CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264

CITATION: CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264 PARTIES: CAT (Applicant) v Queensland Police Service, Weapons Licensing Branch (Respondent) APPLICATION NUMBER: GAR205-14 MATTER TYPE: General administrative review matters HEARING DATE: 19 February 2015 HEARD AT: Brisbane DECISION OF: Dr Cullen, Member DELIVERED ON: 12 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Queensland Police Service Weapons Licensing Branch, dated 22 May 2014, revoking the Firearm’s Licence of CAT, number 26519422, is confirmed. CATCHWORDS: WEAPONS LICENSING – REVIEW APPLICATION – where license revoked following conviction involving unregistered weapons – where Domestic Violence Order issued against applicant – where consideration if applicant is a ‘fit and proper person’ under the Weapons Act 1990 – whether license should have been revoked Weapons Act 1990 (Qld) s 10B, s 24 Weapons Categories Regulation 1997 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22 Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 -- 1 of 9 -- 2 APPEARANCES: APPLICANT: CAT RESPONDENT: A L Smith Inspector, Queensland Police Service REPRESENTATIVES: APPLICANT: CAT represented by Peter Boyce of Butler McDermott Lawyers REASONS FOR DECISION [1] CAT is a 29 year old, self-professed Christian man from a close family residing on the Sunshine Coast. He is employed full-time, and works in the IT industry and is active in his church. In the last few years, CAT has endured personal turmoil. CAT is estranged from his wife, CE, who is in the process of divorcing him, and his closest friend, RI, has died from cancer. [2] On top of all this, on 22 May 2014, CAT’s firearms weapons licence was revoked by the Weapons Licensing Branch of Queensland Police Service under the Weapons Act 1990 (Qld) (‘the Act’). CAT has a very keen interest in the recreational pastime of shooting. He seeks review of the 22 May 2014 revocation decision before the Tribunal. Circumstances that led to the revocation [3] On 17 November 2013, police executed a search warrant at what was then CAT’s marital home. The search led to the seizure of a number of items, including a range of licensed and unlicensed weapons, by the police: a) Circuit Judge black .22 Magnum rifle (revolver style) serial number FU7596 (contained 9 rounds in stock) (registered) Cat A b) Remington green with 2 stocks, torch and scope – serial number RR25265B (registered) Cat B c) Remington Khaki .308 bolt action with Trophy tactical scope – serial number S6788540 (not registered) Cat B d) Smith and Wesson black .38 revolver (located in bottom draw of beside table) – serial number 872469 with black Plat A Tac holster (not registered) Cat H e) ROSSI brown stainless .38/57 magnum lever action rifle with black Tru Glo scope – serial number SK127488 (not registered) Cat B f) SMITH and WESSON black .32 calibre revolver (loaded with 3 rounds in the 5 chamber drum) (located in bottom draw of beside table) – serial number 272850 (not registered) Cat H -- 2 of 9 -- 3 g) GAZELLE wooden stock 12 gauge ‘side by side’ shot gun – serial number 02C2071 (registered) Cat A h) CMC_HOWA model 1500 brown wooden stock .222 with black carry case (bolt stored in case with rifle – located under bed) – serial number R000153 (not registered) Cat B i) Unknown brand dark wooden stock (‘The Duck: with insignia of duck) 12 gauge single shot – serial number A32722 (registered) Cat A j) (3 Lions or Puma symbols) timber wooden stock R.F.I. 1952 No. 1. Mk.3 semi-automatic rifle with Tasco scope with bipod mounts – serial number 10487 (located in bag under bed of spare room) – no bolt (not registered) Cat B k) Remington 12 gauge pump action shot gun – serial number 117382?V (not registered) Cat C – l) Remington field master model 572 wooden stock .22 pump action rifle with a silencer – serial number 19020050 (not registered) Cat A m) Silencer Cat R n) Rifle Cat A o) Unknown brand dark wooden stock military semi-automatic rifle – serial number 1607380 – serial number 07380 – (not registered) Cat D p) Puma rifles model Hunter black .22 bolt action rifle with Tasco scope – serial number 1231207 (no bolt) (threaded for a silencer) (registered) Cat A q) Puma rifles model Hunter black .22 bolt action rifle with Tasco scope – serial number 1230951 (no bolt) (threaded for a silencer) (registered) Cat A r) Stirling model 14P black .22 bolt action rifle with Tasco scope – serial number filed off (not registered) Cat A s) Stirling Model 15 brown wooden stock .22 bolt action rifle – serial number A-011462 (not registered) Cat A t) Winchester wooden stock lever action rifle – serial number 475115 (not registered) Cat B (if centre fire) u) Norinco SKS wooden stock semi-automatic rifle with bayonet and sling – serial number on barrel 8819934 – serial number on slide 19934 (not registered) Cat D v) IAC Billerica 12 gauge lever action shot gun – serial number D0900565 (registered) Cat A w) Puma rifles model Hunter black .22 bolt action rifle (no bolt) (threaded for silencer) – serial number 1231246 (registered) Cat A x) Winchester wooden stock .32 lever action rifle – serial number (not readable) (not registered) Cat B -- 3 of 9 -- 4 y) Air rifle wooden stock – serial number A002302 (not registered) Cat A z) Air rifle wooden stock in parts – serial N/A (not registered) Cat A aa) Sportco model 73 brown timber stock .22 semi-automatic rifle (no magazine) – serial number BA675 (not registered) Cat C bb) 4 x Crossbows and associated parts and arrows in a large green bag Cat M cc) Large quantity of ammunition stored within safe in garage dd) Large quantity of ammunition stored in green metal box stored in garage ee) Hoyt army camouflage coloured compound bow and 5 V-Force arrows in black case ff) 3 compound bows in black vinyl case gg) Composite grey coloured rifle stock hh) Box containing silica gel ii) 2 x cloth gun bags and one cream cloth jj) 1 x brown handle pocket knife kk) 1 x stainless steel knife ll) 4 x stainless steel knives mm) Reloading scales [4] The Weapons Categories Regulation 1997 (Qld) divides weapons, by type, into various categories, referred to as categories A, B, C, D, E, H, M and R. As a perusal of the above list will indicate, the search warrant uncovered weapons falling within the purview of every category, with the exception of category E1 weapons. [5] Subsequently, CAT was charged with 15 counts of unlawful possession of weapons. He pleaded guilty to nine of these offences, and the police did not offer any evidence in relation to the remaining six. CAT was fined $1,200.00 by the Magistrate hearing the matter, and no conviction was recorded. [6] Whilst CAT had been the holder of a weapons licence, that licence had conditions attached. Importantly, CAT was to have possession and use category A and B weapons only for the purpose of recreational shooting on rural land (with the consent of the owner), or at an approved sports/target shooting range. CAT did not abide by this condition, and pleaded guilty to unlawfully possessing weapons outside this category. [7] In all events, CAT’s licence also required that all weapons be stored in secure storage. Having heard the evidence, including that of CAT himself, there can be no doubt that some of his weapons were not held in secure 1 Category E weapons are bulletproof vests or protective body vests or body armour designed to prevent the penetration of small arms projectiles. -- 4 of 9 -- 5 storage. There was a loaded weapon located in a bedside drawer, another under a bed, still others in secured lockers, and some in close proximity to ammunition (which was not, as required, stored in a separate locked compartment). This conduct, in and of itself, gives rise to proper grounds for revocation of CAT’s weapon’s licence. [8] Holding a weapon’s licence is not a personal entitlement. For reasons of public safety, the police need to know where weapons are located within the community. The legislature identified the importance of strict weapons control when it drafted the principles and objects of the Act. These sections indicate that weapons possession and use are subordinate to the need to ensure public and individual safety2 - which is enhanced where strict controls on the possession of weapons are imposed. [9] When someone obtains a licence, and then does not abide by the conditions attached to that licence, the authorised officer in charge of weapons licencing can, and should, revoke that licence. A person who does not abide by the conditions of a weapons licence is not, in the context of the Act, ‘a fit and proper person’ to hold a licence. They have breached the trust imposed upon them to abide by the conditions of their licence. CAT is subject to a Domestic Violence Order [10] Following the seizure of the weapons from their marital home, CE decided to leave her marriage to CAT. On 22 November 2013, she applied for a temporary protection order against CAT. The Brisbane Magistrates Court granted that protection order on 11 December 2013. [11] The temporary protection order was varied on 5 February 2014 by Magistrate Bradford-Morgan at Brisbane. The terms of the order required that CAT not commit domestic violence, not attempt to locate, and not contact CE, until the application for a protection order could be heard, dismissed, or withdrawn. [12] The matter was scheduled for hearing on 6 May 2014. Prior to the matter being heard, CAT entered into a signed undertaking between himself and his estranged wife, whereby (amongst other matters) he undertook to ‘not possess or acquire any weapon or weapons licence’. Self-evidently, he already possessed a weapons licence at the time of entering the undertaking. [13] As a consequence of entering the undertaking, s 24 of the Act provides that CAT must advise the officer-in-charge of police of his entry into the undertaking, within 14 days of it being signed. [14] The Tribunal agrees with the Queensland Police Service’s interpretation of s 10B(1) of the Act, which when read in conjunction with s 24, required that CAT advise the authorised officer of this change in circumstances within 14 days. Whilst CAT did not comply strictly with the period, he did advise the 2 Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 at 681. -- 5 of 9 -- 6 officer-in-charge of weapons licensing a few days after expiry of the 14 day period. [15] The existence of the undertaking itself is a factor to be considered in this review, given that Queensland Police Service has determined that CAT is not a fit and proper person to hold a weapons licence at this point in time. The Tribunal agrees with this conclusion. [16] At the hearing, CAT argued that the undertaking, which was consensual on his part, was entered into for the purpose of his avoiding a hearing. Whilst this may well be the case, CAT forgets that in entering into the undertaking, he also avoided the very real risk that following a hearing, the Magistrate might have made the order without his consent. [17] The Tribunal accepts the evidence given by CAT’s estranged wife, CE, that on the morning of the hearing she was advised that CAT would lose his job if she proceeded with the hearing, and the Court issued a domestic violence against CAT. She was further advised that entering into the undertaking would have the same impact as a Court order. [18] She maintains that she is in fear of CAT, and says that he has a controlling nature, and has made numerous threats against her. CAT says that this is simply not true, and attempts to suggest that CE is histrionic, and has misconstrued numerous aspects of their marital relationship. [19] The Tribunal does not have any Family Court type of jurisdiction, and is not able to evaluate the validity of either CE’s or CAT’s perspectives on their relationship. Rather, the Tribunal is in a position where it must simply accept on face value the undertakings existence and legal impact. [20] It would not be appropriate, in the Tribunal’s view, for any person who had voluntarily entered into an undertaking such as this, cast in the nature of a domestic violence order, to continue to possess a weapon’s licence. The entire point of the undertaking, in avoiding Court, is to provide both parties with a degree of security in relation to the alleged conduct. [21] Whilst the Tribunal accepts that making the election to proceed to a fully contested hearing on the matter may have put CAT in a difficult position vis- à-vis his employer, that option was nevertheless available to him. In choosing to avoid Court, by entering into the undertaking, CAT has placed himself in a position where the Tribunal cannot look behind the undertaking in an effort to understand whether he had, in fact, engaged in any acts of domestic violence. The undertaking speaks for itself, and requires that he does not possess a weapon’s licence. [22] The undertaking expires on 31 December 2015. It is beyond dispute that CAT is not a fit and proper person to possess a weapon’s licence at least until expiry of this period, and quite possibly longer. -- 6 of 9 -- 7 CAT’s offer to consent to revocation of his weapon’s licence [23] At the commencement of the hearing, CAT’s counsel advised the Tribunal that CAT would consent to the revocation of his weapon’s licence, in the event that the Tribunal found that he was a fit and proper person to hold a licence. [24] The difficulty with this approach is that in a review matter of this nature, s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides the Tribunal with a limited range of decision-making options on review. They include confirming, amending, or setting aside the decision under review and substituting a new decision. [25] The Tribunal must consider the impact, if any, that CAT’s offer to consent to the revocation has upon the range of options available to the Tribunal under the Act. It is not possible for the Tribunal to make a decision whereby it finds that CAT is a fit and proper person, but then also decides to accept his offer to consent to the revocation. Regardless, the Tribunal does not consider that CAT is a fit and proper person for these purposes, such that the offer is of no utility in any event. CAT’s explanation for his conduct [26] CAT endeavoured to explain his conduct, which in his own words, he attributes to ‘youthful laziness’ and ‘stupidity’. [27] CAT asserts that he has learned from the experience he had following the execution of the search warrant. Although much attention was drawn to the number of offences that he pleaded guilty to, verses those that he was charged with during the hearing, it remains the case that there were a significant number of unregistered weapons located in CAT’s home, within close proximity to ammunition. CAT admitted during the hearing that not all of the weapons were stored in the weapon’s safes located at his home, nor was all of the ammunition stored within the locked compartments of those safes. [28] Even if it were the case that there was only one unlicensed weapon located in CAT’s premises, that fact could still properly give rise to grounds for revocation of his license. [29] Self-evidently, CAT remains youthful – there has not been a sufficient passage of time between the weapons offences, let alone circumstances leading to the domestic violence undertaking, such that any reasonable Tribunal could consider that CAT had matured significantly. [30] Much of CAT’s story centres around the death of his best friend, RI, with whom he shared an obsessional recreational pastime of shooting. When it became apparent to RI that he would die from his terminal illness, he decided to gift CAT his (unregistered) weapons collection. The weapons have significant sentimental value to CAT, and he is keen register them -- 7 of 9 -- 8 lawfully. RI’s weapons were amongst those found by the police during the search of his home. [31] In addition to RI’s unlicensed weapons, CAT admitted that he may have acquired some of the unlicensed weapons at an earlier juncture, prior to RI’s death, and further admitted that he was aware that he could not house unregistered firearms. What does it mean to be a ‘fit and proper’ person for these purposes? [32] It is the Tribunal’s view that CAT has misunderstood the fit and proper person test that is applicable to weapons licensing. There has been significant attention given in his affidavit material, and at hearing, of CAT’s general character, Christian values, self-reported desire to prevent his former wife from enduring any discomfort in Court, service to the community, and other sundry good deeds. [33] CAT may well be all these things, but that is not the test applicable here. The test is whether CAT is fit and proper to hold a weapon’s licence. Conceivably, one can be a regular church-attending volunteer who cares for their family and community, and still not be fit and proper for these purposes. [34] Resolution of the question as to whether CAT is fit and proper requires that the Tribunal consider whether he understands the nature of his obligations as a licensee under the Act. [35] The Tribunal has concluded that although CAT may well have learned from this episode, the events are so recent in time, that it is not possible to say that he presently possesses the traits necessary for somebody to be considered of good character in relation to weapons licensing. CAT himself admits that he possessed, knowing that he should not have, numerous unregistered weapons. [36] The Tribunal’s concerns in relation to CAT being a fit and proper person do not stop here, however. During the course of the hearing, CAT admitted that he had frequently been on camping trips with friends, at which junctures he would assist other unlicensed persons in the shooting of weapons, for recreational purposes. In other words, persons who wished to shoot various weapons, but who did not possess the requisite licences, would do so with CAT watching vigil over them. CAT explained that he thought that this was permissible. [37] At best this is naive, and at worst, reckless. It is, or should be, readily apparent that a weapon’s licensing regime exists in Queensland to ensure that only licensed persons are able to use registered weapons, for the specific purpose that they are licenced for. Were it otherwise, it would be virtually impossible for the police to enforce the regime. [38] Again, this suggests that CAT does not have the mature understanding of the responsibilities imposed on him by the Act, which is required to find him -- 8 of 9 -- 9 fit and proper.3 This does not mean that the Tribunal has found CAT is a bad person, or a person of general bad character. It has not. [39] What the Tribunal does find is that, at present, CAT is not a fit and proper person to hold a weapon’s licence. It may be that at a future point in time, he is able to demonstrate a mature, and fulsome, understanding of the responsibilities of a weapon’s licence holder. There is nothing to prevent CAT from applying in future for a licence, at a point in time when he is no longer bound by the domestic violence undertaking, and can amply demonstrate that he understands the importance of safe weapons and ammunition storage. Orders [40] In all the circumstances, the Tribunal considers that the decision of the Queensland Police Service Weapons Licensing Branch, dated 22 May 2014, revoking the Firearm’s Licence of CAT, number 26519422, should be confirmed. 3 DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 at 57. -- 9 of 9 --