Grobler v Queensland Police Service
[2023] QCAT 103
•16 March 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Grobler v Queensland Police Service [2022] QCAT 103
PARTIES:
GUSTAVUS WILHELMUS GROBLER (applicant)
v
QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent)
APPLICATION NO/S:
GAR300-21
GAR043-22
GAR261-22
MATTER TYPE:
General administrative review matters
DELIVERED ON:
16 March 2023
HEARING DATE:
22 November 2022
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. The decisions to revoke the applicant’s firearm licence and not to renew the applicant’s dealer’s licence and armourer’s licence are set aside.
2. The applicant’s firearm licence should be reinstated.
3. The applicant’s dealer’s licence and armourer’s licence should be renewed.
4. As deemed appropriate by Queensland Police Service – Weapons Licensing the dealer or armourer licences or both may be subject to a condition that a computerised register system be permitted for use.
CATCHWORDS:
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICIENSING AND REGISTRATION – LICENCE OR PERMIT – GENERALLY – where the applicants personal firearms licence was revoked and an application to renew his dealer licence and armourer licence refused – where the applicant was charged with offences in the Magistrates Court – where the applicant pleaded guilty to three weapons related offences but no convictions were recorded – where his weapons licenses were in consequence revoked by police – where the applicant commenced proceedings in the Tribunal to review the decisions – where the applicant’s dealer and armourer licences fell due for renewal – where renewal was also refused – where the applicant commenced proceedings in the Tribunal to review those further decisions – where the Tribunal was asked to determine whether the applicant was a fit and proper person to hold a weapons licence – where the applicant was found to be a fit and proper person to hold weapons licences
Penalties and Sentences Act 1992 (Qld), s 12
Weapons Act 1990 (Qld), s 10B(2), s 71(2), s 71(3), s 145
A-G v Briese [1997] QCA 10
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Commissioner of Police v Joseph [2016] NSWCATAP 124 Dawson v Tanwan [1999] QDC 289
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Garland v Commissioner of Police [2020] NSWCATAD 210
Keen v QPS – Weapons Licensing [2019] QCAT 235
R v Beissel [1996] QCA 488
R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467
R v Gallagher; ex parte Attorney-General [1997] QCA 467Shi v Migration Agents Registration Authority [2008] HCA 31
APPEARANCES & REPRESENTATION:
Applicant:
M L Longhurst instructed by O’Reilly Stevens Lawyers
Respondent:
Snr Sgt D Ayscough
REASONS FOR DECISION
Mr Grobler has run a sports and fishing business in North Queensland with his wife since 2015. He held a personal firearms licence, a dealer’s licence and an armourer’s licence in conducting the business.
He has been an armourer for approximately 40 years, first in South Africa, then in Australia.
On 21 April 2021 police (Weapons Licensing) revoked his firearms licence. That was because he had appeared in the Magistrates Court at Mareeba on 29 January 2021 in relation to a charge of unlawful possession of a category D/H/R weapon (capsicum spray). Police said he had been convicted of the offence and a conviction recorded and he had been fined $500.
His armourer’s licence and dealer’s licence was also revoked on 21 April 2021 on a number of bases, including failure to store a weapon properly, incorrect entries in his weapons register, failure to provide Weapons Licensing with requisite forms within a required time, possession of capsicum spray (a Category R weapon) and also on the basis he had made a dishonest statement with respect to taking possession of a firearm and destroying it when it was later found and recovered in the possession of another person.
Mr Grobler applied for review of the decisions to revoke his licenses. Pursuant to s 145 of the Weapons Act 1990 (Qld) (‘the Act’), pending determination of the reviews, he was entitled to carry on business as if the licenses had not been revoked.
His dealer’s licence and armourer’s licence then fell due for renewal. Mr Grobler applied to renew them but both applications were rejected on the grounds that on 29 January 2021 in the Magistrates Court he had been dealt with in relation to charges of failure to keep appropriate register records required of a licensed dealer and armourer and though not convicted of the offences and no conviction recorded, he had been fined $1,400 and accordingly was not a fit and proper person to hold the licenses.
Mr Grobler commenced further proceedings in the Tribunal to review the decisions not to renew his dealer’s and armourer’s licenses.
The parties have agreed that the reviews in respect of the revocation of his personal firearms licence and the refusal to renew his dealer’s and armourer’s license should continue in lieu of the review of the revocation of his dealer’s and armourer’s licence, and subject to outcome, Weapons Licensing would take the necessary steps to give effect to the Tribunal’s decision.
The common issue to be determined across all licences is whether Mr Grobler is a fit and proper person to hold a weapons licence.
The Magistrates Court proceedings
On 29 January 2021, in the Magistrates Court at Mareeba, Mr Grobler pleaded guilty to one count of failing to keep a register pursuant to section 71(2) of the Act for which he was fined $400. He pleaded guilty to a charge of unlawful possession of capsicum spray, a category R weapon, and was fined $500 for that. He was also charged with failing to provide Weapons Licensing with required forms within 14 days as stipulated by s 71(3) of the Act and was fined $1,000.
71 Licensed dealers and armourers to keep register
(1)A licensed dealer or licensed armourer must keep at the premises stated on the licence a weapons register.
Maximum penalty—20 penalty units or 6 months imprisonment.
(2)A licensed dealer or licensed armourer must, for each transaction involving a weapon, enter immediately in the weapons register the particulars prescribed by regulation.
Maximum penalty—20 penalty units or 6 months imprisonment.
(3)A licensed dealer or licensed armourer must notify an authorised officer in the approved form of each transaction involving a weapon within 14 days after the transaction happens.
Maximum penalty—20 penalty units or 6 months imprisonment.
The learned Magistrate did not record convictions for any of the three offences concerned. She said in giving her reasons for penalty that in her opinion fines were adequate, and that convictions would have an adverse effect on his occupation.
The refusal to renew the dealer and armourer licences
Weapons licensing advised in the reasons for decision for refusing to renew licences that Mr Grobler was not considered to be a fit and proper person to hold a licence authorising possession of a weapon.
The Information Notice accompanying the decision stated that the convictions for offences, whether recorded or not, whether relating to charges for traffic matters or criminal offences, was a consideration in deciding whether a person was fit and proper to hold a weapons licence. R v Beissel [1996] QCA 488 was cited in support of that proposition.
On the basis of his unrecorded convictions in the Magistrates Court he was not a fit and proper person to hold the dealer or armourer licences.
The grounds for revoking the firearm licence
Similarly Weapons Licensing revoked Mr Grobler’s personal firearms licence on the basis of his unrecorded conviction of unlawful possession of a weapon category R (the capsicum spray) and his fine of $500, and further that in the same Magistrates Court proceeding he had been charged with two failures to keep a register as required of a licensed dealer and armourer “for which he received no conviction recorded” and he had been fined $1,400.
The associated Information Notice also stated that his weapons licence was revoked because he had contravened a condition of the licence, though no particulars of the particular condition claimed breached are supplied.
The Information Notice went on to say because he had been convicted of the weapons charges in the Magistrates Court at Mareeba, by s 10B(2) of the Act he was deemed not to be fit and proper person to hold a licence.
There is also mention made of taking the public interest into consideration but it is not made clear whether there was a finding about that in support of the revocation.
Convictions not recorded
Section 10B(2) of the Act provides:
(2) However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period—
(a) the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—
(i) an offence relating to the misuse of drugs;
(ii) an offence involving the use or threatened use of violence;
(iii) an offence involving the use, carriage, discharge or possession of a weapon; …
The Penalties and Sentences Act 1992 (Qld) makes provision for convictions not to be recorded:
12 Court to consider whether or not to record conviction
(1)A court may exercise a discretion to record or not record a conviction as provided by this Act.
(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
(a) the nature of the offence; and
(b) the offender’s character and age; and
(c) the impact that recording a conviction will have on the offender’s—
(i) economic or social wellbeing; or
(ii) chances of finding employment.
(3) Except as otherwise expressly provided by this or another Act—
(a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and
(b) the conviction must not be entered in any records except—
(i) in the records of the court before which the offender was convicted; and
(ii) in the offender’s criminal history but only for the purposes of subsection (4)(b).
(3A) Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.
By s 12(3)(a) of the Penalties and Sentences Act 1992 the unrecorded convictions are not convictions for any purpose. The words are clear. The unrecorded convictions in the Magistrates Court are therefore not convictions for the purpose of s 10B(2) of the Act.[1]
[1]Keen v QPS – Weapons Licensing [2019] QCAT 235 [21].
Weapons Licensing say the unrecorded convictions are still convictions to be relied on for the purpose of the provisions of the Act. The following comment made by McPherson JA in the Court of Appeal in R v Beissel are relied on:
A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded….
R v Beissel was an appeal from the decision of a Judge below recording a conviction. What the appellants sought to achieve by the appeal was to overturn the recorded convictions made below on the basis that if the convictions became known to certain licensing authorities it might prejudice their future employment prospects.
McPherson JA found that the Judge had made no error in exercising his discretion to record a conviction. It was from that initial premise that recorded convictions were appropriate that he went on to say that the Court of Appeal would not be party to minimising the seriousness of offences by setting aside the recorded convictions with the aim of influencing a government instrumentality to disregard the offences.
His Honour’s remarks was considered by McGill DCJ in Dawson v Tanwan [1999] QDC 289:
I think that it is important to bear in mind two things in relation to this judgment. The first is that the court was plainly of the view that the particular circumstances of the offences for which the applicants were convicted justified recording of convictions and were matters which ought properly to have been taken into account by the relevant authorities when deciding licencing issues. The court also expressed a view that the conduct the subject of the offences, as distinct from the fact of conviction, would be relevant factors for those licencing authorities to take into account. It was, I think, in that context that McPherson JA said:
"A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded ... ".
I do not think that His Honour was intending by that statement, which is with respect plainly correct, to say anything which detracted from the plain meaning of s.12(3) of the Penalties and Sentences Act.
The comments by McGill DCJ were obiter, but he also helpfully noted:
… s.12 of the Penalties and Sentences Act, which provides that except as otherwise expressly provided by this or another Act, a conviction without recording a conviction is taken not to be a conviction for any purpose: subsection (3)(a). There is no express provision in the Weapons Act 1990 to the contrary, and the first example given for s.29(3) plainly contemplates that that result will apply to the operation of s.29. The result is, in my opinion, is that if a conviction is not recorded, it is not to be taken into account at all for the purposes of s.10, s.18 or s.29.
…
In s.10(6), s.18(8) and s.29(1)(b), it is conviction of the offence rather than the conduct in committing the offence which activates the statutory provision….
In R v Beissel Justice White was clearly of the opinion that if convictions are unrecorded, the conduct behind the convictions is hidden from licensing authorities:
The applications against recording of a conviction also seem to me to give an unwarranted benefit to the applicants which will have the effect of seeking to hide from the liquor licensing authority and the Department of Consumer Affairs which administers the Auctioneers and Agents Act conduct which really ought to be taken into account by them when considering the issuing of any such licences. These are matters which are properly within their discretion and I agree with the learned presiding Judge that this Court ought not to lend its authority to anything which would seek to hide conduct which ought to be before those bodies when making those sorts of decisions.
The effect of an order that a conviction not be recorded was also explored by the Court of Appeal in A-G v Briese [1997] QCA 10 where the Court noted:
The consequence is that when there is a non-recording of conviction, there is a prohibition upon entering the conviction into any records whatsoever (s. 12(3)(b)) other than the Court's own record and the offenders "criminal history". Further, as under s. 12(3)(a) the conviction "is taken not to be a conviction for any purpose", it would seem that an offender who declared, even in a statutory declaration, that he had no previous conviction, or expressly denied having been convicted of the relevant offence, could not later be charged with perjury. In short, although s. 12 lacks the detail of the Criminal Law (Rehabilitation of Offenders) Act 1986, it appears to have a similar effect to s. 8 of that Act which permits an offender, after the rehabilitation period, to deny ever having been convicted.
It is therefore obvious that the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments … For present purposes it is enough to note that the making of an order under s. 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.
Then, after referring to the comments made by McPherson J and White J in R v Beissel, that the effect of an unrecorded conviction may be to hide the matter from bodies such as licensing boards, the Court of Appeal appears to have accepted that that was the consequence but not on that basis to be avoided by sentencing courts:
Those observations should not be taken as laying down a rule that the court must not grant an offender the benefit of non-recording of a conviction whenever it is likely that the offender might come before such a board; it is a stricture to look at the matter carefully and to bear in mind the potential public harm that may result from the court's authorising concealment of the truth.[2]
[2]Thomas and White JJ.
The task set Judges and Magistrates is to determine the appropriate balance between on the one hand, giving an offender the benefit of not recording a conviction, and on the other, protection of the public in such matters as the licensing regimes. If licensing boards (including Weapons Licensing) were able to go behind the balance determined appropriate by a Judge or Magistrate in sentencing, it would set to nought their careful consideration of what is appropriate in the circumstances under the protective umbrella of s 12(3) of the Penalties and Sentences Act.
None of the authorities which raise the important issue of the tension between the interests of an offender and the right of people who may have future contact or dealings with the offender,[3] suggest that the circumstances of offences leading up to an unrecorded conviction is something separate from the conviction itself and may be relied on to avoid the broad intended effect of s 12(3).
[3]R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 [76].
None of the authorities suggest that an unrecorded conviction does not remove the offence concerned from the protective attention of licensing authorities who would otherwise be appropriately involved in assessing the offending behaviour, either on the basis the offender is not a person who is fit and proper to hold a licence or on the basis of the public interest.[4]
[4]At the time R v Beissel was decided the Auctioneers and Agents Act 1971 (repealed) provided for the exercise of disciplinary powers against licensed or registered individuals on one or more stated grounds. One was that the person had been convicted of an indictable offence making them unfit to be licensed or registered - s 91(a). Another separate ground was that a person was not a fit and proper person to hold a licence or certificate of registration - s 91(c).
In R v Gallagher; ex parte Attorney-General [1997] QCA 467 Justice McPherson pointed out:
… the word “conviction” is susceptible of more than one meaning: see Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257, 271-273; but, in the sense in which it is commonly used, it refers, at least in the case of conviction on indictment, to the court’s acceptance of the verdict or of the offender’s plea of guilty, rather than to the verdict or the plea itself.
I determine the word conviction used in s 12(3) Penalties and Sentences Act is to be given a broad interpretation to enable the purpose of that legislation to be achieved.
The learned Magistrate considered the offence appropriately dealt with by fine and considered Mr Grobler’s licences should not be affected by convictions. As stated in A-G v Briese, power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received.
I determine that neither the circumstances of Mr Grobler’s offending with respect to the possession of the capsicum spray, nor the circumstances of the other two weapons offences to which no convictions were recorded, fall for consideration in this examination as to whether he is a fit and proper person to hold a weapons licence.
I comment for completeness on a concession made on the part of Mr Grobler at hearing that the charges against Mr Grobler in the Magistrates Court at Mareeba might be available for consideration on the basis of criminal intelligence.
Apart from that proposition not being tenable given my finding about the effect of s 12(3) Penalties and Sentences Act, I note that in any case by s 18(7) of the Act concerning rejecting renewal of a licence on the basis of criminal intelligence and s 29(3) on similar basis, the criminal intelligence may only be acted on if the Commissioner or Deputy Commissioner, acting personally, approves that be done.
There is no evidence of any such approval having ever been given here. That is surely a threshold requirement for use of such information, both for the authorised officer of police determining the renewal or revocation, and too for the Tribunal.
Matters appropriately considered - fit and proper
The purpose of the Tribunal’s review jurisdiction is to review reviewable decisions and produce the correct and preferable decision. To that end the Tribunal conducts a fresh hearing on the merits,[5] meaning the Tribunal stands in the shoes of the decision maker but with the advantage of up-to-date facts.[6]
Moreover the tribunal must base its decision on the material before it. This means that it may overturn a decision, notwithstanding that on the basis of the material before the primary decision-maker, the earlier decision had been the correct decision. Conversely, it may uphold a decision, notwithstanding that the earlier decision had been wrong.[7]
[5]s 20 QCAT Act.
[6]Douglas & Jones’s Administrative Law, R Douglas et al, 2018, 8th Ed. page 249.
[7]Ibid page 251.
As stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
As to the range of material able to be considered:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; [8]
[8]Shi v Migration Agents Registration Authority [2008] HCA 31 [99] per Hayne and Heydon JJ.
In broad terms what I am required to determine in this review proceeding is whether Mr Grobler is a fit and proper person to hold a weapons licence.
I have addressed certain matters that do not fall for consideration. I turn to address those matters that do.
Storage of weapons
There have been a number of instances where Mr Grobler has erred in correctly storing weapons.
There was an incident in the first months of the dealership which opened in 2015 where a firearm was stolen by a customer leaning over the counter, opening a drawer to the display cabinet and removing a handgun.
After that Mr Grobler advised Weapons Licensing that all handguns had been removed from the display cabinet and a customised display cabinet was being constructed.
Then in 2018 an inspection of the dealership premises by Weapons Licensing found a box of ammunition stored in a display case together with five handguns. That was a breach of storage requirements.
At that same inspection the integrity of the storage racks for rifles used in the dealer premises was called in question by Weapons Licensing.
Mr Grobler’s explanation was that the box of ammunition had been put there by an inexperienced and newly engaged worker. The storage racks had shortly afterwards been made secure by adding additional fastener measures.
The abovementioned problems were accepted as remedied by Weapons Licensing at the time.
Weapons Licensing had opportunity to conduct an inspection of the dealer/armourer premises in late 2022. The report dated 7 September 2022 states that the storage measures adopted were all compliant with requirements. The paper register had been sighted and there were no issues identified. Six weapons had been audited in the inspection and all were located physically and correctly recorded in the weapons register.
The register errors
There were two aspects to Mr Grobler’s business, the dealership buying and selling weapons and ammunition to the public, and the armoury, repairing and maintain weapons.
Mr Grobler performed the armoury work and his wife assumed responsibility for the dealership and bookwork assisted by employed staff.
By s 71(2) a licensed dealer or armourer must immediately enter details of transactions involving a weapon in their weapons register. By s 71(3) they must notify Weapons Licensing in the approved form of each transaction involving a weapon within 14 days after the transaction happens.
Ms Lowe, a civilian Administration Officer attached to Weapons Licensing oversaw permits and firearm registration and dealership and armourer transaction documents. She gave evidence that Mr Grobler made many mistakes with what she described in a statement of evidence as administrative discrepancies.
She inspected the annual return lodged by Mr Grobler’s business on 18 May 2021 and found firearms incorrectly recorded as destroyed, returns signed by Mrs Grobler instead of Mr Grobler, a firearm identified as “in stock” when it had been previously disposed of and firearms not recorded, as required, in “safekeeping” status.
On 7 September 2021 she identified 7 administrative discrepancies for the financial year 2020/2021in respect of the dealer’s licence ranging from adding incorrect details on forms and incorrect or missing transaction notices to using the wrong forms.
On that same inspection date, in respect of that same period, she found 6 administrative discrepancies in respect of the armourer’s licence including disposal of a weapon to the incorrect licensee and incorrect licensee details, incorrect and incomplete forms, repairing unregistered firearms and returning an interstate weapon to the owner licensee licensed in another State but not Queensland.
Ms Lowe agreed with Counsel for Mr Grobler that Weapons Licensing often experienced long delay in processing the subject forms, the delay sometimes amounting to weeks or months, even up to 12 months. She had identified the errors mentioned above consequent on the initial revocation of the dealer and armourer licences. It was standard practice to finalise dealer records in this way where a licence was suspended or revoked, and Mr Grobler’s dealer and armourer licences had initially been revoked.
Ms Lowe also agreed however that many of the errors identified were commonly made by other dealers and armourers as well and there was nothing unusual about them, save some had potentially more serious adverse consequence than others.
In respect of other dealers, she said the number of mistakes made by Mr Grobler identified in the financial year 2020/2021 were more than was usual. She thought the usual number of mistakes by a dealer within such a timeframe might be perhaps three or four. Here she found seven.
Both Mr Grobler and Mrs Grobler had been charged over many administrative discrepancies leading up to the appearance in the Mareeba Magistrates Court on 29 January 2021. All save four concerned the failure to immediately enter particulars of a transaction into forms as required by s 71(2) of the Act.
However only two of the charges proceeded on the day, and then only against Mr Grobler. All others were withdrawn by the prosecution. All the charges against Mrs Grobler were withdrawn.
Whilst correct record keeping and timely advice of transactions is important, administrative discrepancies such as the use of white out to correct mistakes must be viewed in perspective.
The use of white out on some documents was specifically raised with Mr Grobler in cross-examination. Mrs Grobler deposed in a statement of evidence that white out had been used only 7 times in the course of completing more than 900 entries, and it was used she said, when used, by employed staff trying to keep the register looking neat. In those 7 instances names had been corrected and re-written rather than any notations concerning weapons.
Mrs Grobler also confirmed in her statement of evidence that it had been her practice to post Form 10 notices to Weapons Licensing in batches on the 15th and 30th of each month and she had done this for a long time, 7 years, without correction or complaint by Weapons Licensing. After the problem was brought to her attention she remitted Form 10s on the Monday of each week and has continued to do so.
Mrs Grobler challenged some of the claims about errors detected by Weapons Licensing.
Weapons Licensing claimed errors made in the completion of Form 10s detailing the disposal of a weapon, by failing to note the corresponding Form 10 completed when the weapon was received. Mrs Grobler pointed out there was nowhere on a Form 10 for that notation. She said Weapons Licensing had advised her to write the number in the column marked “Barrel length” instead. It is difficult to understand how there is an error made completing a form where there is no provision made for the information concerned to be noted on the form. Further, it is not readily apparent how the failure to write a number in a column not identified as relevant for the notation can ever be entirely correct.
There is also an error claimed to be identified by Weapons Licensing with completion of Form 10 number 503982. The form details both a weapon’s receipt into the dealership and its disposal by the dealership. Ms Lowe says there should have been two Form 10s, one for acquisition and one for disposal.
Mrs Grobler has put in evidence a Newsletter from Weapons Licensing approving the use of only one Form 10 to record circumstances where a weapon is acquired and destroyed on the same day. She says that was the circumstance of the transactions concerning Form 10 number 503982.
Similar complaint is made by Weapons Licensing about another Form 10, number 459549 and similar response is given by Mrs Grobler.
Then there is Form 10 number 499219, which Weapons Licensing says bears the wrong acquisition number. Mrs Grobler says the correct number is written on the form, but Weapons Licensing has misread the hand writing.
None of Mrs Grobler’s responses about the errors not being errors was challenged at hearing.
The destroyed firearm
The police searched Mr Grobler’s home and business premises pursuant to search warrant after a firearm which he had noted in the register as destroyed had been found intact and seized from a third party.
Police believed he had not told the truth about destroying the weapon. At his workshop he was able to locate the cut through receiver of the rifle concerned with its identification number. Police seized his letter and number punches and conducted a forensic examination which Mr Grobler said showed the number on the receiver had not been stamped using his letter and number punches.
The farmer who had owned the weapon and handed it in to Mr Grobler had pleaded guilty to certain offences, presumably with respect to the disposal of the original intact weapon, provided correspondence to police and been subpoenaed to appear in the Mareeba Magistrates Court on 29 January 2021. In a letter from that person’s solicitor to police at the time it was stated that the person’s evidence would be that a third party was involved in the affair and that Mr Grobler was “an honest and innocent party to the events”.
I accept that Mr Grobler acted without artifice and destroyed the weapon he was given, which weapon bore the serial number he had recorded in the register. Howsoever that serial number came to be stamped on that weapon, I accept Mr Grobler played no part in any subterfuge associated with it.
Conclusions
As stated by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[9]
[9][63].
Weapons Licensing point to the comments made in Commissioner of Police v Joseph [2016] NSWCATAP 124 concerning a dealer’s licence to the effect a dealer must carry out his or her responsibilities scrupulously and observe the manifold business requirements to which they are subject, given they are the only lawful conduit for the passage of weapons to ordinary members of the community.
That matter involved an application by Mr Joseph for a dealer’s licence. The licence was rejected on the grounds he was not a fit and proper person.
The Tribunal found he had been involved in dishonest activities concerning use of a bank card, purchasing commercial quantities of items when it was clear the card was malfunctioning and the account was out of funds.
There were other negative factors against him as well: he was involved in threats of significant violence with risk extending to members of the public; he made numerous applications for pistol permits with a view to accumulating a cache of .22 pistols predating his dealer’s application; police were called to his flat to find him tied up and he claimed the .22 pistols had been stolen; the pistols had been obtained from a person responsible for multiple breaches of the Weapons Act (NSW); he had provided false and misleading information in respect of the reason for acquiring the pistols; he had acquired the pistols to build up a supply of firearms in anticipation of opening his own business, not for the purpose of personal target shooting as claimed.
In Joseph the Tribunal also said:
In our view, and as reflected in the detail of the firearms law, the public has a high interest in ensuring that firearms dealers licences only be granted to persons in whom trust and confidence can be placed in relation to a range of matters. Those matters include: their business competence, their ability to implement complex standards in relation to such matters as security of weapons, recordkeeping and reporting to authorities, and their capacity, where necessary, to deal appropriately and confidentially with those authorities, in particular the police.[10]
[10][54].
The Tribunal in Joseph was not concerned with administrative discrepancies in register documents and the use of white out.
Mr Grobler and his wife have demonstrated good business competence. They bought their business in 2015 when the previous owners had closed the doors and not traded for 8 months prior to sale. Starting with just Mr and Mrs Grobler the business has grown to the point where they currently employ 10 staff.
They did make mistakes with record keeping, but I accept none were intentional. It is not clear whether their business enterprise is larger than other dealer/armourer businesses and they therefore face more paperwork than others.
Ms Lowe said at hearing that the administrative discrepancies made by Mr Grobler were commonly made by other dealers and armourers as well and there was nothing unusual about them. She said she had identified more mistakes than usual in the financial year 2020/2021, but one might reasonably conclude that the reason why more mistakes were identified was because a magnifying lens had been brought to bear on the documents concerned following Mr Grobler’s licences being revoked.
It is also submitted that the case of Garland v Commissioner of Police [2020] NSWCATAD 210 closely mirrors the matter at hand.
There the dealer had been charged with 350 separate offences. Some were withdrawn at hearing some charges amalgamated and seven proven but dismissed without conviction. The dealer entered into a six month good behaviour bond. His dealer’s licence was revoked by NSW Weapons Licensing on that basis
Many charges related to missing firearms and not keeping firearms safely stored. When police conducted an audit of Mr Garland’s business premises it revealed 78 “missing” firearms lost and as at date of decision none had been located. The register details of the missing weapons and others were described as virtually non-existent.
Garland does not closely mirror the matter at hand. There are no missing firearms in Mr Grobler’s case. In Garland the Member said she could not be confident that Mr Garland would comply with the firearms legislation in the future. I do not draw the same conclusion with respect to Mr Grobler.
The primary ongoing concern, I determine, with respect to Mr Grobler running his dealership and armoury, is attention to detail in keeping his weapons register and compliance with the time requirements of submission of forms.
There is evidence that Mr Grobler has invested significant funds purchasing a computerised software program to assist compliance with bookkeeping requirements and minimise the possibility of clerical error by employees such as have been the subject of complaint to date.
Whether that program would assist to obviate errors is a matter for Weapons Licensing. Mr Grobler has applied to Weapons Licensing for approval to use a computerised register. Its use might appropriately be a condition added to the dealer and armourer licences.
I am satisfied that Mr Grobler is a fit and proper person to be granted a weapons licence, including a dealer and armourer’s licence.
The revocation of the personal firearm licence and the refusal to renew the dealer and armourer licences should not stand and are therefore set aside.
His firearm licence should be renewed as too his dealer and armourer licence.
I note the undertaking of Weapons Licensing to comply with and put into effect the decision of the Tribunal.
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