Perkovic v Queensland Police Service - Weapons Licensing
[2024] QCAT 453
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- Unreported Judgment
- Perkovic v Queensland Police Service - Weapons Licensing[2024] QCAT 453
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Perkovic v Queensland Police Service - Weapons Licensing[2024] QCAT 453
Perkovic v Queensland Police Service - Weapons Licensing[2024] QCAT 453
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Perkovic v Queensland Police Service - Weapons Licensing [2024] QCAT 453 |
PARTIES: | ivan perkovic (applicant) v Queensland Police Service - Weapons Licensing (respondent) |
APPLICATION NO: | GAR376-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 8 October 2024 |
HEARING DATE: | 20 September 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski |
ORDERS: |
|
CATCHWORDS: | FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where licensee committed traffic offences and provided false information in application – whether fit and proper person to hold a licence. Weapons Act 1990 (Qld), s 3, s 10B Willingham v Queensland Police Service - Weapons Licensing [2024] QCAT 361 |
APPEARANCES & REPRESENTATION: | |
Applicant: | D Neuendorf of Robert Bax and Associates, Solicitors |
Respondent: | Acting Sergeant Bauer |
REASONS FOR DECISION
Introduction
- [1]On 5 April 2023, the Queensland Police Service – Weapons Licensing Branch (‘the police’) revoked Mr Perkovic’s concealable firearms licence. Mr Perkovic has applied to the tribunal for a review of that decision. The review proceeding was heard on 20 September 2024. At the commencement of the hearing, Acting Sergeant Bauer, for the police, advised that there had also been a decision by the police on 30 January 2023 to reject an application by Mr Perkovic for a firearms licence. Acting Sergeant Bauer explained that, ordinarily, a firearms licence and a concealable firearms licence have concurrent licence periods but for some reason that had not happened in Mr Perkovic’s case.
- [2]Mr Neuendorf, for Mr Perkovic, advised the tribunal that he had only just become aware of the January 2023 decision, and that Mr Perkovic wished to have that decision reviewed together with the April 2023 decision. The police did not object to that request, or to the extension of time that would be required for seeking review of the January 2023 decision. I advised the parties that I would grant an extension of time, and that the tribunal would hear both reviews together.
- [3]Mr Perkovic gave oral evidence and was cross-examined by Acting Sergeant Bauer. At the conclusion of the hearing, I reserved my decision. I have now decided to set aside the decisions of the police and to return the matters to the police for reconsideration.
Background
- [4]The basis for both decisions was that the police concluded that Mr Perkovic was not a fit and proper person to hold a licence under the Weapons Act 1990 (Qld) (‘Weapons Act’).
- [5]Mr Perkovic has a lengthy traffic history running from March 2000 (when he was 18) to late 2022. The police consider that this represents a failure to comply with the licensing scheme relating to driving, and is relevant to whether Mr Perkovic can be trusted to comply with the weapons licensing scheme.
- [6]The traffic history includes numerous speeding offences and a variety of other offences over the years including, for example, driving with a projecting load, failing to produce his driver licence when required, disobeying a no right turn sign, driving or parking a defective vehicle, and failure to wear a seat belt. In 2012 Mr Perkovic was fined in the Magistrates Court for unlicensed driving. In 2013 he was fined in the Magistrates Court for using an unregistered vehicle which displayed a cancelled number plate.
- [7]2022 was a year of increased offending by Mr Perkovic. This included multiple repeat offences of using a mobile phone ‘handheld / resting’, as well as offences of speeding, not wearing a properly adjusted seatbelt, and driving with a passenger not wearing a properly adjusted seatbelt. Loss of points resulted in a suspension of Mr Perkovic’s driver licence. However, during the period of suspension, Mr Perkovic committed the offence of unlicensed driving as well as another offence relating to the use of a phone while driving. In November 2022 the Magistrates Court fined him and disqualified him from driving for six months.
- [8]The police note that over the years Mr Perkovic incurred 134 demerit points, including 70 in the five years leading up to the disqualification.
- [9]An additional matter relied on by the police in contending that Mr Perkovic is not a fit and proper person to hold a weapons licence is that in his weapons licence application in March 2022, he answered in the negative to a question asking whether he had been charged with any offence, including any traffic offence or criminal offence, that resulted in a court attendance. That answer was incorrect. While most of Mr Perkovic’s traffic offences were dealt with outside the court system, he had, as noted above, appeared in court on traffic charges in 2012 and 2013.
- [10]Mr Perkovic told the tribunal he is remorseful for his traffic offending and that he accepts he did not answer the question on the form correctly. He said he does not recall answering the question, but believes he must have just seen the reference to criminal offences. He added that he would not have been trying to hide information from the police, who would have known his offending history.
- [11]Mr Perkovic attributes much of his 2022 offending to the fact that there was a new traffic camera installed on a road he often travelled ‘and I was continually getting caught with my phone’.[1] He says he was driving a truck that did not have blue tooth. In cross-examination, he acknowledged that not all of the phone offences were committed in that vehicle.
- [12]In relation to the unlicensed driving offence in 2022, Mr Perkovic says he received numerous letters from the Department of Transport with contradictory information about the start date for his licence suspension. He says he should have called the department to clarify.
- [13]Mr Perkovic says that he got his driver licence back on 18 July 2023 and he has not reoffended. He says that before getting his licence back, he voluntarily completed the online Traffic Offenders’ Program. He has provided a certificate of completion dated 5 July 2023. Mr Perkovic says that ‘only after having my firearms licence revoked did I truly comprehend my traffic history’.[2]
- [14]Mr Perkovic says he is a family man who is involved in his children’s sports. He says he runs a successful building business, holds building licences, and employs or engages as contractors numerous people. He has provided two character references referring to his emotional stability, trustworthiness, and so on. Mr Perkovic says he held weapons licences of different types variously for six or seven years before the decisions under review were made.
Statutory framework
- [15]The object of the Weapons Act is to prevent the misuse of weapons.[3] Weapon possession and use are ‘subordinate to the need to ensure public safety and individual safety’.[4] A licence under the Weapons Act may be held only by a person who is a fit and proper person to hold the licence.[5] If the police are satisfied that a licensee has ceased to be a fit and proper person, they may revoke the person’s licence.[6]
- [16]Certain types of offending, such as offending involving violence or a weapon, preclude a person from holding a weapons licence for a five year period because the person is deemed not to be a fit and proper person to hold a licence during that period.[7] Such offending after the five year period, and other types of offending at any time, doubtless may be taken into account in determining whether a person is a fit and proper person to hold a weapons licence. Matters that must be considered are set out in section 10B(1) of the Weapons Act:
- 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—
- (a)the mental and physical fitness of the person; and
- (b)whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
- (c)whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and
- (ca)whether there is any criminal intelligence or other information to which the authorised officer has access that indicates—
- (i)the person is a risk to public safety; or
- (ii)that authorising the person to possess a weapon would be contrary to the public interest; and
- (d)the public interest.
- [17]A useful survey of authorities was recently undertaken by the tribunal in Willingham v Queensland Police Service – Weapons Licensing.[8] In that case the tribunal considered that a significant question is whether the safety of the public or the individual would be at risk if the individual was to possess and use weapons. Relevant considerations include character and public confidence in the administration of the licensing system.
- [18]The tribunal in a review proceeding must conduct a fresh hearing on the merits, with the aim of producing the correct and preferable decision.[9] The tribunal may confirm, amend or set aside the decision under review.[10] If the tribunal sets aside the decision, it may substitute a new decision or it may return the matter to the original decision-maker for reconsideration, with the directions that the tribunal considers appropriate.[11]
Submissions
- [19]Mr Neuendorf submits that Mr Perkovic is a fit and proper person to hold a weapons licence because:
- he is remorseful for his offending and has not reoffended in the 14-month period since regaining his driver licence;
- he took the insightful and proactive step of completing the traffic offenders’ program;
- while he has a bad traffic history, it does not include driving under the influence of alcohol or drugs;
- he has not committed weapons offences or engaged in domestic violence;
- the wrong answer on the application form should be treated as a mistake rather than as involving an intention to mislead, because Mr Perkovic would have known that the police had details of his traffic history; and
- allowing Mr Perkovic to hold a weapons licence does not create risk to himself or the community.
- [20]Acting Sergeant Bauer for the police submits that Mr Perkovic is not a fit and proper person to hold a weapons licence because:
- he repeatedly failed to comply with the driver licensing scheme, so the community cannot have confidence he will comply with the weapons licensing scheme;
- his traffic history is appalling;
- his offending only slowed down when he lost his weapons licences;
- it is acknowledged that he completed the traffic offenders’ program, but that is only a short online course;
- he has had his driver licence back for only a short time, so there is no true evidence that his behaviour has changed;
- he would need to show a longer period of law-abiding behaviour to demonstrate sustained behavioural change; and
- at this point, there is no guarantee that he would be able to comply with the weapons licensing scheme.
- [21]Both parties in written or oral submissions referred to some decided cases where the tribunal had or had not found individuals to be fit and proper persons. Mr Neuendorf argued that some cases relied on by the police involved more serious offending, and pointed to some cases where persons who had committed more serious offences had succeeded. I do not propose to discuss these various cases. While it is desirable that there be consistency in decision-making, the problem is that there are too many variables involved in each case to allow meaningful comparison. The nature of the offending is only one variable.
Findings
- [22]Mr Perkovic presented as a credible witness in giving his oral evidence. Importantly, his lack of reoffending since regaining his driver licence in July 2023 tends to confirm that he is genuinely committed to behavioural reform as a driver. I accept his evidence, and find that apart from his traffic history he has been a responsible person.
- [23]I also accept his evidence that the wrong answer he gave on the 2022 application form resulted from failure to read the question properly, and did not involve an attempt to mislead the police. He would have known that the police have ready access to traffic and criminal histories, and would check that information before granting a licence. Accordingly, as the wrong answer was inadvertent, I find that he did not knowingly give false information.
- [24]This lack of attention to detail in an important matter, though, is a concern. Similarly, recurring breaches of the traffic laws over many years, escalating in 2022, is of concern. These matters diminish the trust the community can place in Mr Perkovic to comply with all requirements of the Weapons Act. The concern is not that Mr Perkovic might use a weapon for violent purposes, but rather that he may be inclined to cut corners rather than strictly comply with requirements for storing and disposing of weapons, for example.
- [25]It is also relevant to bear in mind that breaches of weapons laws are probably harder to detect than breaches of traffic laws, as road patrols and cameras are utilised to detect many traffic offences. This highlights the importance of the community being able to trust a weapons licence holder to be dependable in complying with legal requirements despite less surveillance.
- [26]The tribunal does have the benefit, compared with the original decision-maker, of additional time having passed. The tribunal can see whether, over time, concerning conduct has continued or ceased.
- [27]I consider that sufficient time has passed to demonstrate that Mr Perkovic has committed to compliance with traffic laws. On balance, I consider that he should be believed when he says that he can also be trusted by the community to comply with weapons laws. He has no record of failing to comply with those laws. He is, and has been in most respects, a responsible person. I do not consider that he poses an unacceptable risk to the safety of himself or others if allowed to possess a firearm. His holding of a weapons licence would not, on balance, conflict with the public interest or undermine confidence in the system of weapons licensing. Accordingly, I find that he is a fit and proper person to hold a weapons licence.
Conclusion
- [28]The correct and preferable decision is to set aside the decisions under review and to send the matters back to the police for reconsideration in accordance with the direction that Mr Perkovic is a fit and proper person to hold the relevant licences. I consider this approach preferable to substituting a decision to grant the firearms licence or to not revoke the concealable firearms licence, as there may be other criteria that need to be checked before final decisions are made.
Footnotes
[1] Exhibit 3 (Mr Perkovic’s statement of evidence dated 6 March 2024), [11].
[2] Ibid, [15].
[3] Weapons Act, s 3(2).
[4] Ibid, s 3(1)(a).
[5] Ibid, s 10(2)(e).
[6] Ibid, s 29(1)(d).
[7] Ibid, s 10B(2), (5).
[8] [2024] QCAT 361.
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[10] Ibid, s 24(1).
[11] Ibid.