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CITE

Unreported Judgment

De Lafontaine v Queensland Police Service – Weapons Licensing[2023] QCAT 72Member Deane
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De Lafontaine v Queensland Police Service – Weapons Licensing[2023] QCAT 72

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	De Lafontaine v Queensland Police Service – Weapons Licensing [2023] QCAT 72
PARTIES:	marcel emmanuel louis de lafontaine (applicant) v queensland police service – weapons licensing (respondent)
APPLICATION NO/S:	GAR538-21
MATTER TYPE:	General administrative review matters
DELIVERED ON:	28 February 2023
HEARING DATE:	15 February 2023
HEARD AT:	Brisbane
DECISION OF:	Member Deane
ORDERS:	The Queensland Police Service – Weapons Licensing revocation decision dated 26 August 2021 is confirmed.
CATCHWORDS:	FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – whether the applicant is a fit and proper person to hold a weapons licence Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 23, s 24, s 25, s 27, s 31, s 34, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 33 Weapons Act 1990 (Qld), s 3, s 4, s 10B, s 29, s 142 Australian Broadcasting Tribunal v Bond [1990] 94 ALR 11 CTA v Queensland Police Service [2018] QCAT 440 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717 R v Beissel [1996] QCA 488
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	A/Sergeant Bauer

REASONS FOR DECISION

[1]
Mr De Lafontaine has held a weapons licence for many years. On 26 August 2021, his licence was revoked (the Decision). The decision maker was satisfied that he was no longer a fit and proper person to hold the licence due to it not being in the public interest.
[2]
Mr De Lafontaine applied to the Tribunal to review the Decision.^[1] A person aggrieved by a decision to revoke a licence may apply to the Tribunal to review such a decision.^[2] I am satisfied that the application was commenced within time.^[3]
[3]
On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.^[4] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.^[5] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld (QCAT Act) and Weapons Act 1990 (Qld) (the Act). The tribunal stands in the place of the original decision maker and is required to comply with the obligations under the Act to arrive at the correct and preferable decision.^[6]
[4]
There is no presumption that the decision under review is correct.^[7]
[5]
Section 3 of the Act provides:

(1)
The principles underlying this Act are as follows—

(a)
weapon 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.

(2)
The object of this Act is to prevent the misuse of weapons.

[6]
Relevantly section 4 of the Act provides:

The object of this Act is to be achieved for firearms by—

(a)
…..

(b)
establishing an integrated licensing and registration scheme for all firearms; and

(c)
requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and

(d)
providing strict requirements that must be satisfied for—

(i)
licences authorising possession of firearms; and

(ii)
the acquisition and sale of firearms; and

(e)
ensuring that firearms are stored and carried in a safe and secure way.

[7]
Section 29 of the Act relevantly provides that a licensee’s licence may be revoked if the authorising officer is satisfied that the licensee is no longer a fit and proper person to hold a licence.^[8]
[8]
The High Court considered the expression ’fit and proper person’ in Australian Broadcasting Tribunal v Bond ^[9]:

The expression “fit and proper person” standing alone, carries no precise meaning. It takes its meaning from its context, 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain context, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

[9]
Section 10B(1) of the Act provides the following mandatory considerations when deciding whether a person is no longer, a fit and proper person to hold a licence:
1. (a)
  the mental and physical fitness of the person;
2. (b)
  whether a domestic violence order (DVO) has been made, police protection notice issued, or release conditions imposed against the person;
3. (c)
  whether the person has stated anything in or in connection with an application for the renewal of a licence, the person knows is false or misleading in a material particular;
4. (d)
  whether there is any criminal intelligence or other information which indicates the person is a risk to public safety, that authorising the person to possess a weapon would be contrary to the public interest; and
5. (e)
  the public interest.
[10]
Section 10B also sets out circumstances which, if applicable within the 5-year period immediately before the date of the revocation notice, provide that a person is not fit and proper. There is no evidence before me that any of these circumstances are applicable.
[11]
There is also no evidence before me of the making of any DVO nor any evidence Mr De Lafontaine has provided false or misleading information.
[12]
The QPS point to a conviction, although no conviction was recorded, for common assault on 12 March 2021 in the Bundaberg Magistrates Court.^[10] The evidence is that Mr De Lafontaine pled guilty to that charge and was fined $500. A second charge for sexual assault was not proceeded with. There is little evidence before me from Mr De Lafontaine in relation to the circumstances surrounding this offending, which occurred in December 2020 when he was in his seventies and involved a 16-year-old female.
[13]
The QPS also point to evidence that Mr De Lafontaine was convicted in 1981 of three counts of aggravated assault against a female under the age of 17 years. The penalty in that instance was two years’ probation.
[14]
The criminal history information raises a concern:
1. (a)
  that he has disregard for the law;
2. (b)
  that he exercises poor judgement; and
3. (c)
  as to whether there is a real prospect of him misusing weapons if the revocation of the weapons’ licence is set aside.
[15]
Mr De Lafontaine filed little documentary evidence in support of his contention that he is a fit and proper person to hold a licence. He filed a reference from a person who has known him for a number of years^[11] and some letters directed to the tribunal^[12] but no statements of evidence despite being directed to do so on two occasions.^[13]
[16]
The Tribunal has recognised that an applicant in review proceedings has no formal onus of proof but has an evidential or practical onus to adduce evidence which supports its case as the Tribunal must make its decision on the material before it. As stated in Laidlaw v Queensland Building Services Authority^[14]

In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.

[17]
No medical or psychological report has been filed. Such evidence, when provided, assists the tribunal to evaluate the level of risk the Applicant poses and assists the evaluation of the Applicant's insights or strategies to avoid further incidents of inappropriate behaviour or offending.
[18]
I gave Mr De Lafontaine an opportunity to give oral evidence in support of his case. His evidence is that:
1. (a)
  he is a primary producer as he currently runs about sixty head of cattle and he needs the weapons to scare aware kangaroos, to kill rabbits, foxes, wild cats, and wild pigs and to destroy his cattle when ill or injured.
2. (b)
  in relation to the more recent incident, which resulted in a conviction of common assault:
  1. he thought the young woman was attractive, he had met her a few times where the incident occurred, he wanted to give her a hug, he put his arms around her, but she walked away, and he may or may not have touched her bottom as she was walking away.
  2. his lawyer advised him to plead guilty so that a more lenient penalty was likely to be imposed. He accepted his lawyer’s advice because he wanted ‘to get the matter over and done with.’
  3. he was embarrassed and ashamed because he had to go to court where offenders wore bracelets.
3. (c)
  he did not obtain other statements of evidence or reports because he was too embarrassed to tell people about his criminal history, which he described as foolish.
4. (d)
  he felt ashamed and did not want to advertise what had happened.
5. (e)
  he had learnt from the incident to ‘never go near a young lady again.’
6. (f)
  it is ‘definitely not OK’ to touch someone that you do not know but was unable to say how old a person needs to be to provide consent to be touched.
7. (g)
  he was remorseful because he was ‘ever so sorry.’
8. (h)
  he has never threatened anyone with a gun or pointed a gun at a human and has never shot anything other than vermin.
9. (i)
  he has used weapons since he was a young boy.
10. (j)
  in relation to the 1981 conviction:
  1. that related to a neighbour.
  2. they were both attracted to each although they ‘never had an affair.’
  3. her boyfriend got upset and complained to the police.
  4. she was about 18 or 19 years old, and he was in his thirties.^[15]
11. (k)
  he complies with the law.
[19]
The Tribunal has previously accepted that:^[16]

Previous breaches of the law, and any proclivity for offending have been considered important in determining whether a person is a fit and proper person to hold a licence. As the Tribunal has observed, irresponsible, uncontrolled or antisocial behaviour constituting a risk to public safety is relevant, including traffic offences which may of themselves indicate a flagrant disregard for the law. (references omitted)

[20]
During the hearing I arranged to telephone the referee to confirm his evidence. The referee gave evidence that:
1. (a)
  Mr De Lafontaine had informed him of the circumstances surrounding the revocation of his licence in respect of the most recent criminal history incident, but he had not informed him that he was charged with sexual assault nor about the aggravated sexual assault conviction from 1981.
2. (b)
  he has daughters ranging from 6 to 18 years old and that they visit Mr De Lafontaine every month over the last year.
3. (c)
  he has no concern that Mr De Lafontaine would be inappropriate with his daughters even if they are left unsupervised with him when the referee attends to other matters on the property.
4. (d)
  he has witnessed Mr De Lafontaine’s storage and maintenance of his weapons and as a previous professional shooter he considers that Mr De Lafontaine complies with his obligations to keep his weapons safe and well maintained.
[21]
I accept the referee’s evidence of his interactions with Mr De Lafontaine.
[22]
Although Mr De Lafontaine’s licence must have been granted or at least renewed since the 1981 offending, I consider the evidence in relation to it together with the more recent offending to form a view as to the risk to public safety. There is no evidence of any other allegations of aggressive or inappropriate behaviour before me nor offences involving weapons.
[23]
Given the limited evidence before me, I am not satisfied, that if Mr De Lafontaine’s licence is reinstated, that his right to possess firearms will not present a real risk to public and individual safety because I am not satisfied that he will comply with his obligations. He says that he was ashamed that he had to attend court with offenders, but he does not appear to recognise he is an offender. Although almost 40 years has intervened between the two incidents, both incidents show that he has at the very least exercised poor judgement in relation to his interaction with girls under the age of 17. This calls into question his ability to exercise sound judgement in the possession and use of weapons.
[24]
Mr De Lafontaine had limited insight into the inappropriateness of his conduct, which is of concern. His description of his behaviour as ‘foolish’ seeks to minimise the seriousness of his conduct. He has not given any evidence of any strategies that he is employing to prevent any re-offending other than to avoid the place where the most recent incident occurred and avoiding young women. Contrary to the latter submission, his own evidence and his referee’s evidence is that the referee’s daughters visit monthly.
[25]
The Human Rights Act 2019 (Qld) commenced on 1 January 2020. In deciding this Application, I am acting as a public entity^[17] in an administrative capacity. I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.^[18] I accept that these proceedings and a decision under the Act potentially impacts Mr De Lafontaine’s rights.^[19] I have considered Mr De Lafontaine’s human rights and am satisfied that the decision is compatible with his human rights as the limitations on those rights are reasonable and justifiable.^[20]
[26]
The limitation of Mr De Lafontaine’s human rights is consistent with the principles and objects in the Act.^[21]

Summary

[27]
For the reasons set out, the correct and preferable decision is to confirm the Decision.

Footnotes

[1] Exhibit 1, Application to review a decision filed 16 September 2021.

[2] Weapons Act 1990 (Qld), s 142 (the Act).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4) (QCAT Act).

[4] Ibid, s 24.

[5] Ibid, s 20.

[6] CTA v Queensland Police Service [2018] QCAT 440, [11].

[7] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[8] The Act, s 29(1)(d).

[9] [1990] 94 ALR 11 per Toohey and Gaudron JJ at 56.

[10] R v Beissel [1996] QCA 488.

[11] Exhibit 2.

[12] Exhibit 3 and 4.

[13] Directions dated 22 September 2021 and 5 May 2022.

[14] [2010] QCAT 70, [23] (references omitted).

[15] I observe that Mr De Lafontaine appears not to be fully aware of the charges of which he was convicted. The criminal history clearly shows that he was convicted of aggravated assault on a female child under the age of 17 years.

[16] Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717, [33].

[17] Human Rights Act 2019 (Qld), s 9.

[18] Ibid, s 48.

[19] Ibid, s 23, s 24, s 25, s 27, s 31, s 34.

[20] Ibid, s 8, s 13, s 31, s 48, s 58.

[21] The Act, s 3, s 4.

Editorial Notes

Published Case Name:
De Lafontaine v Queensland Police Service – Weapons Licensing
Shortened Case Name:
De Lafontaine v Queensland Police Service – Weapons Licensing
MNC:
[2023] QCAT 72
Court:
QCAT
Judge(s):
Member Deane
Date:
28 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Australian Broadcasting Tribunal v Bond	(1990) 94 ALR 11	2 citations Jump To Cite 1 - (1990) 94 ALR 11 Cite 2 - (1990) 94 ALR 11
CTA v Queensland Police Service	[2018] QCAT 440	2 citations Jump To Cite 1 - [2018] QCAT 440 Cite 2 - [2018] QCAT 440
Kehl v Board of Professional Engineers of Queensland	[2010] QCATA 58	2 citations Jump To Cite 1 - [2010] QCATA 58 Cite 2 - [2010] QCATA 58
Laidlaw v Queensland Building Services Authority	[2010] QCAT 70	2 citations Jump To Cite 1 - [2010] QCAT 70 Cite 2 - [2010] QCAT 70
R v Beissel	[1996] QCA 488	2 citations Jump To Cite 1 - [1996] QCA 488 Cite 2 - [1996] QCA 488
Roesch v Queensland Police Service Weapons Licensing Branch	[2013] QCAT 717	2 citations Jump To Cite 1 - [2013] QCAT 717 Cite 2 - [2013] QCAT 717

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Betson v Queensland Police Service – Weapons Licensing	[2023] QCAT 334	2 citations

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De Lafontaine v Queensland Police Service – Weapons Licensing[2023] QCAT 72