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  4. Hannam v Acting Assistant Commissioner Guteridge - [2018] QCAT 212

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Hannam v Acting Assistant Commissioner Guteridge[2018] QCAT 212

Hannam v Acting Assistant Commissioner Guteridge[2018] QCAT 212

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hannam v Acting Assistant Commissioner Guteridge [2018] QCAT 212

PARTIES:

SCOTT HANNAM

(applicant)

v

ACTING ASSISTANT COMMISSIONER GUTERIDGE

(respondent)

APPLICATION NO/S:

OCR042-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. The decision of Acting Commissioner Guteridge dated 25 January 2018 that Constable Hannam was guilty of misconduct is confirmed.
  2. The sanction of reduction of Constable Hannam’s salary to defer pay point progression from 1.3 to 1.4 for six (6) months is set aside.
  3. Constable Hannam’s salary is reduced from pay point 1.3 to 1.2 for a period of six months retrospectively from 13 May 2018.
  4. At the conclusion of the six month period, being 13 November 2018, Constable Hannam shall progress to pay point 1.4 (subject to having completed the applicable industrial requirements, other than having spent 12 months on pay point 1.3).

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where applicant convicted of drink driving – decision made to impose a sanction of deferment of pay point progression from 1.3 to 1.4 for 6 months following admission of misconduct – where effect of original sanction is to defer promotion – where joint submissions on sanction and facts provided on review

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

Police Service Administration Act 1990 (Qld), s 7.4

Police Service (Discipline) Regulations 1990 (Qld), reg 9

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

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

APPEARANCES & REPRESENTATION:

 

Applicant:

T E Schmidt of counsel

Respondent:

B Wadley instructed by Queensland Police Service Legal Unit

REASONS FOR DECISION

  1. [1]
    On 25 January 2018, Acting Assistant Commissioner Guteridge imposed a sanction of deferment of pay point progression from 1.3 to 1.4 for six months following the applicant’s admission of misconduct. As Constable Hannam was scheduled for a pay point progression on 13 November 2018, that meant his pay increase was deferred to 13 May 2019.
  2. [2]
    Under s 7.4 of the Police Service Administration Act 1990 (Qld) (‘PSA Act’) an officer is liable to disciplinary action in respect of the officer’s conduct which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.
  3. [3]
    If the prescribed officer decides an allegation of misconduct brought against the officer the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision within 14 days after making the decision.[1] The disciplines that may be imposed include, relevantly, forfeiture or deferment of a salary increment or increase.[2]
  4. [4]
    The applicant filed an application for review of the decision on 5 February 2018, within the prescribed time period.[3]
  5. [5]
    A review of the decision is by way of rehearing on the original evidence unless ‘new evidence’ is allowed.[4]

Background to the reviewable decision

  1. [6]
    The applicant is a police constable in Cairns. On 28 December 2017 at 6:30am Constable Hannam submitted to a roadside breath test which was positive. At 7:17am he provided a specimen of his breath for analysis upon an approved breath analysing instrument operated by an authorised officer. He was shown to have a breath alcohol concentration of 0.055 grams of alcohol in 210 litres of breath.
  2. [7]
    The circumstances surrounding the incident were that Constable Hannam was off duty at the time, being on holidays in Brisbane. He had attended the Gabba (Brisbane Cricket Ground) with friends the night before, on the 27 December, where he had consumed 8 mid-strength beers over approximately 6 hours. He stayed at a friend’s place that night. The next morning he left to drive to his parents’ house at Albany Creek where he was staying while in Brisbane. It was on that trip that he was pulled over for random breath testing.
  3. [8]
    Constable Hannam appeared in the Cairns Magistrates Court on 15 January 2018 and pleaded guilty. He received a $300 fine, 1 month disqualification and no conviction was recorded. The police record states that Constable Hannam was cooperative with investigating officers and was remorseful.

The Reviewable Decision

  1. [9]
    The original disciplinary decision was made under s 7.4 of the PSA Act. Under s 7.4(2) an officer is liable to disciplinary action in respect of conduct which the prescribed officer considers to be misconduct or a breach of discipline on grounds prescribed by the regulations. The grounds prescribed by the regulations are wide-ranging,[5] and relevantly, include misconduct.[6]
  2. [10]
    Section 219BA of the Crime and Corruption Act provides, relevantly, that ‘reviewable decision’ means a finding mentioned in s 7.4(2A)(b) of the PSA Act that corruption is proved against an officer. ‘Corruption’ is defined in Schedule 2 of the Crime and Corruption Act to mean ‘corrupt conduct or police misconduct’. ‘Police misconduct’ is defined to mean:

…conduct, other than corrupt conduct, of a police officer that—

  1. (a)
    is disgraceful, improper or unbecoming a police officer; or
  2. (b)
    shows unfitness to be or continue as a police officer; or
  3. (c)
    does not meet the standard of conduct the community reasonably expects of a police officer.
  1. [11]
    The reviewable decision was that made by Acting Assistant Commissioner Guteridge under s 7.4(2A) of the PSA Act, that Constable Hannam was guilty of misconduct.[7] 
  2. [12]
    This was not ‘corrupt conduct’ within the meaning of s 15 of the Crime and Corruption Act. It was ‘misconduct’ in that it was conduct which did not meet the standard of conduct the community reasonably expects of a police officer.
  3. [13]
    The decision to classify the conduct as misconduct was therefore reviewable. This includes the decision as to sanction which is incidental to the decision that misconduct is proved.

Consideration

  1. [14]
    The decision was to classify the conduct as misconduct and to impose a sanction of deferment of pay point progression from 1.3 to 1.4 for six months following the applicant’s admission of misconduct.
  2. [15]
    Constable Hannam accepted responsibility for the conduct and made submissions as to sanction only on 18 January 2018. The Acting Commissioner made a decision maintaining the original classification but mitigating the sanction on 25 January 2018. I note the Constable later submitted a Form B on 29 January 2018 stating he did not accept the classification of conduct however this was sent in error and subsequently retracted.[8]  It follows that the sanction applies from 25 January 2018. 
  3. [16]
    The parties have provided joint submissions on facts and sanction. The parties submit that the proposed sanction falls within the permissible range of sanctions and that it is appropriate for the Tribunal to make an order accordingly.
  4. [17]
    It has been held, in the context of disciplinary proceedings, that it is not inappropriate for the Tribunal to receive submissions as to an agreed penalty.[9]
  5. [18]
    The parties submit the following sanction should be imposed, namely:
    1. (i)
      The applicant is reduced from pay point 1.3 to 1.2 for a period of six months, commencing on 13 May 2018;
    2. (ii)
      At the conclusion of the six month period, being 13 November 2018, the applicant shall progress to pay point 1.4 (subject to having completed the applicable industrial requirements, other than having spent 12 months on pay point 1.3).
  6. [19]
    The effect of imposing the proposed agreed sanction is that it only imposes a financial impact on the Constable for a period of six months. The original sanction imposed by the Commissioner had the extra effect of deferring the Constable’s eligibility for promotion to Senior Constable. This was due to the operation of QPS Industrial Agreements which stipulates that a Constable must progress through the applicable pay levels from 1.1 to 1.5 at the rate of one pay level per year (in addition to completing necessary training and studies). The Constable is then required to remain on pay level 1.5 for 12 months, following which (and again subject to completion of necessary training) the Constable automatically progresses to Senior Constable rank, pay level 2.1.[10]
  7. [20]
    Applying the original sanction, the Constable’s eligibility for promotion would have been pushed back to 13 May 2021. Applying the proposed agreed sanction, the Constable would be eligible for promotion on 13 November 2020.
  8. [21]
    The Tribunal has been referred to a similar case of drink driving where the Senior Constable had a reading of 0.07%, namely O'Brien v Assistant Commissioner Gollschewski.[11]  There, the Senior Constable had a good work history spanning 17 years. She had been monitoring her alcohol function (consuming 2 ½ glasses of wine) but considered she was under the limit and fit to drive. The Appeal Tribunal was constituted by Thomas J who held that a pay point reduction in salary for six months from 2.9 to 2.8 was the correct and preferable decision.
  9. [22]
    In considering the submissions and the authorities referred to therein, the Tribunal is satisfied that misconduct was proved and that the proposed agreed sanction is within the acceptable range.
  10. [23]
    The decision imposing the sanction is therefore set aside and the substituted decision is as follows:
    1. (a)
      The decision of Acting Commissioner Guteridge dated 25 January 2018 that Constable Hannam was guilty of misconduct is confirmed.
    2. (b)
      The sanction of reduction of Constable Hannam’s salary to defer pay point progression from 1.3 to 1.4 for six (6) months is set aside.
    3. (c)
      Constable Hannam’s salary is reduced from pay point 1.3 to 1.2 for a period of six months retrospectively from 13 May 2018.
    4. (d)
      At the conclusion of the six month period, being 13 November 2018, Constable Hannam shall progress to pay point 1.4 (subject to having completed the applicable industrial requirements, other than having spent 12 months on pay point 1.3).

Footnotes

[1] PSA Act, s 7.4(2A)(a).

[2] PSA Act, s 7.4(3).

[3] Crime and Corruption Act 2001 (Qld) (‘Crime and Corruption Act’), s 219G(2).

[4] Crime and Corruption Act, s 219H.

[5] Police Service (Discipline) Regulations 1990 (Qld).

[6] Police Service (Discipline) Regulations 1990 (Qld), reg 9(f).

[7] Crime and Corruption Act, s 219G(2)(a).

[8] Signed acknowledgment from Constable Hannam, dated 31 January 2018.

[9] See the discussion in Queensland College of Teachers v DGM [2018] QCAT 194, [42]-[52]; Pharmacy Board of Australia v Jattan [2015] QCAT 294.

[10] Joint Submissions on Facts and Sanction filed 26 March 2018, [15]-[18].

[11] [2014] QCATA 148.

Close

Editorial Notes

  • Published Case Name:

    Scott Hannam v Acting Assistant Commissioner Kev Guteridge

  • Shortened Case Name:

    Hannam v Acting Assistant Commissioner Guteridge

  • MNC:

    [2018] QCAT 212

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    11 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
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
2 citations
Jump To
Cite 1 - [2014] QCATA 148
Cite 2 - [2014] QCATA 148
Pharmacy Board of Australia v Jattan [2015] QCAT 294
1 citation
Jump To
Cite 1 - [2015] QCAT 294
Queensland College of Teachers v DGM [2018] QCAT 194
1 citation
Jump To
Cite 1 - [2018] QCAT 194

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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