Kirton v Queensland Police Service Weapons Licencing Branch
[2012] QCAT 70
•17 February 2012
| CITATION: | Kirton v Queensland Police Service Weapons Licencing Branch [2012] QCAT 70 |
| PARTIES: | Andrew Damien Kirton (Applicant) |
| v | |
| Queensland Police Service Weapons Licencing Branch (Respondent) |
| APPLICATION NUMBER: | GAR167-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 7 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | William LeMass, Member |
| DELIVERED ON: | 17 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for review is dismissed. |
| CATCHWORDS: | Offences – suspension notice – show cause – revoke licence – fit and proper person – analogous licencing regime – breach of other laws Weapons Act 1990 McVie v QPSLL [2010] QCAT 491 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Andrew Damien Kirton was represented by Mr Cooper, Solicitor |
| RESPONDENT: | Queensland Police Service Weapons Licencing Branch was represented by Senior Sergeant Hazenberg |
REASONS FOR DECISION
The applicant was issued with a firearms licence on the 8 March 2007.
On the 20 December 2009 the applicant discharged a weapon in a public place and was charged with offences flowing from that act. As a result of these charges the applicant’s licence was suspended on 6 April 2010.
On 21 May 2010 in the Innisfail Magistrates Court the applicant pleaded guilty to the charges. The Magistrate did not, as part of the sentence, disqualify the applicant from holding a firearms licence[1] but warned of the likely further involvement of the licencing authorities.[2]
[1] Section 155 Weapons Act 1990.
[2] At pg 4 (50) transcript.
On 24 November 2010 the applicant requested that the suspension be removed and as a result the respondent issued a show cause notice as to why the licence should not be revoked.
The respondent made a decision on 12 May 2011 to revoke the applicant’s licence and served a Form 7 and reasons.[3] The applicant seeks to review this decision.
[3] Exhibit 34 and 35 to the affidavit of Hazenberg.
The Tribunal stands in the stead of the original decision maker for the purpose of this review:
(a) “The purpose is to provide the correct and preferable decision”.
(b) “… by way of fresh hearing on the merits”. [4]
[4] Queensland Civil and Administrative Tribunal Act2009, s 20(1).
Legislative framework
Any consideration of the evidence in this matter should be framed by the relative legislative provisions particularly as they are made succinct by the Weapons Act 1990 (the Act).
3 Principles and object of Act
(1) The principles underlying this Act are as follows—
(a) weapon possession and use are subordinate to the need to ensure public and individual safety;
(b) public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
(2) The object of this Act is to prevent the misuse of weapons.
Section 10
(2)(e) a licence may be issued to an individual only if a person is a fit and proper person to hold a licence.
Automatic disqualification
Section 10B(2) a person is not a fit and proper person if in the last five years they have been convicted of a drug offence[5] or a violent offence[6] of an offence relating to a weapon[7].
[5] Section 10B(2)(i).
[6] Section 10B(2)(ii).
[7] Section 10B(2)(iii).
The applicant does not contravene any of the above automatic disqualification sections because despite having some history for all three they were either proceeded by way of no evidence offered by police, are outside the period and with respect to the drug and weapon offences no conviction was recorded.
The evidence
The applicant presented well at hearing, his evidence was given in a forthright manner. Whilst he had attempted to lie to police during the investigation in order to escape prosecution there was no hint of this to be found in his answers to questions. He was well assisted by his solicitor in presenting his case in a clear and logical manner.
The applicant left school before completing grade 12 and to his credit has never been unemployed save for immediately after a cyclone. He worked on a trawler and then in bananas until the crop was decimated and later purchased and operates his own mowing business.
He does not need or use his firearms licence in his business. He is a recreational hunter of the pest feral pig. He utilises hunting dogs. Since his suspension he continues to hunt with his dogs but relies only on a knife.
To summarise the respondent’s case it is, that upon a full consideration of the applicant’s criminal and traffic history he is not a fit and proper person under the Act. The respondent submits that significant weight should be attached to:
(a)An assault charge made upon the applicant on 23 September 2001;
(b)A disorderly conduct charge concerning a fight involving the applicant on 7 February 2004;
(c)A drug possession offence of the 29 October 2005 which was referred to the Drug Diversion Court.
[14] I place little, if any, weight upon these matters for consideration of the applicant as a fit and proper person. As submitted by his solicitor, all these facts were known when the applicant was issued with his original licence.
[15] The respondent also submits that weight should be given to charges made against the applicant with respect to assault occasioning bodily harm arising out of incidents on New Year’s Eve and charges made on 10 June 2010.
[16] This is not a matter which was proceeded with and no evidence was offered. The respondent submits that the only reason the matter did not proceed was because witnesses were unwilling to appear, inter-state and were unwilling to travel and that otherwise it is likely that the applicant would have been convicted of these offences.
[17] The applicant was not so convicted, no evidence was offered and I place no weight at all upon these circumstances in assessing the applicant as a fit and proper person.
[18] There remains to be considered those matters which are categorised as both sufficient and relevant for consideration under the Act for the purposes of assessment of a person as fit and proper. These circumstances are as follows:
(a)The principle weapons offences of 20 December 2009. The applicant discharged a firearm in a public place, namely a National park near the entrance to walking traffic, near a public road and sufficiently close to private housing for the occupants to be worried. The firearm was discharged on a number of occasions, the nearby occupants of homes were actually frightened and called police, and police arrived. In evidence the applicant concedes he knew the area was public, knew the discharge of a firearm constituted an offence and did himself no favours in attempting to evade prosecution by lying.
He did this because his hunting dogs had been unleased when he saw a pig on the road. They chased the pig into the National park and became lost. The applicant discharged a firearm because that is a signal he uses for his dogs to return to him if they are unable to be found in thick scrub.
This was a thoughtless error of judgment on the part of the applicant. The potential danger to unseen members of the public far outweighs any concern for the finding of lost dogs. However it was conceded at hearing that this alone would not be grounds for revocation of a licence.
(b)The applicant’s driving history is, to say the least, very poor. It is contained in exhibit 13 to the affidavit of Senior Sergeant Hazenberg and summarised at paragraphs 42-51 of that affidavit. Relevantly he has had:
§three disqualifications;
§two suspended conditional licences (demerit points);
§four alcohol related driving offences;
§incurred fines of $5,419, $1,679 of which were incurred after the issue of his firearms licence; and
§$1,279 of those incurred after his firearms licence was suspended on 6 April 2010. Specifically these last offences are as follows:
· 16/04/10 – Speeding;
· 16/04/10 – Drinking liquor while driving;
· 2/05/10 – Warning letter issued;
· 12/10/10 – Faded unreadable plate;
· 21/10/10 – Speeding in excess of 20 Km over the speed limit;
· 14/02/11 – Use of mobile phone while driving;
· 04/03/11 – Speeding;
· 14/04/11 – Unsafe load.
As a result of the above the applicant opted for, and is currently, driving under conditional licence conditions for his employment.
It was submitted by the applicant that the traffic history, post suspension of licence in opening of the applicant’s case was “of little impact” upon the exercise of a discretion and in summing up Mr Cooper described the driving history as minor matters, not requiring any Court appearances and indicative of, improving behaviour.
[19] The interpretation of the law on this subject is settled in this jurisdiction and I need not refer to any higher or other jurisdiction including the cases referred to me at hearing.
[20] Adjudicator Bertlesen in the matter of Bannon:
“It is well established on the authorities that irresponsible, uncontrolled, antisocial or behaviour constituting a risk to public safety does not have to be limited to the subject matter of, in this case, the renewal application. Such behaviour exhibited in other areas of an Applicant’s interaction with those about him or her may determine whether that person is a fit and proper person to hold the licence applied for.”[8]
[8] Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634.
[21] Further consideration of an analogous licencing regime was made by Senior Member Oliver in McVie v QPSWLB.[9]
“When considering this application afresh that is, standing in the shoes of the decision maker, one cannot ignore Mr McVie’s disregard of his obligations under the traffic regulations. He is now 38 years of age and these breaches have continued over a period of some 15 years at a time when, as an adult, Mr McVie should have shown more responsibility in his attitude both to the system of law and order in the community and other road uses.”
[9] [2010] QCAT 491.
[22] The relevant and continued traffic offences committed by the applicant subsequent to the suspension of his firearms licence shows a degree of irresponsibility and antisocial conduct sufficient to imply that such conduct could extend to his conduct as the holder of a firearms licence.
[23] I am satisfied that I am bound by the precedent QCAT decisions with respect to the contravention of an analogous licencing regime and that indeed this applicant has offended against that licencing regime sufficient for me to accept that the respondent’s discretion with respect to the assessment of the applicant as not being a fit and proper person was a correct exercise of that discretion and that the decision should stand.
[24] I note the statements made by Senior Sergeant Hazenberg for the respondent as is at hearing that absent further traffic or other offences in the next twelve months the applicant would be considered favourably for reinstatement of his licence at that time.
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