(2) Further, that Douglas Koekemoer is not eligible to apply for promotion, and may not relieve at a higher rank, for a period of 12 months from 15 February 2016.

(3) Douglas Koekemoer may progress to Sergeant paypoint 1 after 15 February 2017 conditional on having completed by that time:

• (a) A satisfactory Performance Development Agreement; and
• (b) The cap book, Professional Practice within the Queensland Police Service

POLICE - INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL - QUEENSLAND - where a police officer took a bench from a golf club without permission and placed it at a police station for use there - where the police officer admitted the actions and expressed remorse - where no challenge was made to the finding of misconduct - where the sanction was challenged

Police Service Administration Act 1990 (Qld), s 1.4

Police Service (Discipline) Regulations 1990 (Qld), s 9(1)(f)

Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96

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

Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66

McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309

[1] Mr Koekemoer was a Police Officer stationed at Ayr in North Queensland. Disciplinary proceedings were brought against him in relation to his taking a bench seat from the Ayr Golf Course and moving it to the Ayr Police Station on 25 October 2014.

[2] The Deputy Commissioner Specialist Operations, S W Golischewski, made a finding on 15 February 2016 that the disciplinary charge was substantiated and a sanction was imposed.

[3] Mr Koekemoer applied to the Tribunal on 1 March 2016 to review the decision of the Deputy Commissioner as to sanction, on the grounds that it was manifestly excessive in all the circumstances, and inconsistent with QCAT authority for such matters.

[4] I heard the matter on 12 July 2016, and reserved my decision. This is the decision in the matter.

[5] The disciplinary charge was brought pursuant to the Police Service Administration Act 1990 (Qld) with reference to relevant Regulations and the Criminal Code.[1]

[6] The charge was as follows:

That on or about the 25th day of October 2014 at Ayr your conduct was improper in that you took and used property without the permission or knowledge of the owner.

[7] The further and better particulars of the charge were as follows:

• You were performing rostered duty at Ayr Station from 10pm on 24 October 2014 until 6am on 25 October 2014

• During your shift you drove around looking for a bench seat

• You located a bench seat on the Ayr Golf Course

• You took the bench seat and transported it back to the Ayr Police Station in the police vehicle

• You placed the bench seat at the rear of the police station to be used as a seat for smokers

• You did not attempt to contact the owner of the seat, or any person representing the owner, before taking it

[8] The Deputy Commissioner was reasonably satisfied that the disciplinary charge was substantiated, and imposed the following sanction:

I order that you be demoted and transferred from Sergeant paypoint 1 at Ayr Station to Constable paypoint 6 at Kirwan Station.

Further, that you are not eligible to apply for promotion for a period of 2 years and you may not relieve at a higher rank for a period of 12 months.

You may progress to Senior Constable paypoint 9 after 12 months from the date of this sanction conditional on having completed within that time:

• A satisfactory Performance Development Agreement; and
• The cap book, Professional Practice within the Queensland Police Service

[9] Mr Koekemoer was interviewed about the events on 27 October 2014 at Ayr Police Station, by Detective Inspector Nixon and Inspector Haughton. He was asked if there was anything he wanted to say, and recounted the events as follows:

Um probably chronologically I guess sir. Um how do I explain what I was thinking in my mind. Um I'm a smoker, cigarette smoker, I smoke out the back here of the station um as all other smokers do. Um there's a bench there and um I decided that um we needed to get a bench and the plan was to, for me anyway, to um locate an old abandoned disused bench somewhere um and use it at the back of the police station for us to sit on. Um I think it might have been Friday night um I was working with Constable Brook and there was another crew on, cover crew. Um I said to Constable Brook as well as the other two that we, because Troy's a smoker too, um and we've often remarked that there's no place to sit outside.[2]

Yeah. Um I mentioned to them that um we should try and find again an abandoned used bench um and if they found one let me know, we'd be doing the same during the shift if we had any spare time. Um myself and I can't even tell you the times I have no idea I'm sorry sir. But um part of our patrols you'd be probably aware we do critical infrastructure patrols so we patrol schools um Burdekin bridge, um M-P's office um anything that's, that's identified as, as a, as a risk area. Um we did our patrols through the schools. Um if I had seen a bench that wasn't being used or a bench that was in disrepair or something like that um I more than likely would have um taken something like that um and advised the school accordingly that we, we have a bench of theirs if they wanted it back it wouldn't be an issue.

Um I went, I was the driver. We went through the school we end up on the golf course. We drove through the golf course um right down I couldn't even tell you where on the golf course I was, I was right down the back somewhere. Um being Night shift UI I'm not very familiar with the area at night. Um located a very, very old bench or I assumed it was very, very old looked like it hadn't been used in ages. It was covered in sand and um it wasn't, it didn't look to me like in the best repair. Um Constable Brook and I we put it into the back of the, the van and drove it here to the station and put it out the back of the station. That's pretty much the nuts and bolts of it.[3]

[10] Before the conclusion of the interview he was asked if he had anything he wished to say, and said:

Sir, the only thing I can say is hey I'm - there was, I had no intention of stealing a bench. I had every intention of going back on Tuesday morning and letting them know where the bench was and if they wanted it back it wasn't going to be an issue. Um I certainly wouldn't employ the assistance of someone else to steal a bench. Um I wouldn't bring a bench back to a police station where there's cameras um if I had an intention of stealing it. Um just UI sir I'm not a thief and I understand I'm. I'm not angry at any of you guys I know you've got a job to do and I, I fully respect that I really do um but I have to say I'm gutted by what's, what's happened I really am. Um I've never had my integrity or ethics or anything brought into question...never. And this blows me out of the water it really, really does. Matt is aware that I had every intention of going back and telling them where the bench was in case (sigh)...Why this is UI I don't know.

To me honestly no I don't think it's an odd way of doing it. Um if you look at it in hindsight possibly sir yeah if you, you know you're on night shift, you're tired you, you don't always - you're fatigued you don't always think, I don't know about you guys I know I don't sleep a hundred percent on night shift I don't think anybody does. So you are tired, you always feel like you're behind the eight ball. Um it wasn't a conscious thought I need to go and um steal a bench and hide it from people or anything. That was not the intention at all. This was honestly done in honest, good faith if anything.[4]

[11] Mr Koekemoer was charged with the offence of stealing but the charge was withdrawn after the Ayr Golf Club withdrew the complaint.

[12] The Deputy Commissioner noted that when officers attended at Ayr police station to speak to Mr Koekemoer about taking the bench seat he was located sitting on the seat. He made no efforts in the interim to inform anyone that he had taken the seat or to seek any permission to take the seat.[5]

[13] The Deputy Commissioner acknowledged matters in Mr Koekemoer's favour including that:

1. he had no previous matters of misconduct substantiated;

2. it was 13 months since the misconduct occurred,

3. the delay was due to further inquiries into the withdrawal of the criminal charge;

4. there were 31 references provided by Mr Koekemoer attesting to his duties, knowledge and capability, and several stated the behaviour is out of character;

5. Mr Koekemoer admitted to the conduct during the interview and accepted the matter during the proceeding;

6. the conduct was aberration from his usual standard of conduct.[6]

[14] The Deputy Commissioner stated that those matters in Mr Koekemoer's favour must be balanced against the seriousness of the conduct including that:

1. he was the senior officer on shift, and there was an onus on him to provide leadership by displaying ethical and professional behaviours;

2. the desire to acquire the bench seat was for personal advantage only;

3. the main reason for the patrols was to locate a suitable bench which was not an appropriate use of police resources;

4. the bench seat was a basic yet functional piece of equipment and it was reckless to conclude it didn't look like anyone used it;

5. there was no evidence that Mr Koekemoer was going to contact the golf club and let them know it had been taken;

6. unwillingness to accept full responsibility for all aspects of misconduct is an aggravating feature when determining sanction;

7. it was an aggravating feature that Mr Koekemoer was working with a constable of only 2 years service and he failed to provide guidance and a good example of how a police officer should act;

8. the actions of Mr Koekemoer damaged the reputation of the service and in particular the police in Ayr.[7]

[15] The Deputy Commissioner submits that the sanction imposed on Mr Koekemoer was the appropriate sanction given all the circumstances of the case.

[16] The Deputy Commissioner had considered imposing a sanction of dismissal, but after noting the matters in Mr Koekemoer's favour, had considered that he should not be dismissed, but that a sanction should be imposed which reflects the gravity of the conduct and acts as a sufficient deterrence.[8]

[17] The Deputy Commissioner had considered the issue of transfer, and considered that a transfer from Ayr was necessary as the reputation of the service and community confidence would be impaired if he was returned to policing, and that a higher level of supervision was required as a risk mitigation strategy and considered Kirwan would be appropriate to provide the level of supervision required.[9]

[18] The Deputy Commissioner considered suspension of the sanction but did not consider it was warranted after considering the seriousness of the conduct, the mitigating factors and the purpose of discipline.[10]

[19] The Deputy Commissioner submitted that this is a serious case of misconduct as Mr Koekemoer was on duty when the misconduct occurred; and that aggravating circumstances were that police resources were used and he was the senior officer on shift and involved a constable of only two years service; and that he seems to continue to fail to recognise that he should provide guidance and a good example by accusing the Constable of providing false information.[11]

[20] Mr Koekemoer refers to the time period of 16 months from the time he was suspended to the time sanctions were imposed, and says this had a profound effect on him personally as to his confidence in his abilities to perform his duties; and in himself; and to provide a secure environment for his parents, defacto wife and children.[12]

[21] Mr Koekemoer disputes the submissions of the Deputy Commissioner that he had been dishonest and failed to accept full responsibility for his actions. He submits that he has been nothing but truthful from the very beginning, that he has never denied any actions at all, and only supplied the reasons, not justifications, for his actions.[13]

[22] Mr Koekemoer disputes aspects of the version provided by Constable Brook.[14] He notes that the Deputy Commissioner commented that he seemed to be raising issues in relation to the evidence of Constable Brook which were not previously raised, and says there is a simple reason for that, that he was never made aware of the version made by Constable Brook, and first became aware in the course of reading the material in these proceedings in May 2016.[15]

[23] Mr Koekemoer submits that he maintains his version of events, and says:[16]

This was in no-way intended to be a criminal act. I regret my lapse in judgment, I am remorseful for my stupidity and the effect it had on the Golf Club, community, my peers, colleagues and my family.

[24] Mr Koekemoer submits that the financial loss to himself from the demotion from Sergeant to Constable is $19,400 per year for the first year of sanction, and would be ongoing at $500 year from the second year, as well as having a severe impact on his superannuation contributions. He says that this financial loss has significant impact on him, and his support of his elderly parents.

[25] Mr Koekemoer submits that a fair sanction would be:[17]

Suspended dismissal, to continue at rank and station, for a determined period, or

Demotion for a fixed period, to automatically progress back to Sergeant on satisfactory completion of a determined set of workplace activities.

[26] Mr Koekomoer is an experienced police officer. He has about 21 years service in total. He had served nine years with the South African Police Service (1990-99), three years with the New Zealand Police Service (2003-2006), and nine years with the Queensland Police Service (2007 - present)

[27] He was sworn into the Queensland Police Service on 17 January 2007, and had almost 8 years service when the acts occurred. He had been serving as Sergeant for eight months before the acts occurred. He had previously attained the rank of Sergeant with the South African Police Service and was an Acting Sergeant with the New Zealand police.

[28] It was submitted on his behalf that there were no matters of relevance on his service record that should be detrimentally taken into account when determining sanction, and there were three favourable entries.[18]

[29] No challenge is made to the finding of misconduct. The issue in this matter is as to the appropriate sanction.

[30] The Tribunal stands in the shoes of the decision maker, and in these matters considers the information available to the decision maker at the time of the original decision, unless leave is given to adduce new evidence.

[31] Whilst Mr Koekemoer disputes aspects of the evidence of Constable Brook, he does not dispute the basic events, or his active role in them.

[32] The matter has serious aspects to it, in that a serving Police Sergeant committed an act whilst he was on duty, with the assistance of a Junior Officer, which can be characterised as an act of stealing.

[33] The act must be placed in context. It was committed in a country town, during a night-shift. There is no indication that disruption to any police activity was caused, or that any service to the public was disrupted or delayed by the commission of the act. No ongoing loss was suffered to any person. The golf club withdrew its complaint.

[34] To some members of the public this may be seen as a 'prank' or a bit of harmless amusement by an officer who was trying to liven up a tiring nightshift.

[35] As a criminal undertaking, the act was almost ludicrous, as the bench was brought back to a police station, and the perpetrator placed it in plain sight, and was sitting on it when first asked about it.

[36] The bench was brought back for the benefit of staff at the police station generally who were smokers, and was not for the sole benefit of Mr Koekemoer.

[37] However, against this slightly harmless view of the action, there remains the concern that whilst the appearance of the bench at the police station was open and disclosed, the failure to obtain permission to take it, which is a central aspect of the action, is not apparent by the sudden appearance of the bench.

[38] The act of taking the bench led to the institution of criminal proceedings for stealing. Those proceedings were discontinued, but the initiation of properly founded criminal proceedings against a serving member of the service, does affect the reputation of the service.

[39] The act was committed in a country town, where a high level of confidence and trust between the police service and the community is essential to allow the service to conduct its work properly and efficiently, and where the community needs to be able to feel confident that it is being properly protected by officers who are acting ethically and appropriately.

[40] The reality of a country town is that matters become public knowledge quickly, and people know each other much more than in a larger urban setting. Matters of reputation become quickly spread and widely known.

[41] For these reasons, the decision that a transfer needed to be made is understandable, and appropriate in the circumstances of a regional police station. I accept the submissions of the Deputy Commissioner that a transfer was necessary to protect the reputation of the service and community confidence.

[42] In the course of the hearing, Mr Koekemoer said that his former defacto relationship had come to an end. A significant part of his concerns as the effect of a transfer on his relationship are therefore no longer applicable. Whether the various proceedings consequent upon the commission of the act have had any effect upon that relationship break-up was not disclosed.

[43] A period of almost two years has now elapsed since the date of the commission of the act, and almost seven months since the decision of the Deputy Commissioner. There was a period of about fifteen and a half months between the commission of the act and the date of the decision.

[44] The Deputy Commissioner notes that the time taken before the decision was made, was due to inquiries as to the circumstances surrounding requests to withdraw the criminal charge. It is not explained why that period of time was taken. The Deputy Commissioner refers to the case of Barron[19] where Acting Senior Member Howard said:

[82] Delay may be relevant to the sanction imposed. The conduct occurred between late 2011 and mid-January 2013. An investigation followed. The disciplinary hearing before the decision-maker did not conclude until June 2014, and this review process has subsequently proceeded. It is now a little over 2 years since the misconduct ceased. Although not a short period, this is not an extraordinary delay. In any event, whereas I accept that delay may be relevant to the sanction imposed, it is only one factor to be considered.

[45] The time periods in this matter may similarly be said not to be an extraordinary delay. However, there has been a substantial personal effect on Mr Koekemoer as recounted by him, by the protracted various proceedings. This effect is a relevant factor in considering the appropriate level of sanction.

[46] Mr Koekemoer refers to the financial loss suffered by him consequent upon the sanction. The Deputy Commissioner[20] refers to Compton[21] where the Appeal Tribunal said that:

The personal factors of a case are to be considered as relevant, but do not prevail over the protective disciplinary requirements:

Focusing solely upon the...personal and mitigating factors necessarily involves an impermissible inversion that excludes the disciplinary process and the role of this Tribunal.[22]

[47] Mr Koekemoer has suffered a significant financial detriment by the demotion from Sergeant paypoint 1 to Constable paypoint 6. Whilst the financial loss is not to be focussed on solely, it is another relevant factor in considering the appropriate level of sanction.

[48] Reference is made in the various submissions to the decision in Kennedy[23] as a comparative case. The charge in that case was that the officer had utilised a camping fridge which had been donated to the Mount Isa Police Citizens Youth Club, at his home in Mount Isa, and had then transported the fridge to his subsequent residence at Rockhampton, and had dishonestly applied the fridge to his own use. The Tribunal imposed a sanction of suspension from the service for a period of six months.

[49] A distinction can be drawn between this case and Kennedy. Mr Kennedy deliberately took and retained property for his own use, which he took to his home. He acted in a concealed way, did not display remorse, and contested the proceedings by raising 'every conceivable avenue.'[24]

[50] By contrast, Mr Koekemoer has acted in an open way, and expressed clear remorse for his actions. The importance of remorse was highlighted in McKenzie[25] where the Tribunal noted:

In disciplinary proceedings the main relevance of an early indication of acceptance of the charge is that it indicates honesty and remorse, and a willingness to face up to obligations...the main relevance of such conduct in the disciplinary jurisdiction is its indication of remorse and responsibility. It is worth mentioning that these can be very significant and influential factors.

[51] Mr Koekemoer is an experienced officer, with no proved matters of misconduct in his career with the Queensland Police Service. He has been open in admitting to the act, and has not contested the proceedings except as to sanction and as to the evidence of Constable Brook.

[52] Reference was also made, on behalf of Mr Koekemoer[26], to the matter of Duncan[27] which was not subject to review. In that matter, a Senior Constable removed a quantity of soft drink belonging to the Queensland Police Service from a police watchhouse without permission or authority to do so. A formal finding of misconduct was made, and a sanction of official reprimand was made.

[53] This matter is clearly more serious than the matter in Duncan because of the involvement of a community organisation in the conduct, and the effect on the reputation of the police service. A more severe sanction is required.

[54] The sanction is this matter therefore would be more than in Duncan and less than in Kennedy, but there is a wide disparity between those two matters and sanctions.

[55] It was submitted on his behalf at the discipline proceedings that:[28]

It is submitted that when you assess all of the circumstances of the case it is open for you to find that the conduct of Sergeant Koekemoer is conduct that is an error of judgment rather than a deliberate act of dishonesty. The evidence submitted that supports such a conclusion includes the fact the conduct was never hidden from view. If you decide that the actions of Sergeant Koekemoer were not a deliberate act of dishonesty it is submitted the seriousness of the conduct is significantly reduced and therefore the severity of any sanction you imposed would also be reduced.

[56] It is difficult to see similar circumstances recurring, and in light of the submissions of Mr Koekemoer, he is unlikely to act in such a way again.

[57] I accept that the act was a 'one-off' occurrence, and evidenced a lack of proper judgment on that occasion. It is inconsistent with his otherwise satisfactory long service as a police officer.

[58] A significant sanction is required however, having regard to the elements of taking property without permission.

[59] In considering the appropriate sanction, I have had regard to the time delay in this matter, the personal effect of the protracted proceedings on Mr Koekemoer, the financial loss to be suffered by him, his expressions of remorse, the manner in which he has conducted himself in the investigations and in these proceedings, and the circumstances of the acts.

[60] Mr Koekemoer has sought a suspension of the sanction. In Barron[29] the learned member considered as a factor whether a suspension has appropriate deterrent effect. The nature of the act, having elements of taking without permission, and the effect on the reputation of the Police service, calls for a deterrent element. I do not consider that this an appropriate matter in which to effect a suspension.

[61] A demotion, and prohibition from relieving at a higher rank, for a period of time, is appropriate as a deterrent, and as an acknowledgment that his behaviour fell short of that expected of a Sergeant in his position. I consider that an appropriate period of time of demotion in the circumstances, having regard to the factors discussed above, is 12 months.

[62] Apart from this act, Mr Koekemoer has demonstrated by his service that he is able to properly act as a Sergeant, and on the material was appropriately acting in that role. I consider that it is appropriate that he should be able to put these events behind him, and that after serving the period of demotion, and establishing his current awareness of appropriate standards by completing certain qualifying steps as outlined in the original sanction, progress again to his former rank and paypoint of Sergeant.

[63] I therefore set aside the decision, and substitute the following decision:

1. The decision of the Deputy Commissioner making a formal finding of misconduct made on 15 February 2016 is set aside.

(1) Douglas Koekemoer be demoted and transferred from Sergeant paypoint 1 at Ayr Station to Constable pay point 6 at Kirwan Station as from 15 February 2016.

(2) Further, that Douglas Koekemoer is not eligible to apply for promotion, and may not relieve at a higher rank, for a period of 12 months from 15 February 2016.

(3) Douglas Koekemoer may progress to Sergeant paypoint 1 after 15 February 2017 conditional on having completed by that time:

• (i) A satisfactory Performance Development Agreement; and
• (ii) The cap book, Professional Practice within the Queensland Police Service.

[1] Police Service Administration Act 1990 (Qld) s 1.4; Police Service (Discipline) Regulations 1990 (Qld) s 9(1)(f); Queensland Police Service Standard of Practice s 1.4 (Private Conduct - On and Off Duty), s 2 (Personal Conduct), s 10 (Performance of Official Duties), s 13 (Resources, Economy and Efficiency) ; Criminal Code Act 1899 (Qld) s 398_._

[2] Transcript of Interview, Koekemoyer, 27 October 2014, p 6, line 160 to 171.

[3] Transcript of Interview, Koekemoyer, 27 October 2014, p 6 line 191 to p 7 line 210.

[4] Transcript of Interview, Koekemoyer, 27 October 2014, p 44 line 461 to p 45 line 485.

[5] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 5, [19].

[6] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 6, [23].

[7] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 7, [24].

[8] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 8, [26].

[9] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 8, [27].

[10] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 8, [28].

[11] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 10, [33.]

[12] Submissions of Mr Koekemoer filed 17 June 2016, [3].

[13] Submissions of Mr Koekemoer filed 17 June 2016, [4].

[14] Submissions of Mr Koekemoer filed 17 June 2016, [5].

[15] Submissions of Mr Koekemoer filed 6 July 2016, [2].

[16] Submissions of Mr Koekemoer filed 17 June 2016, [6].

[17] Submissions of Mr Koekemoer filed 17 June 2016, [17].

[18] Sanction Submissions on behalf of the subject officer, Queensland Police Union Legal Group, 10 September 2015, [19].

[19] Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96.

[20] Outline of submissions on behalf of Respondent, filed 1 July 2016, p 11, [36].

[21] Queensland Police Service v Compton (No 2) [2011] QCATA 246 at [26].

1. [22] Sydney Ernest Churchill v Deputy Commissioner, Ian Stewart TA05/08, MSR009-08, 28 August 2009 page 16 paragraph 57 per Member P Richards (unpublished).

[23] Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66.

[25] McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309, [24].

[26] Sanction Submissions on behalf of the subject officer, Queensland Police Union Legal Group, 10 September 2015, [45] - [47].

[27] Re Senior Constable Christopher Duncan, 6 August 2015, provided in respondents material pp 236 -238.

[28] Sanction Submissions on behalf of the subject officer, Queensland Police Union Legal Group, 10 September 2015, [33] .

[29] Crime and Corruption Commission v Acting Deputy Commissioners Barron and Anor [2015] QCAT 96.