Marchant v Queensland Police Service – Weapons Licensing
[2021] QCAT 71
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- Unreported Judgment
- Marchant v Queensland Police Service – Weapons Licensing[2021] QCAT 71
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Marchant v Queensland Police Service – Weapons Licensing[2021] QCAT 71
Marchant v Queensland Police Service – Weapons Licensing[2021] QCAT 71
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Marchant v Queensland Police Service – Weapons Licensing [2021] QCAT 71 |
PARTIES: | ROBERT JAMES MARCHANT (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) |
APPLICATION NO/S: | GAR016-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 19 February 2021 |
HEARING DATE: | 10 February 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: | The decision of the Respondent revoking the Applicant’s weapons licences dated 21 November 2019 is set aside. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – where applicant committed offences under the Weapons Act – where applicant convicted of two driving under the influence of alcohol offences in quick succession – where applicant experienced in the handling of firearms – where weapons licence necessary for his business operations – where applicant involved in police operation resulting in a fatality prior to his offending behaviour – whether the applicant is a fit and proper person to hold a licence – whether applicant’s conduct is out of character – whether the offences under the Weapons Act are serious offences – whether the applicant is likely to re-offend. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Weapons Act 1990 (Qld), s 3, s 4, s 10B McVie v Queensland Police Service – Weapons Licensing Branch [2010] QCAT 491. Australian Broadcasting Tribunal v Bond (1994) ALR 56 Magarry v QPS – Weapons Licensing [2012] QCAT 378 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr Kuskie, solicitor of Rostron Carlyle Rojas Lawyers |
Respondent: | Sgt Ayscough of Queensland Police Service – Weapons Licensing |
REASONS FOR DECISION
- [1]Prior to November 2019 Mr Marchant held licenses for categories A, B, C, D and H weapons. The category H license is for a concealable firearm, which he needed in order to work as a security officer. Other licenses were used by him for recreational shooting, feral pest management control and competition shooting. He has considerable expertise in dealing with firearms and was trained as an ammunition technician and weapons specialist in the Australian Army. He joined the Australian Defence Force, Army, in 2003 and was discharged in 2015.
- [2]After discharge from the Army, he commenced a business, RJM Vertebrate Pest Control, to utilise and take advantage of his training. He actually started the business whilst he was in the Army in anticipation of his discharge. The business involves the trapping and destruction of feral animals not only in remote bushland areas, but also in the city environs of the Gold Coast where he lives. Such animals include wild dogs, foxes, rabbits and wild cats. He submits there are very few professional shooters who engage in this type of occupation, namely for the protection of the native animal species.
- [3]In July 2019, the Queensland Police Service (QPS) in conjunction with the Australian Border Force (ABF) conducted a raid at his residential premises on the Gold Coast. This came about because the ABF were aware that he was importing selector switches used in air soft pistols which are an illegal weapon in Australia. During the raid on his house, QPS also uncovered a number of parts for a weapons suppressor (silencer), a can of capsicum spray and a bullet proof vest, all of which were illegal to be in possession of under the Weapons Act
- [4]As a result of being found in possession of the suppressor parts, capsicum spray and the vest, QPS charged Mr Marchant with offences under the Weapons Act. On the first return date of the Complaint and Summons Mr Marchant attended the Magistrates Court at Southport on14 August 2019, pleaded guilty to possession of those items and was fined $1,000. No conviction was recorded.
- [5]The QPS Weapons Licensing branch, reviewed his license history and also his traffic history which revealed a number of serious traffic offences in recent times including two charges of driving under the influence of alcohol. The first of these charges was that on 10 September 2018 he had a BAC reading of .137 and on the second on 19 May 2019 he a reading of .21. He was disqualified from holding a drivers license for 2 years and was also required to have an interlock device on his motor vehicle until mid 2022.
- [6]Because of all of these matters, on 21 November 2019, the Weapons Licensing Branch of the QPS revoked all of his weapons licenses. The essential ground for the revocation are that Mr Marchant is not a fit and proper person to hold weapons licenses as required by s.10B of the Weapons Act.
- [7]Mr Marchant filed an application to review the decision to revoke his licenses in the Tribunal. In support of his application he has also filed considerable material in support of his case that he is a fit and proper person. The material addresses reasons for his offending, which was as a result of his aberrant and out of character behaviour due to him being under significant psychological stress. In considering all of his evidence, and the submissions of the QPS, it is the Tribunal’s function on this review application to produce the correct and preferable position.[1]
- [8]Mr Marchant joined the Australian Army in 2003. His specialty area within the ADF involved weapons use, training and explosives. His service record[2]sets out his service history and achievements. He has included a number of certificates and references. He served two tours of East Timor during its independence campaign, and also was part of an Australian Army contingent in Afghanistan in 2010. He has a number of service medals in recognition of his service during his 13 year career. One of the reasons for his discharge was the development of tinnitus for which he received treatment. I accept his evidence that by the time he left the Army, he was highly proficient as an armaments technician both in personal weapons and explosives.
- [9]He sought to use all of that good training in the start up business RJM Vertebrate Pest Control and also in security work. This seemed, objectively, a natural application of his qualifications and skills with the progression into the civilian environment. He mainly operated his business at the Gold Coast and was employed by Prosegur, a company providing security services, as an armed security guard prior to his weapons licenses being revoked. There is a reference from a co-employee, Mr Harman, vouching for his good character and competency.
- [10]The references and documentations indicate that he had been contracted by a number of local authorities to engage in pest management. The references provided speak to his proficiency and commitment to these tasks and also to his good character. I accept without hesitation, not only reviewing the material filed, but observing Mr Marchant give evidence that but for his offending conduct in 2018 and 2019 he is otherwise a person of good character. I also take into account his service to his country.
- [11]Mr Marchant gave further oral evidence before the Tribunal as to his experience in the Army and his work involving firearms subsequent to his discharge. I found his evidence to be considered and forthright and accepting of his misguided conduct resulting in his appearance in the Magistrates Court. He acknowledged without any reservation, that this was entirely inconsistent with his responsibilities as a weapons license holder. I have no hesitation in accepting his evidence in its totality.
- [12]In respect of the drink driving charges, the first two which appear on his traffic history occurred soon after he went into the Army. The first, related to having to pick up a friend when pressured by his friends to do so. This occurred soon after their arrival home from their first tour of East Timor. The second occasion in 2007 was more of a technical offence in that he was in charge of a vehicle whilst under the influence of alcohol. He was asleep in the car when the police intervened. He accepts that both of these events were irresponsible and occurred when he was much younger. There were later offences but these must be considered in the context of what occurred in January 2018.
- [13]Mr Marchant was involved in a serious traumatic event in January 2018 about which he gave evidence. This event had a serious impact on his psychological wellbeing. A short summary is that it related to events involving a friend in Sydney, who I will simply call Josh. He and Josh were in the Army together and were trying to start a business in New South Wales using explosives, because Josh was a trained explosives technician. They had another mutual friend, Nick Newman, who was to some extent involved in the start-up business as well. Josh became aware that New South Wales Police were wanting his help to find Mr Newman. This came about when Josh had been speaking with a detective in the New South Wales Police who sought Josh’s assistance to contact Newman, which he readily provided.
- [14]On a day in January 2018, Josh, Mr Marchant and Mr Newman were getting together and Josh advised the detective that they would go to the Maroubra Hotel and he could meet up with Mr Newman there. Mr Newman and Mr Marchant were seated at a table in the hotel, when police came into the hotel to detain Newman. There was a serious altercation/scuffle between the detective and Newman whereby the detective was stabbed with a knife and Newman was shot, seriously wounding him and falling to the floor with other police shouting telling everyone to stay where they were. As Mr Marchant was right next to Newman he saw close hand what was occurring. When Newman fell to the floor Mr Marchant was concerned for his own safety because of the repeated gunfire, and Mr Marchant also went down on the floor next to Newman. There was blood all around him on the floor. Mr Newman was still alive and had the knife and Mr Marchant was extremely concerned for his own safety. Other police arriving at the scene did not release that Mr Marchant was trying to assist the detective in contacting Newman. Mr Newman ultimately died and the detective was taken to the hospital with serious injuries and in a critical condition.
- [15]Being a witness to these traumatic events had an understandably serious impact on Mr Marchant. He said he commenced drinking heavily to cope with what occurred so he could stop thinking about the traumatic events. He was obviously distressed when giving evidence about these events. He said and I accept his evidence that he tried to distract himself by using his computer to look at weapons paraphernalia, etc and came across the switches. He decided to import the switches because he considered they could be used in what is known as “gel blasters” which is a toy gun that fires gel balls. They were at the time legal in Queensland. However, the switches can also be used in air soft pistols which are prohibited in Australia and this is what brought his importation of them to the attention of the ABF.
- [16]The two recent drink driving offences, the first in September 2018 and the second May 2019 at a time when Mr Marchant was coping with what had occurred. Mr Marchant’s conduct exposed innocent members of the public to a risk of injury or death. They are also serious in the sense that they exhibit a disregard for the law generally and the regulatory processes under the Weapons Act. Personal ownership of weapons in Queensland is not a right but a privilege. A license holder must strictly comply with the requirements of the Act and, as has been submitted by the QPS, disregard to any regulatory regime does cast a cloud over whether a person is a fit and proper person to hold a weapons license.
- [17]Since losing his license, Mr Marchant has continued to work in security, and in native animal management, that is, the catch and removal of native animals to relocate them. He has also developed some specialty working for the Gold Coast City Council in the trapping and removal of ibis. Obviously his security work does not involve the need for a firearm but with a licence for a category H more opportunity would be open to him.
- [18]He has, since the revocation, sought and obtained authorisation from the Department of Natural Resources and Mines to be permitted to use explosives. The Office of Fair Trading issued a show cause notice as to why he should not lose his security license. He did show cause and the OFT was satisfied that he could continue to hold a security licence. All of this, he submits, should be taken into account by the Tribunal in determining whether he is a fit and proper person.
Discussion
- [19]The underlying principles of the Weapons Act are that possession of weapons are subordinate to the need to ensure public and individual safety. This is achieved by imposing strict controls on the possession of weapons.[3]There are various categories of weapons licenses but as already mentioned, for a person to hold a weapons license, they must satisfy s.10B of the Act that they are a fit and proper person to hold a license. The section provides:
- (1)In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things—
- the mental and physical fitness of the person; and
- (1)
…
- (d)the public interest.
- [20]The two serious drink driving charges in such a short interval certainly cast a cloud over Mr Marchant’s fitness to hold a licence. He has exhibited not only disregard for the traffic regulations but also for the safety and well-being of other road users and the public.
- [21]Traffic history alone can establish that an individual is not a fit and proper person to hold a weapons license[4]. However, in this case although there were two earlier drink driving charges in 2004 and 2007, the traffic history subsequent to that and until the first recent drink driving charge is unremarkable, and have no connections with the use of his firearms license.
- [22]Mr Marchant puts forward the following explanation for other offences. In respect of the capsicum spray, another colleague from the Army, a dog handler, was on the Gold Coast visiting and told him that he used the pepper spray when dealing with aggressive animals. He offered Mr Marchant a can which he took as he thought it might come in handy in his line of work trapping feral animals. Pepper spray is legal for purchase in Queensland but not in Western Australia, where his friend acquired it. On the basis of this information, he kept the can of pepper spray. As for the ballistic vest, this was Army issue which he had kept after his discharge from the Army but it was never used. It was located by police when they searched his house.
- [23]Realising that he was not coping mentally, and was abusing alcohol, in May 2019, he sought help through the Department of Veteran Affairs with an organisation called Open Arms. He was allocated a case officer who has helped him cope with his ongoing problems and to avoid alcohol. The file of his treatment is included in the material. In the most recent session with Mr Marchant in June 2020 the case officer reports, inter alia, that: there was good rapport; he was alert and mood was appropriate; judgment was appropriate and concentration alert; he was low risk of self-harm and reference was made to adjustment disorder. He did raise the issue of the inquest into the death of Mr Newman which was yet to occur.
- [24]A Risk and Violence Assessment was conducted by John Brownhill, clinical psychologist and a report was prepared after an interview with Mr Marchant on 9 August 2019. The report addressed Mr Marchant’s mental health and risk assessment by undertaking an objective analysis of his past history and ability to cope with stressful situations. I note here is no mention of the Sydney incident. There was no information provided which would create any concern about gun ownership, such as self-harm.
- [25]The QPS highlight the fact that Mr Marchant did not mention alcohol abuse in the history provided to Mr Brownhill. This raises a question, fairly, whether there was full and frank disclosure by Mr Marchant so that Mr Brownhill had a complete picture of his personality. However, this really depends on the course of the interview undertaken, and I note the questions seemed to be limited to stressful situations rather than overall behaviour. In any event, Mr Marchant has addressed these issues and this is supported by the last report from Open Arms. There is also the question of whether by having to give evidence at the inquest into Mr Newman’s death, a further stress reaction might be triggered. Once again, on the basis of the Open Arms report, I am of the view that Mr Marchant will be able to cope with this, if it is necessary for him to attend.
- [26]It has been repeatedly said and adopted in this Tribunal that the phase ‘fit and proper person’ is to be considered in light of what the High Court said in Australian Broadcasting Tribunal v Bond[5]that:
It takes its meaning from its context and from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur or whether the general community will have confidence that it will not occur.
- [27]Mr Marchant has had significant and intensive training in the use of firearms, both concealable and non-concealable. The QPS argue that by reason of this training his conduct shows a disregard for the regulatory regime and therefore he is not fit and proper. However, this must be balanced against the reasons for the offending conduct and the steps he has taken to address his behaviour. He has taken appropriate steps to
get help which has been beneficial and provided him with greater insight into his conduct. Furthermore, had it not been for the offences under the Weapons Act, it is unlikely any action would have been taken to revoke his licence just because of the traffic offences. In respect of the seriousness of breaches of the Weapons Act, Mr Marchant’s offences are at the lower end. This is reflected in the amount of the fine imposed by the Magistrates Court and also that no conviction was recorded. This addresses the nature of the activity that brought him to the attention of the QPS.
- [28]Given what has occurred since, his reaching out for assistance and finding alternate employment within his skill set demonstrates to me, and I find, that it is highly unlikely that his offending behaviour will be repeated. Therefore, the general community can have confidence that he will comply with all of the requirements of the Weapons Act. There is also the check and balance in respect of the category H weapon in that it must be renewed each year. This gives the QPS an opportunity to monitor his compliance with the privilege of being in possession of weapons.
- [29]Taking all of these matters into account, including the public interest, which are all relevant to the exercise of discretion[6], I have come to the conclusion that the correct and preferable decision is that the decision to revoke licence numbers 10105721, 30035221 and 61015653 be set aside and that his licences be re-instated.
Footnotes
[1]Section 20, Queensland Civil and Administrative Tribunal Act.
[2]Exhibit 1.
[3]Weapons Act, section 3.
[4]McVie v Queensland Police Service – Weapons Licensing Branch [2010] QCAT 491.
[5](1994) ALR 56 at 56; Also Magarry v QPS – Weapons Licensing [2012] QCAT 378
[6]CAT v Queensland Police Service [2017] QCATA 43 at [28]