McVie v Queensland Police Service Weapons Licensing Branch
[2010] QCAT 491
•8 October 2010
| CITATION: | McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491 |
| PARTIES: | Mr Gavin McVie |
| v | |
| Queensland Police Service Weapons Licensing Branch |
| APPLICATION NUMBER: | GAR264-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 4 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver – Senior Member |
| DELIVERED ON: | 8 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for review is dismissed |
| CATCHWORDS : | Refusal to issue a firearms license and a collectors license (Heirloom); whether the Applicant a fit and proper person having regard to extensive driving history; and history of minor offences |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Gavin McVie appeared in person |
| RESPONDENT: | Queensland Police Service Weapons Licensing Branch was represented by Senior Sergeant Cavanagh |
REASONS FOR DECISION
Mr McVie applied for a firearms license pursuant to section 13 of the Weapons Act on 4 March 2010. The application identifies his genuine reason as being sports or target shooting, and collector (heirloom).
In schedule 8 of his application, he answered “yes” to the question of whether he had been charged with any offences but had limited that to driving offences. In providing proof of his current residential address, he included a letter from the Child Support Agency indicating, as of 25 January 2010, he was currently in arrears with Child Support payments of $8,770.95.
He produced a statement of attainment and a proof of age card to comply with the requirements of the Act for the purposes of the particular firearms license for which he was applying.
In undertaking its investigations as to whether or not a firearms license should issue, the respondent obtained a copy of his history which identified that between 1997 and 2008, he had been charged with and convicted of some minor offences. The most recent offence was possession of a dangerous drug and utensils in the Redcliffe Magistrates Court on 3 March 2008. For this offence, no conviction was recorded and he was discharged on a good behaviour bond.
The respondent also obtained a copy of his traffic record. The traffic record shows that between 1988 and February 2008 Mr McVie has been charged with numerous traffic offences which include, not only speeding offences, but repeated offences for driving a motor vehicle whilst disqualified. His license had been cancelled for excess demerit points in 1994 and 1999 and in January 2005 he was disqualified for a period of three (3) months. In February 2005 he was then further disqualified for two (2) years for driving whilst disqualified. These offences were repeated in August 2005 and in September 2005. He had more driving offences a on the reinstatement of his license and then in August 2007 he was again disqualified for a period of 42 months. Despite that disqualification, he was again convicted and fined in February 2008 for disqualified driving with further disqualification until July 2011.
On the basis of this history, and also to a lesser extend Mr McVie’s failure to comply with his obligation to pay child support, the decision maker of the respondent determined that Mr McVie was not a fit and proper person within the meaning of section 10 of the Weapons Act, and it would not be in the public interest for him to be issued with a firearms license.
The applicant was notified of that decision in writing on 6 May 2010 and sought a review of that decision in the Tribunal.
In his application for review, Mr McVie makes reference to his history stating that all of his offences were as a juvenile except for traffic infringements. This is not the case, but it would be improper to take into account convictions as a juvenile. There are offences committed by Mr McVie when he was an adult.
The reasons given for applying for a license was to assist his partner in having some old black powder pistols put onto his license and also to train his children in the handling of firearms at a sporting shooters facility.
10. During the hearing of his application, Mr McVie told the Tribunal that he had reduced his outstanding child support payments by about $5,000 and of his accumulated traffic fines of approximately $9,000 he has paid about $5,000.
11. He gave an explanation as to his traffic history stating that he was required to drive because of his need to get to work but now has organised car pooling so that he can have transportation to his place of work.
12. He made submissions that he is conscious of his past history and now realises that he must comply with the traffic regulations and will not offend again. He is also conscious of his responsibilities, if a license was given to him, under the Weapons Act.
13. The respondent relies on the past traffic history, and to a lesser extent his drug convictions to urge the Tribunal that Mr McVie’s demonstrated disregard for his responsibilities as a law abiding citizen does not render him a fit and proper person to hold a weapons license. Furthermore, again having regard to his history, it would not be in the public interest for him to hold a license.
14. Weapons possession and use is subordinate to the need to ensure public and individual safety[1] the object of the Weapons Act is achieved by the implementation of strict requirements that must be satisfied for the issuing of licenses authorising the possession of firearms and for the acquisition and sale of firearms[2]. The strict requirements are achieved by imposing limitations on persons who can hold a license and section 10 provides that a license may be issued to a person if the person:-
(e) is a fit and proper person to hold a license and
(f) has a reason mentioned in section 11 to possess the weapon or category of weapons; and
(g) resides only in Queensland
[1] Section 3 of the Weapons Act
[2] Section 4(d)
15. To give some indication as to who is a fit and proper person, guidance is obtained from section 10B of the Act which sets out categories of persons who are deemed not to be a fit and proper person to hold a license. In particular, subsection (2) provides that any person who has been convicted of an offence relating to the misuse of drugs is not a fit and proper person.
16. Here, Mr McVie has not been convicted of misuse of drugs but he has certainly been charged with such an offence but no conviction was recorded. But in determining whether or not Mr McVie is a fit and proper person one simply can not ignore his flagrant breaches of the traffic regulations.
17. In exercising the review jurisdiction under the QCAT Act[3] the Tribunal must review the decision in accordance with this Act and the enabling Act, being the Weapons Act and has all the functions of the decision maker for the reviewable decision being reviewed.
[3] Section 19
18. Section 20 provides:-
“(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision;
The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”
19. The reference to “correct and preferable decision” has been taken to mean “correct or preferable decision”[4].
[4] Queensland Building Services Authority v Meredith (2010) QCATA 050
20. 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.
21. This conduct, coupled with recent drug offences, but to lesser extent, can only lead, in my view, to a conclusion that he is not a fit and proper person having regard to the objects of the Weapons Act. The drug offences, nor the failure to pay child support, of themselves would be sufficient to support this conclusion.
22. I see no reason to deviate from the decision made at first instance by the respondent and therefore, the application is dismissed.
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