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  4. Lane v Queensland Police Service Weapons Licensing - [2024] QCAT 145

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Lane v Queensland Police Service Weapons Licensing[2024] QCAT 145

Lane v Queensland Police Service Weapons Licensing[2024] QCAT 145

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lane v Queensland Police Service Weapons Licensing [2024] QCAT 145

PARTIES:

David lane

(applicant)

v

Queensland police services weapons licensing

(respondent)

APPLICATION NO:

GAR008-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

5 April 2024

HEARING DATE:

26 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

  1. The decision of the Queensland Police Service to revoke firearms licence 10121328 dated 22 November 2022 is set aside.
  2. The tribunal’s decision to issue a fresh licence to David Lane under section 29 of the Weapons Act 1990 (Qld) is substituted for that decision.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – PUBLIC INTEREST – where the applicant’s firearms licence was revoked – whether drug offences in the 1990s and a drug offence in 2020 for which no conviction was recorded demonstrated continual disregard for the laws of the State

Penalties and Sentences Act 1992 (Qld), s 12

Weapons Act 1990 (Qld), s 10, s 10B, s 29

Grobler v Queensland Police Service [2023] QCAT 103

GKR v Queensland Police Service [2023] QCAT 335

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Carey, senior review officer

REASONS FOR DECISION

  1. [1]
    On 22 November 2022 David Lane’s firearms licence number 10121328 was revoked on the basis that he was no longer a fit and proper person to hold the licence. In these proceedings he seeks the reinstatement or reissue of that licence.

Relevant legislation

Weapons Act 1990 (Qld)

  1. [2]
    The system for licensing weapons in Queensland is established by the Weapons Act 1990 (Qld) (Weapons Act). The object of the Weapons Act is to prevent the misuse of weapons.[1] The principles underlying the Weapons Act are that:
    1. weapon possession and use are subordinate to the need to ensure public and individual safety; and
    2. 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]
  2. [3]
    A person who wishes to possess a firearm under a licence must demonstrate a genuine reason for possessing the firearm.[3] The reasons include:
    1. sports or target shooting;
    2. recreational shooting;
    3. an occupational requirement, including an occupational requirement for rural purposes, or the collection, preservation or study of weapons.[4]
  3. [4]
    The licensing requirements are strict.[5] A person is only entitled to a licence if they:
    1. have an adequate knowledge of safety practices for the use, storage and maintenance of the weapon or category of weapon the possession of which is to be authorised by the licence;[6]
    2. have access to secure storage facilities for the weapon possession of which is to be authorised by the licence;[7]
    3. are not prevented by the Weapons Act or another Act or by an order of a Magistrates Court or another court from holding the licence;[8]
    4. are a fit and proper person to hold a licence;[9]
    5. have a reason to possess the weapon;[10] and
    6. reside only in Queensland.[11]
  4. [5]
    In order to decide whether a person is, or is no longer, a fit and proper person to hold a licence, the Weapons Act mandates the decision maker consider, among other things:
    1. the mental and physical fitness of the person;
    2. whether a domestic violence order has been made, a police protection notice issued, or release conditions imposed against the person;
    3. whether the person has made a statement, knowing it to be false or misleading, in the application under consideration;
    4. whether there is any criminal intelligence that indicates that the person is a risk to public safety or that authorising the person to possess a weapon would be contrary to the public interest; and
    5. the public interest.[12]
  5. [6]
    If:
    1. a person has been convicted of an offence:
      1. (i)
        relating to the misuse of drugs;
      1. (ii)
        involving the use of violence;
      1. (iii)
        involving the use, carriage, discharge or possession of a weapon; or
    2. a domestic violence order has been made against a person

then that person is deemed not to be a fit and proper person to hold a weapons licence for a period of 5 years.[13]

  1. [7]
    A licence may be revoked if the licensee is no longer a fit and proper person to hold a weapons licence.[14] The matters for consideration when making such a decision are the matters set out in section 10B of the Weapons Act. The licence may be reinstated by issuing a fresh licence.[15]

Penalties and Sentences Act 1992 (Qld)

  1. [8]
    The Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act) gives a court a discretion to record, or not to record, a conviction. In considering whether or not to record a conviction, a court must have regard to all circumstances of the case including:
    1. the nature of the offence;
    2. the offender’s character and age;
    3. the impact that recording a conviction will have on the offender’s:
      1. (i)
        economic or social wellbeing; or
      1. (ii)
        chances of finding employment.[16]
  2. [9]
    Unless expressly provided for by the Penalties and Sentences Act or another Act:
    1. a conviction without recording the conviction is taken not to be a conviction for any purpose;
    2. the conviction must not be entered in any records except:
      1. (i)
        in the records of the court before which the offender was convicted; and
      1. (ii)
        in the offender’s criminal history but only for the purposes of subsection (4)(b).[17]

The decision under review

  1. [10]
    The original decision maker formed the opinion that the applicant was not a fit and proper person to retain a licence because of his ‘continual disregard for the laws of this state’. The decision maker formed that opinion based on the following:
    1. in October 1995, when the applicant was 18 years old, he was convicted of a drug offence;
    2. in May 1999, when the applicant was 22 years old, he was convicted of a drug offence and imprisoned for 60 days;
    3. 3 drug offences in the late 1990s in respect of which no conviction was recorded;
    4. in January 2014 the applicant accepted and completed a drug diversion program;[18] and
    5. despite the fact that no conviction was recorded, in August 2020 the applicant permitted his son to grow cannabis on the family property and was convicted of a drug offence.
  2. [11]
    The original decision maker observed that had a conviction been recorded in August 2020 the applicant would have been deemed not to be a fit and proper person to hold a weapons licence.
  3. [12]
    Until August 2023 the applicant’s traffic record was unremarkable. He had the occasional speeding fine in 2004, 2005, 2008, 2014, 2015, and 2019. However, in August 2023 his driving licence was suspended and he received a significant fine when he exceeded the speed limit by more than 40km/h in a 100km/h zone.

Evidence

  1. [13]
    The applicant made a statutory declaration, attended the hearing and also relied on written submissions.
  2. [14]
    He is 48 years old. He readily conceded he made mistakes in his younger days. He is regretful and has expressed remorse. Since starting his apprenticeship decades ago, the applicant has married, had a family of four and established a career and home in a rural area. He has been active in his rural community and has produced character references noting his contributions to the community. He was an auxiliary firefighter for over a decade. He is working to make his property fully self-sustainable.
  3. [15]
    The applicant had a firearm licence since 2009, renewed in 2014. His weapons were stored in a locked gun cabinet.
  4. [16]
    He used a firearm to kill feral animals which attack his livestock.
  5. [17]
    The applicant readily conceded that he was driving at 147km/h when he was stopped by the police. He said that he did not realise the power of his new Tesla when he was overtaking on a mountain range. He was shaken by the incident and has taken steps to ensure that the car will never reach that speed again.
  6. [18]
    The applicant relied on a report from his psychiatrist. Dr Bruxner has treated the applicant for around 9 years. Dr Bruxner observed that the applicant suffers from chronic mixed anxiety and depressive syndrome, but that his mental state has improved over recent years. He said that there has never been any evidence of homicidal ideation. He also said that there has been no evidence of suicidal ideation for over 5 years and that even when the applicant expressed suicidal thoughts there was never any suggestion that he considered suicide by firearm.
  7. [19]
    The applicant also relied on a report from a consultant psychologist. After administering an Alcohol Use Disorder Identification Test and a Drug Use Disorder Identification Test she concluded that the applicant does not engage in problematic alcohol or other drug use. Based on the Hare Psychopathy Checklist she concluded that the applicant poses a very low risk of recidivism or involvement in common anti-social behaviours. Based on the Historical, Clinical and Risk Management Violent Assessment Scheme – Version 3 she concluded that the applicant presents a low risk of engaging in violent behaviour.

Consideration

  1. [20]
    On a review, the tribunal has power to confirm or amend a decision, set aside the decision and substitute its own, or set aside the decision and return it for reconsideration. The tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits. There is no presumption that the decision under review is correct.
  2. [21]
    There are two lines of authority in this tribunal regarding the approach to be taken in cases in which an applicant has been convicted for drug offences and no conviction has been recorded. The first line of authority excludes any consideration of offences for which no conviction was recorded, whereas the second permits acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence.
  3. [22]
    In Grobler v Queensland Police Service[19] (Grobler) Member Howe explored the tension between on the one hand, giving an offender the benefit of not recording a conviction, and on the other, protection of the public in such matters as licensing regimes. He said:

By s 12(3)(a) of the Penalties and Sentences Act 1992 the unrecorded convictions are not convictions for any purpose. The words are clear. The unrecorded convictions in the Magistrates Court are therefore not convictions for the purpose of s 10B(2) of the Act.[20]

  1. [23]
    Member Howe went on to consider whether the circumstances of Mr Grobler’s offending fell for consideration as to whether Mr Grobler was a fit and proper person to hold a weapons licence under subsection 10B(1) of the Weapons Act. He determined that none of the circumstances of Mr Grobler’s offending which were the subject of unrecorded convictions, fell for consideration as to whether Mr Grobler was a fit and proper person to hold a weapons licence.[21]
  2. [24]
    In GKR v Queensland Police Service,[22] a decision delivered 5 months later, Member Scott-Mackenzie disagreed with Member Howe’s decision in Grobler. He decided that:

Section 12(3) of the Penalties and Sentences Act is concerned with there being no record of a conviction.  It does not prevent the taking into account “... of the fact of conviction, which is to say the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question ...” to be answered in an administrative decision.[23]

  1. [25]
    I accept the submission of the Queensland Police Service (QPS) that the approach taken by Member Howe in Grobler, of extending the operation of s 12(3)(a) of the Penalties and Sentences Act beyond 10(B)(2)(a) to subsection 10B(1) should not be followed. Section 12 of the Penalties and Sentences Act expressly applies to subsection 10(B)(2)(a) of the Weapons Act, but not to subsection 10B(1), as that subsection makes no reference to ‘convictions’, recorded or otherwise. In addition to the five mandatory criteria identified in subsections 10B(1)(a) – (d) the decision maker can take account of ‘other things’.
  2. [26]
    The effect of section 10B(2) is to remove the discretion the decision maker has under section 10B(1) for a 5 year period after the occurrence of nominated events. If a person has been convicted of a drug offence they are deemed not to be a fit and proper person to hold a licence. There is no need to consider any of the matters listed in subsections 10B(1)(a) – (d) or any other thing. However, if a person has been convicted of a drug offence and no conviction has been recorded then the decision maker must consider, among other things, the required matters prescribed by subsections 10B(1)(a) – (d).
  3. [27]
    When considering whether the applicant is no longer a fit and proper person to hold a licence under section 29 of the Weapons Act a decision maker is required to have regard to the matters listed in subsections 10B, i.e. the required matters prescribed by subsections 10B(1)(a) – (d) among other things.

Strict requirements imposed by section 10(2)

  1. [28]
    There was no evidence that the applicant lacks appropriate knowledge of safety practices for the use, storage and maintenance of the weapon or category of weapon the possession of which is authorised by the licence.
  2. [29]
    When the applicant’s weapons and ammunition were seized on 9 November 2022 they were locked in a gun cabinet. I am satisfied that the applicant has access to secure storage facilities.
  3. [30]
    I am satisfied that the applicant has a genuine reason to possess a weapon to kill feral animals which attack his livestock.
  4. [31]
    The applicant resides in Queensland.

Is the applicant a fit and proper person to hold the licence?

  1. [32]
    My view is that the drug offences in the 1990s are irrelevant and should not be taken into account. The applicant is plainly a different man to the young man who committed those offences. Decades have passed during which he has been a respectable member of, and contributor to, his rural community.
  2. [33]
    The original decision maker should not have taken account of the drug diversion program in January 2014 because the applicant is not the person named in the QPS document. I do not take it into account.
  3. [34]
    In August 2020 the applicant turned a blind eye to the fact that his son was growing cannabis on the family property. He was charged and pleaded guilty. The Magistrate decided that no conviction was to be recorded. My role is not to second-guess the exercise of the Magistrate’s discretion. As no conviction was recorded the applicant is not deemed not to be a fit and proper person by reason of operation of section 10B(2).
  4. [35]
    Unlike the original decision maker, I do not take the view that drug offences committed in the 1990s, followed by decades of life as a mature adult contributing to a rural community, marred only by turning a blind eye to the fact that his son was growing cannabis on the family property, exhibits ‘continual disregard for the laws of this State’. Nor do I take the view that the 2023 speeding offence, albeit at significant speed, demonstrates a pattern of disregard for the laws of this State.
  5. [36]
    In order to decide whether the applicant is a fit and proper person to hold a licence I turn now to the other things that must be considered as prescribed by subsections 10B(1)(a) – (d).

Mental and physical fitness

  1. [37]
    Based on the expert evidence of the applicant’s psychiatrist and consultant psychologist I am satisfied that he is fit to hold a licence.

Domestic violence orders?

  1. [38]
    There is no evidence that the applicant has ever been the subject of a domestic violence order. Indeed, to the contrary, there is evidence of a loving and supportive relationship with his wife of over 20 years.

Whether the person has made a statement, knowing it to be false or misleading, in the application under consideration

  1. [39]
    The representative of the QPS submitted that the applicant should have advised the QPS of a change of circumstances when he first suffered mental health issues some nine years ago. Be that as it may, as this application relates to revocation, not a renewal application, there is no evidence that the applicant has knowingly made a false or misleading statement in the course of this application.

Any criminal intelligence that indicates that the person is a risk to public safety or that authorising the person to possess a weapon would be contrary to the public interest?

  1. [40]
    There is no criminal intelligence that indicates that the applicant is a risk to public safety or that authorising the applicant to possess a weapon would be contrary to the public interest.

Public interest

  1. [41]
    The public interest is a broad concept. The QPS has not shown that there would be any risk to public safety if the applicant’s licence was reissued. However, the applicant has provided professional opinions that satisfy me that there is virtually no risk to public safety.

Conclusion

  1. [42]
    I am satisfied that the applicant:
    1. has an adequate knowledge of safety practices for the use, storage and maintenance of weapons;
    2. will have access to secure storage facilities;
    3. is not prevented by the Weapons Act or another Act or by an order of a Magistrates Court or another court from holding a licence;
    4. is a fit and proper person to hold a licence;
    5. has a reason to possess a weapon;
    6. resides in Queensland.
  2. [43]
    Consequently, I set aside the decision to revoke his firearms licence.

Footnotes

[1]  Weapons Act, s 3(2).

[2]  Ibid, s 3(1).

[3]  Ibid, s 4(c).

[4]  Ibid, s 11.

[5]  Ibid, s 4(d).

[6]  Ibid, s 10(2)(b).

[7]  Ibid, s 10(2)(c).

[8]  Ibid, s 10(2)(d).

[9]  Ibid, s 10(2)(d).

[10]  Ibid, s 10(2)(e).

[11]  Ibid, s 10(2)(g).

[12]  Ibid, s 10B(1).

[13]  Ibid, s 10B(2).

[14]  Ibid, s 29(1)(d).

[15]  Ibid, s 29(7).

[16] Penalties and Sentences Act 1992 (Qld), s 12.

[17]  Ibid, s 12(3).

[18]  At the hearing it was accepted that the applicant was not the person who accepted the drug diversion order in 2014.

[19]  [2023] QCAT 103.

[20]  Ibid at [21].

[21]  Ibid at [36].

[22]  [2023] QCAT 335.

[23]  Ibid, at [51].

Close

Editorial Notes

  • Published Case Name:

    Lane v Queensland Police Service Weapons Licensing

  • Shortened Case Name:

    Lane v Queensland Police Service Weapons Licensing

  • MNC:

    [2024] QCAT 145

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    05 Apr 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
GKR v Queensland Police Service – Weapons Licensing [2023] QCAT 335
2 citations
Jump To
Cite 1 - [2023] QCAT 335
Cite 2 - [2023] QCAT 335
Grobler v Queensland Police Service [2023] QCAT 103
2 citations
Jump To
Cite 1 - [2023] QCAT 103
Cite 2 - [2023] QCAT 103

Cases Citing

Case NameFull CitationFrequency
XPR v Queensland Police Service [2025] QCAT 13 citations
1

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