Smith v Queensland Police Service Weapons Licensing
[2024] QCAT 101
•6 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Smith v Queensland Police Service Weapons Licensing [2024] QCAT 101
PARTIES:
MATTHEW JAMES SMITH (applicant)
v
QUEENSLAND POLICE SERVICES WEAPONS LICENSING (respondent)
APPLICATION NO:
GAR087-23
MATTER TYPE:
General administrative review matters
DELIVERED ON:
6 March 2024
HEARING DATE:
29 February 2024
HEARD AT:
Brisbane
DECISION OF:
Member McVeigh
ORDERS:
1. The decision of the Queensland Police Service to reject application case ID 16466016 dated 6 January 2023 is set aside.
2. The tribunal’s decision to approve Matthew James Smith’s application for a firearms licence under the Weapons Act 1990 (Qld) is substituted for that decision.
CATCHWORDS:
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – PUBLIC INTEREST – whether the application had been made before five years had elapsed after the applicant had been discharged from custody
Weapons Act 1990 (Qld), s 10, s 10B
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Ms Carey
REASONS FOR DECISION
Matthew Smith’s application for a firearms licence under the Weapons Act1990 (Qld) (Weapons Act), made on 25 March 2022, was rejected. On 3 February 2023 Mr Smith (applicant) filed an application in this tribunal for an administrative review of that decision.
The reasons the original decision-maker gave for rejecting the application were:
Having regard to the circumstances including your criminal history and misleading conduct in relation to your previous offending and domestic violence history I could not be satisfied that you are a fit and proper person to be issued with a licence.
Provisions of the Weapons Act
The system for licensing weapons in Queensland is established by the Weapons Act. The object of the Weapons Act is to prevent the misuse of weapons.[1] The principles underlying the Weapons Act are that:
(a)weapon possession and use are subordinate to the need to ensure public and individual safety; and
(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]
[1]Weapons Act1990 (Qld), s 3(2).
[2]Ibid, s 3(1).
A person who wishes to possess a firearm under a licence must demonstrate a genuine reason for possessing the firearm.[3] The reasons can be:
(a)sports or target shooting;
(b)recreational shooting;
(c)an occupational requirement, including an occupational requirement for rural purposes, or the collection, preservation or study of weapons.[4]
[3]Ibid, s 4(c).
[4]Ibid, s 11.
The licensing requirements are strict.[5] A person is only entitled to a licence if they:
(a)have an adequate knowledge of safety practices for the use, storage and maintenance of the weapon or category of weapon the possession of which is to be authorised by the licence;[6]
(b)have access to secure storage facilities for the weapon possession of which is to be authorised by the licence;[7]
(c)are not prevented by Weapons Act or another Act or by an order of a Magistrates Court or another court from holding the licence;[8]
(d)are a fit and proper person to hold a licence;[9]
(e)have a reason to possess the weapon;[10] and
(f)reside only in Queensland.[11]
[5]Ibid, s 4(d).
[6]Ibid, s 10(2)(b).
[7]Ibid, s 10(2)(c).
[8]Ibid, s 10(2)(d).
[9]Ibid, s 10(2)(d).
[10]Ibid, s 10(2)(e).
[11]Ibid, s 10(2)(g).
In order to decide whether a person is a fit and proper person to hold a licence the Weapons Act mandates the decision-maker consider:
(a)the mental and physical fitness of the person;
(b)whether a domestic violence order has been made, a police protection notice issued, or release conditions imposed against the person;
(c)whether the person has made a statement, knowing it to be false or misleading in the application under consideration;
(d)whether there is any criminal intelligence that indicates that the person is a risk to public safety or that authorising the person to possess a weapon would be contrary to the public interest;
(e)the public interest.[12]
[12]Ibid, s 10B(1).
The Weapons Act deems that an applicant is not a fit and proper person to hold a licence if, in Queensland or elsewhere, within the 5 year period immediately before the day the person applied for the licence,[13] the person has been convicted of or discharged from custody on sentence after the person has been convicted of an offence involving the use or threatened use of violence.[14]
[13]Ibid, s 10B(5).
[14]Ibid, s 10B(2)(a).
Consideration
On a review, the tribunal has power to confirm or amend a decision, set aside the decision and substitute its own, or set aside the decision and return it for reconsideration. The tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits. There is no presumption that the decision under review is correct.
Evidence
I heard evidence from the applicant on 29 February 2024. He impressed me as a mature man who has taken ownership of his past mistakes and turned his life around.
He explained that until he was 16 he had no role models and ‘hung around with the wrong crowd’. In the period from December 2008 until October 2010, while a juvenile, he pleaded guilty to 5 offences. He did not disclose this history in his application for a firearms licence because it had happened so long ago that he did not remember the details and he did not think he had to disclose his history as a minor.
When he turned 16, he realised that he could choose a new path and became an apprentice. He joined the army in 2015 and moved to Brisbane. Shortly after he moved to Brisbane he broke up with his girlfriend and started partying and drinking every weekend. On 18 March 2016 he assaulted someone at a party. On 18 June 2016 he pleaded guilty to a charge of assault occasioning bodily harm. He was taken into custody. On 11 November 2016, on appeal, his sentence was reduced to 9 months imprisonment, suspended for 18 months after serving 26 days. He was released from Wacol Correctional Centre. He then faced internal disciplinary proceedings in the Army, managed to show cause and, in his words, ‘was pretty much grounded for 18 months’. During that time, he saw an army psychologist.
The applicant knows that there is no excuse for his behaviour in 2016. He has suffered the consequences. He is obviously remorseful.
During his time in the army, he was in the infantry as a rifleman. No doubt as a result of his army training, he could provide a detailed explanation of safety practices for the use, storage and maintenance of weapons.
Since leaving the army in 2019 the applicant has worked for Australia Post and now works for the Douglas Shire Council as a road and infrastructure inspector. He is in a stable relationship and has a young child.
His application was supported by a report from Paul Davis, a mental health accredited social worker. Mr Davis has seen the applicant on 4 occasions over 6 months. In his opinion the applicant ‘has turned his life around… is a changed person.’
The applicant’s reasons for seeking a firearms licence are:
(a)to get into sports shooting for which he developed a passion while in the army; and
(b)to assist his father-in-law to manage wild pigs on his rural property.
Must the applicant be deemed not to be a fit and proper person?
The respondent had taken a preliminary point that the application was doomed to failure due to the operation of the deeming provision in section 10B(2)(a) of the Weapons Act. The respondent took the view that the application had been brought before the 5-year period immediately before the day the person applied for the licence had elapsed. The respondent submitted that the applicant had not been discharged from custody until May 2018, being 18 months after the appeal decision on 11 November 2016, with the consequence that his application had been made within the relevant period of 5 years fixed by the Weapons Act. In fact, the evidence before me was that the applicant had been released from custody on 11 November 2016.
As the firearms licence application was made on 25 March 2022, 5 years and 4 months after the applicant was released from custody, the deeming provision in section 10B(2)(a) of the Weapons Act does not apply.
Does the applicant have a history of domestic violence?
The short answer is he does not. The record relied on by the respondent shows that the applicant, his siblings and his mother had the benefit of the protection of apprehended violence orders issued against his father. As the respondent’s representative could not point to any evidence of a history of domestic violence it can hardly be the case that the applicant failed to disclose it.
Did the applicant mislead the respondent by not disclosing his juvenile criminal history?
The applicant did not think he had to disclose his history as a minor. He disclosed the assault charge in 2016, which he described as ‘his wake up call’. I am satisfied that the failure to disclose his juvenile criminal history, if there was any need to do so, was not a deliberate attempt to mislead.
Strict requirements
Does the applicant have knowledge of safety practices for the use, storage and maintenance of the weapon or category of weapon the possession of which is authorised by the licence?
Having heard the applicant’s evidence I am satisfied that he is well aware of the requirements for safe use and storage of weapons.
Access to secure storage facilities
I am satisfied that the applicant has a plan for secure storage for weapons if the licence is granted.
Does the applicant have a genuine reason to possess weapons?
I am satisfied that the applicant has a genuine desire to engage in sports shooting for which he developed a passion while in the army.
State of residence
The applicant resides in Queensland.
Is the applicant a fit and proper person to hold a firearms licence?
The original decision-maker did not expressly address all of the considerations mandated by section 10B(1) of the Weapons Act. The material does not suggest that the applicant is anything other than mentally and physically fit. There is no criminal intelligence against the applicant. I have found that there is no evidence that the applicant has ever had a domestic violence order made against him. I am also satisfied that the applicant did not knowingly make a false or misleading statement in his application.
Accordingly, the key issue is whether it is in the public interest for the applicant to hold a firearms licence. Since his assault conviction in 2016 he has turned his life around. He no longer drinks and parties every weekend. He has served his country in the army. He has been employed by Australia Post, then the Douglas Shire Council. He has a stable relationship and a child. He has not even committed a traffic offence since 2019. He wishes to engage in a sport he loves. I am satisfied that it is highly unlikely that the applicant will reoffend and that the public can have confidence that the applicant is a fit and proper person to hold a firearms licence.
Conclusion
I am satisfied that the applicant:
(a)has an adequate knowledge of safety practices for the use, storage and maintenance of weapons;
(b)will have access to secure storage facilities for the weapon possession of which is to be authorised by the licence;
(c)is not prevented by the Weapons Act or another Act or by an order of a Magistrates Court or another court from holding the licence;
(d)is a fit and proper person to hold a licence;
(e)has a genuine reason to possess a weapon; and
(f)resides only in Queensland.
Accordingly, I find that the correct and preferable decision is that the applicant is entitled to a firearms licence under the Weapons Act.
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