Peacock v Queensland Police Service Weapons Licensing Branch
[2012] QCAT 268
•28 June 2012
| CITATION: | Peacock v Queensland Police Service Weapons Licensing Branch [2012] QCAT 268 |
| PARTIES: | Casey William Peacock |
| v | |
| Queensland Police Service Weapons Licensing Branch |
| APPLICATION NUMBER: | GAR062-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 13 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 28 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision under review is confirmed. |
| CATCHWORDS: | Suspension of firearms licence – offence involving use or threatened use of violence Weapons Act 1990 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Peacock was represented by Mr Geeves of Counsel instructed by Anderson Telford Lawyers |
| RESPONDENT: | Queensland Police Service Weapons Licensing branch was represented by Senior Sergeant Cavanagh |
REASONS FOR DECISION
Mr Peacock received a suspension notice on 28 January 2012 in regard to his firearms licence number 10066381. Mr Peacock has made application for a review of that decision.
An authorised officer may suspend a firearms licence if they are satisfied that the licensee has been charged with an offence involving the use or threatened use of violence[1] or considers, on reasonable grounds that the licensee may no longer be a fit and proper person to hold a licence[2].
[1] Subsection 28(1)(a)(i)(B) of the Weapons Act 1990.
[2] Subsection 28(1)(b) of the Weapons Act 1990.
The statement of reasons[3] provided to Mr Peacock by the decision-maker noted that information had been received that Mr Peacock had been charged with a number of assault offences and that assault is an offence that involved the use or threatened use of violence.
[3]Part C Reasons included in the Information Notice Accompanying the Form 7 Suspension notice dated 28 January 2012.
The decision-maker filed an affidavit which exhibited all of the material that was taken into consideration when making the decision to suspend Mr Peacocks licence[4]. This included various weapons licence applications, both criminal and traffic histories and printouts from the Queensland Police Service computer system. Mr Geeves raised objection to some of this material due to it being considered irrelevant to determining the application and some of it related to periods when Mr Peacock was a minor and some to charges which were not proceeded with. Senior Sergeant Cavanagh submitted that the material went to the crux of the whether it was in the public interest for Mr Peacock to hold a licence and that the criminal and traffic history showed that Mr Peacock had a propensity to commit offences relating to alcohol. He noted that the Tribunal has previously accepted the relevance of material such as criminal and traffic history[5].
[4] Exhibit 1 Affidavit of Senior Sergeant A T Cavanagh sworn 21 March 2012.
[5]McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT at para 8.
One of the grounds for review raised for Mr Peacock was that the decision-maker had not taken relevant factors into account specifically his mental and physical fitness[6] in determining whether he was a fit and proper person to hold a weapons licence. In that regard it was stated that Mr Peacock engages in an occupation as a kangaroo harvester and has done so for a number of years and that Mr Peacock has not been afforded the opportunity of the decision-maker to consider that he has successfully continued in that profession for a number of years.
[6] Section 10B(1)(a) of the Weapons Act 1990.
A further ground for the review was that the statement of reasons provided by the decision-maker did not adequately particularise the offences which Mr Peacock had been charged with.
When exercising its review jurisdiction the Tribunal steps into the shoes of the decision-maker and must decide the review in accordance with the enabling Act and has all the functions of the decision-maker[7]. The purpose of the review is produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits[8]. The decision-maker is required to help the Tribunal to make its decision including providing a written statement of reasons for the decision[9]. The Tribunal may confirm or amend the decision; set aside the decision and substitute a new one or return the decision for reconsideration to the decision-maker[10].
[7] Section 19 of the Queensland Civil and Administrative Tribunal Act 2009.
[8] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009.
[9] Section 21 of the Queensland Civil and Administrative Tribunal Act 2009.
[10] Section 24 of the Queensland Civil and Administrative Tribunal Act 2009.
This is therefore not an appeal of the decision and there is no requirement to find an error in the decision. The Tribunal is also not limited to the material before the decision-maker both parties any provide material to the Tribunal. The Tribunal notes in this case that there were no statements provided in support of Mr Peacock’s application and Mr Peacock did not give any oral evidence at the hearing.
In terms of the material the Tribunal may have regard to it is clear that Tribunal may have regard to criminal intelligence or other information which the authorised officer has access to that indicates Mr Peacock is a risk to public safety or authorising him to possess a licence would be contrary to the public interest[11]. The material which has been filed by the decision-maker clearly goes to these questions as submitted by Senior Sergeant Cavanagh. The Tribunal notes though that some of the material relates to a period when Mr Peacock was a minor and accepts Mr Geeves’ objection that it is inappropriate that this material be relied on in accordance with previous Tribunal decisions[12]. The Tribunal will not consider any material in regard to Mr Peacock’s criminal or traffic history during the period when he was a minor, which is up to the year 2004.
[11] Section 10B(1)(ca) of the Weapons Act 1990.
[12]McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491 at para 8.
[10] As this is not an appeal but a review Mr Peacock was able to provide material as to his physical and mental fitness and the Tribunal will have regard to the submissions made by Mr Geeves that Mr Peacock has held his macropod harvester licence for a period of years.
[11] While the decision-maker must provide a written statement of reasons to the material it has been the Tribunal’s practice to accept the reasons which are attached to the decision notice as the statement of reasons and these were filed by Mr Peacock with his application. The Tribunal directed the respondent to provide a copy of all of the material relied on by the decision-maker and that was done as mentioned above. Mr Peacock was then directed to respond to the statement of reasons. The Tribunal received a set of submissions from Mr Peacock in response to the material filed by the decision-maker which the Tribunal has considered.
[12] The Tribunal accepts that the decision-maker has complied with their obligations under section 21 of the QCAT Act. As to the question of the charges not being adequately particularised in the statement of reasons the tribunal notes that Mr Peacock’s application fully particularises the charges and so he was aware of them.
[13] Mr Peacock’s application for review identified the offences with which he had been charged as follows:
a)Create a disturbance in premises to which a licence or permit relates 26 January 2012; and
b)Common Assault 26 January 2012.
[14] The application also provided full particulars of the offences. The first involved Mr Peacock at a time allegedly throwing punches at another patron of a club at a time when he was acknowledged to have been drinking. The second involved Mr Peacock allegedly punching a person as the alleged victim alighted from a taxi. Both parties agreed at the hearing that the offences were properly particularised as above.
[15] The Tribunal then in accordance with section 28 of the Act has a discretion to suspend Mr Peacock’s firearms licence in accordance with subsection 28(1)(a)(B) of the Act.
[16] The Tribunal is bound to exercise that discretion reasonably and in accordance with the principles and objects of the Act. The principles of the Act are that weapon’s possession and use are subordinate to the need to ensure public and individual safety which is improved by imposing strict controls on the possession of weapons and requiring the safe storage of weapons[13]. The object of the Act is to prevent the misuse of weapons[14]. The objects of the Act are to relevantly be achieved by establishing an integrated licensing and registration scheme for all firearms and providing strict requirements that must be satisfied for licences authorising possession of firearms[15].
[13] Section 3(1)(a) of the Weapons Act 1990.
[14] Section 3 (2) of the Weapons Act 1990.
[15] Section 4(b) and (d)(i) of the Weapons Act 1990.
[17] Part of those requirements is that a licence may be issued to an individual only if they are a fit and proper person to hold a licence[16]. A person is not a fit and proper person if amongst other things they have been convicted of an offence involving the use or threatened use of violence[17]. Hence the discretion to suspend a firearms licence if someone is charged with such an offence.
[16] Section 10(2)(e) of the Weapons Act 1990.
[17] Section 10B(2)(a)(ii) of the Weapons Act 1990.
[18] The respondent submits that having regard to Mr Peacock’s criminal and traffic history the discretion should be exercised against him. This history limited to the period when he was an adult shows that Mr Peacock has been charged with 7 offences as an adult including one for assault and the majority of these offences were associated with his consumption of alcohol. The most recent offence prior to the current ones involved according to the court brief an altercation in a public place at a time when Mr Peacock was moderately affected by alcohol.
[19] Mr Peacock’s traffic history shows that he committed 8 traffic offences as an adult including a conviction for driving under the influence for which he was disqualified from driving for 5 months. There was also a demerit suspension of 3 months and an accumulation of 13 demerit points.
[20] On behalf of Mr Peacock it was submitted that it was not in Mr Peacock’s nature to commit an offence involving the use or threatened use of violence. That the alleged offences occurred on the same day in the early hours of the morning of 26 January after having consumed a large quantity of alcohol. Mr Peacock does not have a serious criminal history which may suggest a pattern of offending or escalating behaviour. That the alleged offences do not involve any allegation that Mr Peacock used or threatened to use the weapon subject to the licence. Mr Peacock has not been previously subject to a review by the Respondent. And he possessed the firearms subject to the firearms licence for the sole purpose of his occupational requirements, kangaroo harvesting.
[21] In terms of Mr Peacock’s interests it was submitted that his sole source of income was from the exercise of his profession as a macropod harvester. That he has limited ability to obtain alternative paid employment and he has a mortgage and a daughter to support.
[22] The Tribunal notes that there were no statements provided in support of Mr Peacock’s character nor did he supply a statement or give any evidence in support of his application.
[23] The Tribunal is satisfied based on the material submitted by the respondent that Mr Peacock has previously been charged with offences involving violence, assault charges and has a history of alcohol related altercations. There is no requirement that the offending behaviour relates to the use of Mr Peacock’s weapon it is a strict regime and a conviction for assault will mean that he is no longer a fit and proper person to hold a licence. Mr Peacock’s history as a private individual weighs against him and while there have been submissions that he has undertaken his occupation without incident his criminal and traffic history show that he has a propensity to disregard his obligations under the law.
[24] While Mr Peacock may not have previously been subject to a review of his licence the material provided by the Respondent shows that on his last licence renewal it was noted that he had been charged with an assault in 2005 for which he had been fined but with no conviction recorded. If a conviction had been recorded at that time Mr Peacock’s licence would not have been renewed.
[25] Mr Peacock’s occupation as a macropod harvester requires that he have a firearms licence and that then means that he must comply with the Weapons Act 1990. While the suspension of his licence will may adversely affect him his interests are subordinate to the interests of the public. The use of weapons is strictly controlled and where there is any perceived threat to pubic or individual safety then the public interest will prevail over that of the individual[18].
[18] Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149.
[26] In this case Mr Peacock’s criminal and traffic history shows that his behaviour has previously posed a threat to public safety and that the discretion should be exercised to suspend his firearms licence.
[27] While the original decision was based on being charged with an offence involving the use or threatened use of violence and also that Mr Peacock may no longer be a fit and proper person there is no requirement for both grounds to be made out.
[28] The decision to suspend Mr Peacock’s firearms licence is confirmed and the discretion to suspend Mr Peacock’s firearms licence is exercised on the ground that he has been charged with an offence involving the use or threatened use of violence.
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