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Crime and Corruption Commission v Carless[2021] QCAT 216

Crime and Corruption Commission v Carless[2021] QCAT 216

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission  v Carless & Anor [2021] QCAT 216

PARTIES:

Crime and corruption Commission

(applicant)

 

v

 

assistant commissioner Maurice carless

(first respondent)

SENIOR CONSTABLE BARRY WELLINGTON

(second respondent)

APPLICATION NO/S:

OCR235-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 June 2021

HEARING DATE:

23 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. The decision of the first respondent Assistant Commissioner Maurice Carless made 9 July 2020 is set aside.
  2. In lieu the Tribunal orders that Senior Constable Barry Wellington be demoted from Senior Constable level 2.10 to Constable level 1.6 for twelve months.
  3. The Tribunal further orders that Senior Constable Barry Wellington not be permitted to relieve in a higher position for a period of six months.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where a police officer was engaged in a pursuit of a vehicle – where the officer directed another junior officer to attempt an illegal stopping procedure – where the police officer also ignored directions from superiors to discontinue pursuit – where the offenders’ vehicle was stopped but then continued to drive away – where the officer fired twice at the departing vehicle – where the officer was suspended for five years whilst criminal charges were brought against him – where the charges were dismissed – where disciplinary charges were brought – where a penalty of reprimand was imposed – where the Crime and Corruption Commission sought review of the decision

Crime and Corruption Act 2001 (Qld) s 219I(3), s 219L(2)

Police Service Administration Act 1990 (Qld) s 2.3AA, s 7.12

Aldrich v Ross [2000] QCA 501

Buttsworth v Walton [1991] NSWCA 40

Crime and Corruption Commission v A/C Keating & Anor [2015] QCAT 176

Dekker v Medical Board of Australia [2014] WASCA 216

Legal Services Commissioner v Fellows [2017] QCAT 337

O'Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12

McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309

APPEARANCES &

REPRESENTATION:

 

Applicant:

M Docwra, Solicitor, Crime and Corruption Commission

First Respondent:

M O'Brien, Solicitor, QPS Legal Unit

Second Respondent

C Gnech, Gnech & Associates

REASONS FOR DECISION

  1. [1]
    On 17 May 2015 the second respondent (‘Wellington’) was on duty with Constable Eckersley performing general duties in a Hyundai iLoad van at the Gold Coast. Wellington as a Senior Constable was senior officer. Constable Eckersley at that time was a junior constable.
  2. [2]
    They became involved in a pursuit of a Toyota Landcruiser which had been linked to a number of serious offences committed including armed robbery. Polair, the police helicopter, was asked to conduct patrols in the Biggera Waters area and Polair located the vehicle.
  3. [3]
    A tyre deflation device was successfully deployed to stop the vehicle, but whilst the Landcruiser’s tyres were punctured, it managed to continue at reduced speed, perhaps 40 to 60 kph.[1]
  4. [4]
    Senior Sergeant McGrath was senior duty officer at the time and he authorised a road block. That was attempted but the Landcruiser mounted the footpath and again continued, tracked by Polair.
  5. [5]
    Senior Sergeant McGrath ordered police to stop pursuing the vehicle. His instructions were ignored.
  6. [6]
    Another officer, Senior Sergeant Hurley, following behind the Landcruiser, deliberately made contact with it and made it lose control. The Landcruiser veered off the road onto the verge. Sergeant Hurley exited his vehicle and Wellington joined him, as did other officers. The vehicle accelerated heavily backwards and forward ramming police vehicles trying to drive off and drove at Senior Sergeant Hurley, who moved to evade it.
  7. [7]
    He drew his weapon and fired at the Landcruiser once as it came towards him. He fired a second time as it drove away from him.
  8. [8]
    Wellington also drew his weapon and fired twice at the departing Landcruiser immediately after Senior Sergeant Hurley discharged his weapon the second time.
  9. [9]
    Polair continued tracking the Landcruiser and advised very shortly afterwards that it was slowing and potentially stopping and Senior Sergeant McGrath authorised two vehicles to follow it with a view to apprehending the driver and passengers if they alighted to flee on foot. The Landcruiser entered a cul-de-sac, crashed through a barrier down a steep embankment and stopped, the two occupants fleeing into bushland on foot.
  10. [10]
    A male occupant was arrested in bush some short time later and the other, a woman, apparently the driver, arrested two days later.
  11. [11]
    Wellington was stood down from duty on 20 May 2015 and suspended on salary from 5 November 2015 until his return to duty under a stand down order on 6 January 2020.

Criminal Charges

  1. [12]
    In about May 2016 Wellington was charged with an offence of dangerous conduct with a weapon pursuant to s 58 of the Weapons Act 1990 (Qld). On 7 September 2016, in an appearance in the Magistrates Court at Southport, Queensland Police Service (‘QPS’) offered no evidence and the charge was dismissed. Wellington was awarded costs of $10,000 against QPS.
  2. [13]
    On 12 October 2016 Wellington was charged with intending to cause grievous bodily harm under s 317 of the Criminal Code and dangerous operation of a vehicle pursuant to s 328A of the Criminal Code in relation to the events of 17 May 2015.
  3. [14]
    On 14 September 2017 an indictment was presented in the Southport District Court for one count of malicious act with intent, alternatively threatening violence with intent. The charge of dangerous operation of a vehicle was not pursued.
  4. [15]
    On application made by Wellington Her Honour Judge Dick SC ordered a permanent stay of the proceedings on 11 May 2018 on the basis the proceedings were an abuse of process.

Disciplinary proceedings

  1. [16]
    Disciplinary proceedings were not commenced until 7 March 2019. Initial proceedings were later abandoned because the officer presiding did not conclude them before retiring.
  2. [17]
    The proceedings were commenced afresh on 9 April 2020 and Wellington charged with one matter of misconduct, comprising three parts as follows:
  3. [18]
    Matter 1:

That on 17 May 2015 at Gold Coast Wellington’s conduct was improper given:

  1. (a)
    During a pursuit he instructed a junior constable to drive in a manner which posed an unacceptable risk to himself, other road users and members of the public;
  2. (b)
    He failed to comply with operational procedures and directions to abandon the pursuit;
  3. (c)
    He discharged his service issue firearm without justification.
  1. [19]
    The further particulars of the charge were:
    1. (a)
      In relation to Matter 1(a):
    1. (i)
      On 17 May 2015 he was rostered to perform mobile patrol duty in a marked police vehicle in company with Constable Rebekah Eckersley;
    2. (ii)
      Shortly after 9.00pm he engaged in a pursuit of a stolen vehicle at Pacific Pines;
    3. (iii)
      During the pursuit he directed Constable Eckersley to deliberately drive a police vehicle into the rear of the stolen vehicle;
    4. (iv)
      During a discipline interview he stated everything Constable Eckersley did during the pursuit, she did under his direction because he was trying to apprehend suspected robbery offenders.
    1. (b)
      In relation to Matter 1(b):
    1. (i)
      During the pursuit he was directed to abandon the pursuit by the COMCO and the District Duty Officer;
    2. (ii)
      He failed to abandon the pursuit as directed and continued to pursue the vehicle;
    3. (iii)
      During a discipline interview when asked why he did not terminate the pursuit when directed he stated "I agree I should have, I accept full responsibility for my actions and my directions to Eckersley ".
    1. (c)
      In relation to Matter 1(c):
    1. (i)
      During the pursuit the stolen vehicle lost control on Shoalhaven Avenue, Pacific Pines;
    2. (ii)
      He and another officer, Senior Sergeant Hurley, exited their respective police vehicles and approached the stolen vehicle;
    3. (iii)
      He observed the stolen vehicle accelerate towards Senior Sergeant Hurley who took evasive action;
    4. (iv)
      He discharged his firearm twice at the stolen vehicle;
    5. (v)
      The discharge of his firearm was a disproportionate response as the stolen vehicle did not pose an immediate threat to Senior Sergeant Hurley at the time he discharged his firearm.
  2. [20]
    The first respondent (‘A/C Carless’) was tasked with determining the disciplinary proceeding and found Matter 1 substantiated in all respects. He imposed a sanction of a reprimand and in addition, but not as part of the sanction, with a view to both the continued development of Wellington’s knowledge and skills and to prevent a reoccurrence of his reprimanded behaviour, directed Wellington to undertake professional development training relating to pursuits, the use of force (including use of firearms/shooting at vehicles) and the supervision of junior officers.
  3. [21]
    The applicant Crime and Corruption Commission (‘CCC’) has applied to the Tribunal for a review of that decision.

The submissions by the CCC

  1. [22]
    The CCC submits that Wellington’s conduct demonstrated unfitness to continue at his present rank. Demotion together with a requirement to undertake professional development strategies would have been the correct and preferable decision to impose at a time proximate to the time of his misconduct had he accepted responsibility for his actions.
  2. [23]
    Had he not accepted responsibility for his misconduct, the appropriate sanction was dismissal.
  3. [24]
    Regardless of any delay in finalising the disciplinary proceedings, the correct and preferable decision now is:
    1. (a)
      demotion to Constable level 1.6 for 12 months;
    2. (b)
      a requirement that Wellington not be permitted to relieve in a higher position for a period of six months;
    3. (c)
      a six-month period of mentoring by a senior officer appointed by Gold Coast district to include the development of leadership abilities and operational decision-making;
    4. (d)
      updated one-on-one training in contemporary QPS Operational Skills, including policy on QPS firearms use for moving vehicles; and
    5. (e)
      completion of the Police Pursuits and Safe driving policy online learning products.
  4. [25]
    CCC accepts that the references tendered in support of Wellington and his 15 years of experience in the QPS suggest he deserves to continue as a police officer, but they say he should not yet be put in a situation where he takes responsibility for more junior officers. To that end he should be demoted.
  5. [26]
    Demotion will serve a protective function by preventing his further misconduct if called again upon to supervise more junior police officers during dynamic and dangerous incidents. This lies at the heart of the matter as far as CCC is concerned. He should have additional supervision and be removed as potentially senior officer in charge at incidents for a period of twelve months because he may well reoffend.
  6. [27]
    Despite supportive references, he has not demonstrated any instances where he has successfully operated under pressure since returning to work.
  7. [28]
    The sanction imposed, a reprimand, fails to adequately reflect the gravity and seriousness of Wellington’s misconduct. It does not meet the relevant purposes of discipline, in particular that of protecting the public and promoting and maintaining public confidence and officer confidence in the police service. Demotion will serve to reflect the seriousness of the misconduct and the danger to which members of the public were exposed by the incident.
  8. [29]
    With respect to matter 1(a), Wellington knew Constable Eckersley was junior; he instructed her to ram the other vehicle using an illegal manoeuvre (PIT). She lacked experience and he should have been aware of that. He put not only Constable Eckersley but himself at risk as well as the occupants of the Landcruiser and members of the public.
  9. [30]
    In respect of matter 1(b) the failure to discontinue was deliberate. He admitted he should have stopped pursuit. He heard the order to stop but didn’t because no one else did.
  10. [31]
    Finally, with respect to matter 1(c), his discharge of a weapon was unnecessary, unreasonable and improper. He admitted in a subsequent interview that there was no threat when he fired. He couldn’t explain why he fired, other than to say it was an instinctive reaction.
  11. [32]
    CCC sums up his behaviour generally as a failure to exercise personal control leading to failure to exercise leadership. He demonstrated reckless behaviour. He failed to take appropriate action as expected of an experienced Senior Constable. His behaviour lacked the high standards of integrity and trust expected of a Senior Constable with command responsibility despite years of experience.
  12. [33]
    If a similar situation arises as that of 17 May 2015, there is a clear risk he could fall back into habit and revert to his personal beliefs and values which are potentially at odds with the orders from superiors. Put simply, when stressed he does not obey commands. CCC cite as an example him being disciplined whilst stood down for attending a funeral in uniform despite being told he was not entitled to do so and told not to do so.
  13. [34]
    In respect of potential for reoffending, CCC say one cannot ignore the fact that he engaged in the substantial misconduct of 17 May 2015 despite significant training and experience from 1999 to April 2015.

Wellington’s submissions

  1. [35]
    Wellington submits that the demotion sought by CCC has no purpose other than to constitute additional punishment on top of all he has endured since his suspension in 2015.
  2. [36]
    He points to inordinate unreasonable delay with respect to the disciplinary proceedings. Whilst he does not contend that he has suffered any substantial financial detriment over the period of suspension he says his career stalled for five years.
  3. [37]
    The criminal prosecutions against him were completely misconceived and he was awarded costs in one matter.
  4. [38]
    He has completed all the retraining A/C Carless directed him to undertake and much more.
  5. [39]
    Initially he returned to work at DTAC (District Tactical and Communication Centre). During that appointment he completed 27 Online Learning Products, including I note a number appositely addressing aspects of his poor behaviour in 2015 such as:
    1. (a)
      Human rights;
    2. (b)
      Ethics and decision making;
    3. (c)
      Fundamentals of command;
    4. (d)
      Supervisory responsibilities;
    5. (e)
      Use of force.
  6. [40]
    Then he was seconded to the Covid Task Force until 20 July 2020 when he was directed to attend the Queensland Police Academy for six weeks to complete Operational Skills Training and Police Operational Skills and Tactics training with recruits at a basic skill level.
  7. [41]
    He then returned to Coomera Police Station on 18 August 2020 and commenced full operational shifts under a mentoring program for one month working with a Senior Constable, and then “50/50 with other operational police officers for a further 5 months”.[2] He says his performance and reintegration into service has been monitored by supervisors.
  8. [42]
    As at 1 March 2021 he is performing first response activities, station supervisory roles and he is being trusted to train first year constables during shifts.
  9. [43]
    Demotion may have been an appropriate protective measure to take had it occurred proximate to the event of May 2015, but it did not. Instead he suffered five years’ inordinate delay and a suspension from QPS. The penalty imposed by A/C Carless took both the delay and his suspension into account, and to that A/C Carless added restorative training measures.
  10. [44]
    Everything the CCC seek by way of fresh penalty has already been completed, save for demotion.
  11. [45]
    With respect to the CCC’s assertion that he has not demonstrated any instances of successful operation under pressure, an officer on duty cannot dictate the work experiences encountered.
  12. [46]
    He has references from senior serving officers. Some were presented in the disciplinary proceeding before A/C Carless and an additional reference from Sergeant Miller handed up at hearing.
  13. [47]
    There is a reference from Sergeant Sara, team Sergeant responsible for 12 officers at Coomera Police Station. She was appointed by the Officer in Charge to be his direct supervisor in March 2020. She says in her reference she commenced a reintegration program with him given he had been absent from the police service for five years. She used a detailed work plan to address the knowledge and skills he had then and she selected appropriate reorientation strategies to address identified gaps in his knowledge.
  14. [48]
    He completed all tasks assigned him. She observed him to be helpful with his peers and polite to members of the public, efficient, detail-oriented and extremely competent. In her opinion he would be an asset to junior officers.
  15. [49]
    In Sergeant Miller’s second reference he states he has variously acted as Shift Supervisor, Acting Officer in Charge and District Duty Officer within Gold Coast District. As part of those roles he had observed and supervised Wellington. He referred to Wellington having four months’ intense direct supervision and mentoring by Sergeants at Coomera Police Station. The supervision included a complete review of all BWC (Body Worn Camera) interactions with the public to ensure such were professional and in line with QPS standards.
  16. [50]
    Sergeant Miller claims he has great leadership qualities “including making the right decision at the right time and guiding junior officers on how to perform their role to a high standard.”[3] Sergeant Miller says, because of Wellington’s attitude and demonstrated behaviours, he has progressed to supervising first year constables working at Coomera Police Station.
  17. [51]
    Senior Sergeant Godbold, Officer in Charge Coomera Police Station, also gave a reference. Sergeant Godbold specifically addresses Wellington’s devotion to the protection and safety of his fellow officers, which he puts down to his previous career in the Australian Defence Force.

Consideration

  1. [52]
    The references as to character must be put into perspective. As stated in O'Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12:

… in our view, references attesting to competent performance after serious misconduct does not necessarily preclude a finding of ongoing unfitness. Good conduct in the period after misconduct and during disciplinary proceedings may demonstrate that lessons have been learned.  That said, as the Appeal Tribunal has observed, it would also be somewhat surprising if an officer did not get on with being a productive officer in the face of ongoing disciplinary proceedings. Indeed, subsequent good conduct has not been considered a bar to immediate dismissal in circumstances that the Appeal Tribunal considered it warranted.[4]

  1. [53]
    That perspective finds particular focus here in the observation made by Senior Sergeant Godbold in his reference that:

I am aware of incidents in which Barry has undertaken a leading role by being the first officer through an open door or window in pursuit of an offender for a significant event thereby not exposing his fellow officers to danger. Whilst at first glance this may be considered as impulsive, his decisions are based upon his experience (attuned fight or flight skills).”[5]

  1. [54]
    The Senior Sergeant’s observation accords with the finding by A/C Carless in the disciplinary substantiation proceeding that:

In my view, …your actions before and after the discharge of your firearm do not accord with the actions of an officer who was caught off guard …. In my view, they portray little concern for your own safety or that of Senior Sergeant Hurley ….

It seems more likely you were blinded to good decision making by the excitement of the pursuit and then after firing your weapon, more concerned with continuing the pursuit. It is for this reason also, I am persuaded the discharge of [y]our weapon was a case of poor judgment and excitement, rather than anything more sinister.[6]

  1. [55]
    I accept and adopt the description by A/C Carless, a very senior commissioned officer, of Wellington’s behaviour on the night of 17 May 2015 as accurate and insightful. In determining the matter the Tribunal is required to make its own decision on the evidence; however, the views of a Deputy Commissioner as the original decision maker may assist the Tribunal in making its decision.[7]
  2. [56]
    I also accept his conclusions about the misconduct identified in matters 1(a) and 1(b). In respect of the former, A/C Carless said Wellington’s behaviour showed poor professional judgment and inadequate decision making,[8] and with respect to the latter, it was a simple case of Wellington choosing to ignore instructions to discontinue pursuit.
  3. [57]
    I conclude Wellington’s behaviour during the 17 May 2015 event evinced recklessness, probably borne of excitement, which clouded his decision making despite his long training, and the outcome was poor leadership and a poor role model.
  4. [58]
    Whilst the CCC does not suggest dismissal as the appropriate penalty, it submits a reprimand was similarly not appropriate given the very serious nature of the misconduct concerned. 
  5. [59]
    The CCC says demotion, together with the undertaking of professional development strategies, was the appropriate penalty had the disciplinary proceedings taken place at a time proximate to the event of 2015, and it remains so now regardless of delay. It remains the appropriate penalty because there is a possibility of Wellington re-offending, and given he is currently a Senior Constable at pay point 2.10, if faced with another dynamic event, he may well find himself senior officer in charge again making poor decisions as in the 2015 incident.
  6. [60]
    Indeed s 2.3AA of the Police Service Administration Act 1990 (Qld) provides:

Responsibility for command

At any incident—

(a) that calls for action by police; and

(b) at which officers are present;

the officer who is responsible for taking such action, and for action taken, is the senior officer who is present.

  1. [61]
    The CCC says further protective measures of supervision are appropriate. Wellington failed to set an acceptable standard for junior officers to emulate in the incident of 2015, and he may do so again.
  2. [62]
    In Buttsworth v Walton [1991] NSWCA 40, Samuels JA said:

The order made by the Tribunal was attacked principally upon two grounds. First, it was submitted that the Tribunal misdirected itself as to the onus of establishing the risk of the appellant offending again with some other patient. What the Tribunal said was this:

“The Tribunal finds that it is not satisfied that there is not an appreciable risk of the respondent re-offending with another patient.”

However, there is no onus whether to the standard required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, or of any other kind, upon the respondent to establish the likelihood of the appellant's behaving again in the same way with another patient. The respondent, having proved the case, is entitled to apply that evidence to sustain the order which she thinks the circumstances warrant. The appellant may certainly advance matter in mitigation and he bears the onus of establishing that material on the ordinary balance of probabilities. Accordingly, the passage which I have quoted from the Tribunal's findings is a correct statement of how the position stood; and there was no error of law.[9]

  1. [63]
    CCC submits Buttsworth v Walton offers support for the proposition that there is no onus in disciplinary proceedings requiring the likelihood of the subject officer engaging in similar misconduct to be established after the primary case of misbehaviour is found proved. Here, the primary case of misbehaviour has been made out.
  2. [64]
    Buttsworth v Walton concerned a charge of professional misconduct against a male psychiatrist.
  3. [65]
    The decision has been cited as authority for the proposition that, as concerns penalty, a tribunal is entitled to draw its own conclusions about risk of reoffending.[10]
  4. [66]
    The issue in dispute in the matter at hand is in effect limited to the suggested sanction of demotion. It is a serious sanction. The Appeal Tribunal pointed that out in McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 where it was said:

The effect of demotion must be recognised as very severe. Apart from the disgrace associated with it, the demotion is accompanied by what is on any view a serious financial sanction.[11]

  1. [67]
    The CCC says, had the disciplinary proceedings taken place at a time proximate to the events of 17 May 2015, and Wellington not accepted responsibility for his misconduct, dismissal would have been the appropriate sanction. If Wellington had accepted responsibility for his misconduct then, demotion together with a requirement to undertake professional development strategies would have been the correct and preferable decision.
  2. [68]
    I do not necessarily agree that the matter can be cast in such black and white terms. Every police officer should be entitled to challenge a charge without fear of additional penalty. The discounts given in criminal courts to early pleas of guilt are not relevant in disciplinary proceedings.[12]
  3. [69]
    Leaving that aside, it cannot be disputed that the misconduct by Wellington was very serious. Not only did he fail to appropriately guide a junior constable in a traumatic situation, he ignored commands to stop pursuit, and placed himself and Constable Eckersley, the occupants of the Landcruiser and members of the public in danger by directing her to employ a forbidden stopping manoeuvre. He followed that up by shooting at the Landcruiser as it moved away, twice. The Polair video makes clear the shots were fired by him in the street, along the street, in the direction of an intersection. It was most fortunate that nobody was struck.
  4. [70]
    Given those circumstances in my opinion the appropriate penalty cannot be a reprimand.
  5. [71]
    Wellington says consideration should be given to what took place after he was suspended from duty in 2015. Two criminal prosecutions, five years’ suspension from service, supervision when reinstated and re-education including a return to the Police Academy.
  6. [72]
    In my opinion those matters are factors that should be considered and not ignored. But similarly, the fact that Wellington has only resiled from contending that his behaviour in respect of matter 1(c) of the disciplinary proceedings was not misconduct has only been since November 2020.
  7. [73]
    There has been significant delay in resolution of the disciplinary proceedings, and delay may be a relevant consideration for the purpose of mitigation. In Legal Services Commissioner v Fellows [2017] QCAT 337, in the context of legal professionals it was explained:

The true significance of delay as a mitigating feature is not so much that the respondent has been under a cloud for so long as the application remained unresolved, it is that the Tribunal is afforded an opportunity to see what the practitioner has done (or not done) to modify his or her professional behaviour over the intervening period (see the discussion on this point in the context of sentencing for criminal offences in R v L; Ex parte Attorney-General for Queensland [1996] 2 Qd R 63). To the point, the practitioner’s behaviour over the period of the delay may serve to aggravate, mitigate or have no effect on the end sanction. Here, for the reasons that immediately follow, the delay operates in his favour.[13]

  1. [74]
    The delay concerned here must be put in context, however. The delay was in large part caused by the criminal charges brought against him arising out of the May 2015 incident. I accept that until those matters were finalised (as a “relevant criminal proceeding”),[14] the usual course required the criminal charges be dealt with first. After the criminal proceedings concluded the disciplinary action would typically follow, as happened here, albeit again with delay.
  2. [75]
    Wellington submits that he has been prejudiced by delay. I accept that the delay has caused him stress and his career has stalled, but there is no suggestion that he has otherwise suffered financially because of delay.
  3. [76]
    What is significant about delay, as explained in Legal Services Commissioner v Fellows, lies in its scope to consider behaviour aggravating, mitigating or having no effect on the end sanction. Here, the relevant period concerned must be from January 2020 with his return to work to the date of hearing.
  4. [77]
    I accept Wellington’s assertion that save for the matter of demotion, all those aspects of retraining suggested by the CCC as part of the appropriate penalty have already been completed and completed successfully. That contention was not challenged at hearing. I see no point in Wellington repeating that retraining yet again.
  5. [78]
    I also take into account that Wellington returned to duty some 14 months prior to hearing and his return has been without negative incident.
  6. [79]
    I accept he has had the benefit of mentoring and guidance from senior officers at the worksite and retraining.
  7. [80]
    His return to duty for the first seven months was not the usual “day to day” duties however. Those commenced when he returned from the Police Academy, and as noted, have been without negative incident.
  8. [81]
    Concerning cases of a similar nature, Wellington submits the matter of Crime and Corruption Commission v A/C Keating & Anor [2015] QCAT 176 involved similar misconduct involving discharge of a firearm at a vehicle. There a penalty of reprimand and reduction in one pay point from Senior Constable 2.9 to Senior Constable 2.8 was imposed in initial disciplinary proceedings and the CCC filed an application for review in the Tribunal.
  9. [82]
    The Tribunal determined that the appropriate penalty instead was demotion from Senior Constable pay point 2.9 to Constable 1.6 wholly suspended for a period of 12 months. That was by consent of all parties. Whilst the offending officer was never removed from duty, even for a short time,[15] it appears that there were substantial unique mitigating factors applying there.[16] Wellington’s conduct also involved far more than firearm discharge misconduct.
  10. [83]
    There were no submissions by any party that suspension of sentence was appropriate in the matter at hand. In my opinion the availability of the Tribunal’s general power to order suspension under s 219L(2) of the Crime and Corruption Act 2001 (Qld) as an overall and necessary adjunct to those orders otherwise available to the Tribunal by s 219I(3), and despite the (more limited) power granted the commissioner of police to suspend for a fixed time not assigned the Tribunal, yet remains to be authoritively determined. I do not consider it is appropriate to determine it in this matter in the absence of submissions and given I do not believe it is appropriate here in any case.
  11. [84]
    Given my conclusion that Wellington’s behaviour on 17 May 2015 was a matter of recklessness, probably borne of excitement, and that clouded his decision making despite his long training, leading to poor leadership, I find that there is reasonable prospect that Wellington may fall prey to the same behaviour again should a similar dynamic stressful situation arise like the incident of May 2015. Given his rank, he may find himself senior officer in charge supervising junior officers.
  12. [85]
    Given that, and despite the fairly extensive retraining and supervision undertaken since his return to duty, I find his demotion to Constable pay point 1.6 for 12 months is the correct and preferable penalty, both as a protective measure and a message to others. He should not be permitted to relieve in a higher position for a period of six months.
  13. [86]
    As stated, I see no purpose served however in having Wellington undertake the further mentoring and training suggested by the CCC. I accept he has already undertaken sufficient training in that regard and one can err in imposing a sanction excessive in the circumstances where a lesser sanction may be appropriate.[17]

Footnotes

[1]Ex 1 page 1098 Line 92.

[2]Ex 6.

[3]Ex 5 page 2.

[4][2021] QCATA 12, [28].

[5]Ex 2 page 1.

[6]Ex 1 page 0182.

[7] Aldrich v Ross [2000] QCA 501, [43] (Thomas JA).

[8]Ex 1 page 0176.

[9][1991] NSWCA 40, 13.

[10] Dekker v Medical Board of Australia [2014] WASCA 216, [54].

[11][2011] QCATA 309, [49].

[12]Ibid [23], [24].

[13][2017] QCAT 337, [27].

[14] Police Service Administration Act 1990 (Qld), s 7.12.

[15][2015] QCAT 176, [33].

[16]Ibid [31]-[32].

[17] Chandra v Queensland Building and Construction Commission [2017] QCA 4, [23].

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Carless & Anor

  • Shortened Case Name:

    Crime and Corruption Commission v Carless

  • MNC:

    [2021] QCAT 216

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    08 Jun 2021

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
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Cite 1 - [2000] QCA 501
Cite 2 - [2000] QCA 501
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Buttsworth v Walton [1991] NSWCA 40
3 citations
Jump To
Cite 1 - [1991] NSWCA 40
Cite 2 - [1991] NSWCA 40
Cite 3 - [1991] NSWCA 40
Chandra v Queensland Building and Construction Commission [2017] QCA 4
1 citation
Jump To
Cite 1 - [2017] QCA 4
Crime and Corruption Commission v Acting Assistant Commissioner M.J. Keating [2015] QCAT 176
4 citations
Jump To
Cite 1 - [2015] QCAT 176
Cite 2 - [2015] QCAT 176
Cite 3 - [2015] QCAT 176
Cite 4 - [2015] QCAT 176
Dekker v Medical Board of Australia [2014] WASCA 216
2 citations
Jump To
Cite 1 - [2014] WASCA 216
Cite 2 - [2014] WASCA 216
Legal Services Commissioner v Fellows [2017] QCAT 337
3 citations
Jump To
Cite 1 - [2017] QCAT 337
Cite 2 - [2017] QCAT 337
Cite 3 - [2017] QCAT 337
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
3 citations
Jump To
Cite 1 - [2011] QCATA 309
Cite 2 - [2011] QCATA 309
Cite 3 - [2011] QCATA 309
O'Brien v Assistant Commissioner Taylor [2021] QCATA 12
3 citations
Jump To
Cite 1 - [2021] QCATA 12
Cite 2 - [2021] QCATA 12
Cite 3 - [2021] QCATA 12
R v Law; ex parte Attorney-General [1996] 2 Qd R 63
1 citation
Jump To
Cite 1 - [1996] 2 Qd R 63

Cases Citing

Case NameFull CitationFrequency
Wellington v Assistant Commissioner Carless [2021] QCATA 1113 citations
1

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