 6 of 1991; Crime and Corruption Commission v Nikola and Hoffman (Misconduct Tribunal (Qld),  Appeal No. 1 of 2007); Crime and Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 at [41].

[7] Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-272.

[8] This emphasis is not in the original, and has been included here, by me.

[9] Ibid, note 7.

[10] Mahon v Air New Zealand [1984] AC 808; Crime and Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing, ibid, note 5, at [44].

[11] Supra, note 1.

[12] Applicant’s submissions, paragraphs 28 – 30.

[13] Applicants submissions, paragraphs 34 – 35;  Consider also: Constable Mark Van v Deputy Commissioner McGibbon Misconduct Tribunal No 4 of 2001; Steven Chapman v Crime and Misconduct Commission & Anor [2012] QCATA.

[14] See Material provided pursuant to QCAT Act s.21(2), folio A, pp. 46 - 47.

[15] Crime and Corruption Commission v Acting Deputy Commissioner Barron [2015] QCAT 96.

[16] Respondent’s submissions, paragraph [15].  See, in particular: Koekemoer v Deputy Commissioner Gollschewski [2016] QCAT 355 at [45] and following.

[17] Applicant’s submissions, paragraph 37.

[18] See material provided pursuant to QCAT Act s.21(2), folio A, at p.53.

[19] See material provided pursuant to QCAT Act s.21(2), folio A, at p.56.

[20] Reasons for Decision dated 7 September 2017, at p.14.

[21] Report dated 11 June 2017.

[22] See material provided pursuant to QCAT Act s 21(2), folio A, at pp. 63-64.

[23] [2009] QCA 377.

[24] [2011] QSC 367 

[25] [2007] VSCA 122.

[26] [2014] QCA 42.

[27] R v H ex parte Attorney-General (1993) 66 A Crim R 505 per Davies and McPherson JJA and Thomas J at 510.

[28] R v JCE [2000] NSWCCA 498 at [25].

Close

Editorial Notes

  • Published Case Name:

    Constable Jason Marc Austin v Deputy Commissioner Peter Martin

  • Shortened Case Name:

    Austin v Deputy Commissioner Martin

  • MNC:

    [2018] QCAT 120

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    27 Apr 2018

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
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Chapman v Crime and Misconduct Commission and Anor [2012] QCATA 272
2 citations
Jump To
Cite 1 - [2012] QCATA 272
Cite 2 - [2012] QCATA 272
Crime & Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510
3 citations
Jump To
Cite 1 - [2016] QCAT 510
Cite 2 - [2016] QCAT 510
Cite 3 - [2016] QCAT 510
Crime and Corruption Commission v Acting Deputy Commissioner Barron [2015] QCAT 96
2 citations
Jump To
Cite 1 - [2015] QCAT 96
Cite 2 - [2015] QCAT 96
Flegg v Crime and Misconduct Commission [2014] QCA 42
2 citations
Jump To
Cite 1 - [2014] QCA 42
Cite 2 - [2014] QCA 42
Koekemoer v Deputy Commissioner Gollschewski [2016] QCAT 355
2 citations
Jump To
Cite 1 - [2016] QCAT 355
Cite 2 - [2016] QCAT 355
Mahon v Air New Zealand (1984) AC 808
2 citations
Jump To
Cite 1 - (1984) AC 808
Cite 2 - (1984) AC 808
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
2 citations
Jump To
Cite 1 - (1996) 185 CLR 259
Cite 2 - (1996) 185 CLR 259
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122
3 citations
Jump To
Cite 1 - [2007] VSCA 122
Cite 2 - [2007] VSCA 122
Cite 3 - [2007] VSCA 122
R v Dunn [1994] QCA 147
1 citation
Jump To
Cite 1 - [1994] QCA 147
R v Goodger [2009] QCA 377
2 citations
Jump To
Cite 1 - [2009] QCA 377
Cite 2 - [2009] QCA 377
R v H (1993) 66 A Crim R 505
1 citation
Jump To
Cite 1 - (1993) 66 A Crim R 505
R v JCE [2000] NSWCCA 498
1 citation
Jump To
Cite 1 - [2000] NSWCCA 498
R v Neumann; ex parte Attorney-General[2007] 1 Qd R 53; [2005] QCA 362
1 citation
Jump To
Cite 1 - [2007] 1 Qd R 53
R v Tsiaras [1996] 1 VR 398
1 citation
Jump To
Cite 1 - [1996] 1 VR 398
R v Verdins (2007) VSCA 102
1 citation
Jump To
Cite 1 - (2007) VSCA 102
Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590
2 citations
Jump To
Cite 1 - [2013] QCAT 590
Cite 2 - [2013] QCAT 590
Zhang v South Sky Investments Pty Ltd [2011] QSC 367
3 citations
Jump To
Cite 1 - [2011] QSC 367
Cite 2 - [2011] QSC 367
Cite 3 - [2011] QSC 367

Cases Citing

Case NameFull CitationFrequency
Benjamin Stewart Shannon v Queensland Police Service [2022] QCAT 1582 citations
Cavanagh v Deputy Commissioner Gollshewski [2021] QCAT 1625 citations
Cavanagh v Gollschewski (No 2) [2023] QCATA 361 citation
Crime and Corruption Commission v Assistant Commissioner Maurice Careless [2021] QCAT 3232 citations
Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 1062 citations
Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 1143 citations
Crime and Corruption Commission v Carless [2019] QCAT 507 citations
Crime and Corruption Commission v McCarthy [2020] QCAT 5293 citations
Crime and Corruption Commissions v Assistant Commissioner Maurice Carless [2022] QCATA 1211 citation
Flanagan v Gee [2020] QCAT 361 citation
Health Ombudsman v MKL [2022] QCAT 1311 citation
LCK v Health Ombudsman [2020] QCAT 3161 citation
OP v Gollschewski (No 2) [2021] QCATA 452 citations
Price v Deputy Commissioner Gee [2019] QCAT 1792 citations
SS v Assistant Commissioner Marty Mickelson [2021] QCAT 734 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.