Avenell v Queensland Police Service Weapons Licensing Branch [2010] QCAT 496

CITATION: Avenell v Queensland Police Service Weapons Licensing Branch [2010] QCAT 496 PARTIES: Mr Peter Graham Avenell V Queensland Police Service Weapons Licensing Branch APPLICATION NUMBER: GAR207-10 MATTER TYPE: General administrative review matters HEARING DATE: 7 September 2010 HEARD AT: Brisbane DECISION OF: Richard Oliver – Senior Member DELIVERED ON: 30 September 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for Review is allowed. 2. The revocation notice dated 14 May 2010 in respect of firearms licence number 11530072-04 be set aside. CATCHWORDS : License revocation; whether Applicant a fit and proper person; medical treatment for anxiety and depressed mood; whether Applicant ought to have informed the Respondent of change of circumstances; section 24(2)(a)(ii) of the Weapons Act considered. APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Peter Graham Avenell was self represented RESPONDENT: Queensland Police Service Weapons Licensing Branch represented by Sergeant Bradford -- 1 of 6 -- «CaseCode» / Page 2 of 6 REASONS FOR DECISION 1. Mr Avenell was the holder of weapons license number 11530072-04. This license permitted him to have possession of category A and B weapons for the purposes of recreational shooting on rural land and for the purposes of sport or target shooting at an approved range and conditional upon him being a member of an approved shooting club. 2. An incident occurred on 20 January 2010 when police had to attend Mr Avenell’s residence at 59 Giesman Road, Townsville as a result of a domestic disturbance. On attendance at the residence, Police were advised that the Applicant had been under some stress of late and that a rifle was found under his bed by a family member and taken to an outside shed. There was some suggestion that Mr Avenell might self harm with the rifle1. This is contested by Mrs Avenell but this evidence is not decisive of the issues the Tribunal has to decide in this application. 3. The fact remains that the rifle was placed in a cupboard in a shed outside the house and was retrieved by police. It was clear that the rifle had not been properly secured as is required by the Weapons Act. 4. The police had a further discussion with Mrs Avenell about Mr Avenell’s condition and there was some mention of meningitis which occurred when he was a child. Mrs Avenell, in her statement, disavows any suggestion that she informed the police that her husband was a risk to himself. 5. Subsequent to these events, Mr Avenell’s weapons license was suspended and on 9 April 2010. Sergeant Bradford of the Weapons Licensing Branch wrote to him advising of the suspension and in that letter said;- “to enable a determination on your current suitability to continue to be the holder of a license, it is requested that you provide a medical report issued by a doctor or psychologist which outlines you (sic) present suitability mentally to continue to hold possess and or use firearms held under you (sic) license under the provisions of the Act”.2 6. He was also advised that the report should be provided to the police within 21 days. 7. Mr Avenell did not provide a report within the required time being 7 May 2010. As a consequence of that, an authorised officer reviewed the file and made a decision to revoke his weapons license. This occurred on 14 May 2010 as a consequence of Mr Avenell failing to provide any evidence of his mental stability. 8. Mr Avenell then sought a review of that decision. 1 Affidavit of Elsie Kate Feltham sworn 25 August 2010 2 “CCB7” to the affidavit of Clayton Bradford -- 2 of 6 -- «CaseCode» / Page 3 of 6 9. At the commencement of the hearing I sought to have the parties identify the specific issues I had to consider in this review application. 10. The first issue is the applicant’s mental fitness to hold a firearms license. Associated with this, is the question of whether he is a fit and proper person because he failed to disclose to the respondent a change in his mental fitness in 2007 which required treatment. In addition, his failure to respond to the request for a medical report in the letter of 4 April 2010 resulting in the decision to revoke the license. 11. A second issue, but not as critical, is the applicant’s failure to comply with the requirements of the Weapons Act with respect to storage of his firearm and the separate storage of the ammunition. For these offences Mr Avenell was fined $200 but no conviction was recorded. In respect of the second issue, Sergeant Bradford candidly stated that this alone would not be sufficient to warrant a revocation being a first breach of the Weapons Act but this, coupled with doubts as to the Applicant’s mental fitness, or change of circumstances, it is a relevant factor to be taken into account. 12. After his license was suspended, and he received the letter from the respondent on 9 April 2010, the applicant did take steps to provide information to the respondent. His general practitioner referred him to a psychologist, Mr Laverty but, Mr Laverty fell sick and was unable to see him. To compound matters, his general practitioner, Dr Mitra went on holidays at the relevant time. Mr Avenell was unable to meet the deadline for the provision of the report. 13. Mr Avenell has subsequently seen a Ms Mehigan, a psychologist who has provided a written report.3 She undertook an assessment of Mr Avenell and explored some of the stressful issues he was experiencing at the time of the relevant incident. She states that Mr Avenell advised her that he had been prescribed antidepressants approximately two years prior to this incident, “took the antidepressants for a couple of days and gave them up as they made him sick”. He says that he then subsequently learnt other ways to deal with stress. She made recommendations for control of stress which were all of a conservative nature and reduction of work time. Ms Mehighan stated:- “I do not find that Peter Avenell is currently unsuitable to possess a firearm as he is not in my opinion:- a. Experiencing a diminished capacity mentally or physically or b. A danger to himself or someone else” 14. In addition to this report, he was also seen by Dr Riccardo Caniato, Consultant Psychiatrist4. This report was directed to the respondent. Dr Caniato saw Mr Avenell on 19 August 2010 for the purposes of an independent psychiatric assessment. Importantly Dr Caniato is not a treating psychiatrist and therefore his objective assessment of Mr Avenell obviously carries significant weight. 15. The report traverses Mr Avenell’s recent legal problems, his current work circumstances and family circumstances and the risk to his future employment 3 The counciller’s, psychological report annexed to Mr Avenell’s statement 4 Report from Doctor Caniato dated 19 August 2010 -- 3 of 6 -- «CaseCode» / Page 4 of 6 if he was ever required to work in security where a weapons license is necessary. His past medical history was noted as unremarkable. 16. With respect to past psychiatric history Dr Caniato records:- “Mr Avenell tells me he has never previously seen a psychologist or psychiatrist. He tells me that approximately two years ago he was placed on an antidepressant, Efexor for a few weeks but had side affects from this. He recalls that at the time he was having problems with sleep and possibly some stress. Other than this he describes no significant or obvious past episodes of depression or psychosis.” 17. Dr Caniato took family history details as well as personal and social history and conducted a mental state examination. On the mental state examination, he could not detect any abnormalities or any symptoms of major mental illness. He showed no signs of depression or psychosis. 18. Dr Caniato also interviewed Mrs Avenell as well as an associate, Mr Sanchez. 19. In Dr Caniato’s opinion, Mr Avenell did not have any major medical issues and no psychiatric history which would be suggestive of any major mental health problems. He did not consider that there was any impediment to Mr Avenell holding a firearms license from a psychiatric perspective. 20. The respondent subpoenaed Mr Avenell’s medical records and they were admitted into evidence. It is clear on perusal of those records, and consistent with the information provided to those medical practitioners he saw, that between about May 2007 to November 2007 he did attend his general practitioner, Dr Mitra, about stress related issues. He stated that he felt depressed, had difficulty sleeping, had communication issues with his wife and had “ups and downs”. Although Efexor, which is a known antidepressant, was prescribed there is no diagnosis anywhere in Dr Mitra’s records of any psychiatric condition or mental illness, of for example, clinical depression. Nor is there any suggestion of referral to a psychologist or a psychiatrist for treatment. There is a reference to counselling but this, one can reasonably assume, is in relation to his personal relationship with his wife. 21. Mr Avenell explained during the hearing that he was going through a stressful time at work and interpersonal relationship with his wife. He says he took the Efexor for a period of time, he is not sure but it did make him sick and he stopped taking it. He doesn’t really provide a satisfactory explanation for the number of scripts written but importantly, whether he took the Efexor or not, there is nothing in Dr Mitra’s notes which would suggest that there was any alteration to his “mental or physical fitness”5. 22. There is no suggestion by the respondent that the applicant is not presently mentally fit to hold a weapons license. In fact a submission of that kind would simply carry no weight in the face of the report from Ms Mehighan and from Dr Caniato. 5 Section 24 of the Weapons Act. -- 4 of 6 -- «CaseCode» / Page 5 of 6 23. Therefore, the application turns on whether or not there was a sufficient change in Mr Avenell’s mental fitness that he should have, as he is obliged to do under section 24 of the Weapons Act, advised the respondent of a change in his circumstances. 24. The respondent has highlighted inconsistencies in Mr Avenell’s evidence firstly, in respect of the extent of his mental illness, the fact that there were a number of prescriptions written for Efexor which, I am urged to assume that Mr Avenell would have taken over that period, his conduct in January 2010 involving the storage of a rifle under his bed, the evidence of the police officers who attended his house which leads to the conclusion that he is not a fit and proper person. 25. Interestingly, the grounds for revocation was Mr Avenell’s failure to provide medical evidence to satisfy the Respondent that he was mentally fit to hold the weapons license. It was only at the hearing that the medical records were produced which gave some impetus to the respondent’s submission, involving an additional basis upon which the revocation could stand and that is the change of circumstances in 2007. 26. Although each, the respondent and the Tribunal are entitled to rely on this evidence, I am simply not persuaded that Mr Avenell’s mental condition deteriorated to such a degree, that there was an obligation on him to advise the respondent of this deterioration. 27. I am supported in this view by a further report of Dr Caniato6 where he annexes a “brief psychiatric rating scale”. Dr Caniato said this:- “Mr Avenell presented to my clinic today stating that he required a BPRS for his upcoming court case tomorrow. Although he is not completely sure he believes this represents the brief psychiatric rating scale. He tells me that the Police Weapons Licensing Branch had asked him to have a Brief Psychiatric Rating Scale score in regards to his upcoming Tribunal case. The Brief Psychiatric Rating Scale of course is a widely used instrument for assessing positive and negative affective symptoms of individuals who have psychotic disorders especially schizophrenia. Based on my assessment today Mr Avenell’s scored 25 on the Brief Psychiatric Rating Scale. In essence he is symptomatic for all of the 24 items that he describe some mild anxiety in relationship to his upcoming court case. I therefore scored him in the mild range for anxiety symptoms.” 28. One final piece of evidence is also instructive. And that is the questionnaire prepared by Dr Mitra dated 26 August 2008 which confirms that Mr Avenell did present with anxiety and depressive symptoms, but treatment was over a short period. There was no referral to a psychiatrist, psychologist or other health professional, there was no evidence of suicidal tendencies and the patient’s mental state at the time of assessment was normal. 29. The obligation under section 24(2)(a)(ii) of the Act on the license holder is to advise the respondent of any change to the licensee’s mental or physical 6 Dated 6 September 2010 -- 5 of 6 -- «CaseCode» / Page 6 of 6 fitness. One can readily see how a licensee could be aware of any change to physical fitness but, one can readily appreciate the difficulties that might face a licensee to be able to make an objective determination as to when the licensee ought to have realised that there was a sufficient change to his mental fitness that he ought to have advised the respondent. One can readily envisage situations where a change would be so dramatic that the obligation is obvious, but in other cases, particularly in Mr Avenell’s case where there was only a slight deterioration in mood, it becomes less obvious. Here there is no evidence to suggest that he ought to have realised that this change in mood was sufficient to warrant notification to the respondent. Life experience also supports an observation that individuals generally can be in genuine denial when dealing with psychiatric or mental illness. 30. I am not satisfied that Mr Avenell’s failure to notify the respondent that he was being treated for anxiety with depressed mood was a breach of his obligations under section 24 of the Weapons Act. 31. The fact that he has failed to comply with the requirements of properly securing his weapons and ammunition as required by the Weapons Act is of concern but for that he has been punished. 32. Given Mr Avenell’s otherwise good character, I propose to allow the application and set aside the revocation order. -- 6 of 6 --