JUDGMENT No, ECL ad BR. IN THE FEDERAL POLICE ) ) No. 10 of 1984 DISCIPLINARY TRIBUNAL COMMISSIONER OF POLICE Against PETER GERALD SLOANE IN THE MATTER of the Complaints (Australian Federal Police) Act 1981. DECISION TRIBUNAL: Mr. Justice Jenkinson, Deputy President DATE: 25 February, 1986 The Tribunal imposes on Constable Peter Gerald Sloane in respect of the breach of discipline of which he was found guilty on 25 September 1985 (and which was charged in the notice (AFP:8/8485) dated 28 August 1984) a fine of $300. Pe a MY Ce Deputy President IN THE FEDERAL POLICE /) ) No. 10 of 1984 DISCIPLINARY TRIBUNAL ) COMMISSIONER OF POLICE Against PETER GERALD SLOANE IN THE MATTER of the Complaints (Australian Federal Police) Act 1981. 25 February, 1986 MR. JUSTICE JENKINSON - Deputy President REASONS FOR DECISION 1. On 25 September 1985 the Federal Police Disciplinary Tribunal found Constable Peter Gerald Sloane guilty of a disciplinary offence, namely that on 25 March 1984 he had acted in a manner unbecoming a member of the Australian Federal Police, particulars of which disciplinary offence are stated in the reasons in writing given for that decision on that date. On 4 December 1985 the Tribunal resumed and concluded the hearing of the proceeding in which Constable Sloane had been found guilty of that disciplinary offence. What follow are the Tribunal's reasons in writing for its decision that there be imposed on Constable Sloane, in respect of that disciplinary offence, a fine of $300. 2. 2. The reasons in. writing given by the Tribunal on 25 September 1985 - and in particular paragraphs 2, 3, 8, 9, 10 and ll thereof - are included in these reasons. 3. Pursuant to s5.67(5) of the Complaints (Australian Federal Police) Act 1981 (as now in force : see Complaints (Australian Federal Police) Amendment Act 1985, ss. 10(a) and 15(3)), it was submitted on behalf of the Commissioner that Constable Sloane, who had been advanced to First Constable on 12 October 1985, should suffer the penalty of reduction to the lowest grade in the rank of Constable. It was submitted on behalf of the Commissioner that the findings stated in paragraphs 2 and 11 of the Tribunal's reasons given on 25 September 1985 disclosed a grave breach of discipline, which exposed the Australian Federal Police to public obloquy, by a man responsible for his actions. 4. The Tribunal acknowledges the strength of the submission. On the other side there must be weighed the impairment of Constable Sloane's judgment by alcohol and concussion, his lack of experience, and the evidence which was adduced of his good character, particularly the evidence of Sergeant Robert James McGoogan. When he is neither on duty nor expecting to be called on duty, a member of the Australian Federal Police is still to recognise that circumstances he cannot foresee may suddenly require that he exercise, it may be when in fear or in pain or moved to anger, the disciplined self-control which his office demands. If he chooses to lessen his capacity so to control his actions by taking alcohol while he is off duty, he must know himself well enough to be sure that he will not fail in that self-control. Self-knowledge of that kind may be lacking in a young man of 21. In all the circumstances the Tribunal considers a fine of $300 the appropriate penalty. 5. A batch of occasional reports, by members of the Australian Federal Police under whom Constable Sloane had from time to time served, concerning unsatisfactory performance of his duties, was tendered in evidence on behalf of the Commissioner, as having relevance to the question of penalty. Objection was taken to reception of these reports on several grounds. First, it was said that statements critical of Constable Sloane's performance of his duties by his superiors ought not to he weighed in consideration of penalty for a breach of discipline which in no way resembled the faults which had attracted those criticisms. That circumstance would perhaps not justify rejection of the statements, but rather might result in their being accorded little weight on the question of penalty. Second, it was objected that Constable Sloane's solicitors had been given too short a notice of the Commissioner's intention to tender the statements. Third, it was objected that, except by consent, allegations of unsatisfactory performance of duty should be put in proof only by the oral evidence of witnesses available for cross-examination, and that consent had not been sought. In the Tribunal's opinion those two objections are well founded. Included in the batch of documents tendered are minutes by senior officers which record. their recommendations and decisions concerning action to be taken in response to Constable Sloane's shortcomings. Those documents demonstrate the concern of 4. those officers to ensure, first, that the efficiency of the Force be not impaired by those shortcomings and, second, that Constable Sloane's performance of his duties be improved, and his development as a member of the Force be furthered, by counselling and supervision. Concerns of that kind are not wholly foreign to the exercise of the functions of the Tribunal. But the exercise of the Tribunal' s discretionary power of determining penalty in respect of breach of discipline is controlled, in the Tribunal's opinion, by the principle underlying the provision made, under the power conferred by s.40(f) of the Australian Federal Police Act 1979, for a system of punishable disciplinary offences : that, within the limits set by Regulation 22 of the Australian Federal Police (Discipline Regulations) and s.67 of the Complaints (Australian Federal Police) Act 1981, penalty shall be a retributive and deterrent response proportioned to the gravity of the offence and the moral culpability of the offender. The documents tendered on behalf of the Commissioner, to the reception of which objection was taken, did not contain anything which would, if the documents had been received, have moved the Tribunal to impose a greater penalty than the Tribunal has determined to impose. It is therefore unnecessary to re-open the hearing of this proceeding in order to afford those representing the Commissioner an opportunity to adduce oral evidence of the matters contained in the documents. I certify that this and the four (4) preceeding pages are a true copy of the Decision and Reasons for Decision herein of Mr. Justice Jenkinson Deputy President. Dated: 25 February, 1986 (PRB recto. Associate