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Groufsky v Assistant Commissioner Brian Codd[2021] QCAT 366

Groufsky v Assistant Commissioner Brian Codd[2021] QCAT 366

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Groufsky v Assistant Commissioner Brian Codd [2021] QCAT 366

PARTIES:

shaun groufsky

(applicant)

v

assistant COMMISSIONER brian codd

(respondent)

APPLICATION NO/S:

OCR151-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 October 2021

HEARING DATE:

17 September 2021

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of Assistant Commissioner Brian Codd dated 1 June 2018 is set aside and the following decision is substituted:

Sergeant Groufsky is reduced in pay point from Sergeant pay point 3.4 to 3.3 for 12 months effective from 1 June 2018.

At the conclusion of the 12-month period Sergeant Groufsky shall return to pay point 3.4.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where allegations of misconduct and disciplinary sanction imposed – where subject officer applied to review the charges of misconduct and sanction – where Tribunal on review found allegation of misconduct to be substantiated – where subject officer inappropriately applied excessive force – whether sanction imposed is correct and preferable

Crime and Corruption Act 2001 (Qld), s 219BA, s 219C, s 219G(2), s 219B, s 219H, s 444, Schedule 2

Police Service Administration Act 1990 (Qld), s 1.4.

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 66

Aldrich v Ross [2001] 2 Qd R 235

Briginshaw v Briginshaw (1938) 60 CLR 336

Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488

Crime and Corruption Commission v Acting Assistant Commissioner Glenn Horton and Anor [202] QCAT 422

Groufsky v Assistant Commissioner Codd [2019] QCAT (11 October 2019)

Murray v Deputy Commissioner Stewart [2011] QCAT 583

APPEARANCES &

REPRESENTATION:

Applicant:

B I McMillan of Counsel instructed by Gilshenan & Luton Legal Practice

Respondent:

S McLeod QC of Counsel instructed by QPS Legal Unit

REASONS FOR DECISION

  1. [1]
    Sergeant Groufsky seeks a review of a disciplinary sanction imposed by Assistant Commissioner Codd for one ground of misconduct found to be proven and later upheld on review by the Tribunal.
  2. [2]
    On 11 October 2018, Member Holzberger found that Mr Groufsky applied excessive force against a person brought into custody at the Southport Watch House.[1] The Tribunal’s reasons contain relevant findings about Mr Groufsky’s conduct that took place on 12 April 2017 during a time when Mr Groufsky was rostered to perform shift supervisor duties.
  3. [3]
    As reflected in the Tribunal’s reasons, the person brought into custody was heavily intoxicated and potentially self-harming prompting a decision to move him to the violent detention cell.[2] After being placed in the violent detention cell the person tried to exit before the door could be closed prompting a Watch House officer to push the person back into the cell so that the door could be closed safely. The person was later observed to place his shirt around his neck prompting Mr Groufsky and the Watch House officer to enter the violent detention cell to remove the person’s shirt. The person again tried to exit the cell and communicated with Mr Groufsky.[3] Mr Groufsky pushed the person in the chest which resulted in him (the person) falling on his feet and landing on his back. The person sustained a colles’ fracture to his right wrist.[4]
  4. [4]
    The Tribunal found that Mr Groufsky’s action of pushing the person to get him clear of the door was appropriate. The Tribunal found, however, that the force used to achieve that outcome was not justified. The relevant extracts from the Tribunal’s reasons are now set out below:

.... It is clear from all the evidence that communication with [the person], because of his accent, his intoxication and his belligerence was at best difficult. His non-compliance and lack of cooperation was by this stage well established. Both Watch House Officer Gould and Watch House Officer Garland had pushed [the person] to safely close the door and in all those circumstances I am of the view that the action of pushing [the person] to get him clear of the door was appropriate. The issue is whether the force of the push was excessive.[5]

…

I accept the submission on Sergeant Groufsky’s behalf that there was a risk of harm to [the person] or others if he managed to exit the violent detention cell however he was in the violent detention cell, unarmed with both Sergeant Groufsky and Watch House Officer Garland preventing him from so doing. While I have found that pushing [the person] appropriate I can not agree that the force used to achieve that outcome was justified in the circumstances.[6]

  1. [5]
    Given the extent of the person’s intoxication, the Tribunal on review did not accept that the fall or the extent of the person’s injuries was unforeseeable.[7] The Tribunal went on to confirm the decision below that the conduct is substantiated.
  2. [6]
    The issue before me now is whether the misconduct as found to be proven warrants a sanction of demotion. Relevantly, in the disciplinary proceeding below, the Assistant Commissioner demoted Mr Groufsky from Sergeant 3.4 to Senior Constable 2.9 for a period of 12 months on 1 June 2018. At the conclusion of the 12-month period, the Assistant Commissioner determined that Mr Groufsky will return to the rank of Sergeant 3.4.[8]
  3. [7]
    In support of the applicant for review, Mr Groufsky says that the correct and preferable decision is a temporary reduction in pay points from Sergeant 3.4 to 3.3 for 12 months effective from 1 June 2018 or alternatively a reduction in pay points from Sergeant 3.4 to 3.2 for a period of 6 months.
  4. [8]
    Mr Groufsky argues that relevant matters to be taken into account on review include the Tribunal’s findings on the substantiation, his service history, post-sanction conduct and the impact of the sanction imposed at first instance.
  5. [9]
    On the other hand, the respondent says that the Tribunal should now confirm the sanction decision because it reflects the protective nature of disciplinary proceedings. Of particular importance, the respondent says is Mr Groufsky’s position held at the time of the conduct. The respondent says the position of Sergeant carries with it standards of leadership to subordinate staff, supervision and control.[9]

The Tribunal’s role on review

  1. [10]
    The Tribunal stands in the shoes of the decision-maker, the Assistant Commissioner, exercising the same powers to produce the correct and preferable decision.[10] It is appropriate to give ‘considerable weight’ to the findings of the decision-maker on the basis that the decision-maker might be thought to have ‘particular expertise in the managerial requirements of the police force’.[11] The Tribunal does, however, have a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.[12]
  2. [11]
    In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.[13] Further, the Tribunal must be satisfied and find accordingly that the conduct complained of is proven. ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.[14]
  3. [12]
    In the reasons document, the Assistant Commissioner makes observations and findings about Mr Groufsky’s conduct particularly in relation to the senior position of Sergeant held at the relevant time of the conduct and Mr Groufsky’s past history. The Assistant Commissioner says that Sergeants are expected to provide leadership to the rest of the Service by their conduct both on and off duty. The Assistant Commissioner finds Mr Groufsky’s conduct falls well below the required standard.
  4. [13]
    The Assistant Commissioner considers Mr Groufsky’s length of service and position within the Gold Coast District elevates the seriousness of his misconduct and says that Mr Groufsky’s rank and experience as a shift supervisor should make him fully aware of the importance of his duty of care to the relevant person. The Assistant Commissioner finds that Mr Groufsky continues to make poor decisions at the rank of Sergeant which ultimately affects his ability to meet the standard of conduct expected of that rank. The Assistant Commissioner says that the sanction decision should give Mr Groufsky the opportunity to demonstrate his capacity (to perform his role as Sergeant).[15]

What is the correct and preferable decision?

  1. [14]
    In my view the conduct found to be substantiated is serious because it involves the use of excessive force resulting in an injury to the person, namely a colles’ fracture to the right wrist.
  2. [15]
    It is fair to say that the conduct took place in a dynamic situation. Mr Groufsky was working in a busy Watch House and the person brought into the Watch House was, as found by the Tribunal on review, difficult. The Tribunal found that the person was intoxicated, non-compliant and uncooperative. Further to that, there was, as found, a risk of harm to the person or others if he (the person) managed to exit the violent detention cell.[16]
  3. [16]
    I do not accept, as submitted by Mr Groufsky, that the Tribunal on review characterises Mr Groufsky’s misconduct less seriously than the Assistant Commissioner’s sanction decision and findings made in relation to the misconduct at first instance. Mr Groufsky refers me to the Assistant Commissioner’s reasons document and his findings about Mr Groufsky’s conduct. Relevantly, I am referred to the Assistant Commissioner’s finding that Mr Groufsky was aware the person was intoxicated, however, he showed, as stated, ‘limited tolerance and very little patience in an effort to achieve compliance’.[17] Mr Groufsky now submits that the Tribunal on review did not make any finding similar to the Assistant Commissioner’s finding on substantiation and instead, as submitted, the Tribunal found at paragraph [16] of its reasons that, amongst other things, the person was difficult and the action of pushing the person to get him clear of the door was appropriate.[18]
  4. [17]
    I agree with the respondent’s submission made in response that the Tribunal’s reasons must be read as a whole when looking at Mr Groufsky’s conduct that was found to be substantiated by the Tribunal on review. In paragraph [21] of the reasons, the Tribunal accepts Mr Groufsky’s submission that there was a risk of harm to the person or others if he managed to exit the violent detention cell. The Tribunal goes on to say that the person was in the violent detention cell, unarmed with both Mr Groufsky and another officer, preventing him (the person) from so doing (meaning leaving the cell). Whilst the Tribunal found that pushing the person was appropriate the Member did not agree that the force used to achieve that outcome was justified in the circumstances.[19] The Tribunal makes observations about the CCTV footage of the incident and finds that the person was forcefully pushed to the floor by Mr Groufsky and that the fall was foreseeable even if significantly less force was used. The relevant extracts from the Tribunal’s reasons is set out below:

[The] Watch House Officer’s opinion that excessive force was used is corroborated by viewing the footage of the incident. Sergeant Groufsky who is taller and bigger than [the person] pushes him in the chest with both hands and significant force. It is not in my view a case in which [the person] loses his footing and falls to the floor as Sergeant Groufsky asserts but rather a case of being pushed forcefully to the floor by Sergeant Groufsky.[20]

I do not accept that the fall or the extent of [the person’s] injuries was unforeseeable. Given the extent of [the person’s] intoxication, a fall was foreseeable even if significantly less force was used.[21]

  1. [18]
    On a fair reading of the Tribunal’s reasons the relevant circumstances surrounding the conduct were considered. It is implicit in the Tribunal’s findings that the force used by Mr Groufsky was not justified in the circumstances; and that a fall was foreseeable given the level of the person’s intoxication at the relevant time. In my view Mr Groufsky’s conduct is clearly improper and fails to meet the standards expected of an officer in a senior role.
  2. [19]
    Turning now to Mr Groufsky’s rank and experience. Mr Groufsky has been an officer since 1998 and holds the rank of Sergeant since 2006. I accept, as submitted by the respondent, that the rank of Sergeant carries with it standards of leadership to subordinate staff, supervision and control. As said by the Assistant Commissioner at first instance of which I agree the position held by Mr Groufsky of supervisor of a watch house carries with it a decision-making role that warrants the making of sound decisions and guidance to officers under his supervision.[22]
  3. [20]
    That said, the circumstances giving rise to the conduct, the consequences of the conduct such as the injury caused to the person and Mr Groufsky’s rank and position held at the time of the conduct are not the only relevant factors to be considered here.
  4. [21]
    There is evidence before me, that I accept, of Mr Groufsky’s good conduct in the performance of his duties as a police officer since the relevant misconduct that is relevant to the issue of sanction.
  5. [22]
    Mr Groufsky was stood down from operational duties on 16 May 2017 until the finalisation of the disciplinary hearing below on 1 June 2018. During the relevant sanction period Mr Groufsky was selected to perform duties at other police stations including to relieve as officer in charge. He was also rostered to perform duties at Southport police station, the Gold Coast District and served at North Tamborine police station in 2018.[23] 
  6. [23]
    Mark Shields, officer in charge of the North Tamborine Police Station refers to Mr Groufsky as being a diligent and enthusiastic officer during his time at the Station. Mr Shields says that his confidence in Mr Groufsky’s abilities is such that he recommended him to perform duties as officer in charge.[24]
  7. [24]
    On 23 May 2020, Mr Groufsky was transferred into a permanent position at Southport Station and he has performed many roles there including shift supervisor, operations co-ordinator, district duty officer and officer in charge.[25] During his time at Southport Watch House Mr Groufsky is also reported to be diligent and motivated and always professional in his dealings with prisoners and is often called upon to use communication skills to de-escalate situations.[26]
  8. [25]
    Mr Groufsky says that being rendered non-operational has had significant impacts on his family situation, his career progression and his mental health.[27] On the other hand, as submitted by the respondent, and I agree, it is Mr Groufsky’s own conduct that has resulted in the current misconduct proceedings. Relevantly, Mr Groufsky contested the charge of misconduct and a review hearing followed before the Tribunal on the substantiation finding on 3 December 2018. The Tribunal delivered its written reasons on 11 October 2019.
  9. [26]
    I accept that there has been some delay in finalising this matter given that the first hearing in relation to the review of the substantiation took place on 3 December 2018 and the present matter only proceeded before me on 17 September 2021. The delay, although regrettable, is not excessive. Further to that, Mr Groufsky has continued to perform his duties as an officer of the Service since 1 June 2018.
  10. [27]
    I have considered the purpose of discipline in particular the public confidence in the QPS and the ability of the Service to fulfil its functions. I agree with the observations made by the Assistant Commissioner at first instance about Mr Groufsky’s conduct and the duty to take care particularly when dealing with a person who has been brought into custody. The Assistant Commissioner says and I agree:

I am mindful of the necessity to protect prisoners who find themselves in police custody. The Service is under authority to take reasonable care to ensure the safety and security of otherwise vulnerable prisoners over whom the QPS effectively exercises complete control. Prisoners have a right to expect they will not be mistreated whilst in custody, particularly by a police officer of trust and supervisory responsibility….you have breached the trust placed upon you by the Service to take reasonable care of [the person’s] safety as a person in your custody.[28] 

  1. [28]
    I do not, however, share the same views expressed by the Assistant Commissioner about Mr Groufsky’s disciplinary history in particular, that he (Mr Groufsky) continues to make poor decisions at the rank of Sergeant which ultimately affects his ability to meet the standards expected of that rank.[29] Whilst I accept that Mr Groufsky has a past history that may be more generally characterised as a history of poor decisions, there is no evidence before me of similar conduct such as the use of excessive force on a person by Mr Groufsky in the performance of his duties as a Sergeant. I do not agree with the Assistant-Commissioner’s findings that Mr Groufsky, as stated, by the Assistant Commissioner, ‘continue[s] to make poor decisions at the rank of Sergeant’ that affects his ability to meet the standard of that rank.[30]
  2. [29]
    Mr Groufsky relies on references from several police officers, that are not contested, who speak to, amongst other things, Mr Groufsky’s professionalism, great communication skills and ability to manage violent or high-risk offenders, in the performance of his duties as a Sergeant both prior to and after the misconduct the subject of the present proceedings.[31] As discussed above Mr Groufsky performed a number of senior roles since he returned to duties on 1 June 2018. Mr Groufsky is reported to have performed his duties diligently.
  3. [30]
    I have also considered other Tribunal decisions involving the use of excessive force. I am referred to Commissioner Stephan Gollschewski & Anor (No 2)[32] and  Crime and Corruption Commission v Acting Assistant Commissioner Glenn Horton and Anor.[33]
  4. [31]
    The conduct in Gollechewski is more serious than the conduct here. The subject officer placed the complainant in a lateral vascular neck restraint and then dragged him to a nearby police vehicle to attempt to position him to apply handcuffs. The subject officer was reduced in rank at first instance. On review the subject officer’s pay points were reduced from Senior Constable 2.3 to 2.1 for 6 months.
  5. [32]
    In Horton, the conduct is also more serious than the conduct here. The subject officer admitted to using excessive force on a person in custody. The relevant person had been transferred to the station for a further search of drugs. The subject officer can be seen from images on a body worn camera to strike the person on the right side of the head so he stumbles forward. At the same time the subject officer was hitting the person he looked to be restraining the person (or victim) in a thumb lock. The subject officer appeared to have the person under control without resorting to the violence he used.[34] The subject officer was fined 16 penalty units and was directed to complete a professional development strategy.
  6. [33]
    In the present matter, I do not consider that a demotion in rank is the correct and preferable decision, in all of the circumstances. I have found that the conduct took place in a busy Watch House. The person brought into custody was difficult due to his level of intoxication and lack of cooperation. That said, the person by reason of his level of intoxication was also clearly vulnerable.
  7. [34]
    It was appropriate for Mr Groufsky to push the person to get him clear of the door. Mr Groufsky’s use of force to achieve that outcome was not, however, justified in the circumstances. Mr Groufsky failed to appreciate the person’s level of intoxication and to take care when pushing the person so that the person did not exit the cell. Mr Groufsky’ use of force was excessive and resulted in an injury to the person.
  8. [35]
    Mr Groufsky has many references that attest to his good conduct in the performance of his duties as a Sergeant prior to the misconduct. Other than the present misconduct, Mr Groufsky has no previous history of using excessive force on a person resulting in an injury. Since the sanction was imposed on 1 June 2018, Mr Groufsky has performed senior duties in the Service to a high standard and has not engaged in any further acts of misconduct.
  9. [36]
    In my view the purpose of discipline will be served in this matter by way of a reduction in pay points from Sergeant pay point 3.4 to 3.3 for a period of 12 months. The proposed sanction reflets the serious nature of the misconduct involving the use of excessive force in a busy Watch House. It also protects the reputation and standards expected of a senior officer within the service by sending a clear message to members of the Service and the community that the use of excessive force on a person in police custody is not acceptable. Further to that, officers must take care when dealing with a person who is under the care and control of the Service to ensure safety and security is maintained.
  10. [37]
    The correct and preferable decision is that Sergeant Groufsky is reduced in pay point from Sergeant pay point 3.4 to 3.3 for 12 months effective from 1 June 2018. At the conclusion of the 12 month period Sergeant Groufsky shall return to pay point 3.4. I order accordingly.

Footnotes

[1]Groufsky v Assistant Commissioner Codd [2019] QCAT (published 11 October 2019) (‘Tribunal’s reasons’).

[2]  Ibid, [5].

[3]  Ibid, [7].

[4]  Ibid, [3].

[5]  Tribunal’s reasons, [16].

[6]  Ibid, [21].

[7]  Ibid, [23].

[8]  Reasons document dated 1 June 2018, Exhibit 1, p 145.

[9]  Respondent’s submissions on sanction filed 23 April 2020, [15].

[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 19 and see the Crime and Corruption Act 2001 (Qld) (‘CC Act’), s 452. The matter proceeds under the previous statutory framework as in force before the commencement of the current CC Act (on 30 October 2019).

[11]Aldrich v Ross [2001] 2 Qd R 235, 257-258 (Thomas J).

[12]Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40] (Hon JB Thomas).

[13]Briginshaw v Briginshaw (1938) 60 CLR 336.

[14]Police Service Administration Act 1990 (Qld), s 1.4 (definition of ‘misconduct’).

[15]  Ibid, p 152.

[16]  Tribunal’s reasons, [21].

[17]  Applicant’s sanction submissions filed 2 March 2020, [14].

[18]  Ibid.

[19]  Tribunal’s reasons, [21].

[20]  Ibid, [22].

[21]  Ibid, [23].

[22]  Respondent’s submissions on sanction filed 23 April 2020, [16].

[23]  Exhibit 2.

[24]  Ibid.

[25]  Ibid.

[26]  Ibid. See also Exhibit 3.

[27]  Exhibit 2.

[28]  Exhibit 1, p 147.

[29]  Ibid, p 152.

[30]  Exhibit 1, p 20.

[31]  Ibid, pp 57 to 79, inclusive.

[32]   [2014] QCAT 488.

[33]  [202] QCAT 422.

[34]  [202] QCAT 422, [6].

Close

Editorial Notes

  • Published Case Name:

    Groufsky v Assistant Commissioner Brian Codd

  • Shortened Case Name:

    Groufsky v Assistant Commissioner Brian Codd

  • MNC:

    [2021] QCAT 366

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    15 Oct 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
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Crime and Corruption Commission v Acting Assistant Commissioner Glenn Horton [2020] QCAT 422
3 citations
Jump To
Cite 1 - [2020] QCAT 422
Cite 2 - [2020] QCAT 422
Cite 3 - [2020] QCAT 422
Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488
2 citations
Jump To
Cite 1 - [2014] QCAT 488
Cite 2 - [2014] QCAT 488
Murray v Deputy Commissioner Stewart [2011] QCAT 583
2 citations
Jump To
Cite 1 - [2011] QCAT 583
Cite 2 - [2011] QCAT 583

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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