Industrial Relations Commission New South Wales Medium Neutral Citation: Boguljub Branezac and Department of Juvenile Justice [2013] NSWIRComm 1007 Hearing dates: 26 September 201227 September 2012 Decision date: 16 May 2013 Before: Tabbaa C AM Decision: Appeal Disallowed Catchwords: Use of more force than reasonably necessary; Fine imposed of $3000; Notification to CCYP; Duty of care to employees and to the juveniles in its care. Legislation Cited: Commission for Children and Young People Act 1998 (NSW) Children (Detention Centres) Regulation 2010 Public Sector Employment and Management Act 2002 Ombudsman Act 1974 Category: Principal judgment Parties: Applicant: Boguljub Branezac Respondent: Department of Juvenile Justice Representation: Ms E Brus (Respondent) Mr N Keats (Applicant) McNally Jones Staff File Number(s): IRC 601 of 2012 DECISION 1Mr Boguljub Branezac, 27, is employed by the Director General of the Department of Attorney General and Justice through his delegate the Chief Executive of Juvenile Justice as a Youth Officer ("YO") at the Reiby Juvenile Justice Centre ("JJC"). 2On 26 December 2011, Mr Branezac was the Assistant Unit Manager assigned to the Macarthur Unit on Reiby JJC when an incident occurred with a detainee which resulted in use of force by the Appellant. 3The Appellant was advised by the then Chief Executive, in a letter dated 12 January 2012, of allegations that he had used more force than was reasonably necessary in the circumstances upon that detainee. The Appellant was also advised that the Respondent intended to deal with the allegation as a disciplinary matter and advised of the options available to it. 4Given the serious nature of the allegations against him, the Appellant was suspended from duty with pay from the date of that letter until the allegations were finalised. 5An investigator was appointed to deal with the allegations and a copy of the CCTV footage was supplied to assist with that investigation. 6On 22 March 2012, the then Chief Executive wrote to the Appellant and advised that the investigation had revealed that he had engaged in misconduct with respect to one of the two allegations. The Appellant was provided with 14 days to make a submission and/or to provide any additional information he wished to have considered prior to disciplinary action being imposed. 7The Appellant provided written submissions during a Show Cause Interview with the current Chief Executive held on 11 April 2012. 8On 30 April 2012, the current Chief Executive wrote to the Appellant advising that the allegation had been sustained and that she had decided to take the following disciplinary action: Impose a fine of $3000.00, deductible from the Appellant's pay in instalments of $150.00 in each of twenty consecutive pay periods. That the Appellant be referred to Juvenile Justice's Employee Risk Assessment Committee for ongoing monitoring of his conduct and performance. 9The Appellant was also advised that the matter would be reported to the Commission for Children and Young People as a relevant employment proceeding as required by section 39 of the Commission for Children and Young People Act 1998 (NSW). 10The Respondent submitted that the penalties taken are appropriate considering all of the circumstances outlined below. 11The Appellant is seeking orders removing the fine and the notification to the Commission for Children and Young People. Evidence 12In relation to the Applicant, statements were filed and oral evidence given by the applicant himself, Mr Boguljub Branezac, and Marama Wendell Peihopa, Assistant Unit Manager at Reiby Juvenile Justice Centre (JJC). 13For the Respondent, statements were filed and oral evidence was given by the following persons: Mr Scott Harrison (Assistant Manager Generalist - Reiby JJC), Mr Michael Vita (Manager, Reiby JJC) and Gary Andrew Head (Manager - Learning & Development, Yasmar Training Facility). 14A summary of the background, drawn from the evidence, will assist in placing the issues in context. Mr Branezac commenced employment with the Respondent on or about August 2007. He contended that he had not been disciplined for misconduct prior to the incident described below. 15On 12 January 2012 the then Chief Executive wrote to the Appellant setting out the following allegations: That on 26 December 2011 in the Macarthur Unit of the Reiby Juvenile Justice Centre you breached clause 65 of the Children (Detention Centres) Regulation 2010 in that you used more force than was reasonably necessary upon detainee D [name supplied] in the circumstances. That on 26 December 2011 at the Reiby Juvenile Justice Centre you breached clause 66 of the Children (Detention Centres) Regulation 2010 in that you provided false and misleading information on your 'Report On Use Of Force' from when reporting the force that was used upon detainee D [name supplied]. Background to the Incident 16At about 10.50 am on 26 December 2011, detainee D was using the Arunta telephone system at the Reiby JJC. His attempts to contact his grandmother were apparently not successful and he had, allegedly, broken the unit phone as a result. 17Upon returning to the games room, detainee D was observed to be swearing and being abusive. He was warned to settle down or he would be placed in his room. It is alleged that he then stormed out of the games room and headed in the direction of his room followed by Acting Unit Manager Branezac. The CCTV Footage 18The investigation report describes the incident portrayed in the CCTV footage as follows: The CCTV footage shows detainee D walking up a set of stairs during the course of which he turned and appears to push one of his elbows in the direction of the Appellant who was following on the stairway behind. The CCTV footage shows the Appellant and Detainee D engaged in physical contact. Just prior to that, Detainee D had both of his fists in an apparent clenched fashion. The Appellant is observed taking a physical hold of the detainee by taking the detainee's left hand with his left hand and placing his right arm around the shoulder area of that detainee. Detainee D appears to slip from the right arm of the Appellant whilst the Appellant maintained a hold of the left arm of that detainee. A struggle then ensued with the Appellant continuing to maintain hold of the left arm of the detainee with his left hand and moving the detainee in a backwards direction toward the glass window/wall. The Appellant is observed to have his left leg placed in a forward motion and then is observed to sling the detainee over his right hip with what appears to be a degree of force, so much so that the detainee is thrown completely off balance, with his head propelled toward the tiled floor surface of the landing whilst the detainee only had the toes of his right foot on the group. The CCTV footage then shows the Appellant complete the takedown of the detainee to the floor following which a struggle continued which is in part obscured by a partly open door before the Appellant was able to restrain that detainee with the assistance of YO Samantha Hancock. Detainee D was handcuffed and escorted from the scene by the Appellant followed by YO Samantha Hancock. 19Having viewed the CCTV footage, I concur with the above description. The Investigation Report 20Mr John Hubby, Chief Executive, wrote to Mr Brian Davis, confirming the latter's appointment to undertake an investigation into allegations of misconduct against the Appellant. The correspondence detailed the terms of the appointment. Mr Hubby also wrote to the Appellant advising that the allegations, detailed in that correspondence, were to be dealt with as a disciplinary matter under section 46 (1) of the Public Sector Employment and Management Act 2002 (PSEMA). The Appellant was informed of the appointment of Mr Davis and of the fact that he was suspended with pay pending the outcome of the investigation. 21The investigation into the incident on 26 December 2011 was conducted by Mr Brian Davis, an investigation and consultancy specialist. 22Having read the records of interview with the investigator, I concur with the summary of evidence contained in that report. 23Set out below is a summary of the evidence given by those interviewed by the Investigator: The Appellant (1)Detainee D was alright when he came out of his room but when he came downstairs he became verbally abusive - aggressive and physically confrontational towards staff, including the Appellant himself, as he approached the door to the games room where the Appellant was supervising detainees with YO Fredericks. The Appellant opened the door to the Games room to let that detainee in but before doing so, he pulled him up on his language saying words to the effect, "if you are going to behave like this first thing in the morning, you can spend the rest of the day in your room". He pointed out that the detainee could have apologised and/or explained that he was having a bad day and he would have been allowed to remain in the games room. Instead, he had replied, "No worries, let's go" or "I don't give a fuck, let's go". (2)The Appellant was aware that YO Fredericks could not accompany him as he was supervising the other detainees in the Games room and YO Hancock was at the top of the stairs in the night office. They were down a staff member on that shift. The Appellant thought he had all his bases covered with having one officer watching them from the bottom until they got up to the top of the stairs and another officer to watch them from the time they got to the top of the stairs until they reached the detainee's room. (3)As they climbed the stairs, the detainee was walking of his own accord in front of him. (4)He knew the relatives of that detainee who had been in the unit before him. The Appellant maintained that he normally had a good rapport with that detainee who had not been in the unit too long. In the past few days, the detainee had been mixing with a couple of inmates and was starting to act up causing the Appellant to ask him question as to what was going up as they climbed the stairs. He said the detainee merely chuckled. He had persisted in his questioning and, finally, once they got to the top of the stairs he repeated, "Look what's your problem today, what's wrong?" As he said that, he said the detainee turned around and said "you are" or "you are my problem" and as he said that he swung at the Appellant attempting to strike him in the face with his elbow - the elbow was just millimetres away from the Appellant's face. (5)He said he was not sure whether the detainee was mucking around or was seriously trying to assault him and therefore, either way, he created a distance between himself and the detainee and, with one hand against where his tailbone would be, pushed him away from him up the stairs as it was the safest direction to go in without anyone getting hurt saying "get away from me". He then raced up the stairs to avoid giving the detainee an opportunity to kick him back down the stairs. He moved away to get his back away from the edge of the stairs. (6)The Appellant noted that when both were at the top of the stairs, about one metre apart, the detainee's body language indicated to him that he was getting ready to lunge at him as his chest was out, his chin came up, his fist was clenched and he was on his toes. (7)The Appellant said that as the detainee went to strike him, he put his hand around the detainee's elbow or wrist to stop the fist from connecting with him. (8)The Appellant described what ensued as a "scramble" - the Appellant was trying to hug him and the detainee was scrambling out of it. The Appellant was trying to grab his right hand so as to avoid the detainee's fist from connecting with him. The detainee was trying to strike him. He put his hands out in front of him and on the detainee's shoulders to avoid being hit in the face. Instead, he was being hit on the shoulders. As they were on the corner of the stairs and "adrenalin was pumping through [him]" he tried to pin the detainee against the wall to avoid losing their footing and hurtling down the stairs. He said he was constantly moving forward to maintain close proximity to the detainee so he cannot get a strike at him and, even if he did manage to strike him, it would not have much force, particularly if he managed to get his arms under the detainee's armpits. He contended that he only used his force to him the detainee backward. (9)The Appellant stated that at that point he had called out to YO Hancock a couple of times in order to obtain assistance but should could not have heard because the door to the night office was closed. (10)The detainee's shoulder blades were fairly well against the window area of the landing when the appellant took a step away from the corner of the stairs towards the open landing. The Appellant contended that, as the detainee was attempting to wriggle out and get away from him, he lost his footing and fell over the appellant's hip causing them both to go down to the floor. The Appellant stated that, as they were going down on a hard surface, he moved his hand away from the detainee's armpit and tried to cup his head to avoid smashing it. The Appellant pointed out that his elbow ended up being the first point of impact and that was why it was injured in the fall. He pointed out that the only choice he had was to either fall down a set of 20 concrete stairs or fall on a clear landing where there was less likelihood of injury. He had not intended to throw the detainee over his hip. (11)When they hit the ground, the Appellant did not use any form of restraint but merely lay across the detainee's chest to stop him from squirming around. The scramble did not stop then. He said the detainee kept yelling abuse and hocking up spit. The Appellant then got onto one knee and placed a hand on the detainee's right hip to stop him from squirming. (12)He said he asked the detainee to give him his hands so he could apply the handcuffs. As the detainee was still attempting to spit on him, he put his palm over the detainee's face and guided his face away from his direction to avoid being spat at. The detainee turned over on his stomach on the floor while the appellant was scrambling to get a secure hold of his left wrist to commence applying the handcuffs. YO Hancock came to his assistance at that time and placed a hand between the concrete and the detainee's head so he would not get hurt and then assisted the appellant by grabbing the detainee's right arm so he could be cuffed. (13)He said he told the detainee that they were getting up on the count of three. The Appellant stood up and the detainee got to his knees and then stood up. The Appellant agreed that he had his right arm under the detainee's left upper arm near the armpit and his right hand had a hold of the detainee's left shoulder. He believed that it was a safe manner in which to get the detainee to his feet as they had been taught to put their safety and security first and he did not believe it would have been safe enough for him to remove his arm as he was about to take the detainee down the stairs to the main confinement holding room away from the unit, "It's a safe method for me 100%". Although he agreed that potentially he could have caused the detainee a serious injury, he pointed out that he had not grabbed him with a lot of force nor did he yank him or lift him up. (14)Once they entered the confinement room, the detainee appeared settled so the Appellant sat him down on the bed and took his handcuffs and shoes off before leaving him and closing the door. He said he had asked the detainee if he was alright and if he wanted to see the nurse but did not get much of a response from him. He followed the guidelines anyway and called up the nurse. (15)The Appellant alleged that he had injured his elbow when he contacted the ground during the struggle as he and the detainee fell to the ground. The detainee also suffered an injury to his elbow during that process which resulted in his transportation to Hospital. (16)He contended that the Detainee had determined the amount of force that was used during that incident pointing out that the detainee had attempted to elbow him while they were ascending the stairs. The Appellant further alleged that, upon reaching the landing at the tope of the stairway, he and the detainee had become involved in a verbal altercation during the course of which the Appellant formed the view that he was at risk of being assaulted. (17)In relation to the Staff Incident Report, Mr Branezac stated in that report: I had to restrain YP and move YP to main confinement using departmentally approved techniques by creating space between myself and my aggressor and then holding YP in a form of a bear hug from the top half of the body and then placing him to the ground until assisting staff could help me place the handcuffs. He agreed that it did not describe accurately how the detainee went from his feet to the ground as the incident had happened very fast, the adrenalin was still flowing and he could not recall everything. (18)The Appellant referred to the Respondent's policy which requires that staff not use more force than is reasonably necessary in any circumstance. He pointed out that two Officers from NSW Police had viewed the footage and formed the view that the force he just was justified and reasonable. (19)The Appellant confirmed that he had been trained in the use of force and undertaken one refresher course since the commencement of his employment but pointed out that it was at least 12 -18 months since he had attended that refresher course. (20)The Appellant also confirmed that he had been involved in the use of force on multiple occasions. Youth Officer (YO) Samantha Hancock : (21)She was alerted to the fact that an incident was taking place with Detainee D when, whilst working in the night office, she heard what she believed to be a phone being slammed down. She observed him walking back downstairs, looked out the door and noticed that the telephone had been broken. (22)She said she continued with her duties until she heard "a little bit of a raucous, as in loud voices and carry ons". She said she looked up and down the stairs towards where the noise was emanating from and saw the Appellant and detainee D about four to five metres away from her, at the bottom of the stairs obviously having words. She did not think anything of it and went back to her seat. (23)As the noise was continuing, she went to investigate. The Appellant and the detainee were proceeding up the stairs at the time. They were about halfway up the stairs when she saw the detainee turn around "in an elbowish fashion". She could not tell whether the elbow connected or not but his arm was high in a striking pose. That had resulted in the Appellant creating a distance between them by giving the detainee a push up the stairs. He had pushed him in the rib area in the back. She would not describe it as a "significant" push but it was enough to push him away so that he was not within striking distance of the Appellant. (24)As they got to the top of the stairs, she saw the detainee stick his chest out at the Appellant in an aggressive manner. She thought to herself, "Oh, here we go". She said she turned around, threw her pen on the desk and returned to continue observing in case the Appellant needed assistance. (25)When she returned and looked out they window, they were not in view. She looked again and saw that they were on the ground. She came out of the night office. She saw the Appellant on top of the detainee attempting to get his arm up around his back but the detainee struggling "a fair bit". She put her hand under his head to stop his head from hitting the ground and hurting himself. She then grabbed his right arm around the back. She said she was talking to the detainee throughout that time trying to settle him down as she got on quite well with him. (26)As the incident had happened very quickly, she stated that she had not paid much attention to detail and therefore could not assist with the lead up to the detainee being placed on the ground. She had not witnessed a bear hug by the Appellant on the top part of the detainee's body. She confirmed that the pair had gone over towards the window and then came back and then went down. (27)After the detainee was handcuffed by the Appellant, he was brought to his feet by the Appellant who maintained hold of the detainee with his arm being placed between the detainee's arms, which were secured behind his back, and up onto his left shoulder, with the pair moving toward the stairs and then down the stairway. They took the detainee to the Main, had him in a corner and took the cuffs off him. He was crying. The nurse was rung and requested to have a look at him. YO Wayne Frederick (28)YO Frederick was on duty on the said night and was supervising the games room; (29)He witnessed Detainee D being abusive as he was walking down the stairs from the phone room until his arrival at the door to the games room; (30)He also witnessed that detainee being cautioned by the Appellant that he would be sent to his room if he continued that behaviour. Detainee D's response was to continue being abusive, swearing and demonstrating his anger. (31)He observed the Appellant directing the Detainee to his room and then proceeding to follow that detainee up the stairs. He had an uninterrupted line of vision up the stairs until he saw the lower portion of YO Hancock's body (from her waist down) prior to returning to the games room and securing that area. He noted the detainee's body language was aggressive and his fists were clenched. (32)He was referred to his written report on the incident in which he stated "Once on top of the landing of the stairs, I saw YO Hancock assist AUM Branezac in restraining Detainee D". He contended during the investigation interview that he had not seen the use of force or restraint during that time and he meant to use the word "assisting" not "restraining" in his report. Assistant Manager (AM) Scott Harrison (33)He confirmed that he was on duty on the said night and, upon being advised by the Appellant about having to use force on Detainee D, he had attended the Macarthur unit and requested the Officers concerned to complete Use of Force reports. He spoke to both the Appellant and the Detainee about the incident prior to assisting the Appellant in escorting the Detainee to the hospital block to receive initial medical attention. The nurse initially thought that he had a dislocated elbow and sent the detainee to the hospital but it turned out that she was wrong. (34)He said the detainee did not show any malice towards the Appellant: He specifically asked if the detainee had any complaint about the manner in which the Appellant used force upon him and he said no. The detainee was quite hard to get much out of - he was more interested in talking about the fact that he was angry because he had been unable to contact his mother and wanted that sorted out. (35)He had also viewed the CCTV footage and observed the push up the stairs. When asked if he considered that the push had been necessary, he responded, "I think it was ill advised". The following exchange with the investigator is relevant: Q28. Well is that type of response to what the detainee did, is that the type of conduct you would expect of an officer with experience such as Mr Branezac? A28. I think he's made a bad call, so no. The following exchange took place in relation to the hip throw: Q31. Again, that physical response from Officer Branezac, do you believe that was in accordance with your policies and procedures" A31. It's not a text book use of force, that's for sure. Q32. Do you believe that it was an excessive use of force? A32. I believe that the staff member got himself in a situation that, it is hard one. The staff member made a lot of decisions which put him in a situation. I don't believe that his intention was to use excessive force, but he had a lot of alternatives along the way that could have avoided the situation in the first place. (36)AM Harrison said he spoke to the Appellant about the incident and of the options which had been available to him. The two main mistakes the Appellant had made was to move the detainee on his own (which was what started the incident) and then he should have let the detainee walk without the push pointing out that he had nowhere to go. 24The Investigator found the allegation sustained that the Appellant used more force than was reasonably necessary upon Detainee D in the circumstances thereby placing him at significant risk of injury both when he slung the detainee over his hip and again in the manner in which he took hold of him to bring him to his feet after he was handcuffed. 25The Investigator also found the allegation sustained that the Appellant provided false and misleading information on his report on the use of force form when recording the force that was used on Detainee D. 26A show cause interview was held with Ms Valda Rusis, Acting Chief Executive, on 11 April 2012 as Mr Hubby had been transferred to another department. Training 27The Appellant commenced employment at Reiby JJC in April 2008 and has worked in the roles of Youth Officer and Assistant Unit Manager. Evidence was provided by Mr Scott Harrison, Assistant Manager Generalist at that Centre, that apart from the initial induction training received the Appellant, he has attended Centre based training and workshops in implementing Juvenile Justice policies and procedures which are designed to reinforce the whole of Agency training he had received in order to obtain qualifications as a Youth Officer. 28Mr Harrison pointed out that the Appellant had attended refresher courses as follows: 8-13 May 2008 Youth Officer Induction Training (which contained a segment on responding to critical situations) 29 October 2008 Effective Behaviour Management August 2009 Use of Force 7 November 2009 Use of Force August 2010 Responding to critical situations - dealing with difficult situations and aggressive behaviour 17 June 2011 Skills Maintenance session on DBIF 29Mr Harrison pointed out that two Officers are required to move detainees up and down the stairs. 30Mr Harrison pointed out that his training in the Department's Behaviour Intervention Framework (DBIF) led him to the conclusion that the Appellant's actions were ill-advised and that he had made a bad judgment call on that day. As the detainee was in a volatile mood, demonstrated by his verbal abuse of staff and his desire to return to his room, the Appellant ought to have: (a)assessed the risk of walking so close behind him - not only did he risk personal injury to himself, he risked escalating the situation; (b)conducted a risk assessment of the area which would have led him to recognise the potential risks of walking up the stairs alone with that detainee. (c)known that by pushing the detainee for attempting to elbow him, he risked inciting the situation further. In addition, he had moved the situation past the "Active Intervention Stage" into the "Reactive Intervention Stage". Legislative Framework 31The Ombudsman Act 1974 requires the agency to take action in relation to allegations of employees' conduct that may constitute reportable conduct, including reporting the outcomes of certain matters so that an assessment may be undertaken to ensure that matters have been properly investigated and appropriately actioned. Sections 25A and 25C of Part 3A, Child Protection, relevantly provides: 25A Definitions "reportable allegation" means an allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct. "reportable conduct" means: (a) ....., or (b) any assault, ill-treatment or neglect of a child, or (c) ...... 25C Reporting of reportable allegations or convictions to Ombudsman (1) The head of a designated government or non-government agency must notify the Ombudsman of the following: (a) any reportable allegation or reportable conviction, against an employee of the agency of which the head of the agency becomes aware, (b) whether or not the agency proposes to take any disciplinary or other action in relation to the employee and the reasons why it intends to take or not to take any such action, (c) any written submissions made to the head of the agency concerning any such allegation or conviction that the employee concerned wished to have considered in determining what (if any) disciplinary or other action should be taken in relation to the employee. (2) The notification must be made as soon as practicable and, in the case of a reportable allegation ... must be made, in any event, within 30 days of the head of the agency becoming aware of the allegation ... 32The Commission for Children and Young People Act 1998 relevantly requires: 39 Duties of employers with respect to relevant employment proceedings (1) It is the duty of an employer to notify the Commission of the name and other identifying particulars of an employee against whom relevant employment proceedings have been completed by the employer, other than proceedings; (a) in which a finding is made that the alleged reportable conduct, or the alleged commission of an act of violence, did not occur, or (b) in which a finding is made that the allegations in respect of which the proceedings were brought were vexatious or misconceived. (1A) For the purposes of this Part, relevant employment proceedings are taken to have been completed when a finding has been made by the employer as to whether the alleged reportable conduct, or the alleged commission of an act of violence, occurred or may have occurred, and a decision has been made by the employer as to what action (if any) is to be taken against the employee in respect of the finding. (2) .... The definition of "Reportable Conduct" mirrors the definition contained in the Ombudsman Act 1974. The Appellant's Case 33The Appellant provided a statement in which he acknowledged that he had been involved in many uses of force, both pre-planned and in reaction to arising circumstances such as riots and refusals. He provided an example to the Commission which had resulted in him being commended for his actions by the Unit Manager. 34The Appellant went on to describe the awkward nature of the work in the Macarthur Unit - given its geographical layout and its detainees who are normally restless, coming off drugs/alcohol, are on remand and are not accustomed to routines or authority. 35The Appellant described the detainee as switching very quickly from being volatile to being compliant. He explained that there had been intel shortly before the incident that there was going to be a mass refusal on Christmas Day. When that did not occur, the detainees in that unit became unsettled and such was the atmosphere on Boxing Day. 36Apart from where specifically outlined, the Appellant's statement mirrored the evidence he gave in the investigation report and which is detailed above. Submissions The Applicant 37Ms Brus made it clear from the outset that the Respondent was in no way detracting from the difficult role that Youth Officers play in Juvenile Justice Centres. The Respondent is also cognizant of the fact that use of force is sometimes necessary and, for those reasons, a framework has been established and developed over the years for the proper management of that use of force. 38The Commission was reminded of the statement of Mr Head which makes reference to all the statutory frameworks - laws, regulations, interagency arrangements that apply in relation to detainees in such centres. Whilst some may be evil, others may be bad and some just plain unfortunate, they are all juveniles and therefore their treatment has to be different to treatment meted out to adults. 39Ms Brus took the Commission through the provisions of Regulation 65 of the Children (Detention Centres) Regulation 2010 pointing out that there was no evidence before the Commission that would approve the use of force on this occasion as the force applied by the Appellant was not to prevent the detainee from injuring himself nor was it for the purpose of protecting the Appellant from attack or harm. 40Ms Brus then took the Commission through the CCTV footage pointing out that the first contact was initiated by the Appellant. Whilst the elbow movement may, at its highest, have been an attempted strike, there was no dispute between the parties that no contact was made. It was pointed out that the Detainee did not pause at all after the attempt - he had continued walking up the stairs without loss of momentum. 41Mr Branezac had a number of options available to him from the very beginning as indicated by the evidence. Even after the attempted elbowing, he had a number of options available to him. He chose to ignore all his training, all his options and, within a millisecond of the attempted elbowing, pushed the detainee, with some force, up the stairs causing the situation to seriously deteriorate. 42Mr Branezac had agreed, during cross-examination, that although there was no specific training module relating to stairs, he had been trained that the use of force required him to make an assessment, when considering the use of force, of obstacles such as furniture, terrain, other personnel, and so on. It was pointed out that the stairs were part of his daily working environment and one would expect that he would have given some thought to that when he decided to move the detainee alone. 43The intentional hip throw is merely a part of the use of force in general. It draws particular attention only when it is considered in the context of the second allegation - his failure to report the use of force accurately. 44Ms Brus referred to the evidence before the Commission which places the detainee at 157 centimetres in height and 52 kilos in weight compared to the Appellant who, from his evidence is 184 centimetres in height and 100 kilos in weight. The Appellant acknowledged, and the CCTV footage evidenced, that the Appellant, a strong, well-built mature adult, pitted himself against "a relatively scrawny 15 year old". 45It was pointed out that the step by step footage clearly demonstrated that the Appellant had positioned himself in such as way as to effectively execute the hip throw albeit the Appellant has attempted to categorise it as the detainee falling over his hip. 46The Respondent was concerned about the failure of the Appellant to recognise that he made bad choices and that he exercised unreasonable use of force. 47Ms Brus referred to authorities that exist pointing out that they are of limited assistance in determining whether or not there was an unreasonable use of force. Those judgments make it in matters such as this one has to regard each circumstance on its merits and on the facts. 48The fine imposed on Mr Branezac was a penalty or an action which was permissible within the meaning of the PSEM Act. 49The category 1 notification is something about which the Department has limited discretion. Having conducted an investigation and having determined that there was an unreasonable use of force within the meaning of the class or kind agreement and the Act in general the Department is required to make the notification. The Respondent 50Mr Keats took the Commission through his written outline of submissions which I have read thoroughly particularly noting that the Detainee's behaviour was altering from compliant to aggressive. He also referred to the lead up to the Boxing Day incident with the other detainees encouraging him to engage in poor behaviour. 51The Commission was reminded that the situation had developed extremely quickly and therefore there was very limited time to assess the situation. Mr Head had accepted that the Appellant had less than two seconds to assess the situation following the elbowing attempt and the detainee's body language generally. 52Mr Harrison does not categorically say that the use of force was excessive. He just pointed out that there were other options. Campbelltown Police had decided not to press charges against the Appellant. The Appellant had used his hand to minimise any injury to the detainee when he reached the ground. 53Mr Keats took the Commission through the evidence of the various witnesses. 54It is more likely than not, therefore, that this young person would strike Mr Branezac than the average or normal person in the street of his same age. Mr Branezac did what he considered safest. He tried to grab his wrists. The young person broke free. He tried two bear hugs and neither worked. He decided he needed to get the young person to the ground quickly. He did that by the hip throw and cradled his head as he put the young person to the ground. 55The Appellant has maintained that the use of force was not unreasonable. Mr Head, Manager of Learning Development as Yasmar which is a training facility for Juvenile Justice who has twenty two years of experience under his belt, an important expert, acknowledged that the Appellant should not turn his back on the detainee to retreat down the stairs and neither should he walk down stairs backwards as that would be a safety risk. Therefore, in those circumstances, Mr Head's suggestions about retreating down the stairs is just not a plausible alternative. 56In conclusion, the Commission was urged to uphold the appeal, the Respondent be required to repay the fine to the Appellant and a recommendation issued to the respondent to withdraw the notification to the CCYP. Consideration 57As part of his training, Mr Branezac was trained in how to write a "Report on Use of Force". The Participant's Manual provided in the Effective Behaviour Management Training provides that "It is not acceptable, to omit any information". Critical information was omitted from the Appellant's report. 58The Appellant also received training on negotiation skills and techniques for dealing with detainees, including walking one to two arm lengths apart from the young person while speaking with them. Mr Branezac did not heed that on this occasion. 59I accept the evidence of Mr Gary Head, Manager Learning and Development at the Yasmar Training Facility of his assessment of the situation and make other observations of my own: A. The detainee gave off identified signs of aggression. According to the training he had received, the Appellant should have identified that the situation was in the "Active" or "orange" zone and used de-escalation tactics in order to calm him down such as listening to, and agreeing with, the detainee. In fact, Ms Hancock had utilised those techniques when she came to the Appellant's assistance. B. Mr Branezac has been at that unit since June 2009 and should have been acutely aware of the stairs in the hallway and taken them into account in his assessment of the situation. Two officers should have accompanied the detainee up the stairs. The unit was one officer down on that day as the fourth officer was conducting a movement. The Appellant decided to do it alone. C. Mr Branezac was required to position himself at least one to two arm lengths apart from the detainee when negotiating as he gave evidence that he attempted to communicate with the detainee whilst they were climbing the stairs. He did not comply with that requirement. D. The detainee made the elbowing motion while his back was to the Appellant. The Appellant should have let him continue walking up the stairs and to retreat back to the bottom of the stairs. The doors at the top of the stairs were locked - there was nowhere for the detainee to go and therefore there was no risk involved. E. The Appellant pushed the detainee thereby inflaming the situation and causing the detainee to take an aggressive stance. Once again, the Appellant could have retreated to the bottom of the stairs and sought assistance - rather, he raced up the stairs towards the detainee causing the situation to enter the "Reactive" or "red" zone. F. Staff are taught that force should only be used if it is safe to do so. The Appellant used a hip throw to overpower the detainee - which is not part of the Department's approved techniques for use of force as it has the potential to cause serious harm to the detainee, particularly given the size of the Appellant in comparison with the detainee. I agree that, given the close proximity of the night office to the place where the incident took place, all the Appellant had to do was to hold the detainee until Ms Hancock arrived on the scene to assist. G. The Appellant played down the seriousness of his actions by not indicating, on the "Report on Use of Force" form the fact that he had used a hip throw technique to take the detainee to the ground which would suggest that he was aware that his actions had been misguided. He described the throw as "a form of bear hug from front/top & placed to ground". It was not a bear hug and he certainly did not "place" the detainee on the ground. I agree with Mr Head that the statement is misleading and suggests that the Appellant was aware that his actions were over the top and were contrary to policy and procedures. H. The Appellant had indicated in his statement that the detainee had spat at him. During cross-examination, he admitted that the detainee was gathering phlegm to spit at him. I. Despite being interviewed intensively by the Investigator in relation to the incident, the Appellant did not state that the detainee had said words to the effect, "Open the fuckin' door ya white dog" - the first time that statement appeared was in his statement in these proceedings. J. The Appellant conceded that his report did not perfectly accord with the CCTV footage but explained that he was trying to write it to the best of his recollection and was trying to recall everything that had happened in a period less than a minute. Whilst I accept that he cannot be expected to recall every single hand movement, the omission of reference to the hip throw is something more than an oversight - in my view it was a deliberate omission. K. The Appellant contended that he has never received training involving the use of stairs. He does not have to. He has received training on diffusing situations, on keeping a distance between him and detainees, in retreating, in being accompanied by another officer when moving detainees and in the use of force. He has been in that unit for a considerable period of time and is aware of its geographical lay out. He is aware that the detainee had nowhere to go if left alone in the area between the games room and the area at the top of the stairs. His knowledge and experience would have played a large part in the reason why he was Assistant Unit Manager on that day. I do not accept that he has not been provided with sufficient training to assist him in situations such as this involving stairs. 60The evidence clearly indicates that the situation could have been diffused by the proper application of the training provided to the Appellant. 61Having ignored that training, his actions had inflamed the situation and use of force became necessary. 62Nevertheless, the CCTV footage and the evidence clearly indicates that unreasonable use of force was applied in the circumstances. 63 The Respondent has a duty of care towards the detainees as well as its employees. I find that the employees have been trained in the proper management of situations such as this. The detainees are juveniles in its own care and it behoves the Respondent to ensure their safety is maintained. Conclusion 64The appeal is dismissed. 65Matter No. IRC 601 of 2012 is hereby concluded. Tabbaa AM Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2013