Schrodter v Queensland Police Service Weapons Licensing Branch
[2010] QCAT 230
•26 May 2010
| CITATION: | Schrodter v Queensland Police Service Weapons Licensing Branch [2010] QCAT 230 |
| PARTIES: | Geoffrey Clarence Schrodter |
| v | |
| Queensland Police Service Weapons Licensing Branch |
| APPLICATION NUMBER: | GAR031-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 26 May 2010 |
| HEARD AT: | BRISBANE |
| DECISION OF: | R Oliver |
| DELIVERED ON: | 26 May 2010 |
| DELIVERED AT: | BRISBANE |
| ORDERS MADE: | 1. The application is allowed. 2. The Applicant’s firearms licence be reinstated but limited to occupational requirements for rural purposes pursuant to section 119(c) of the Weapons Act. |
| CATCHWORDS : | Review application under the Weapons Act 1990; whether fit and proper person to hold the license; section 10B considered, applicant pleaded guilty to drug offences, no conviction recorded; whether in the public interest |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Geoffrey Clarence Schrodter represented by Mr Menolotto of Counsel instructed by Towns-Wilson Lawyers |
| RESPONDENT: | Queensland Police Service Weapons Licensing Branch represented by Sergeant Turner |
REASONS FOR DECISION
Introduction
The Applicant was the holder of firearms license number 15333393-03 which license issued to him in February 1992. The license authorised the Applicant to have possession and use registered category A and B weapons in the conduct of business or employment on rural lands, for the purpose of recreational shooting on rural land and for the purposes of sports or target shooting at an approved range.
The license was subsequently renewed in the normal course the last renewal being on 12 March 2009 with an expiry date of 20 January 2015.
In April 2008 the Applicant was charged with the following drug offences:
a)Producing dangerous drugs scheduled to quantity of or exceeding schedule 3;
b)Possessing dangerous drugs schedule 2 quantity of or exceeding schedule 3;
c)Supplying dangerous drugs schedule 2;
d)Permitting use of place
On 3 April 2009 the Applicant pleaded guilty in the Supreme Court of Queensland to four (4) counts under the Drugs Misuse Act and was fined $1,500 with no conviction being recorded.
As a consequence of the Applicant pleading guilty and being fined the Respondent considered whether or not the Applicant was a fit and proper person to hold a weapons license. The decision maker, Acting Inspector Jones, having concluded that he was not, issued a Revocation Notice on 26 June 2009.
On 20 October 2009 the Applicant filed an appeal pursuant to section 142(3) of the Weapons Act in the Magistrates Court at Caboolture which application was then transferred to the Queensland Civil and Administrative Tribunal.
Section 142 of the Act makes a provision for a person aggrieved by a decision made to seek a review of that decision in this Tribunal. Section 142 is in the following terms:
142 Right to apply for review of decisions
(1) This section applies to the following decisions—
(a) a decision refusing an application for a licence, permit, approval or other authority under this Act;
(b) a decision refusing to accept the nomination of a person by an applicant for a shooting club permit;
(c) a decision refusing to accept a representative notice under section 92;
(d) a decision imposing or amending a condition applying to a licence, permit, approval or other authority under this Act;
(e) a decision revoking or suspending a licence, permit, approval or other authority under this Act.
(2) A person aggrieved by the decision may apply, as provided
under the QCAT Act, to QCAT for a review of the decision.
Then, pursuant to the QCAT Act, that review jurisdiction is exercised in accordance with section 18.
In exercising the review jurisdiction the Tribunal must decide the review in accordance with the provisions of the QCAT Act and the enabling Act which, here, is the Weapons Act.
10. Section 20 of the QCAT Act provides that the review will involve a fresh hearing on the merits of the case:
20 Review involves fresh hearing
(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(2) The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
11. The basis of the Respondent’s decision is set out in a comprehensive affidavit filed by Acting Inspector Jones of the Weapons Licensing Branch. The affidavit sets out, in particular detail, the provisions of the Act relied upon, and the history associated with his decision to revoke the license. Essentially the Respondent, through its authorised officer, came to the conclusion on the facts known to him that the Applicant was not a fit and proper person to hold a Weapons License by reason of the charges for which he was fined under the Drugs Misuse Act.
12. In considering whether or not the Applicant is a fit and proper person, the Respondent had regard to section 10B of the Act which provides:
10B Fit and proper person—licensees
(1) In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things—
…
(d) the public interest.
Public Interest
13. In determining that the Applicant was not a fit and proper person the Respondent had regard to the principles and logic of the Weapons Act which is to ensure public and individual safety with strict controls on the possession of weapons and safe and secure storage of weapons. The objects are achieved by the licensing system implemented under the Act to prohibit certain firearms and ensuring that a licensee holder has a genuine reason for possessing a firearm.
14. In considering public interest and the discretion involved in making a decision, here to revoke the license, the discretion should be exercised in a way that promotes the principles and objects of the Act.
15. The Respondent has relied on a number of decisions which includes the Director of Public Prosecutions v Smith[1] where it was held that the public interests embraced matters, among others, of standards of human conduct and of the function of government and government’s accepted and acknowledged standards to be for the good order of society as against the wellbeing of its members. The interest is therefore the interests of the public as distinct from the interests of individuals. This is undoubtedly correct and for the purpose of this decision it is adopted.
[1] (1991) 1V.R. 51 at 63
16. Having said that, the Applicant must have exhibited some conduct which would not be in the public interest to prevent him from holding a weapons license. Here the only conduct complained of is his prosecution of offences under the Drugs Misuse Act.
17. The Applicant has established that other than these offences, he is otherwise of good character. In fact, it is worth noting the comments made by Justice White in her sentencing remarks part of which are as follows:
“You are non-smoker of cannabis. You told police that you, to the extent that you formed an intention, were going to give it away if you could. Your personal circumstances are that you have worked as a farmer; that you will be looking for other work when the contract expires. You have adult children. You have some heart problems from a past heart attack; that you have been a productive member of your community, that you have done some charitable work in so far as you’ve donated pineapples for sale to the Police Youth Program and also to the Bribie Air Sea Rescue.”
18. The Applicant co-operated with police in terms of their investigation, entered an early guilty plea and had shown remorse. All of these matters were taken into account by Her Honour.
19. All of the above, supports the conclusion that his involvement in growing the plant was an aberration and not consistent with his overall good character.
20. The Respondent has urged that I take into account the fact that the growing of the plant was over a prolonged period, it required nurturing with fertiliser and water and he was fully conscious of what he was doing which was, breaking the law. This submission is undoubtedly correct but given the Applicant’s age and his previous unblemished character it is difficult to come to any conclusion consistent with the notion that the holding of a weapons license for primary production or occupational use in his farming enterprise would not be in the public interest.
21. The Applicant intends to continue farming on the 40 acre block of land he currently leases which lease is renewable on a 12 monthly basis. If he’s not able to continue to reside there and engage in primary production, then quite obviously he will have no need for a weapons license because this is the only basis upon which he now seeks to have his license renewed.
Conclusion
22. I have come to the conclusion that the Applicant is a fit and proper person to hold the license and in doing so, and in granting him such license would not undermine the purpose of the Weapons Act particularly given his need to control vermin and pests on his small farm. I also conclude that despite the offences under the Drugs Misuse Act it would not be against the public interest for him to continue to hold the license.
23. Pursuant to section 24 of the QCAT Act the Tribunal sets aside the decision of the Respondent and substitute a decision that the Applicant’s license be re-instated but limited to occupational requirements including occupational requirement for rural purposes pursuant to section 119(c) of the Weapons Act.
24. I’ve also come to the conclusion that no conditions should be imposed on the license.
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