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Mazza v Deputy Commissioner Gollschewski[2018] QCAT 205

Mazza v Deputy Commissioner Gollschewski[2018] QCAT 205

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mazza v Deputy Commissioner Gollschewski [2018] QCAT 205

PARTIES:

FABIO MAZZA

(applicant)

v

DEPUTY COMMISSIONER GOLLSCHEWSKI

(respondent)

APPLICATION NO/S:

OCR234-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 July 2018

HEARING DATE:

18 June 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. The respondent’s decision in respect of sanction is confirmed.
  2. The application is dismissed.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer dismissed after conviction on charge of dangerous operation of a vehicle causing death – whether sufficient weight given to good character of the officer – where the objects of police discipline considered – where the effectiveness of police road safety campaigns and the integrity of the police service potentially affected – where dismissal appropriate – whether dismissal should be suspended

Crime and Corruption Act 2001 (Qld), s 219H(2)

Police Service (Discipline) Regulations 1990 (Qld), s 3

Aldrich v Ross (2001) 2 Qd R 235

CMC v Chapman & Anor [2011] QCAT 530

Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384

Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309

Peterson Management Services Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2017] QCA 89

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

APPEARANCES & REPRESENTATION:

 

Applicant:

J R Hunter QC, instructed by Gilshenan & Luton Legal Practice

Respondent:

S A McLeod, instructed by QPS Legal Unit

REASONS FOR DECISION

  1. [1]
    On 5 May 2014 Constable Mazza was stationed at Roma and performing mobile traffic duty on the Warrego Highway in a 100 kph zone. He detected a speeding car coming towards him. A motorcycle rider with a pillion passenger was travelling behind the police car.
  2. [2]
    Constable Mazza slowed, pulled off the road so that the passenger side wheels were off the bitumen, activated the flashing lights on top of his vehicle and in one continuous movement executed a U-turn in order to intercept the approaching vehicle. He did not come to a stop.
  3. [3]
    The motorcycle rider travelling behind the police car applied his brakes heavily and skidded, the bike tipping onto its side and the rider and the pillion passenger were thrown off. The female pillion passenger suffered serious injuries and died at the scene.
  4. [4]
    Constable Mazza was charged with and convicted of dangerous operation of a motor vehicle causing death and grievous bodily harm in the District Court on 24 November 2016. He was sentenced to 2 years’ imprisonment wholly suspended and disqualified from holding a driver’s licence for 6 months.
  5. [5]
    Constable Mazza failed in an appeal to the Court of Appeal against his conviction.
  6. [6]
    He was suspended without pay for the period of his suspended sentence.
  7. [7]
    Police disciplinary proceedings were commenced against him on 20 July 2017 on the basis that on 5 May 2014 he had operated a motor vehicle in a reckless manner causing death and grievous bodily harm. He did not contest the charge but made submissions on penalty.
  8. [8]
    On 6 October 2017 Constable Mazza was dismissed from the Queensland Police Service (‘QPS’).

The District Court Proceedings

  1. [9]
    In his remarks on sentence, Devereaux DCJ said the parties travelling behind the police car on the day probably knew the police car was going to do a U-turn. However, the question was whether anyone could have apprehended that Mr Mazza would do a U-turn in the face of approaching traffic.
  2. [10]
    There was no suggestion that, other than for this incident, Mr Mazza was a careless or reckless person or police officer, and in fact all evidence was to the contrary. There was good evidence of his regret and remorse and the psychological effect the incident had had on him:

It is regularly said in cases of dangerous driving that an important sentencing consideration is general deterrence, meaning to send the message to other people that if they drive in a way below the standards required and dangerous to others, they can expect s serious outcome in court….

[Deveraux DCJ then referred to R v Maher [2012] QCA 7 involving a collision which occurred at night in a well-lit street in the course of the applicant undertaking a right-hand turn into the path of an oncoming motorcycle ridden by the deceased] …

That was a case where a sentence of three years was imposed. Whereas those remarks are, of course, applicable in all driving cases, they don’t apply on all fours in your case because of the matters I’ve already referred to. You were a serving officer carrying out a duty, and one possibility is that you were distracted by the need to catch up to a speeding driver. Whether it was inattention or a misjudgement, it was over a very, very short space of time. If that makes it momentary, so be it, but it was a grave error with catastrophic consequences…

It is a rare case in which a person who drives a car dangerously causing death and grievous bodily harm is sentenced otherwise than to a sentence which involves actual imprisonment. I think yours is one of those rare cases.[1]

  1. [11]
    The maximum penalty for the offence was 10 years’ imprisonment.
  2. [12]
    The prosecutor had commented that the family of the deceased bore no particular animus towards Mr Mazza and they understood that the death of their loved one was the product of a moment which produced terrible consequences.

The Misconduct Proceedings

The Tribunal’s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal’s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.[2]

  1. [13]
    Aldrich v Ross identified a similar approach to be taken in police misconduct hearings under earlier repealed legislation:[3]

[T]he Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion…[4]

  1. [14]
    Helpfully, Aldrich also pointed out, however:

That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.[5]

  1. [15]
    Accordingly, where submissions made to the Tribunal appear to suggest oversights and errors by the Deputy Commissioner in his decision making, those submissions are only relevant and accepted on the basis that they draw the attention of the Tribunal to matters of relevance and appropriate weight in my determination of what the correct and preferable decision is, not what the Deputy Commissioner got wrong.
  2. [16]
    I accept them on that basis, but also, in the way suggested in Aldrich, where appropriate, give due weight to the views of the Deputy Commissioner who has particular expertise in the managerial requirements of the police service.
  3. [17]
    Indeed it is relevant that the view of the Deputy Commissioner was that the conduct of Mr Mazza was not dishonest or indicative of bad character. The Deputy Commissioner considered Mr Mazza had demonstrated genuine remorse regarding the incident. There were numerous references from other police officers testifying to his integrity and his ability as a police officer. His current employer had also given a reference citing Mr Mazza’s honesty and reliability.
  4. [18]
    However, the Deputy Commissioner found the manner in which he had driven the police vehicle was improper and that it amounted to misconduct. An element of recklessness was shown in the manner of driving the police vehicle, which driving was described by Devereaux DCJ as dangerous. The Deputy Commissioner considered Mr Mazza’s actions on the day could not be understated.
  5. [19]
    The incident occurred in the course of urgent duty driving which requires skill and ability because of the inherent dangers involved. Whilst the lapse in attention was momentary Mr Mazza should have exercised better judgment, particularly given the controversial nature of urgent duty driving, which controversy Mr Mazza should have been aware of as a police officer working in Road Policing Command.
  6. [20]
    The Deputy Commissioner concluded:

I have given considerable thought to the appropriate sanction for this matter. I am mindful of the need to send a clear message to all members of the Service concerning the necessity to address inappropriate behaviour by fellow officers. I am also mindful of the need for the Service to maintain community confidence. The seriousness of this matter cannot be ignored and your conduct with respect to this matter has seriously undermined my confidence in your suitability to remain a police officer.[6]

  1. [21]
    The Deputy Commissioner determined that the gravity of Mr Mazza’s conduct warranted the sanction of dismissal. The seriousness of the conduct ‘and the surrounding circumstances’ required a sanction reflecting an appropriate level of disapproval about the misconduct and a suspended sentence would not achieve that. Nor would it act ‘as both a specific and general deterrent against this type of conduct’.[7]

The Sanction and the Merits of the Applicant

  1. [22]
    In these proceedings Mr Mazza seeks review of the Deputy Commissioner’s decision. Mr Mazza limits review to only the appropriateness of the sanction of dismissal from the QPS.
  2. [23]
    Mr Mazza says the circumstances of his misconduct had the following features:
    1. (a)
      The sanctioned conduct occurred whilst he was on duty;
    2. (b)
      His conduct was described by Devereaux DCJ as occurring over a ‘very, very short space of time’,[8] and there was no suggestion that he was a ‘careless or reckless person or police officer’;[9] and
    3. (c)
      It concerned one isolated incident of misjudgement or momentary inattention involving his manner of driving. It was not a deliberate course of dangerous driving and it did not affect his integrity and fitness as a police officer.
  3. [24]
    On the basis of those features, he says his misconduct is easily distinguished from other criminal behaviour, and that that assertion was supported by Devereaux DCJ’s comments that his was a rare case which did not require him to serve a custodial sentence.
  4. [25]
    He has an unblemished service history. He performed duties at Roma specifically involving traffic duty for one year.
  5. [26]
    He was the recipient of two awards, one in 2014 and another in 2016 (of which the latter postdates the incident).
  6. [27]
    The criminal and disciplinary proceedings have had a significant impact on him. Following the incident he was treated for depression and anxiety by a psychologist. He has been unable to work as a police officer for almost 4 years and has lost all opportunities for advancement in the QPS. He has been the subject of media publicity and his finances have suffered. He was suspended without pay in 2015 and then dismissed. He has been forced to obtain alternative employment, but that took him until June 2017 to achieve.
  7. [28]
    He currently works 50 hours per week to support his family but even so does not earn as much as he would have earned if he had stayed with the police.
  8. [29]
    Mr Mazza submits the Deputy Commissioner placed unreasonable weight on Mr Mazza’s criminal conviction and sentence. The Deputy Commissioner should have looked behind the conviction and properly considered not only the nature of the misconduct but also his fitness to serve as a police officer, and more weight should have been placed on his intrinsic good character. As commented on above, I do not accept these latter submissions as a criticism of the Deputy Commissioner’s conduct of the original disciplinary proceedings, but as a submission on the weight I should place on such matters.
  9. [30]
    In so far as there is a requirement that police officers possess requisite skills and abilities associated with urgent driving duty and pursuits, consideration should have been given to his availability to perform non-operational duties in the QPS during the period of his suspended criminal sentence. Allowing him to work in a non-operational capacity would alleviate concerns about public confidence, particularly given nearly 4 years had elapsed since the incident.

Fresh Evidence

  1. [31]
    Mr Mazza was granted leave to adduce fresh evidence concerning his fitness and suitability to be reinstated in the QPS. Leave was granted in that regard but limited to the new matters raised in first part of his affidavit. Paragraphs 12 to 14 were submissions, not fresh evidence, but I accepted them for consideration on the basis of submissions only, given there was an earlier order made in the Tribunal allowing Mr Mazza to file submissions.
  2. [32]
    In respect of another affidavit by Mr Mahoney, about roles police officers can perform in a non-operational capacity, that was not allowed in. It was not fresh evidence within the scope of s 219H(2) of the Crime and Corruption Act 2001 (Qld), but addressed the sanction of dismissal, which sanction was raised as a possibility from outset in the original discipline hearing notice.
  3. [33]
    The fresh evidence allowed in concerned Mr Mazza’s conduct post sanction. As at the date of swearing his affidavit the only convictions recorded against him on his traffic and criminal histories were those relating to the May 2014 incident.
  4. [34]
    In respect of his driving, his licence was reinstated in May 2017. Since then he has driven without incident. He has not received any traffic infringement notices, no warnings or notices of any description despite driving frequently for his current work related duties.
  5. [35]
    Mr Mazza’s submission was that despite his conviction he is fit and suitable to perform the duties of a police officer with the QPS.

The Reasons for the Sanction of Dismissal

  1. [36]
    The Deputy Commissioner found Mr Mazza’s conduct undermined his confidence in Mr Mazza’s suitability to be a police officer. He also determined that the sanction to be applied should send to all members of the QPS a clear message about inappropriate behaviour and maintaining community confidence.
  2. [37]
    The Deputy Commissioner found certain aspects of the misconduct particularly relevant in consideration of the sanction:
    1. (a)
      That the misconduct of dangerous driving of a motor vehicle, taking into account the significant direct involvement of police in reducing the road toll, was committed by a police officer on duty;
    2. (b)
      That if a police officer fails to obey the law there is a real potential to undermine the effective deterrence of unacceptable behaviour on the roads by others; and
    3. (c)
      That there was a potential for loss of public confidence in the QPS because of the criminal conviction of Mr Mazza for an offence of the type concerned.[10]
  3. [38]
    On balance, though Mr Mazza’s character and integrity and his standing with other officers and generally good performance of his police work (other than in respect of the misconduct) was favourable to him, the circumstances of the misconduct and its consequences for discipline and the potential for loss of public confidence in the police service was so serious as to outweigh the favourable considerations.

Deterrence

  1. [39]
    In general terms, disciplinary proceedings are ‘protective of public and profession, rather than punitive or retributive’.[11]
  2. [40]
    Mr Mazza contends that, in determining the appropriate sanction, the Deputy Commissioner should have looked behind the conviction and properly considered not only the nature of Mr Mazza’s misconduct but also his fitness to serve as a police officer. More weight should have been placed on his intrinsic character.
  3. [41]
    Apart from the misconduct incident, Mr Mazza is clearly a man of favourable character and well regarded by his peers in the QPS and appears to have been a capable and competent officer in the performance of police duties.
  4. [42]
    In Ziems v The Prothonotary of the Supreme Court of New South Wales,[12] a barrister had been sentenced to imprisonment for manslaughter committed in the course of drink driving. The majority opinion was that the misconduct did not reflect on his character to the extent that disbarment was appropriate. Dixon CJ said:

In the Supreme Court the view seems to have been adopted, at all events by Street C.J., that the conviction and sentence constituted grounds in themselves for disbarring the appellant and that the court should not be concerned to go behind them and review the facts or circumstances. No doubt the fact of the conviction and sentence is in itself a matter of great importance but I do not agree that all the circumstances lying behind them should not be taken into consideration before determining that the appellant should not remain a member of the Bar.

  1. [43]
    The relevance of intrinsic character was emphasised in Compton v Deputy Commissioner Ian Stewart Queensland Police Service,[13] where Constable Compton was convicted in the Magistrates Court of drink driving, fined $1,400 and had his driver’s licence suspended for 9 months. He had a very high blood alcohol reading of 0.235%. In disciplinary proceedings that followed he was dismissed from the QPS.
  2. [44]
    The Tribunal in that matter also referred to Ziems and the importance of intrinsic character but noted:

I do not suggest that the disciplinary systems of the legal profession and the police force can be properly compared, or even that the attitude of the High Court towards conduct such as that displayed by Ziems would be so tolerant today.

  1. [45]
    In Compton, Deputy Commissioner Stewart took into account the very high blood alcohol reading, that it was the constable’s manner of driving that led to police interception, and that the officer had a record of service that was ‘not unblemished’ (whilst a student at the police academy he was involved in a physical altercation) in concluding the officer should be dismissed.
  2. [46]
    The Tribunal said despite those things, the mitigating factors were strong, including that the officer was not on duty at the time of the offence, there was no accident or damage to person or property consequent on the driving and he had an excellent service record and excellent character. The favourable mitigating factors suggested it was desirable to retain his services as an officer.
  3. [47]
    I note, though, that there also existed at the time a policy guide for disciplinary matters which suggested an appropriate sanction for this circumstance of misconduct was demotion rather than dismissal. The Tribunal concluded the policy tilted the balance heavily in the constable’s favour.[14]
  4. [48]
    In the matter at hand, in contrast to Compton, Mr Mazza was on duty when the misconduct occurred,[15] the misconduct resulted in him being convicted of a very serious indictable offence, there was a death as a result of the misconduct, and there is no suggested policy guide to tip the balance here. Those differences, I conclude, lead to a very different conclusion in the matter at hand. The mitigating factors are not sufficient to make it desirable, on balance, that Mr Mazza be retained as a police officer.
  5. [49]
    By s 3 of the Police Service (Discipline) Regulations 1990 (Qld), the object of the regulations is to:
  1. (a)
    provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and
  1. (b)
    ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as—
  1. (i)
    to protect the public; and
  1. (ii)
    to uphold ethical standards within the Queensland Police Service; and
  1. (iii)
    to promote and maintain public confidence in the Queensland Police Service.
  1. [50]
    The incident occurred during what was described by the Deputy Commissioner in his Finding and Reasons as ‘the controversial nature of urgent driving’.[16] The distinction between urgent driving duty and pursuit driving was considered in CMC v Chapman,[17] and the former defined as ‘driving to perform a duty which justifies prompt action and may include driving a service vehicle in a manner that if not justified would ordinarily constitute an offence’.[18]
  2. [51]
    The police are therefore given, and seen by the general public to be granted, significant concessions in respect of their road behaviour, which concessions are not extended to the general public. As such the public are very sensitive to the possibility of double standards arising. If that perception prevails, for example by perceived inadequate sanctions meted out to police who exhibit unacceptable road use behaviour, public confidence in the QPS will be compromised.
  3. [52]
    The dangers and fatal consequences of road accidents (and as a sub-set of that, police involved traffic incidents), are well known to the public. It is something that is constantly brought to the attention of the public in news telecasts and commercial programs on free to air television almost nightly, where poor driver behaviour is commented on very critically by police on film performing mobile patrols.
  4. [53]
    The police have a significant direct involvement in reducing injury and death on the roads from accidents. Police are in an apparent constant campaign to stop members of the public breaking traffic laws.
  5. [54]
    Hence when a police officer fails to comply with traffic laws, there is great potential to undermine and weaken the effectiveness of road safety campaigns and police road patrol activities trying to reduce the incidence of traffic related injuries, deaths and road trauma.
  6. [55]
    More, where a police officer is convicted of a very serious driving offence, one which results in death of a person, there is further potential to undermine the general confidence of the public in police integrity. The criminal sentence handed down was suspended, however it was still significantly 2 years’ imprisonment.
  7. [56]
    In the view of most members of the public, police officers should be and are expected to be above reproach in respect of obedience to road traffic laws. It undermines police integrity if discipline proceedings against an officer who breaks those laws is seen as inadequate. Again, there will be the spectre of a double standard potentially eroding public confidence in the police.
  8. [57]
    In Aldrich, the Court of Appeal cited comments by Chesterman J who exercised the power of judicial review and from whose decision the matter went to the Court of Appeal. Regardless that his decision was overturned on appeal, I feel his Honour’s comments are apposite concerning the large organisation which is the QPS and the role discipline plays in-house the QPS:

The [QPS] have the important and difficult task of managing a large institution whose officers play an important part in society and who are given substantial powers and responsibilities for their task. They must be kept honest, efficient and conscientious.[19]

  1. [58]
    In the matter at hand, the gravity of the misconduct and its disastrous outcome, both the death of a member of the public and the criminal conviction of Mr Mazza who was found guilty of dangerous operation of a motor vehicle causing that death, warrants dismissal from the QPS and outweighs those factors such as the good character and accomplishments Mr Mazza has shown in his performance of general police work.
  2. [59]
    It also, unfortunately, warrants no suspension of the order of dismissal.
  3. [60]
    As stated in Compton, that power should not be used as a means to avoid an unpleasant duty.[20] It is an unpleasant duty in this matter given I find the good character of Mr Mazza has been established other than for the misconduct in issue. However, I conclude suspension of the sanction of dismissal is inappropriate in the circumstances for the reasons given above. The continuation of Mr Mazza in the police service is inimical to maintaining public confidence in the police and sending a message to other members of the service.
  4. [61]
    Mr Mazza suggested that he could perform non-operational duties if he returned to the police service. That would be a matter for the QPS. The Tribunal powers do not appear to extend to directing the QPS about operational matters.[21]
  5. [62]
    I concur with the conclusion of the Deputy Commissioner that a suspended sentence does not satisfy the object of maintaining appropriate standards of discipline within the QPS and maintaining the confidence of the public in the QPS. The sanction imposed by the Deputy Commissioner was appropriate in the circumstances.

Footnotes

[1] Sentence Transcript, pages 4-5.

[2] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9] (Kingham DCJ.)

[3] (2001) 2 Qd R 235.

[4] Ibid 257.

[5] Ibid.

[6] Findings and Reasons in the Disciplinary Hearing, dated 6 October 2017, page 12.

[7] Ibid 13.

[8] Sentence Transcript, page 5.

[9] Ibid 4.

[10] Findings and Reasons in the Disciplinary Hearing, dated 6 October 2017, page 9.

[11] Peterson Management Services Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2017] QCA 89, footnote 11.

[12] [1957] HCA 46; (1957) 97 CLR 279.

[13] [2010] QCAT 384.

[14] Ibid [44].

[15] Misconduct in the course of duty is a more direct and obvious cause of concern to the public than private or off-duty misconduct: McKenzie v Acting Assistant Commissioner Wright [2011] QCAT 309, [31].

[16] Page 10.

[17] [2011] QCAT 530.

[18] Ibid [10].

[19] Aldrich v Ross (2001) 2 Qd R 235, [26].

[20] [50].

[21] Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477, [96].

Close

Editorial Notes

  • Published Case Name:

    Fabio Mazza v Deputy Commissioner Steve Gollschewski

  • Shortened Case Name:

    Mazza v Deputy Commissioner Gollschewski

  • MNC:

    [2018] QCAT 205

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    03 Jul 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
4 citations
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
3 citations
Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 530
3 citations
Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477
2 citations
Habchi and Anor v Harjrudin Turcinovic [2011] QCAT 309
1 citation
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
1 citation
Peterson Management Services Pty Ltd v Chief Executive, Department of Justice and Attorney-General[2018] 1 Qd R 178; [2017] QCA 89
2 citations
R v Maher [2012] QCA 7
1 citation
Ziems v Prothonotary of Supreme Court (NSW) [1957] HCA 46
1 citation
Ziems v Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279
2 citations

Cases Citing

Case NameFull CitationFrequency
ABC v Assistant Commissioner Maurice Carless [2023] QCAT 851 citation
Cavanagh v Deputy Commissioner Gollshewski [2021] QCAT 1623 citations
1

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