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Hume v Keating[2016] QCATA 67

CITATION:

Hume v Keating [2016] QCATA 67

PARTIES:

Colin Hume

(Applicant/Appellant)

v

Acting Assistant Commissioner Michael Keating

(Respondent)

APPLICATION NUMBER:

APL257-15

MATTER TYPE:

Appeals

HEARING DATE:

17 February 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Guthrie

DELIVERED ON:

13 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal dismissed.
  2. The sanction imposed on Senior Constable Colin Hume by Acting Assistant Commission Michael Keating on 22 October 2014 namely:
  1. (a)
    A reduction in paypoint from 2.9 to 2.8 for 12 months
  2. (b)
    The sanction is suspended conditional upon Senior Constable Colin Hume completing 100 hours community service at a Police Citizens Youth Club within 12 months from 22 October 2014,

is varied so as to extend the time for Mr Hume to complete community service to the date that is four months from the date of this decision.

  1. The parties may file and serve any submissions about whether Mr Hume should be given extra time to complete his community service by 31 May 2016

CATCHWORDS:

APPEAL – OCCUPATIONAL REGULATION – POLICE – DRINK-DRIVING CONVICTION – where the applicant was convicted of drink driving while off duty and later found guilty of misconduct by the Queensland Police Service – where Queensland Police Service imposed a sanction of a reduction in paypoint Senior Constable 2.9 to 2.8 for 12 months suspended upon him completing 100 hours community service at a Police Citizens Youth Club within 12 months – where that decision was reviewed by the Queensland Civil and Administrative Tribunal – where the Tribunal confirmed the decision – where the applicant seeks to appeal the decision on grounds that the Tribunal erred in law by finding that the decision was the correct and preferable decision; that the purposes of discipline were achieved by imposing such a sanction in the applicant’s circumstances; that comparative cases involving sanctions with regard to principles of general and personal deterrence were relevant and comparable in this instance – where applicant seeks reduction in community service to 20 hours over a period of 12 months – where applicant had diagnosed chemical depression – whether the Wednesbury principles apply on appeal – whether appropriate weight given to mitigating factors – whether sanction manifestly excessive

Police Service Administration Act 1990 (Qld), s 1.4

Police Service (Discipline) Regulation 1990 (Qld), s 12

Queensland Civil and Administrative Appeals Tribunal Act 2009, s 142, s 146

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15

Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23

Flegg v CMC and Anor [2014] QCA 42

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Jason Wheeler v AC Paul Wilson [2013] QCAT 519

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

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

Police Service Board v Morris (1985) 156 CLR 397

Queensland Police Service v Compton (No 2) [2011] QCATA 246

R v Milini [2001] QCA 424

Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590

Watson v Deputy Commissioner McCullum [2012] QCAT 165

Wheeler v Assistant Commissioner Paul Wilson [2013] QCAT 519

APPEARANCES and REPRESENTATION:

APPLICANT:

Mr T E Schmidt of Counsel instructed by the Police Union Legal Group

RESPONDENT:

Mr C J Capper of the Public Safety Business Agency

REASONS FOR DECISION

Background

  1. [1]
    Colin Hume is a member of the Queensland Police Service (QPS). At the relevant time, he was a Senior Constable performing duties as a Motorcycle Traffic Branch Officer. On 21 April 2013, after leaving a tavern on his private motorcycle, he was intercepted by police and ultimately provided a specimen of breath for analysis that resulted in a certificate being issued for an blood alcohol concentration of 0.14%.
  2. [2]
    On 26 July 2013, in the Beenleigh Magistrates Court, Mr Hume plead guilty to the charge of driving a motor vehicle whilst over the middle alcohol limit. He was fined $700 and disqualified from driving for four months. No conviction was recorded.
  3. [3]
    The respondent conducted a disciplinary hearing process, finding that Mr Hume’s conduct was improper and amounted to misconduct. The respondent imposed a sanction of a reduction in pay point from 2.9 to 2.8 for 12 months. Mr Hume’s submissions on sanction accepted that “the Applicant’s reading of 0.141 should attract a sanction of a single pay point for 12 months.”[1] However, it was submitted that due to the highly unique circumstances surrounding the matter, such a sanction should be wholly suspended.[2]
  4. [4]
    The respondent suspended the sanction subject to a condition that Mr Hume successfully complete 100 hours community service at a Police Citizens Youth Club (PCYC) within 12 months of receipt of the notice dated 22 October 2014.[3]
  5. [5]
    Mr Hume applied to the tribunal for review of the decision insofar as it related to the sanction imposed. Following a hearing on the papers, the tribunal confirmed the respondent’s decision.
  6. [6]
    Mr Hume has appealed the tribunal’s decision.

The appeal

  1. [7]
    The grounds of appeal involve questions of law so leave to appeal is not required.[4] The grounds of appeal are that the tribunal erred in finding:
    1. The sanction imposed by the respondent should be confirmed;
    2. The sanction of a reduction in pay point from 2.9 to 2.8 for 12 months being suspended on the condition that Mr Hume completes 100 hours of community service at a PCYC within 12 months of the original determination was the correct and preferable decision;
    3. The purposes of discipline were achieved by imposing such a sanction in Mr Hume’s circumstances;
    4. That comparative cases imposing sanctions with regard to principles of general and personal deterrence were relevant and comparable in this instance.
  2. [8]
    Mr Hume wants the appeal tribunal to set aside the decision of 1 June 2015 and substitute a decision that he is reduced in pay points from 2.9 to 2.8 for a period of 12 months suspended on the condition he perform 20 hours community service at a PCYC within four months of the date of our order.
  3. [9]
    At the hearing, it was submitted on behalf of Mr Hume that the sanction imposed by the tribunal was manifestly excessive. It was further argued that it was unnecessary for us to ask ourselves, as a threshold question, whether the sanction was so unreasonable that no decision maker could have reached that conclusion based on the evidence available[5] (the Wednesbury principles).
  4. [10]
    Alternatively, it was submitted that if the Wednesbury principles apply then the sanction is so unreasonable that it cannot be allowed to stand. The unreasonableness of the sanction, Mr Hume says, is clear from a consideration of the comparative cases. Further, he says that the tribunal erred in that the sanction included general and specific deterrence contrary to the principle in R v Milini.[6]
  5. [11]
    Mr Hume says there is no incentive for him to complete 100 hours of community service (or effectively four hours of community service per fortnight) as within 12 months he could make up the reduction in pay points by performing one hour per fortnight of special duties.

Consideration

  1. [12]
    In Crime and Corruption Commission v Queensland Police Service and Anor[7] the appeal tribunal observed:
  1. [9] The Court of Appeal has recently considered the application of the Wednesbury principles as they apply to decisions of this tribunal in Flegg v Crime and Misconduct Commission.[8] The Court of Appeal was applying the principles to a decision in the police misconduct jurisdiction of the tribunal although, of course, the decision has general application.
  2. [10] The President of the Court of Appeal, referring to the High Court decision of Minister for Immigration and Citizenship v Li,[9] expressed the test in these terms:

“…whether the [decision] was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered.”[10]

  1. [11] Gotterson JA, with whom Margaret Wilson J agreed, also referred to Li noting[11] that the Wednesbury principles did not allow a challenge to a decision on the basis that the decision-maker had not given sufficient weight to a matter, or gave excessive weight to a matter, or made an evaluative judgment with which the appellate tribunal disagreed. He noted[12] that the test was a stringent one, which, in practice, has rarely been successful.
  2. [12] The task for this appeals tribunal, then, is to examine the learned Member’s reasoning to determine whether it was a decision that can be justified even though “…reasonable minds could reasonably differ”[13] or whether the decision was so unreasonable that it lacked an evident and intelligible justification.
  1. [13]
    We consider this the correct approach and we have examined the reasoning of the learned member accordingly.
  2. [14]
    There is no dispute that the learned member appropriately set out the details of the charge. The learned member appropriately found that Mr Hume’s conduct was serious as he had a blood alcohol reading that was nearly three times over the legal limit and that his conduct did not ‘meet the standard of conduct the community reasonably expects of a police officer’.[14]
  3. [15]
    The learned member appropriately set out the mitigating circumstances in the case. The learned member highlighted aspects of the report of clinical psychologist, Dr Horan to whom Mr Hume was referred by his general practitioner the day after the offending conduct. In his report dated 21 July 2013,[15] Dr Horan lists a number of events that ‘led to a significant impact on [Mr Hume’s] psychological wellbeing’. The learned member referred to those events as identified in Dr Horan’s report: Mr Hume being bashed in 2007 while working as a police officer, the passing of his mother in 2009, medical attention to his eyes in 2010 (as a result of the bashing), an operation in 2010 to his sinuses, his marriage in 2011, an operation to his neck in 2012, visiting his father in Scotland in 2012 (who had been diagnosed with cancer), the end of his marriage in 2012, visiting his father again in 2013 (to care for him) and financial stress.[16].
  4. [16]
    Dr Horan reports:

Assessment indicated he was severely depressed with an elevated anxiety depression and chemical depression. Further assessment indicated that at the time of the incident he would have been extremely depressed.

There is no doubt that the ongoing chain of tragic events and bereavements had caused a chemical depression (where the serotonin level dropped in his body, similar to the post natal depression). This imbalance affects behaviour and thinking abilities, and would not doubt have significantly influenced his irrational actions on the 21st April.

It is my professional opinion that the behaviour exhibited by Mr Hume on 21st April was outside his normal boundaries and were secondary to his deep depression.

This depression was caused by a number of ongoing tragic events that precipitated in a Serotonin drop (chemical depression), and had he been treated earlier the offence would most certainly not have happened. It is highly unlikely he will reoffend.

  1. [17]
    The learned member concluded:[17]

I am satisfied there are mitigating circumstances in this case that must be considered by me in determining sanction, such as Mr Hume’s acknowledgment and acceptance of the charge, his otherwise good service history, the medical evidence (of Dr Horan) that shows Mr Hume was under considerable personal stress (at the time) and had diagnosed depression.

  1. [18]
    The learned member then addressed the question: What is the correct and preferable decision? The learned member states:
  1. [25]
    The sanction to be imposed by me on review must reflect the seriousness of the charge and I must also consider any prior conduct, length of service and other personal mitigating factors such as Mr Hume’s character, cooperation with the disciplinary process and remorse for his conduct.[18]
  2. [26]
    …It is settled law that the object of disciplinary proceedings is to  ‘protect the public, to maintain proper standards of conduct … and to protect the reputation of that body. The object … is not to punish or exact retribution’.[19]
  3. [27]
    The purpose of police discipline is to ensure the ‘maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency’.[20] The ‘objects’ in the Police Service (Discipline) Regulations 1990 (Qld) refer to appropriate standards of discipline being maintained in the QPS to protect the public, uphold ethical standards within the QPS and to promote and maintain confidence in the QPS.
  1. [19]
    The learned member considered Mr Hume’s early acceptance of the charge and that the incident was out of character given his otherwise good work history. The learned member also accepted that Mr Hume was remorseful for his actions and had demonstrated insight into his conduct by accepting the charges and seeking assistance from his medical practitioner immediately after the incident[21] and that he had a diagnosed medical condition at the time of the conduct.[22]
  2. [20]
    The learned member then went on:
  1. [32]
    I have carefully considered all of the mitigating circumstances and the seriousness of the charge. Mr Hume was (and is) a serving police officer and at the time of the offending behaviour he was working as a motorcycle police officer. Mr Hume’s decision to drink drive showed a complete lack of regard for the law that he seeks to uphold and maintain as a serving police officer. The sanction to be imposed by me must reflect the seriousness of the charge and the objects of disciplinary proceeding such as to protect the public, uphold ethical standard within the QPS; and to promote and maintain public confidence in the QPS.
  1. [21]
    The learned member considered the comparative cases, Mr Hume’s submissions about financial detriment to him resulting from the respondent’s sanction and then said:
  1. [44]
    In this case I am satisfied that a reduction in Mr Hume’s Senior Constable paypoint from 2.9 to 2.8 for 12 months is appropriate. I am also satisfied that the sanction should be suspended and that it is appropriate to order that Mr Hume complete a period of 100 hours community service at a Police Citizens Youth Club within 12 months from the date of the original determination (22 October 2014). A period of 100 hours of community service as part of the condition of the sanction also reflects the seriousness of the offending behaviour and the mitigating circumstances without any financial detriment to Mr Hume. 
  1. [22]
    The learned member then set out the “Tribunal findings”:
  1. [45]
    Mr Hume’s conduct is serious because he was driving with a blood alcohol concentration that was nearly three times over the legal limit. Mr Hume is a serving police officer and is responsible for maintaining and upholding laws in Queensland to ensure that members of the community do not do the very thing he did and that is to put his own life and the life of others in potential serious risk because he was drink driving.
  2. [46]
    I accept that Mr Hume acted out of character when he made the wrong decision to drink drive. I accept that there had been a number of personal events that took place in his life prior to the offending behaviour and that Mr Hume had a diagnosed chemical depression.
  3. [47]
    I have considered the comparators referred to by the respondent and the cases of O'Brien[23] and Tolsher[24] that also concerned police officer conduct involving drink driving. I have also considered Mr Hume’s submissions about the financial detriment to him as a result of the imposition of 100 hours community service.
  4. [48]
    I accept that Mr Hume has demonstrated remorse and has references that attest to his professionalism as a police officer and good work history. Mr Hume has also been dealt with by the Magistrates Court and I accept that he has recognised the consequences of his action by seeking help from his health professional immediately after the incident.
  5. [49]
    Taking into account the objects of disciplinary proceedings, including maintaining proper standards of conduct by members and protecting the reputation of the QPS[25] and all of the relevant mitigating factors, the preferable sanction is a reduction in paypoint Senior Constable 2.9 to 2.8 for 12 months. I am satisfied the sanction should be suspended for 12 months on the condition that Mr Hume complete a period of 100 hours of community service at a Police Citizens Youth Club within 12 months from the date of the original determination (22 October 2014). The respondent’s decision made on 22 October 2014 is confirmed.
  1. [23]
    Mr Hume  argues that general and specific deterrence should not have been considered in determining the sanction. He relies on R v Milini where the court said:[26]

The sentencing judge erred in thinking that the case was one of diminished responsibility by reasons of abnormality of mind. In fact the case is one of criminal negligence, not of an intention to inflict harm ameliorated by diminished responsibility, and the criminal negligence was itself to be ameliorated by reason of the applicant’s abnormality of mind. The cases of Ward, Lock, Hill and Cole show that the sentence imposed was excessive. A better comparison is afforded by the cases of Streatfield and Rowland referred to in Streatfield. The culpability of the applicant is less than that of the accused in those cases because his involvement in the conduct which constitutes criminal negligence was a product of his mental illness. It is recognised that psychiatric illness not amounting to insanity is relevant to sentencing by reducing the moral culpability of the offender, making it in appropriate to impose a sentence as a means of a general deterrence and reduces the relevance of specific deterrence…

  1. [24]
    Applying the reasoning in R v Milini, Mr Hume argues that, based on  the opinion of Dr Horan because the tragic circumstances that preceded the offending conduct (the passing of Mr Hume’s mother and pending passing of his father) cannot occur again, there is no likelihood of Mr Hume reoffending. Further, given Dr Horan’s opinion that had Mr Hume’s depression been identified and treated prior to the offence, the drink driving would not have occurred, Mr Hume’s culpability must be significantly reduced due to his medical condition and that must be reflected in the sanction.
  2. [25]
    Mr Hume says that the only concession in terms of mitigating factors appears to be a suspension of the sanction on the basis of completion of 100 hours or community service.[27] He has directed us to paragraph [44] and [47] of the learned member’s reasons.
  3. [26]
    We cannot find any reference in the learned member’s reasons to general or specific deterrence being a consideration in determining sanction. The learned member has highlighted the proper standards of conduct for members and the overriding principle of protecting the reputation of the QPS. It is clear from the reasons of the learned member that she considered all relevant mitigating circumstances and the opinion of Dr Horan. A suspension of the sanction was only possible in this case if the officer agreed to perform voluntary community service.[28] No issue is taken with either the pay point reduction, the suspension of the paypoint reduction or the period of suspension.
  4. [27]
    We have considered paragraph [44] of the reasons. When read in the context of the totality of the reasons, it is clear that the learned member considered the mitigating circumstances in determining the sanction (including the number of hours of community service) and nothing in the reasons indicates that she did not consider those mitigating circumstances to be significant.[29]
  5. [28]
    The learned member considered a number of decided cases where police officers were arrested and charged with drink driving whilst off duty. However, none of those cases involved mitigating factors similar to those of Mr Hume nor did they result in suspension on the basis of community service. We accept that while previous decisions of the QPS and the tribunal are a guide, each individual case must be dealt with on its own merit. As the appeal tribunal has previously acknowledged it is not for past decisions to be slavishly followed.[30]
  6. [29]
    Mr Hume says that the learned member ought to have considered other police discipline matters where community service was imposed. In Wheeler v Assistant Commissioner Wilson[31] an off duty officer was subject to an attempted robbery. The offenders were apprehended by other (on-duty) police, when the officer returned to the scene, pushed past officers and kicked the offender who was lying prone in the ribs. No injury was caused. The tribunal ordered a reduction in pay points from Senior Constable 2.9 to 2.5 for one year, suspended on completing 70 hours community service.[32]
  7. [30]
    In Watson v Deputy Commissioner McCullum[33] the tribunal considered five charges arising from two incidents. One related to a police dog bite incident and the other to a breach of the urgent duty driving policy. Of the five charges taken on review, four amounted to misconduct and the fifth a breach of discipline. The alleged misconduct included failure to render aid to a member of the public bitten by a police dog, failure to treat members of the public with respect (swearing in his interactions with members of the public), making and submitting a report of the incident which was false and driving through a red light without stopping during a chase.
  8. [31]
    The tribunal decided to dismiss the applicant from the service but the dismissal was suspended for a period of two years on a number of conditions including, not committing further misconduct within two years of the order, completing certain training modules, not advancing in pay points during the period and completing 100 hours community service within 12 months.[34]
  9. [32]
    Mr Hume says that the conduct in both of those matters was significantly more serious than in his case and without the significance of a diagnosed mental illness at the time of the conduct.[35] Mr Hume says there must be some comparability between the number of hours of community service ordered as a condition of a suspended sentence.[36]
  10. [33]
    We do not consider that it was for the learned member to consider every case with some comparability with the proposed sanction, list them in order of seriousness and then determine the sanction by virtue of where the particular facts of the case must sit within that list. To do so would, in our view, be to slavishly follow previous cases. Further, it is arguable that drink driving, which endangers the lives of other road users, is more serious than the conduct of officer Wheeler, particularly given Mr Hume’s work as a traffic branch officer. Further, when viewed in its totality, the sanction imposed on officer Watson, was significantly more onerous, in our view, than that imposed on Mr Hume. Mr Watson’s failure to comply with the conditions imposed would see him dismissed from the QPS.
  11. [34]
    Further, we are not persuaded by the argument that there is no incentive for Mr Hume to perform 100 hours community service because Mr Hume can work one hour per fortnight for 12 months and effectively make up the paypoint reduction.  The 100 hours community service is two hours per fortnight of Mr Hume’s time given to a PCYC. Mr Hume can perform special duties in addition to completing his community service if he so chooses. The suspension affords him the opportunity to remain on his current paypoint and he has agreed to perform community service so that he has the benefit of the suspension of the reduction in paypoints.
  12. [35]
    We are not satisfied ‘the decision was so unreasonable that it lacked an evident and intelligible justification.’ The learned member’s reasons reflect that the sanction imposed was within the range of appropriate sanctions for the conduct. We see no basis to interfere with it.
  13. [36]
    Despite not applying for a stay of the learned member’s decision, Mr Hume has not undertaken any community service. At the hearing he requested that, should we not make the order he sought, he be given further time to complete the community service. The respondent did not have an opportunity to make submissions about what order we should make.
  14. [37]
    The decision of the learned member delivered 1 June 2015 was to suspend the sanction conditional upon completion of 100 hours community service at a PCYC within 12 months from the date of the original determination (22 October 2014). The appeal was filed on 26 June 2015. At that point, Mr Hume had four months left to complete his community service. Although we are inclined to extend the time for Mr Hume to complete his community service for a period of four months from the date of this decision, we will take submissions from both parties about the appropriate order.[37]

Footnotes

[1]  Page 24 of the Record.

[2]  Page 24 of the Record.

[3]  Pursuant to s 12(1) Police Service (Discipline) Regulation 1990.

[4]  S 142 Queensland Civil and Administrative Tribunal Act 2009

[5] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[6]  [2001] QCA 424

[7]  [2015] QCATA 15

[8] Flegg v CMC and anor [2014] QCA 42.

[9]  (2013) 249 CLR332; [2013] HCA 18.

[10]  Supra at [3].

[11] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [16].

[12]  Ibid at [17].

[13] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 [137] per Gummow J.

[14]  Reasons [12] referencing Police Service Administration Act 1990 (Qld), s 1.4

[15]  Record book, pp 80 and 81

[16]  Reasons [17]

[17]  Reasons, [23].

[18] Queensland Police Service v Compton (No 2) [2011] QCATA 246; Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23.

[19]Hardcastle v Commissioner of Police (1984) 53 ALR 593, at 597.

[20] Police Service Board v Morris (1985) 156 CLR 397, at 412.

[21]  Reasons [28], [29] and [30].

[22]  Reasons [31]

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

[24] Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590

[25] Hardcastle v Commissioner of Police (1984) 53 ALR 597.

[26]  [2001] QCA 424 at [21]

[27]  Outline of Submissions for the Applicant [13] referring to the reasons, [44] and [47]

[28] Police Service (Discipline) Regulation 1990, s 12.

[29]  See also Reasons [46] referred to earlier in these reasons

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

[31] Wheeler v Assistant Commissioner Paul Wilson [2013] QCAT 519.

[32]  Outline of Submissions for the Applicant [17]

[33]  [2012] QCAT 165.

[34]  Outline of Submissions for the Applicant, [18].

[35]  Outline of Submissions for the Applicant, [19].

[36]  Outline of Submissions for the Applicant, [20].

 

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Editorial Notes

  • Published Case Name:

    Hume v Keating

  • Shortened Case Name:

    Hume v Keating

  • MNC:

    [2016] QCATA 67

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    13 May 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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