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REASONS FOR DECISION

[1] This is an Application to review the decision of Assistant Commissioner Paul Wilson made on 10 December 2012. That decision was made in respect of a charge of misconduct against Senior Constable Jason Wheeler, namely:

  • That on or about the 14th day of December 2010 at Toowoomba your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:
  • Unlawfully assaulted one X.1

[2] In relation to this charge, Mr Wheeler accepted the allegation of misconduct at the time of filing his written submissions in response to the initial investigation.

[3] Assistant Commissioner Wilson imposed the following sanction:

a) that the Applicant be reduced in rank from Senior Constable pay 2.9 to Constable pay 1.6 for 2 years and at the end of the 2 year period, he immediately return to his original rank and salary at Senior Constable 2.9;

(1 Pursuant to a decision of the Tribunal dated 11 March 2013 the names of the juveniles are not to be published)

b) the reduction in rank be suspended for a period of 2 years on condition that the Applicant:

i) does not commit any further acts of misconduct during the period;
ii) completes 250 hours of community service within 2 years; and
iii) not perform higher duties, relieving during the 2 year period.

[4] Mr Wheeler’s Solicitor submits that the above sanctions are excessive in each respect, including the conditions relating to the suspension of the sanction. The Tribunal notes that although the records are incomplete the Applicant’s research reveals that 250 hours is the highest number of hours ever imposed on an officer. The Respondent does not dispute that assertion.

[5] Section 219G of the Crime and Misconduct Act 2001 confers on this Tribunal review jurisdiction.

[6] The review is to be by way of rehearing on the original evidence given in the proceeding before the original decision-maker unless the Tribunal gives leave to a party to adduce fresh additional or substituted evidence. Neither party has sought such leave.

[7] In carrying out the review, the Tribunal adopts the approach as set out by the Tribunal in Murray v Deputy Commissioner Stewart [2011] QCAT 583 at paragraph [40] which is as follows:

Considerable respect is paid in this tribunal to the view of the original decision-maker (cf. Aldrich v Ross [2001] 2 QdR 235), but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own view. Aldrich v Ross (at p.257) recognises that the independent review tribunal is the only vehicle by which the public perspective is brought to bear in Police disciplinary matters, and accordingly there will be cases where it will be appropriate and necessary to depart from the views of the original decision-maker.

[8] ‘Misconduct’ is defined in s 1.4 of the Police Service Administration Act 1990 as  conduct that:

(a) is disgraceful, improper or unbecoming an officer; or
(b) shows unfitness to be or continue as an officer; or
(c) does not meet the standard of conduct the community reasonably expect of a police officer.

[9] ‘Conduct’ is defined in s 7.2 of the Police Service Administration Act 1990 as follows:
Conduct means any conduct of an officer, wherever and whenever it occurring, whether the officer whose conduct is in question is on or off duty at the time the conduct occurs.

[10] The relevant details of the event are that on the evening of 13 December 2010, Senior Constable Wheeler had attended a Police Christmas function. He was off duty. He was walking home alone. It was nearmidnight. He had been drinking alcohol but was not intoxicated. Whilst walking home he was confronted by two youths who acted aggressively towards him; one threatened him with a garden stake and threatened to ‘roll him’. He feared for his safety, he identified himself as a Police Officer and ran from the scene. The youths gave chase; Senior Constable Wheeler believed that up to six were involved. He sought police assistance. Shortly afterwards Police attended the area and arrested three youths and located the stake.

[11] Senior Constable Wheeler returned to the scene where he came across three persons, two of whom he identified. They were in custody and were lying prone on the ground. He approached these persons, swore at them, pushed past the arresting Police Officer and unlawfully assaulted X by kicking him the right ribs. Subsequently, these three persons were charged with attempted armed robbery against Senior Constable Wheeler, but the prosecution of those charges was discontinued for reasons unrelated to Senior Constable Wheeler’s behaviour.

[12] Assistant Commissioner Wilson found Senior Constable Wheeler was honest and forthright in his answers during the investigation of the complaint against him and he was remorseful for his actions.

[13] Assistant Commissioner Wilson further found:

  • that Senior Constable Wheeler was a victim of an armed attempted robbery;
  •  that at the time of the incident he feared for his safety;
  •  that he used inappropriate but not racist language towards the persons who had threatened him at the time and were in police custody;
  • that he pushed past the arresting officer and assaulted X by kicking him;
  •  in doing so he placed the arresting officer in an invidious position;
  •  the kick was light and was not intended to cause X pain but was the result of clouded judgment and he kicked him in disgust. However, Senior Constable Wheeler’s conduct constituted an unlawful assault;
  • that the predicament he placed his colleagues in by pushing past them and assaulting X whilst he was in custody was inexcusable;
  •  that at least 20 minutes had expired from the time when Senior Constable Wheeler contacted the police to when he returned to the scene and kicked X;
  • that Senior Constable Wheeler’s conduct breached the provisions of the Human Resources Management Manual in that he acted in a manner which adversely reflected on the Service generally and on himself as a member of the Service contravening that section;
  • that his actions in kicking the complainant whilst in a prone position on the ground constituted a criminal offence.

[14] As stated earlier, the Applicant, Mr Wheeler, accepted that his conduct did not reach the standard of conduct the community would reasonably expect of a police officer.

[15] This Tribunal is satisfied that Senior Constable Wheeler’s behaviour amounted to misconduct warranting an appropriate sanction.

[16] The sole issue for this Tribunal to consider is whether the sanction imposed by Assistant Commissioner Wilson was excessive.

[17] By way of mitigation it was submitted on behalf of Assistant Commissioner Wilson that he took account of the following matters:

a) the impact the applicant’s actions had on himself and his family;
b) the Applicant’s acceptance of the matter from the outset;
c) the Applicant’s regret;
d) the fact that the Applicant was originally a victim of a serious offence and ran for his own safety;
e) the Applicant acted out of frustration in making contact with X;
f) the failed prosecution of X and others and stress that resulted to the Applicant and his family;
g) the favourable comments provided by the Applicant’s referees; and
h) that the Applicant had no previous disciplinary sanctions under the Queensland Police Service Discipline process.

[18] It was further submitted that the matters referred to in mitigation were outweighed by the serious nature of the misconduct. It was submitted further that as an experienced Police Officer, Senior Constable Wheeler had sufficient time, namely at least 20 minutes, to calm down and take stock of the situation. Yet, it was submitted, he made his way back to the scene and behaved in the manner described. Such behaviour might have been explained if he was intoxicated, but that was not the case.

[19] The Applicant’s complaint is that having considered all of the relevant matters which essentially were not in dispute, Assistant Commissioner Wilson was excessively harsh in the penalty he imposed.

[20] The Tribunal is of a similar view. When comparative sanctions are considered, the sanction is excessive.

[21] The substantive penalty was to reduce Senior Constable’s rank by 9 pay points. We were reminded that in the usual course, an officer advances one pay point per year.

[22] In determining an appropriate sanction, it is instructive to look at some comparable cases. We were provided with a number of earlier decisions by the solicitors for Senior Constable Wheeler. Not all were particularly relevant to this case, but we derived some benefit from the following decisions.

[23] In Alston v McGibbon3, an off-duty Police Officer entered the complainant’s home and assaulted him, causing him multiple abrasions and soft-tissue injuries to the body, including a suspected fractured rib and bruising to the testes. The complainant was his sister’s fiancé. The original sanction of reduction in rank from Senior Constable 2.2 to Senior Constable 2.1 (1 pay point) for 6 months was undisturbed on appeal.

[24] In that case, the attack and injuries were much more serious. However, the assault arose from a domestic dispute.

[25] In Mitchell v Assistant Commissioner Barnham4, the Police Officer had a poor service history, due principally to alcoholism. He was charged with misconduct in that he:

a) was affected by alcohol at the Crown Hotel, Lutwyche;
b) refused to immediately leave the Crown Hotel, Lutwyche when required to do so by the Duty Manager;
c) attempted to re-enter the Crown Hotel, Lutwyche after having been refused entry by the Duty Manager;
d) resisted the Duty Manager of the Crown Hotel, Lutwyche who was attempting to stop him from re-entering the premises;
e) assaulted the Duty Manager of the Crown Hotel, Lutwyche by taking hold of his shoulder with his hand;
f) assaulted another employee of the Crown Hotel by striking him in the throat with the open right hand;
g) behaved in a disorderly manner in Lutwyche Road, Lutwyche by entering and remaining on the road carriageway.

[26] The sanction imposed was a reduction in rank from Senior Constable 2.3 to Constable pay 1.6, a total of 3 pay points. This was suspended for a period of 2 years on condition that he undertook 300 hours voluntary community service. The Tribunal reduced the sanction by reducing the condition for community service from 300 hours to 200 hours.

[27] On the brief facts in Mitchell’s case, it would appear to the Tribunal that his behaviour was far more reprehensible than Senior Constable Wheeler, although, he was intoxicated at the time.

[28] In Criminal Justice Commission v Assistant Commissioner Scanlan and Saez5, the Criminal Justice Commission successfully appealed against the sanction imposed by Assistant Commissioner Scanlan. There, the details of the misconduct were:

a) consuming alcohol whilst on duty;
b) improperly using a Police vehicle;
c) going absent from duty without reasonable cause;
d) failing to comply with an instruction by a Sergeant;
e) driving a Police vehicle without due care and attention;
f) colliding with another vehicle whilst driving a Police vehicle and failing to stop and provide details;
g) failing to adhere to the higher standards of professional honesty when questioned in relation to the traffic accident; and
h) failing to disclose certain facts regarding the traffic accident.

[29] The sanction imposed at first instance was a fine of 2 penalty points. On appeal, Senior Member Long demoted the Respondent from Sergeant to Senior Constable and suspended that for 12 months conditional on him performing 20 hours of community service within 3 months.

[30] The Tribunal is of the view that the sanction imposed on Senior Constable Wheeler in this case is excessive in a number of respects.

[31] The Tribunal has taken account of the following matters as being significant and warranting a lesser sanction:

  • the threatened assault and attempted robbery was a very frightening occurrence even for a police officer of Senior Constable Wheeler’s experience;
  •  it left Senior Constable Wheeler in a very agitated state;
  •  he was still in that agitated state when he attended the scene of the youths’ arrest;
  • all the events, the subject of the misconduct charge, took place whilst Senior Constable Wheeler was in an agitated state;
  •  although 20 minutes, from an objective point of view, might be considered a sufficient cooling-off period, in fact, it was not sufficient time in Senior Constable Wheeler’s case;
  •  Assistant Commissioner Wilson found that when Senior Constable Wheeler attended the arrest scene his judgment was clouded but seemed to give insufficient weight to that finding; and the assault upon X was minor and did not cause any pain or harm.

[32] The Tribunal also takes account of the fact there has been some considerable delay since the occurrence of the events and the imposition of the sanction.

[33] The Tribunal is of the view that the sanction imposed by the Respondent on the Applicant should be set aside.

[34] In substitution thereof, the sanction to be imposed on the Applicant is:

a) reduced in rank from Senior Constable 2.9 to Senior Constable 2.5 for a period of one year;
b) the reduction in rank be suspended, conditional upon the Applicant:
ii) completing 70 hours of community service;
iii) not performing higher duties relieving during the one year suspension period.