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- Unreported Judgment
Price v Deputy Commissioner Gee QCAT 179
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Price v Deputy Commissioner Gee  QCAT 179
CONSTABLE JOSHUA PRICE
DEPUTY COMMISSIONER GEE
Occupational regulation matters
28 June 2019
12 April 2019
DATE FINAL SUBMISSIONS RECEIVED:
7 May 2019
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where officer consumed alcohol while on duty – where officer drove patrol car while inebriated – where vehicle written off in ensuing accident – where officer suffering from posttraumatic stress disorder and other mental health conditions – where mental issues the significant causal factor in officer’s conduct – suspended dismissal order, subject to conditions
Crime and Corruption Act 2001 (Qld), s 219A, s 219L
Police Service (Discipline) Regulations 1990 (Qld), s 3
Aldrich v Ross  2 Qd R 235
Austin v Deputy Commissioner Peter Martin  QCAT 120
Deputy Commissioner Stewart v Dark  QCA 228
Hardcastle v Commissioner of Police (1984) 53 ALR 595
LCNB and Minister for Immigration and Border Protection  AATA 463
APPEARANCES & REPRESENTATION:
C Gnech, Solicitor, Queensland Police Union Legal Group
S McLeod QC, instructed by QPS Legal Unit
REASONS FOR DECISION
- Constable Price was an exemplary and awarded police officer, serving in difficult circumstances as officer-in-charge of a remote, single-officer police station. He had built strong links with his community by whom he was recognised and appreciated for his dedicated and effective service.
- On 14 August 2017, for the first and only time, and completely out of character, Constable Price consumed alcohol while on duty. While substantially inebriated, wearing his police uniform and carrying a loaded firearm, he drove a patrol car at a speed exceeding the limit by some 40 kilometres per hour. He lost control of the vehicle which was written off in the ensuing accident. Mercifully, neither Constable Price nor any member of the community was injured.
- Without more, this conduct would undoubtedly warrant Constable Price being dismissed as a police officer. The community would, rightly, expect no less.
- But unequivocal medical evidence from a highly experienced psychiatrist establishes that Constable Price was suffering from serious mental illness which was ‘the significant causal factor’ for his conduct and to which his service as a police officer ‘quite definitely contributed’. The evidence also establishes that these disorders have now ‘completely resolved’ and that Constable Price is ‘fully fit to return to full operational duties’ and is ‘extremely unlikely to offend again’.
- Should Constable Price be dismissed? Having regard to the need to protect the community and maintain confidence in the police service, Deputy Commissioner Gee thinks that he should.
- I respect that conclusion but have come to the view that these vital objectives are better served by a sanction of dismissal, suspended for a period of three years, during which the suspension would be lifted and the dismissal take effect, if Constable Price fails to comply with various conditions I have imposed. Those conditions include Constable Price submitting to alcohol testing as required by the Commissioner and continued engagement with his psychiatrist.
- My reasons follow.
The applicable principles in relation to sanction
- The object of police disciplinary proceedings is not to punish officers or exact retribution. Rather, the purpose of such proceedings is to protect the public, maintain proper ethical standards of conduct and promote and maintain the reputation of the QPS.
- In pursuit of these objectives, regard must be had to the community’s expectation of high standards from its police officers and the necessity to take appropriately serious action if those standards are not met to protect the public and the reputation of the QPS.
- To explain my reasons for deciding that the correct and preferable decision is to set aside the dismissal and substitute a suspended dismissal subject to conditions, it is necessary to address a number of aspects of this matter.
- Community expectations are relevant to maintaining the reputation of the QPS. It is difficult to gauge community expectations in a matter of this kind since, as has been noted in another context, in our diverse society it is unrealistic to suggest that there is a single homogenous societal view; perhaps the best one can do is endeavour to have regard to the expectations of the broad middle ground of society. Taking that approach, and as already noted, I accept that community expectations would ordinarily require dismissal of an officer who engaged in conduct of this kind.
- However, the broad middle ground of society is, in my view, sufficiently enlightened that, fully informed as to the serious mental health disorders that were ‘the significant causal factor’ in the conduct, the reputation of the QPS may be maintained by a sanction other than the dismissal of Constable Price, provided that appropriate safeguards may be devised. In reaching that view, I have given full respect to and consideration of the views of the Deputy Commissioner Gee who might be thought to have particular expertise in the managerial requirements of the QPS. However, on consider that, on balance, the decision I have reached, under which the community may continue to benefit from Constable Price’s training and diligence as a police officer, is the preferable decision.
Suspended dismissal subject to conditions
- It was agreed at the hearing of the review that, if I were minded to set aside Deputy Commissioner Gee’s dismissal decision and replace it with a suspended dismissal subject to conditions, I should give the parties an opportunity to make submissions regarding the proposed conditions. Having reached that preliminary view after the hearing, I arranged for draft orders to be provided to the parties for comment.
- With one significant exception, the draft orders were substantially similar to suggested orders handed up at the hearing by Mr Gnech, who appeared for Constable Price. That exception is that Mr Gnech proposed a two-year period of suspended dismissal, whereas my draft proposed a three-year period. In written submissions following receipt of the draft order, Mr Gnech did not argue against the longer period, which I considered more appropriate to provide the level of assurance required given the serious nature of the conduct.
- The QPS confirmed that it remained of the view that dismissal was the correct and preferable decision, but helpfully confirmed that an order in the terms of the draft could be lawfully made, and also sought two changes which are addressed below.
- However, before turning to those matters, it is necessary to consider aspects of the medical evidence and role of the principle of deterrence in this matter.
The medical evidence
- Dr James M Dodds has practised as a psychiatrist since 1987. He specialises in the assessment and treatment of PTSD and is experienced in substance abuse issues.
- Dr Dodds interviewed Constable Price on 13 September 2017 and concluded that he had suffered from posttraumatic stress disorder (‘PTSD’); adjustment disorder with mixed anxiety and depression; and alcohol use disorder, the latter being secondary to the PTSD and adjustment disorder. Dr Dodds noted that Constable Price was ‘mentally very unwell at the time of the offending conduct but was not really aware of the extent and of the fact that he was using alcohol in a destructive way in an attempt to control his high levels of anxiety and depression’.
- In this 2017 report, Dr Dodds concluded that Constable Price was ‘very unlikely to re-offend in the future’. In a subsequent report following another interview on 22 March 2019, Dr Dodds confirmed that Constable Price’s then ‘current mental and general health situation is one of physical and mental well-being’ and that his previous disorders had completely resolved. This followed additional assistance from a psychologist and his general practitioner.
- Additionally, in the 2019 report Dr Dodds noted that:
Being away from the stress of his work-place has allowed him to reflect more openly on the unhealthy psychological drivers that contributed to the unhealthy work/life balance . . .
- This reference to the impact of being away from the stress of the workplace raised with me a concern as to how, if Constable Price were allowed to return to policing duties, there could be a sufficient level of assurance that his alcohol misuse would not re-occur. However, there are two aspects that are relevant in this regard. First,
Dr Dodds’ evidence is that this is very unlikely to occur. Secondly, the conditions attached to the substituted decision include provision for random alcohol testing by the Commissioner or the Commissioner’s delegate.
- Mr McLeod, who appeared for the Deputy Commissioner, noted observations by the Court of Appeal in Deputy Commissioner Stewart v Dark about the significance of how officers deal with stressors. In that case, Muir JA observed:
The fact that the conduct occurred when the respondent was suffering from stress may engender some understanding of his conduct and sympathy for him, but it does not bear strongly on the conclusions capable of being drawn about his character and integrity. The great majority of people behave with propriety and integrity in the absence of stress, adversity or temptation. However, it is often when a person is tested by such conditions and circumstances that his or her character is fully revealed. Police officers are commonly placed in situations of considerable stress and may also be subjected to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.
- However, that case did not involve serious mental health issues of the kind experienced by Constable Price.
- Mr McLeod also argued that the medical evidence indicated that Constable Price had some awareness of his condition but nevertheless chose to consume alcohol during his shift and then drive the patrol car. This submission was mainly based on Dr Dodds’ conclusion that Constable Price ‘was not really aware of the extent and the fact that he was using alcohol in a destructive way’ and that his wife had raised the matter with him.
- While acknowledging this concern, I think it is giving the words ‘not really’ a lot of work to read Mr Dodds’ report as indicating that Constable Price embarked on the conduct despite awareness of his alcohol disorder. It is clear from Dr Dodds’ report that any such awareness was limited. Further, bearing in mind the objectives of disciplinary proceedings, the community can be reasonably satisfied based on Dr Dodds’ report that the behaviour will not re-occur.
- Mr Gnech went to some length in submissions to argue that the principles of general and specific deterrence should bear little weight in this matter due to Constable Price’s mental health conditions being the significant causal factor in the conduct. That is to say, that Constable Price’s moral culpability should be discounted.
- Such notions are more readily applied in a criminal justice context, where punishment and deterrence loom large, than in a disciplinary setting where protection of the public and the reputation of the QPS have a central role. In the end, though, it is not necessary for me to resolve with any precision (even assuming that were possible) how the mental health disorders impact upon the weight to be accorded to considerations of deterrence. This is because I consider that the proposed orders do provide strong general and specific deterrence.
- Suspended dismissal carries a serious burden as a sanction. If Constable Price engages in any misconduct during the three-year period in which the sanction of dismissal is suspended he will automatically be dismissed. Unlike other officers who may commit misconduct, he would not have the opportunity to argue for a sanction that is commensurate with the conduct. Additionally, the period of suspension of the dismissal – three years – is substantial, and during this time there are burdensome requirements to continue to engage with a psychiatrist; to submit to intrusive and embarrassing alcohol testing; and other requirements as set out in the order.
- All in all, I think it is clear that the orders indicate a strong response to the conduct and provide sufficient deterrence, both to officers generally and, if it were necessary, specific deterrence to Constable Price against re-offending.
- The QPS submitted for consideration two substantive amendments to the draft order. Neither was accompanied by any supporting submission.
- The first suggested amendment, to add a requirement for random drug testing, was opposed by Constable Price.
- In the absence of any evidence that Constable Price has ever used illicit drugs, or is vulnerable to doing so, I do not consider that this further intrusive testing is necessary to protect the public or the reputation of the QPS.
Location at which Senior Constable Price may be directed to perform duties
- The second substantive amendment to the draft order submitted for consideration by the QPS was that:
Constable Price will be directed to perform duties at a police station (or location) to be determined by the Commissioner or his delegate.
- Mr Gnech’s written submissions in response strongly opposed this proposed order, submitting that:
Here the respondent seeks some overarching broad and unconfined order that could easily act as an indirect-dismissal power depending on how it is implemented by the QPS. It could be implemented in a manner that is entirely unreasonable and then therefore not correct and preferable outcome. For instance, the QPS could order our client to perform duties in Mt Isa where the end outcome is our client could not comply with such an order and would have to resign or another scenario is the respondent could order that our client preform meaningless tasks in a property office or other undesirable duties for a police officer with no end date for the remainder of his career. This also would result on our client becoming so disengaged he would resign from the QPS or any meritorious career within the QPS would be over. The Tribunal may think this type of conduct is below that of the QPS however such conduct is exactly what the QPS did and continues to do after the Tribunal reinstated Senior Sergeant Kennedy in Kennedy v Deputy Commissioner Stewart. For this reason any order of this nature requires certainty, firstly to allow Constable Price to properly respond in these proceedings and secondly to ensure certainty within the final sanction ordered. After a disciplinary sanction is ordered the officer should not be left wondering or in any doubt what it might mean for him.
- The reference to the Kennedy matter may be read as implying bad faith on the part of the QPS by deliberately frustrating the intent of an order of the Tribunal rather than making decisions about officer posting and duties on a proper basis. If that were so, it would clearly be reprehensible. However, as there is no supporting evidence for such an inference, I have disregarded these comments.
- Before his dismissal, Constable Price had been transferred to Goondiwindi Police Station, a larger station likely to have the capacity for appropriate oversight and mentoring during his suspended dismissal. In the normal course, if Constable Price had not been dismissed, he would have taken up duties at that station and he has moved his family to Goondiwindi.
- I can see no reason why the additional order is required and none was offered by the QPS. Any decisions about Constable Price’s posting and duties should be made in accordance with the QPS’s normal considerations and procedures for such matters. No order by the Tribunal is required for that purpose.
- I have considered other disciplinary decisions drawn to my attention. However, I found them to be of minimal assistance, since none had the unique features of this matter: conduct of the utmost seriousness that would otherwise warrant dismissal, but unequivocal medical evidence that mental illness was ‘the significant causal factor’ and that further offending is ‘extremely unlikely’.
- In oral submissions, Mr Gnech indicated that other police officers had been convicted of drink driving without being dismissed. In the absence of any relevant evidence, I have also disregarded those remarks.
- I conclude by recording my appreciation of the helpful submissions by both Mr Gnech and Mr McLeod. While I have reached a different conclusion, my decision implies no criticism of Deputy Commissioner Gee to whom initially fell the difficult duty of deciding the appropriate sanction in this matter.
 These findings are based primarily on numerous references provided by Constable Price which were not challenged.
 The finding that this was the first and only time Constable Price consumed alcohol on duty is based on his statement, which was not challenged. The numerous character references confirm that the offending behaviour was out of character.
 A high range blood alcohol content reading of 0.242% was recorded.
 Medical reports of Dr James Dodd, discussed further below.
 The hearing proceeded on the basis of Constable Price’s concession that the disciplinary charges were substantiated which I am satisfied was appropriately made and find accordingly.
Crime and Corruption Act 2001 (Qld), s 219A; Police Service (Discipline) Regulations 1990 (Qld), s 3; Hardcastle v Commissioner of Police (1984) 53 ALR 595, 597.
LCNB and Minister for Immigration and Border Protection  AATA 463, .
Aldrich v Ross  2 Qd R 235, 237 .
 Such orders are provided for in s 219L of the Crime and Corruption Act 2001 (Qld).
  QCA 228.
 Ibid .
A recent example, handed down after the hearing in the current matter, is provided by R v Kane  QCA 86. For application of these principles in a police disciplinary context, see Austin v Deputy Commissioner Peter Martin  QCAT 120.
 In addition to a substantial fine and period of driver’s licence suspension for the associated traffic offences, to which he pleaded guilty, the offending resulted in Constable Price incurring $25,000 in damages for the loss of the QPS vehicle.
- Published Case Name:
Price v Deputy Commissioner Gee
- Shortened Case Name:
Price v Deputy Commissioner Gee
 QCAT 179
28 Jun 2019