FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - where decision made to revoke weapons license following criminal charges relating to storage of weapons, registration of weapon and drug possession - whether fit and proper person to hold license - whether physically and mentally fit - whether in the public interest that the applicant hold a licence

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Weapons Act 1990 (Qld), s 3, s 4(d), s 4(e), s 10B, s 29(1)(d)

CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

McRobert v Commissioner of Police (2005) 40 SR (WA) 49

Schrodter v Queensland Police Service Weapons Licensing Branch [2010] QCAT 230

Mr J P Todman, Counsel, appeared for Mr Richard Allen Moye

Inspector A Smith represented the Queensland Police service- Weapons Licensing Branch

[1] Mr Richard Allen Moye moved to Queensland from New South Wales about 2 years ago. Shortly afterwards, he was granted a firearms licence, licence no. 26552840.

[2] Mr Moye lives on a rural property of some 20 acres at Kilkivan. He keeps pigs, goats, guinea pigs and fowl. He explains that he used his weapons for control of pests and vermin, namely foxes and wild dogs, which otherwise take his livestock. Also living at the property with him, prior to the events described in the following paragraphs, were his mother, his adult son, and his 13 year old grandson.

[3] In January 2016, Mr Moye's property was the subject of a raid by Queensland Police officers in the course of execution of a warrant relating to his adult son. Following the raid, Mr Moye was charged with various offences, including possessing unregistered weapons; insecure storage of weapons; possession and supply of a dangerous drug (1.3 gm of cannabis sativa); and possessing suspected stolen property (fishing reels). Other charges laid against him were withdrawn by the Police.

[4] Mr Moye cooperated with Police. The charges were dealt with by a Magistrate in August 2016. Mr Moye entered a plea of guilty in relation to the charges outlined above. No convictions were recorded. A fine of $440.00 was imposed for the weapons-related offences and bonds ordered in respect of the other offences. The Magistrate did not disqualify Mr Moye from holding a weapons licence.

[5] Following the events, Queensland Police Service-Weapons Licensing Branch (Weapons Branch) wrote to Mr Moye inviting him the provide a submission as to why he remained a fit and proper person to hold his firearms licence, in particular, having regard to the public interest. Subsequently, an authorised officer in the Weapons Branch made a decision to revoke Mr Moye's firearms licence.

[6] Mr Moye applied to QCAT for review of the Weapons Branch decision to revoke his licence. He says he needs a weapons licence for ongoing vermin control: he has lost some livestock since his licence was revoked. In essence, he submits that he remains a fit and proper person to hold a licence. The Weapons Branch submits that, having regard to the public interest and Mr Moye's physical condition, that he is no longer a fit and proper person to hold a licence.

[7] The purpose of the Tribunal's review is to produce the correct and preferable decision, following a fresh hearing of the matter on its merits.[1] The Tribunal considers the matter afresh, making its own decision, based on the evidence before it and according to law. In essence, in its review jurisdiction, the Tribunal stands in the shoes of the decision-maker for the decision reviewed and makes its own decision.

[8] On review, the tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[2]

[9] The Weapons Act 1990 (Qld) ('Weapons Act') sets out provisions in relation to weapons use and licences generally. A weapons licence is not a right: weapon use and possession are subordinate to the need for public and individual safety.[3] An authorised officer may revoke a licensee's licence if the authorised officer is satisfied of any of the circumstances listed including that the licensee is no longer a fit and proper person to hold a licence.[4]

[10] Section 10B sets out a variety of matters to which an authorised officer must have regard in deciding whether a person is a fit and proper person to hold a licence, including when considering revocation of a licence. In particular, it specifies as follows (underlining is added for emphasis):

(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 -

(a) the mental and physical fitness of the person; and

(b) whether a domestic violence order has been made 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 -

(ii) that authorising the person to possess a weapon would be contrary to the public interest; and

(2) However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period -

(a) the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences -

(ii) an offence involving the use or threatened use of violence;

(iii) an offence involving the use, carriage, discharge or possession of a weapon; or

(b) a domestic violence order, other than a temporary protection order, has been made against the person.

(2A) Also, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if the person is an identified participant in a criminal organisation.

(3) Also, for the issue, renewal, suspension or revocation of a licence, a licensed dealer is not a fit and proper person to hold a licence unless each associate of the person is a fit and proper person to be an associate of a licensed dealer.

(4) A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon.

(a) for the issue or renewal of a licence - the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or

(b) for the suspension or revocation of a licence - the 5 year period immediately before the date of the suspension notice under section 28, or a revocation notice under section 29, is given for that suspension or revocation.

[11] In Mr Moye's case, the real issues are whether he is physically fit to hold a weapon's licence and whether it is in the public interest for him to do so.

The events of January 2016 which resulted in the charges

[12] Mr Moye provided an affidavit.[5] He was cross-examined at the hearing. Several affidavits from police officers involved in the raid were contained in the material filed by the Weapons Branch,[6] but they were not available at the hearing for their evidence to be tested in relation to any matters about the events which were controversial.

[13] In his affidavit, Mr Moye deposes that he does not use drugs, was not selling drugs, and that the drugs 'were available for people who wanted to have a good time at my property'[7] when he and his son were entertaining. He speaks of making changes to reassure the Tribunal that he is a fit and proper person. These include insisting that his son move away from the property, and his mother, who had temporarily left, returning. He also says that he told all of his acquaintances and his son's friends that no one is to take drugs at his property. He attended a drug diversion course. He recently attended a firearms safety course in October 2016.

[14] Mr Moye's oral evidence at the hearing was to the effect that his son has a history of drug use. He said that the drug use had been the source of arguments between Mr Moye and his son, so much so, that he had sent his mother away on a holiday because she was becoming too stressed by the arguments between them. He says that he had placed the 1.3gm of cannabis (which was the subject of one of the charges) in one of the safe's he had on the property after finding it on a table. He says he was concerned that it should not be lying around for his grandson (his son's child) to access. He says that on another occasion, he had thrown cannabis he had found, belonging to his son, 'on the fire'.

[15] Mr Moye acknowledged that, as the cannabis was in a safe (one of three), to which only he had access, that it was in his possession. He further acknowledged that with his knowledge, his son and his son's friends had been using cannabis at his property. He considers that his son has let him down. He made his son move away from his property after the charges were laid against him. He said it has been a hard lesson, but he has learned not to trust anyone.

[16] Mr Moyes had nine guns at the time of the raid. He has three safes which he says provide proper storage for all of his weapons. He was not at the property when the search began, but arrived while it was underway. Consistently with the charges against him, and the affidavits of police officers present during the search, he acknowledges that 4 of his guns were not properly stored at the time of the raid. He had a shot-gun and a rifle, together with some ammunition in a cupboard, in the caravan in which he sleeps. He says he kept them with him because 'a fox doesn't wait' for you to get a weapon out of the safe. Therefore, he keeps them nearby. He says that both a rifle and a shotgun are necessary, as they are each effective in different circumstances. The rifle is effective for stationary targets some distance away, but the shotgun is effective for a closer, moving target.

[17] He also had two guns in the 'cool room' (a room which contained freezers). He says that one was broken and could not be used as a firearm.

[18] He told the Tribunal that the guns had only been out of storage for 'a day'. He also said he usually used them from early morning until late afternoon, 'when there are foxes around.' He acknowledged that there were unlicensed persons on the property. He denied that he regularly left his weapons unsecured, saying they were only unsecured when foxes were around.

[19] Two of Mr Moye's weapons were unregistered. Mr Moye explained that he was unaware that one of them was unregistered: he believed that when he obtained his Queensland weapons licence that all of the firearms registered to him at the time in New South Wales were 'transferred across,' that is, registered to him in Queensland. One of the unregistered weapons fell into this category. He says he had no reason to think that it was not registered. One of the weapons held in a safe (a Kruger Scope) was also unregistered. Mr Moye says that it was legally purchased and he intended to register it, but 'had not got around to it.'

[20] Of the weapons stored in locked safes, he acknowledges that one had ammunition loaded in it, but he thought the bolt was not in place and that it was unable to be fired. He had ammunition stored with other weapons, as discussed earlier. He said that he did not appreciate that it was contrary to Queensland weapons law to store ammunition with firearms, or loaded in the weapon, if the weapon could not be fired. In response to a question about whether in firearms safety courses he had been told that he should not store loaded weapons, he said he'd been told of the dangers associated with loaded weapons. In respect of the ammunition stored with weapons, he says in effect that it was separate, although stored in the same safe.

[21] When asked what he had learned in the recent firearms safety course, Mr Moye said it was no different from earlier courses he had completed, that he knew how firearms worked and it had not taught him anything new. He did it only to make sure there had been no major changes, and after some ambiguous/unclear comments, that his legal adviser had recommended to him that he do it.

[22] The suspected stolen fishing reels were purchased by Mr Moye 'at the pub', from someone he considered down on his luck. He says he didn't know, and had no reason to think, they were stolen. In his affidavit, he deposes to purchasing them 'very cheaply.'[8] In the criminal proceedings before the Magistrates Court, his counsel submitted that the fishing equipment was worth about $400.00 and Mr Moye had paid $300.00.[9]

[23] Mr Moye says he is remorseful and submits that the events were out of character for him. The Magistrate, in sentencing him for the charges, remarked that giving him the benefit of the doubt, the actions resulting in the charges were 'more stupidity rather than an inherent criminal intent'.[10]

[24] The Magistrate was not aware of charges and events in NSW in 2001.[11]In his affidavit and his oral evidence, Mr Moye acknowledges that in 2001, he was charged in NSW with a weapons-related offence, namely not keeping a firearm safely. He says he was remorseful for his conduct. It resulted in a dismissal and a bond. He was disqualified from holding a weapons licence for two years. He did not reapply for five years, because he thought his application was more likely to succeed if he waited for longer. He says that the charges resulted from his son letting him down.

[25] Mr Moye took his 22 shotgun out of the gun safe and asked his son to clean it. Unknown to him, his son took the shotgun on a shooting trip with a friend later that day. His son's friend had a gun. His son's friend suffered a psychotic incident when their car became bogged. His son's friend used a gun to attempt suicide by shooting himself through the chin, up through the mouth, resulting in the bullet lodging in his brain. Mr Moye doesn't know whether it was his gun that was used. He wasn't told immediately of the events: he only became aware several weeks after the events.

[26] Mr Moye says that he has no diagnosed mental health condition. However, he was involved in a motor-bike accident in August 2016, as a result of which Mr Moye sustained serious physical injuries, based on his description of them at the hearing. He explained that at the time of the accident, he was in a coma. He was airlifted to Brisbane for health care. He described sustaining a broken leg, broken arm, fractured ribs, and other broken bones in his left hand and left foot. He now has a limp. He has not had full use of his right arm since the accident. At the hearing, his right forearm and hand were bandaged and splinted.

[27] He is right-handed.

Is Mr Moye a fit and proper person to hold a firearms licence?

[28] I have considered each of the relevant matters in s 10B of the Weapons Act.

Mr Moye's mental and physical fitness: s 10B(1)(a)

[29] I accept that Mr Moye does not have a diagnosed mental health condition. However, based on his evidence and his physical appearance at the hearing, I am satisfied that as a result of the motor-bike accident, he sustained serious physical injuries from which he has not yet fully recovered. In particular, his broken right arm remains splinted and immobile. He is right-handed. It is reasonable to infer that he could not currently handle a firearm or use it effectively. Indeed, his Counsel submitted that the Tribunal could consider imposing a condition on his licence for a medical clearance.

[30] I am satisfied that Mr Moye currently has physical injury that affects his ability to effectively and safely use a firearm.

Has a domestic violence order (DVO) has been made against Mr Moye: s 10B(1)(b)

[31] There is no evidence suggesting that a DVO has been made against Mr Moye.

False and misleading information: s 10B(1)(c)

[32] There is no allegation that Mr Moye has provided relevant false or misleading information.

Does criminal intelligence or other information indicate that Mr Moye is a risk to public safety or that allowing him to possess a weapon would be contrary to the public interest: s 10B(1)(ca)

[33] There is no information before the Tribunal which falls within the definition of criminal intelligence or other information of the type referred to (which must be kept confidential) under the Weapons Act.[12]

The public interest: s10B(1)((d)

[34] Mr Moye urges me to accept that he is of overall good character, and has refreshed his weapons safety skills, demonstrating a commitment to public safety. He submits that his cooperation with police, early plea and remorse are relevant to considering the public interest, as well as the fact that no persons were placed in danger because of his conduct and that he has no prior breaches of the Weapons Act in Queensland. In respect of NSW events, he refers to the lack of further breaches after 2001 and his observance of the disqualification period.

[35] The QPS submits that a lax approach, which it submits Mr Moye exhibits, to the firearms obligations of a weapons licensee, has been held to demonstrate unfitness.[13] It submits that the public could not have confidence that Mr Moye would not leave weapons unsecured in the future, or allow unlicensed persons to use them while he is recovering physically from his motor-bike accident.

[36] The public interest is a broad concept in which the interests of the community are considered having regard to the scope and purpose of the legislation considered.[14] A weapons license is not a matter of individual right. The principles and object of the Weapons Act provide that weapon possession and use is subordinate to the need to ensure public and individual safety, which is improved by imposing strict controls and requiring safe storage and carriage of weapons.[15] The objects are to be achieved, in part, through strict requirements for licensing and ensuring storage and carriage of firearms in a safe and secure way.[16] Accordingly, public interest is to be determined having regard to the primacy of public safety.

[37] Mr Moye's criminal history information is relevant to considering the public interest. Mr Moye's handling of weapons while licenced resulted in charges against him of insecure storage of weapons in 2001 and 2016.

[38] In 2001, he gave his son his gun to clean. His son, who did not hold a weapons licence, then without his permission, took the gun on a shooting trip. It may have been used in an attempted suicide. It appears the Magistrate considered the criminal offending involved was minor: it resulted a two year bond. However, if Mr Moye had not taken his gun out of the safe and given it to his son, it could not have been taken by his son and used as it was. Mr Moye says he was remorseful. However, even now, many years later, he blames his son for these events: he says his son let him down, instead of taking responsibility for his own inappropriate act in giving the weapon to his son.

[39] That said, for the last 10 or so years, Mr Moye has held weapons licences, in NSW and more recently Queensland, without incident until the events of 2016. Once again, he says he is remorseful. But his remorse is unspecific. He again (as he does for the 2001 incident) now generally blames his son. He moved his son out of his premises. He says he has learnt not to trust anyone; that he has been let down. Again, his evidence does not suggest that he accepts personal responsibility for his own actions.

[40] In relation to the more recent events, even if I accept his evidence about the marijuana belonging to his son and not being aware that the fishing equipment was stolen, his non-compliance with requirements for safe storage of weapons is concerning. Mr Moye contends that the two weapons he kept in his caravan had to be immediately available to be useful. Even if this was a legitimate basis for not storing them as required (and I do not make a finding to that effect), he wasn't on the property when the search was carried out and the weapons were found by the police to be insecurely and inappropriately stored. His explanation does not apply to or explain the circumstances in which the insecurely stored weapons were located by police.

[41] Two other guns in the cool room were not stored as required either. Although Mr Moye says that one of them was not operational, that does not exempt it from the usual requirements. Indeed, if that was so, why was it out of safe storage? Further, once again, Mr Moye's explanations again do not apply to the circumstances of weapons not being secured while he was not at home.

[42] He says the weapons had been out of storage for 'one day'. As my summary of his evidence indicates, Mr Moye did not always answer questions directly, suggesting some evasiveness and expediency in responding. I do not accept his evidence to this effect. This assertion is inconsistent with his evidence about needing the weapons by his side at night and from early morning until late afternoon, when foxes are around. It is also inconsistent with his general attitude towards weapons-related requirements as discussed in the following paragraphs.

[43] Ammunition was stored with weapons. Mr Moye said he did not know this was not allowed. Weapons were stored loaded. His explanation seemed to be that he thought the bolt was not engaged on one, so it was not immediately able to be fired and that others were not easily accessible. Even at the time of the hearing, Mr Moye's knowledge of requirements for storage of weapons and ammunition was surprisingly limited despite recently completing yet another a firearms safety course.

[44] Two of Mr Moye's weapons were not registered. He says essentially that he had no reason to believe that the unregistered weapon he brought from NSW was not 'carried across,' as his other previously owned weapons were, when he obtained a Queensland license. Again, this explanation amounts to a denial of personal responsibility for matters relating to his weapons. It is reasonable to infer that the relevant documentation he received from QPS did not refer to the particular weapon. Whereas there may have been an administrative oversight by the person/s who attended to the licensing issues, Mr Moye knew how many weapons he had and had the responsibility to ensure that all was in order.

[45] The Kruger scope had been purchased by him more recently. Mr Moye says he had intended to register it, but did not get around to it. This apparent laxity of attitude in seeking registration is consistent with his other weapons licensing requirements failures which resulted in the recent weapons-related charges.

[46] I am satisfied on the basis of the recent weapons related infringements, that Mr Moye paid scant regard to his obligations as a weapons licensee until the time of the raid. Further, his recent actions intended to provide reassurance about his remorse and intended future behaviour do not satisfy me. He says he learned nothing at the recently completed firearms safety course. Having regard to the lack of knowledge of he displayed of requirements at the hearing, it is reasonable to conclude that his behaviour is unlikely to improve in the future should the decision revoking his licence be set aside.

[47] Mr Moye relies on Schrodter v Queensland Police Service Weapons Licensing Branch[17] as similar to his circumstances. In Schrodter, a person who had been charges with four drug related offences, concerning a significant quantity of cannabis, was found to be a fit and proper person. I do not consider the decision helpful. Mr Moye's charges include weapons related charges, irrespective that Mr Moye's drug-related charge involved a small quantity of cannabis. That said, of themselves, I would not be satisfied that the minor drug related events support a revocation of his licence. The amount of cannabis concerned was very small indeed. But in the context of the overall events, the drug-related charge reinforces the conclusion that Mr Moye's regard for the law is offhand and careless. He knew illicit drugs were a problem, but took no steps until his recent charges to ensure the law was complied with on his property. I would accept that Mr Moye had no reason to know the fishing equipment was stolen: I do not take those events into account in making my decision, despite the apparent inconsistency in the material about the value he provided for the equipment.

[48] I consider it is irrelevant that no harm came to any person as a result of Mr Moye's recent transgressions. That is a matter of luck rather than any action taken by Mr Moye. I am not reasonably satisfied that Mr Moye is remorseful, other than about being caught, for not correctly storing his weapons for the reasons explained earlier. Nor do I find that he recent attempt at refreshing his weapons skills, from which he reports learning nothing despite admitted ongoing gaps in his knowledge, demonstrates a commitment to public safety. Although the Magistrate may have concluded the acts were a matter of stupidity, on the evidence before me, as I have found, they are demonstrative of a careless attitude towards the weapons-law related responsibilities of a licensee.

[49] For these reasons, I am satisfied that it is not in the public interest for Mr Moye to hold a weapons licence.

[50] Having concluded that Mr Moye is not currently fit to effectively and safely operate a weapon and that that it is not in the public interest for him to hold a weapons license, I am satisfied that he is not a fit and proper person to hold a weapons license.

[51] In the circumstances, the correct and preferable decision is to confirm the decision of QPS- Weapons Licensing Branch revoking Mr Moye's weapons license. I make orders accordingly.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), s 20.

[3] Weapons Act, s 3.

[4] Weapons Act, s 29(1)(d).

[7] Exhibit 4, esp at paras [31]-[35].

[9] Exhibit 2, Transcript Gympie Magistrates Court, 16 August 2016, commencing 11.21 am, page 1-8, lines 0-5.

[10] Exhibit 2, Transcript Gympie Magistrates Court, 16 August 2016, Decision, commencing11.35 am, page 2, lines 7-9.

[12] Weapons Act, s 142A.

[13] Relying upon McRobert v Commissioner of Police (2005) 40 SR (WA) 49; CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264.

[14] Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657.

[15] Weapons Act, s 3.

[16] Weapons Act, s 4(d) and (e).

[17] [2010] QCAT 230.