Atkinson v Queensland Police Service – Weapons Licensing [2025] QCATA 89

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Atkinson v Queensland Police Service – Weapons Licensing [2025] QCATA 89 PARTIES: RICHARD CHARLES ATKINSON (applicant/appellant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: APL256-23 ORIGINATING APPLICATION NO/S: GAR271-23 MATTER TYPE: Appeals DELIVERED ON: 2 October 2025 HEARING DATE: 30 July 2025 HEARD AT: Brisbane DECISION OF: Senior Member Traves Member Burson ORDERS: Leave to appeal is granted. The decision of the Tribunal dated 6 July 2023 is set aside. The application to extend time to file an application to review the decision to revoke the applicant’s weapons licence is refused. The application to review a decision is dismissed. CATCHWORDS: APPEAL – WEAPONS LICENSING – where applicant sought extension of time – where Tribunal found no satisfactory reason for delay – where applicant convicted of three counts of: ‘indecent treatment of children under 16 and one count of indecent treatment of children under 16 (expose)’ – where respondent submitted sexual offences against children and offences involving the use of ‘violence’ for the purposes of s 10B of the Weapons Act 1990 (Qld) – where Tribunal had no evidence as to the specific circumstances of the applicant’s offending – where Tribunal referred to the definition of ‘deals with’ in s 210(6) of the Criminal Code – where Tribunal concludes that as the act of indecent treatment is deemed, if done without consent, to constitute an assault and assault is an offence involving -- 1 of 8 -- 2 violence or the threatened use of violence, applicant’s case unlikely to be successful – whether Tribunal erred in law – where Tribunal considered other discretionary factors and refused extension of time – whether leave to appeal should be granted – if leave granted, whether extension of time should be allowed Criminal Code (Qld) s 210, s 245 Penalties and Sentences Act 1992 (Qld) Schedule 1, s 9, s 10 Queensland Civil and Administrative Tribunal Act s 3B, s 61 Weapons Act 1990 (Qld), s 10B(1), s 10B(2) Commissioner of Police v XPR [2025] QCA 93 Pollock v Queensland Police Service Weapons Licensing Branch [2011] QCATA 189 R v Free (2020) 4 QR 80 APPEARANCES & REPRESENTATION: Applicant: Rawlings M, Counsel instructed by Jones and Associates Respondent: Nicholson M, Counsel, instructed by QPS Legal REASONS FOR DECISION [1] On 17 June 2021 the applicant commenced a review of a decision by the respondent to suspend his weapons licence. [2] On 11 November 2022 the applicant’s weapons licence was revoked as a consequence of him being convicted of four counts of indecent treatment of a child under 16 years. [3] On 28 March 2023 the Tribunal dismissed the applicant’s application for review of the suspension as it lacked utility given the subsequent revocation of the licence. [4] On 14 April 2023 the applicant filed an application to review, seeking to review the decision to revoke his licence made by weapons licensing on 11 November 2022. The applicant also filed at the same time an application to extend time, given the application to review had been filed more than 28 days after receiving notice of the revocation decision. [5] On 6 July 2023 the Tribunal refused the application to extend time and, as a result, the application to review was dismissed. It is that decision, to refuse to extend time, that is the subject of this application for leave to appeal. The grounds of appeal [6] On 4 August 2023 the applicant filed an application for leave to appeal or appeal the decision of the Tribunal of 6 July 2023 seeking the following orders: (a) the Appeal Tribunal set aside the decision at first instance made on 6 July 2023; (b) the Appeal Tribunal extend the time for review of the decision by Weapons Licensing; -- 2 of 8 -- 3 (c) the Appeal Tribunal reinstate the applicant’s weapons licence; and (d) make an order as to costs. [7] The applicant relies on the following grounds of appeal: (a) The Tribunal erred by not allowing an extension of time to the applicant pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’); (b) The Tribunal erred in finding that the applicant had committed an ‘offence of violence’ as required to satisfy section 10B(2)(a)(ii) of the Weapons Act 1990 (Qld). Hearing at first instance [8] The learned Member, in refusing the extension of time, reasoned as follows: (a) applied s 61 of the QCAT Act and the relevant factors summarised in Crime and Misconduct Commission v Chapman;1 (b) considered the applicant’s reason for delay and concluded he was not satisfied the applicant had provided a reasonable explanation for his delay; (c) considered the delay of three months to be a very substantial delay; (d) considered the submission by the QPS that sexual offences against children are offences involving the use of ‘violence’ for the purposes of s 10B(2)(a)(ii) of the Weapons Act 1990 (Qld) and therefore that the applicant is deemed not to be a fit and proper person within 5 years of his convictions and concluded, referring to s 210(6) of the Criminal Code 1899 (Qld), that because the offence of indecent treatment was deemed to be an assault and an ‘assault’ was an offence of violence, the applicant’s case was unlikely to be successful; (e) the QPS had not pointed to any specific prejudice; (f) the interests of justice did not favour an extension, noting finality in litigation is highly desirable and the tribunal’s obligations under s 3(b) of the QCAT Act; (g) concluded, on balance, that the only factor in the applicant’s favour, namely the lack of prejudice to the QPS, was heavily outweighed by the very substantial delay, the apparent lack of merit to the applicant’s case, the interest of justice and the absence of a satisfactory explanation for his delay. Accordingly, that the application for an extension of time be refused and, therefore, that the application to review be dismissed. Leave to appeal [9] The respondent’s submitted that leave to appeal was required because the decision to refuse to extend time was not a ‘final decision’.2 [10] The applicant agreed that leave was required, but on the basis it was an appeal on a question of mixed law and fact. If leave is granted, the appeal is decided by way of 1 [2011] QCAT 229. 2 QCAT Act, s 142(3)(a)(ii). -- 3 of 8 -- 4 rehearing on the law and facts as they were at the time of the decision below.3 We note, relevantly, that, by s 58 of the Queensland Community Safety Act 2024 (Qld), s 10B was substantially amended. [11] The relevant principles to be applied in determining whether to grant leave are as follows: (a) is there an arguable error in the decision at first instance; (b) is there a reasonable prospect that the Applicant will obtain substantive relief; (c) is leave necessary to correct a substantial injustice caused to the Applicant by an error; (d) is there a general question of importance upon which further argument and the decision of the Appellate Tribunal would be to the public advantage? [12] The applicant was given leave to provide fresh evidence to the tribunal, namely the sentencing remarks of the District Court and the statement of facts agreed upon for sentencing. [13] We will consider the grounds of appeal together. Grounds of appeal [14] The applicant submits that the learned Member erred in finding that the applicant had committed ‘an offence involving the use or threatened use of violence’ within the meaning of s 10B(2)(a)(ii) of the Weapons Act 1990 (Qld). In effect, it was argued that because the actual circumstances of the offences did not involve violence,4 actual or threatened, that s 10B(2)(a)(ii) did not apply. [15] The respondent submitted that the specific circumstances of the offending were not determinative because the offence of indecent dealing, which involves the element of assault (by touching) is an offence involving violence or the threatened use of violence. [16] The applicant was convicted, relevantly, of three counts of ‘unlawfully and indecently dealing with a child’ under s 210(1)(a) of the Criminal Code 1899.5 Section 210(6) Criminal Code 1899, provides: ‘“deals with” includes doing any act which, if done without consent, would constitute an assault as defined in this Code.’ [17] Section 245 of the Criminal Code 1899 defines assault as: (1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstance that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault. 3 QCAT Act, s 147(2). 4 Referring to his Honour Judge Kent’s sentencing remarks where he said: ‘There was no physical harm or threat of physical harm…’. 5 The applicant was also convicted of one count of ‘indecent treatment of children under 16 (expose)’. -- 4 of 8 -- 5 [18] It follows that it was a necessary part of the offence for which the applicant was convicted that he committed an assault. [19] Does that offence of which the applicant was convicted therefore amount to an ‘offence of violence’ within the meaning of s 10B(2)(a)(ii) of the Weapons Act? [20] The issue was considered by the Appeal Tribunal in Pollock v Queensland Police Service Weapons Licensing Branch.6 There, Kingham P held that the phrase ‘offence involving the use of violence or threatened use of violence’ (emphasis added) referred to the circumstances of the offence, as opposed to an element of the offence that must be proved in order to secure a conviction. The ordinary meaning of violence was said to be uncontrolled, strong or rough force.[11] [21] Applying that definition, it was held that the deliberate ramming of a vehicle into the rear of another vehicle constituted the ‘use of violence’ and the circumstances of the offence were such that the driver was not a fit and proper person to hold a weapons licence. [22] We respectfully agree that the section does not require that ‘violence’ be an element of the offence. However, we do not agree that the definition of violence is confined to the use of ‘uncontrolled, strong or rough force’. [23] In our view ‘violence’ extends beyond the rough use of force. In R v Smith7 the Supreme Court of the Australian Capital Territory held, in considering the meaning of violence in the context of an offence of arson involving only property damage, held: In the leading case of R v Butcher [1986] VR 43, the Full Court of the Supreme Court of Victoria had to consider whether robbery, where there were threats but no actual infliction of force, was a crime of violence. The court held that it was. …. The Court said (at 53): In our opinion, the word ‘violence’ where it is used in s 3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence. Where the words ‘act of violence’ and ‘crime the necessary elements of which include violence’ are used in s 3A, violence is used in a descriptive sense. ‘Act of violence’ means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is, by definition, an element. This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: “inherent overpowering force, whether physical or mental”. In the Oxford English Dictionary violence is defined as follows: ‘(Law) 6 [2011] QCATA 189. 7 [2012] ACTSC 146. -- 5 of 8 -- 6 unlawful exercise of physical force, intimidation by the exhibition of this.’(emphasis added) That decision has been widely followed: Arulthilakan v The Queen (2003) 78 ALJR 257; R v McCrossen [1991] Tas R 1, R v Breeze (1999) 106 A Crim R 441;and R v Galas (No 2) [2006] VSC 160. [24] The issue becomes whether the circumstances of the offence involves ‘violence’. The circumstances of the applicant’s offending were as follows: The applicant (70 years at the time) and the complainant (13 years at the time) met virtually in an online chatroom. The complainant was automatically connected with the applicant who had his camera positioned so the complainant could see his exposed penis, while the applicant was masturbating (count 1). The applicant asked him his age and the complainant responded by saying he was 13 years old. The applicant asked him if he wanted to meet and they exchanged emails. Not long after logging out, the defendant sent the complainant an email arranging to meet the following evening down the street from the complainant’s home. The following evening, between 8:00pm and 9:00pm the complainant left his house in his school uniform and met the applicant down the street in his car. The complainant climbed into the front passenger seat and the applicant suggested they go to a more private location. They got out of the car and walked to a darker area but the complainant got unsettled by passers-by and suggested they return to the car and drive back to a location near the complainant’s house, which they did. While sitting in the car, the applicant instructed the complainant to “get your dick out”, which the complainant did. The complainant then began to masturbate the complainant’s penis with his hand (Count 4). The applicant grabbed the complainant’s hand, placed it on the applicant’s penis, and told him to masturbate him; the complainant then masturbated the applicant as the applicant was continuing to masturbate the complainant (Count 5). After a short time the applicant asked the complainant, “can I suck your dick?” The complainant replied, “Sure” and the applicant reached over to the complainant’s seat and performed oral sex on him (Count 6). The applicant then alternated between sucking on and masturbating the complainant’s penis until the complainant ejaculated. The complainant and applicant then said good-bye to each other and the complainant returned to his house. [25] On one view, the circumstances of the case involved the use or threatened use of violence. In particular, the grabbing of the complainant’s hand and placing of it on the applicant’s penis, with the instruction to masturbate him involved violence. Those actions occurred in a context, which we think relevant, of a 70 year old man in a car with a 13 year old boy. [26] On the other hand, and while there was a physical touching by the applicant of the complainant, there was no, or perhaps only minimal, use of physical force. [27] We have found the resolution of this issue difficult. However, we have come to the view that, although reprehensible, the conduct fell short of being violent in the sense in which that word is used in s 10B(2)(a)(ii). Although we acknowledge the child -- 6 of 8 -- 7 could not consent to the conduct, there was no use or threatened use of physical force or physical injury to him. [28] That being so, the Tribunal at first instance did err in proceeding on the basis that the offences involved the use or threatened use of violence. [29] It is unnecessary in the circumstances to consider whether in any other respect there was error by the learned Member in the exercise of the discretion. [30] It follows that the decision below must be set aside. [31] It is necessary therefore for us to re-exercise the discretion whether to grant an extension of time for the applicant to file an application to review the revocation decision. [32] In doing so, in applying s 61 of the QCAT Act and the relevant principles outlined above, we have concluded that the extension of time should not be allowed. [33] The principles and objects of the Weapons Act are set out in s 3. The principles underlying the Act are that weapon possession and use are subordinate to the need to ensure public and individual safety and that public and individual safety is improved by imposing strict control on the possession of weapons. The object of the Act is to prevent the misuse of weapons. [34] Under s 10 of the Act a licence may be issued to an individual only if, by s 10(2)(e), the person is a fit and proper person to hold a licence. Section 10B sets out the matters which must be considered when assessing whether a person is or is no longer a fit and proper person to hold a licence. By s 10B(1)(d), the public interest is to be considered. [35] In our view, and bearing in mind the principles and objects of the Act, the public interest would not be served in permitting the applicant to hold a weapons licence. The offences committed by the applicant were committed in circumstances where he had no regard to the age of the complainant or to the ability legally to consent to the abuse which he suffered. In our view, it does not serve the public interest to permit the applicant to hold a licence where the applicant has shown such disregard for the law and to the consequences of his actions. [36] In our view, the applicant is most unlikely to succeed on review. [37] Further, and as to the reasons for delay, while the applicant has given some explanation and said that he was confused because the licence was suspended and then revoked, the revocation for licence notice made clear the opportunity the applicant had to review the revocation decision. The suspension and the revocation were plainly different decisions. In the circumstances, the applicant’s conduct was inattentive and the explanation given is not a satisfactory explanation for the extensive delay. [38] The length of delay was substantial in the context of a 28 day time frame. [39] We take account of the fact that the QPS did not point to any specific prejudice. [40] The interests of justice, which involve considerations of finality in litigation and in resolving matters in a way that is fair, economical and quick, is not consistent with granting an extension of time for the applicant to institute a review of this decision. [41] In the circumstances, we refuse leave to extend time to review the revocation decision. -- 7 of 8 -- 8 Orders Leave to appeal is granted. The decision of the Tribunal dated 6 July 2023 is set aside. The application to extend time to file an application to review the decision to revoke the applicant’s weapons licence is refused. The application to review a decision is dismissed. -- 8 of 8 --