Betson v Queensland Police Service – Weapons Licensing [2023] QCAT 334

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Betson v Queensland Police Service – Weapons Licensing [2023] QCAT 334 PARTIES: SHANE PATRICK BETSON (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO: GAR010-22 MATTER TYPE: General administrative review matters DELIVERED ON: 28 August 2023 HEARING DATE: 19 July 2023 HEARD AT: Brisbane DECISION OF: Member Olding ORDERS: The decision under review is set aside and returned to the respondent for reconsideration with a direction that the applicant is at this time a fit and proper person to hold a firearms licence. CATCHWORDS: FIRE EXPLOSIVES AND FIREAMRS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION,CANCELLATIONS OR SURRENDER – whether applicant is a fit and proper person to hold firearms licence – where applicant convicted of assault causing bodily harm – where no conviction recorded – whether permissible to take into account offending for which no conviction recorded Penalties and Sentences Act 1992 (Qld), s 12(3) Weapons Act 1990 (Qld), ss 3, 10B Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634 De Lafontaine v Queensland Police Service – Weapons Licensing [2023] QCAT 72 Grobler v Queensland Police Service [2023] QCAT 103 Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717 APPEARANCES & REPRESENTATION: Applicant: Self-represented -- 1 of 5 -- 2 Respondent: P Goddard, Queensland Police Service – Weapons Licensing REASONS FOR DECISION What is this case about? [1] The applicant, Mr Betson, has applied for review of the decision of the Queensland Police Service Weapons Licensing Branch (“QPS”) to revoke his firearms licence. [2] QPS’s decision, made on 9 November 2021, followed Mr Betson’s conviction on 22 July 2021 for the offence of assault occasioning bodily harm arising out of an incident that occurred on 13 March 2020. No conviction was recorded for this offence. [3] Referring to all of the evidence, but particularly the (unrecorded) conviction for assault causing bodily harm, QPS maintains that Mr Betson is not a fit and proper person to hold a firearms licence. Statutory framework Weapons Act [4] Firearms licensing in Queensland is governed by the Weapons Act 1990 (Qld) (“Weapons Act”). Section 3 sets out the object and principles of the Act. The object of the Act is “to prevent the misuse of weapons”. The principles are: (a) weapons possession and use are subordinate to the need to ensure public and individual safety; (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. [5] That object and those principles are pursued through a system of licensing. So far as relevant for the current matter, a firearms licence may only be issued to a person who is a “fit and proper person to hold a licence”: s 10(2)(e). [6] Section 10B(1) provides that, in deciding whether a person is a fit and proper person to hold a licence, an authorised officer (and therefore the Tribunal on review) must consider, “among other things”: (a) the mental and physical fitness of the person; and (b) whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and (c) whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and (d) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates— (i) the person is a risk to public safety; or (ii) that authorising the person to possess a weapon would be contrary to the public interest; and (e) the public interest. -- 2 of 5 -- 3 Penalties and Sentences Act [7] Section 12 of the Penalties and Sentences Act 1992 (Qld) (“Penalties and Sentences Act”) provides that a court may exercise a discretion whether or not to record a conviction for an offence, taking into account the nature of the offence and other factors. [8] Except as expressly provided by the Penalties and Sentences Act or another Act, “a conviction without the recording of a conviction is taken not to be a conviction for any purpose”: s 12(3). Interaction between the Weapons Act and the Penalties and Sentences Act [9] QPS conducted the hearing on the premise that, notwithstanding s 12(3) of the Penalties and Sentences Act, the Tribunal should take into account Mr Betson’s conviction for the offence of assault causing bodily harm, in determining whether Mr Betson is a fit and proper person to hold a firearms licence. [10] After reserving my decision, my own researches revealed that in its reasons for a decision delivered on 16 March 2023 - Grobler v Queensland Police Service1 – the Tribunal had considered in detail the interaction between the Weapons Act and s 12(3) of the Penalties and Sentences Act. The Tribunal determined that circumstances of offending where no conviction is recorded do not fall for consideration of whether a person is a fit and proper person to hold a weapons licence.2 [11] At my request, the Tribunal’s registry invited the parties to make submissions regarding the application of the relevant passages of the Tribunal’s reasoning in Grobler v Queensland Police Service. In response to this invitation, QPS provided written submissions in which it maintained that the Tribunal “must take into consideration the offence, regardless of a conviction being recorded”. [12] The QPS submissions did not actually address the Grobler decision. Rather, QPS sought to draw support from three earlier decisions in which the Tribunal had taken into account offences for which convictions had not been recorded. However, unlike in Grobler, the Tribunal in those cases did not embark upon consideration of s 12 of the Weapons Act.3 [13] QPS has not sought to appeal the decision in the Grobler case. Based on the reasoning in that case, it is not appropriate for the Tribunal to take into account the offending in respect of which the respective courts determined that no conviction should be recorded. 1 [2023] QCAT 103. 2 [2023] QCAT 103, [19]-[36]. Despite the express statutory duty of decision-makers to assist the Tribunal in making its decision (Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(1)), and its direct relevance to this case, QPS did not draw this decision to my attention. 3 Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634; De Lafontaine v Queensland Police Service – Weapons Licensing [2023] QCAT 72; Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717. -- 3 of 5 -- 4 Evidence and factual findings Assault occasioning bodily harm – 13 March 2020 [14] The evidence before the Tribunal relating to this matter mainly comprised a copy of the police brief which included statements from the complainant and other witnesses to the offence. Those statements were for the purposes of the criminal proceeding. The witnesses did not provide statements in support of, and were not made available for cross examination in, the Tribunal proceedings. [15] Mr Betson was convicted, fined $1500 and ordered to pay compensation of $500 in relation to the assault which occurred in his former workplace. No conviction was recorded. Contravene “move on” direction – 29 July 2011 [16] Mr Betson was issued with a “move on” direction by police. He failed to comply with the direction and was fined $200. [17] No conviction was recorded for this offence. Public nuisance – 10 September 2011 [18] A police street check summary indicates Mr Betson was involved in a fight at a “full moon party”. The victim was treated by the Queensland Ambulance Service but did not make a formal complaint. [19] Mr Betson was issued with a traffic infringement notice for “public nuisance – violent behaviour – in other circumstances” with a $300 fine. Traffic record [20] From 17 November 2015 to 7 February 2022, Mr Betson attracted eight speeding fines. [21] Seven of the fines were for exceeding the speed limit by less than 13 kilometres per hour, resulting in a loss of one demerit point in each case. The eighth was for exceeding the speed limit by more than 13 kph but not more than 20 kph and resulted in a loss of three demerit points. Mr Betson’s evidence [22] Mr Betson gave evidence, which I accept, that he has been a business owner for eight years and currently employs six people. He has been involved the air conditioning industry for nearly 20 years. Mr Betson says, and I accept, that he has been dealing with people who are hot and bothered and can sometimes be blunt or rude, without any violent incidents occurring. [23] In relation to the incident involving the assault occasioning bodily harm, Mr Betson explained that his conduct may have been affected by being unsettled by the then recent sad loss of a 27-week-old still-born baby boy. He says, and I accept that he believes, the consequences of the incident have changed the way he looks at all scenarios now, adding: Nothing is worth the financial, wasted time and pressure I have been through for that. I wish I could change that day but it has happened and now I must press on. -- 4 of 5 -- 5 [24] I found Mr Betson to be a straight-forward witness. I accept that he gave his evidence truthfully. As already indicated, I accept that he believes he would not be caught up in violent behaviour again. Disposition of this matter [25] QPS’s submissions were founded mainly on the circumstances of the 2021 offending. If it were permissible to take into account that offending, I would, on balance, have been persuaded that it is not in the public interest for Mr Betson to have a firearms licence at this time. [26] I accept that Mr Betson believes he would not be involved in such conduct again. However, the conduct for which he was convicted was of a violent nature, even if, as may be inferred from the magistrate deciding not to record a conviction, at the less serious end of the spectrum of conduct comprising assault occasioning bodily harm. [27] The safety of the public is paramount. Against the background of conviction for an offence involving violence, without further passage of time and/or other evidence such as from a psychologist, I could not have been satisfied there would not be a risk to the public if Mr Betson were to be permitted to hold a firearm. [28] However, for the reasons already given, there is no permissible basis on which the Tribunal could take into account the offending, for which convictions were not recorded, in determining whether Mr Betson is a fit and proper person to hold a firearms licence. Those matters aside, consideration of all of the circumstances outlined in these reasons including the factors listed in s 10B(1) of the Weapons Act, would lead me to the conclusion that Mr Betson remains, as QPS determined when he first applied for a licence, a fit and proper person to hold a firearms licence. [29] Traffic offences are not trivial, but considered over the period of some six years, those committed by Mr Betson they do not suggest to me that Mr Betson is a person who generally does not respect the laws of the state. The other infringement notice issued almost 12 years ago. [30] It follows that the decision to revoke Mr Betson’s firearms licence must be set aside. On the evidence, it is not clear to me whether Mr Betson’s licence, if not revoked, would have expired in the ordinary course if not renewed. In the circumstances, the appropriate course appears to be to set aside the decision and return it to QPS for reconsideration with a direction that Mr Betson is at this time a fit and proper person to hold a firearm licence. -- 5 of 5 --