Balodis v Registrar of Firearms - [2012] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
BALODIS v REGISTRAR OF FIREARMS
[2012] SADC 113
Judgment of His Honour Judge Beazley
7 September 2012
ADMINISTRATIVE LAW
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeal against the decision of the Registrar of Firearms to cancel the appellant's firearms licence - Registrar concluded that the appellant was not a fit and proper person to hold a firearms licence - decision affirmed by Firearms Review Committee - whether the appellant is a fit and proper person to hold such a licence - consideration of appellant's antecedents and the legislative scheme underpinning the holding of licences under the Act.
Held: Appeal dismissed.
Firearms Act 1977 ss 5; 20; 23; 26B; 26C; Firearms Regulations 2008 Regulations 5A; 21; 38; District Court Act 1991 ss 42E(3); 42F; 42G , referred to.
A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 ; Pollitt v Police (2007) SASC 302; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Johnson v Registrar of Firearms (2001) 79 SASR 353; Police v Losapio (2007) SASC 159; Commissioner of Police v Davies (2000) NSWSC 107; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387; Pav v Commercial & Private Agents Board (1988) 143 LSJS 1, considered.

BALODIS v REGISTRAR OF FIREARMS
[2012] SADC 113
Introduction

John Balodis (“the appellant”) appeals pursuant to s 26C of the Firearms Act 1977 (“the Act”) against the decision of a Delegate of the Registrar of Firearms (“the Registrar”) made on 22 August 2011, to cancel his firearms licence. The decision of the Registrar was affirmed by the Firearms Review Committee (“the Committee”) on 18 January 2012.
The powers of the Committee are confined to affirming the decision of the Registrar or remitting the matter back to the Registrar for further consideration. The Committee did not have the power to substitute its own decision for that of the Registrar.[1]
[1] Section 26B (8) Firearms Act 1977
The appellant had been convicted, and fined in the Mount Barker Magistrates Court for firearms offences which had occurred on 20 October 2007; and 24 September 2010 respectively. The decision to cancel the licence was based principally upon these convictions, and the Registrar’s opinion that the appellant was no longer a person fit and proper to hold a firearms licence.
The Act
Before discussing the factual background and the respective reasons of the Registrar of Firearms and the Firearms Review Committee, it is necessary to set out the relevant legal principles.
The entitlement to possess certain categories of firearms is strictly controlled in South Australia by the Firearms Act 1977. It is necessary for any person who wishes to possess such a firearm to obtain and hold a licence in an approved form.
The objects of the Act
The purpose of the legislation was explained by Gray J in Pollitt v Police (2007) SASC 302 at paragraphs [20] to [23] as follows:
The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms. The legislative scheme was considered in Johnson v Registrar of Firearms, and in Offe v Police. The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:
“designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia:
In a historic move on 10 May 1996 the Australasian Police Ministers’ Council agreed to a series of resolutions to introduce national uniform gun laws. The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege.
The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.”
Further in Police v Losapio (2007) SASC 159 at paragraphs [20] – [21], David J said:
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility. At the same time, characters change over time and offences in the past need not permanently prevent an individual from holding a firearms licence.[2]
[2] See also Davies v Registrar of Firearms (2005) SASC 149, Registrar of Firearms v Gitsham (2002) 84 SASR 72 and Johnson v Registrar of Firearms (2001) SASC 51
The relevant sections of the Act
The Act creates different classes of firearms. In the subject case the appellant had been granted firearms licence No. 175040X, for firearms falling within classes A and B. Indeed the appellant has held that licence since 1980.
The current licence was due to expire on 30 September 2014.
Section 5(i) of the Act, relevantly provides:
In this Act, unless the contrary intention appears,
class A firearms means –
(a)     air rifles, air guns and paint-ball firearms; and
(b)     .22 rim fire rifles (not being self-loading rifles); and
(c)single or double barrel shotguns (not being self-loading or pump action shotguns), and includes receivers of firearms defined as class A firearms by a preceding paragraph;
class B firearms means –
(a)     muzzle loading firearms (not being handguns); and
(b)     revolving chamber rifles; and
(c)     centre fire rifles (not being self-loading centre fire rifles); and
(ca)double barrel centre fire rifles that are not designed to hold additional rounds in a magazine; and
(d)     break action combination shotguns and rifles; and
(e)all other firearms (not being prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms,
and includes receivers of firearms defined as class B firearms by a preceding paragraph;
Sections 5 (11) to (13) inclusive of the Act relevantly provide:
(11)For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person -
(a)has not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms; or
(b)has been found guilty of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(ca)has been found guilty of an offence prescribed by regulation; or
(12)Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
(13)In deciding whether a person is a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence for the purposes of this Act, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates.
Section 6 appoints the Commission of Police to be the Registrar of Firearms and permits him, as in the subject case, to delegate that authority to another.
The Firearms Regulations 2008
The Firearms Regulations 2008 commenced on 27 November 2008. Regulation 5A provides that in assessing whether a person may be taken to be fit and proper pursuant to Section 5(11)(ca) of the Act, the “prescribed offences” therein were respectively:
(a)Controlled Substances Act 1984 –
an indictable offence against section 32 as in force immediately before the commencement of the Controlled Substances (Serious Drug Offences) Amendment Act 2005;
an offence against section 32 (Trafficking) as in force following the commencement of the Controlled Substances (Serious Drug Offences) Amendment Act 2005;
section 33 (Manufacture of controlled drugs for sale);
section 33A (Sale, manufacture etc of controlled precursor);
section 33B (Cultivation of controlled plants for sale);
section 33C (Sale of controlled plants);
section 33F (Sale, supply or administration of controlled drug to child);
section 33G (Sale, supply or administration of controlled drug in school zone);
section 33H (Procuring child to commit offence);
an indictable offence against section 33I (Supply or administration of controlled drug);
section 33J (Manufacture of controlled drugs);
section 33K (Cultivation of controlled plants);
(b)Criminal Law Consolidation Act 1935 –
section 19AA (Unlawful stalking);
section 31 (Possession of object with intent to kill or cause serious harm);
section 32 (Possession of a firearm with intent to commit an offence);
an aggravated offence against section 169 (Serious criminal trespass – non-residential buildings);
an aggravated offence against section 170 (Serious criminal trespass – places of residence);
section 248 (Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings);
section 250 (Threats or reprisals against public officers);
section 270D (Going equipped for commission of offence against the person);
(c)Serious and Organised Crime (Control) Act 2008 -
section 22 (Offence to contravene or fail to comply with control order);
section 32 (Offence to contravene or fail to comply with public safety order);
section 35 (Criminal associations);
(d)Summary Offences Act 1953 -
section 15A (Possession of body armour);
section 74BJ (Hindering removal or modification of fortifications);
(e)offences consisting of a conspiracy or an attempt to commit an offence referred to in a preceding paragraph.
“Fit and Proper” under the Act and Regulations
It is plain that neither Section 5(11)(ca) of the Act, nor Regulation 5A have any relevance to the subject appeal, save for contrasting the appellant’s offending with the serious type of offences which Parliament had in mind when addressing the question of fitness and propriety in the Regulations. The fact remains that the appellant’s previous offending does fall within Section 5(11)(a) and (b) of the Act.
In any event s 5(12) of the Act makes it clear that any such enquiry as to fitness is not limited to the matters set out in s 5(11) thereof.
Parliament has made it clear that the Act concerns not merely the fitness of an applicant for the grant of a licence, but also his continuing fitness to hold such a licence.
Background
The appellant is aged 50 years. He was granted a firearms licence in April 1980, which permits the possession and use of Class A and B firearms for the purpose of target shooting and hunting. He had consistently renewed that licence, without objection, until he received a notice of suspension and investigation on or about 19 July 2011.
Notice to Suspend
In that notice the Registrar set out the relevant grounds for suspension in Section 20 of the Act, including his satisfaction that the appellant had contravened the Act, and that he had initiated an investigation as to whether the appellant was no longer a fit and proper person to hold a licence.
He invited submissions from the appellant as to why the licence ought not be cancelled. He set out in detail the appellant’s antecedents, which contained numerous offences since 1983, including, as I have already noted, firearms related offending on 20 October 2007 and 24 September 2010. They involved respectively, leaving a shotgun in an unlocked wardrobe in a bedroom, together with sundry ammunition; and possessing 2 shotguns registered in his deceased father’s name, and one other unregistered shotgun.
The appellant’s response
On 10 August 2011, the appellant provided a written reply. He explained that the 20 October 2007 offending was the consequence of his then wife insisting that the shotgun be placed in the wardrobe at their home at Clayton. He explained that, while he had a locked container in which the other firearms were secured, the subject shotgun needed to be readily available to protect the family from the prevalence of snakes at that property. As to the unregistered shotguns, he explained that his late father and godfather had bequeathed them to him, and that it had been a mere oversight by him in not having them registered in his name.
He further explained that despite some delays caused by the unavailability of relevant police officers, he had subsequently attended to the registration of those shotguns.
The decision of the Registrar to cancel the licence
When the Registrar came to consider the question of cancellation in August 2011 in light of the appellant’s response, the question before him was whether the appellant was then – presently fit and proper – to hold the firearms licence.[3]
[3] A Solicitor v Law Society of New South Wales (2004) 216 CLR 253
By letter dated 22 August 2011, the Registrar notified the appellant of his decision to cancel the licence pursuant to Sections 20(1)(a) and 20(1)(b) of the Act.
He had concluded that the appellant was no longer fit and proper to hold a firearm’s licence as a consequence of the following factors:
·The appellant had been convicted on 7 May 2009, of the offences of leaving a shotgun unsecured, on 20 October 2007, in an unlocked top wardrobe in his bedroom at Clayton, together with unsecured ammunition in various places.
·The appellant had been convicted on 16 June 2011 of 3 offences of being in possession of unregistered shotguns on 24 September 2010.
·The appellant had been convicted much earlier on 11 October 2001 of 20 counts of falsely claiming social security benefits between September and November 1999; and one recent offence of providing a false declaration to the Commonwealth on 16 May 2007.
·In addition, the Registrar took into account other convictions for unlawful possession and driving offences between 1990 and 2010. He also made reference to an endorsement on the Magistrates Court file which suggested to him that the appellant had been less than frank about his antecedent history. I make it clear that there was no proper basis for him to draw that latter conclusion. However, I do not accept that this error substantially contributed to his ultimate decision to cancel the licence.
The application for review
By letter dated 7 October 2011 the appellant sought a review by the Firearms Review Committee of the decision of the delegate of the Registrar pursuant to s 26B of the Act.
Grounds for the review
The appellant appeared in person before the Firearms Review Committee on 18 January 2012. The appellant explained that he had a long history of involvement as a hunter, and had been trained to be conscious of safety with firearms. He explained the circumstances of his wife’s concern with snakes until they separated in 2005. He also explained his attempts to register the shotguns after first being reminded by the police on 27 August 2009.
The decision of the Firearms Review Committee
On 18 January 2012 the Committee determined to affirm the decision of the Delegate to cancel the appellant’s licence.
By letter dated 20 January 2012 the appellant was notified of the Committee’s decision and that it was based upon:
“You have many court appearances for a number of offences that indicate a lack of respect for the law, and there is a tendency to not accept responsibility for your own actions.”
Notice of Appeal
The appellant, by Notice dated 13 February 2012, appeals to this Court against the decision of the delegate of the Registrar of Firearms. It is an appeal pursuant to s 26C of the Act against the decision of the Registrar, rather than the Firearms Review Committee.
The notice contains some six grounds of appeal. Most of them repeat the submissions made to the Registrar initially, and subsequently to the Firearms Review Committee. The other grounds assert an alleged failure by the Committee to give sufficient time to him to make his submissions, or to properly consider “all relevant information regarding the previous offences”.
In essence the appellant complains that too much weight was placed upon the appellant’s alleged criminal antecedents, and that the Registrar and the Firearms Review Committee had erred in failing to take into account the underlying circumstances leading to that offending.
He further complained that the Committee had failed to take into account his otherwise impeccable history as the holder of a firearms licence; and that the previously unregistered shotguns had subsequently been presented for registration.
Nature of the Appeal
Section 26C of the Act provides that a person aggrieved by a decision of the Registrar that has been affirmed by the Firearms Review Committee may appeal to this Court.
Section 42C of the District Court Act 1991 provides that upon the hearing of such appeal:
(1)    The Court must, on an appeal, examine the decision of the original decision maker on the evidence or material before the original decision maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)    The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit;
and
(b)must act accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)    The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons.
Submissions of the appellant
The appellant addressed the circumstances leading to each of the offences contained in the antecedent list considered by both the Delegate and the Firearms Review Committee.
The relevance of the appellant’s antecedents and the notation on the court file were addressed at length in submissions. The appellant submitted that the previous offences, other than the two firearms related events, were outdated and irrelevant to any enquiry as to fitness. He could not comment upon the notation in the file. He certainly did not intend to mislead anyone. He explained the circumstances leading to the two firearms events, and submitted that, when weighed against a history of compliance dating back to 1980, they ought not to have led to a finding that he was not a fit and proper person to continue to hold that licence.
I do not need to detail all of those circumstances. I accept that there were some unusual factors in each case that placed the offending at the lowest level as reflected in the low penalties imposed in each case.
One of the matters of concern, however, related to the appellant driving while disqualified on 14 August 2008. He explained that he was found in the impossible position of being let down by another person who had promised to drive him to his daughter’s parent/teacher interview. While his reasons for driving on that day somewhat explain the breach – the fact remains that he knew that he was disqualified, but elected to drive notwithstanding.

As to the keeping of the 410 shotgun, unsecured in his wardrobe, the appellant described it as a “snake gun”, which is not regarded by him as a dangerous weapon. He explained that it had been left unsecured at the request of his wife because of the prevalence of snakes. Again, this somewhat explains his reason for breaching the conditions of his licence and the obligation at law to secure that weapon. The added difficulty he faces, in respect of this breach however, is that he and his wife had separated in 2005, yet the 410 shotgun had remained unsecured, for at least 22 months by the time the police visited on 20 October 2007.
The appellant conceded that it was not a mere oversight – he deliberately left the firearm unsecured so as to protect his family and animals from snakes.[4]
[4] Transcript p10-11
The appellant explained that he was at all times safety conscious about firearms. He had been in possession of the same without difficulty, for over 30 years.
He said that it was because of that history that the police prosecutor did not seek an order for forfeiture of the 410 shotgun when he pleaded guilty on 20 October 2007.[5] In the subject case it cannot be suggested that the Registrar had acted in an inconsistent manner in deciding to cancel. He had before him not merely that breach in 2007, but the further failure to register in 2010. Contrast the facts in Zammit v Registrar of Firearms.[6]
[5] Transcript p36
[6] [2010] SADC 100
As to the unregistered firearms, he explained that they were family firearms which had, at least, a sentimental value. He submitted that he had used his best endeavours to register them between 27 August 2009, when he was informed of the need to do so, and 25 September 2010 when they were seized. On any view, a long time had elapsed after notice had been given to him on 27 August 2009, and when the firearms were finally lodged for registration.
Submissions of the Respondent
Counsel for the respondent, Ms Wells, very properly conceded, on the facts of this appeal that many of the antecedent offences were of little or no relevance to the question of fitness. She conceded that the notation in the Court file was not explained, and ought to have been ignored. She submitted that it was plain from the reasons of the Registrar that the cancellation was based principally upon the two firearms events, which led to convictions; and to a consistent disregard of the law, as exemplified in the decision of the appellant, in 2008, to drive in disregard of the forfeiture of his licence. Accordingly, she submitted, the Firearms Review Committee had properly categorised the appellant as a person who did and would continue to ignore his legal responsibilities if he decided that he had a good reason to do so.
She submitted that in determining whether a person is fit and proper to hold a licence, the Registrar could take into account any offending of any nature pursuant to s 5(12) of the Act.
Counsel for the respondent stressed the fact that the appellant had been convicted in respect of two separate firearms events. At the very least this showed a blatant disregard for his duties as the holder of a licence.
She submitted that when one looked objectively at the appellant’s relevant antecedent record, he was not, at the relevant time, a “fit and proper person” to continue, at this time, to hold a firearms licence.
Counsel for the respondent submitted that there were no cogent reasons to depart from the decision of the Registrar.[7] She submitted that the admitted offences alone established the appellant’s lack of fitness and propriety, at least at present. She properly conceded that a finding of lack of fitness at this time did not prevent the appellant applying for a licence in the future.
[7] See Section 42E of the District Court Act 1991
Discussion
The question to be determined by the Registrar was whether the respondent was, in August 2011, presently fit and proper to continue to hold the firearms licence. That fitness had to be seen in the context of the Act. See A Solicitor v Law Society of New South Wales.[8]
[8] (2004) 78 ALJR 310
There is no doubt that the Registrar’s lack of satisfaction as to the fitness of the appellant was based upon the antecedent report as to previous criminal offences. There is equally no doubt that the Committee had affirmed the decision because of those matters, and that by implication, insufficient time had passed since his last offence.
Pursuant to ss 5(11) and (12) the expression “fit and proper” allows the widest scope for judgment. In particular it enabled and indeed in some respects, obliged the Registrar to have regard to the appellant’s criminal antecedents.
In a much cited passage in his Reasons in a different context in Sobey v Commercial and Private Agents Board[9] Walters J said:
Any member of the public engaging the services of…. a person holding a licence …. is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform. Hence, it seems to me that the object of the legislation is twofold: first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them….. I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance ….. [However] When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time, and weight might then be properly given to his subsequent good behaviour.
[9] (1979) 22 SASR 70 at 74-75
In Petracaro v The Commissioner of Consumer Affairs,[10] Olsson J affirmed, however, the dicta of Perry J in Pav v Commercial and Private Agents Board, that a person’s record should not be held against him indefinitely.
[10] (1994) 62 SASR 387
In Police v Losapio, supra, David J had considered the question of whether sufficient time had elapsed between the relevant convictions of an appellant who similarly had held a Class A and B Firearms Licence for the similar purpose of target shooting and hunting. He had previously held that licence for some 15 years. His Honour considered that insufficient time had elapsed. He adopted dicta of the Court to the effect that, “at some time in the future if the applicant is able to demonstrate that he is a fit and proper person to hold a licence then any further application can be considered in light of those circumstances and on its merits”.
It is not a question of punishing the appellant twice for his offending. In addition, the determination of not being fit and proper, does not mean that the appellant is not otherwise a person of good character generally.
In determining whether it was appropriate to cancel the licence on 22 August 2011, the overriding consideration is that of ensuring the public safety. The fitness and propriety of the appellant had to be seen in the context of the Act and the Regulations.
In Offe v The Police,[11] Gray J warned that the community must not be complacent about the danger of firearms, and relevantly the real danger to “unsuspecting children and persons who may happen across them accidentally…. so that only responsible persons with appropriate licences are able to access such firearms”.
[11] (2002) 84 SASR 72 at 76
I was initially concerned that the Registrar had taken into account irrelevant matters, including the notation on the Magistrate’s file. I was also concerned that in their respective reasons there was no specific reference to the applicant’s history. As the Full Court said, in a different context, in Nepeor v Liquor Licensing Commission,[12] “one would like to know much more about the man’s past conduct and life before finding him to not be fit and proper. A long period of honest living could outweigh some lapses.”
[12] (1987) 46 SASR 205 at 209
If I had been satisfied that the Registrar had taken into account, in a material way, irrelevant matters, or not considered relevant matters it would have been appropriate to remit the matter back to the Registrar for further consideration.[13] Ultimately I have concluded that the appellant’s decision to leave the 410 shotgun unsecured in the bedroom for such a long time is inconsistent with the responsibilities prescribed by the Firearms Act upon responsible licensees. It is not for the appellant to pick and choose when and whether he will comply with those obligations.
[13] See Glen v Registrar of Firearms [2011] SADC 22, and Zammit v Registrar of Firearms [2010] SADC 100
Conclusion
It is clear that the appellant had provided his personal history to the Registrar and the Committee, in both written and oral submissions. Indeed the Registrar had very properly invited him to provide those details before he considered the question of cancellation. I have no reason to find that they did not properly balance those matters against his previous offending.
While I readily accept that the Committee’s reasons were barely adequate, I do not accept that either the Delegate or the Committee took into account, in any material way, any irrelevant matters, nor did they give undue weight to the firearms related convictions.
In my opinion, in light of the breach of the Act and conditions in failing to secure the 410 shotgun on 20 October 2007, and indeed deliberately failing to do so, when coupled with the other matters to which I have referred, the finding of unfitness and impropriety to continue to hold a firearms licence at the present time was inevitable.
Accordingly, I cannot find cogent reasons to depart from the decision of the Registrar to cancel the appellant’s licence, nor from the Firearms Review Committee’s order to affirm that decision.
In light of these reasons, I dismiss the appeal. I also make it plain, although it will be for the Registrar to determine, if, and when a fresh application is made for the grant of a licence, that the two firearms related convictions ought not be held against the appellant indefinitely, particularly in light of his otherwise good record of firearm safety over many years. The appellant is aware that he must dispose lawfully of the firearms forthwith, and ought liaise with the police to prevent forfeiture of them under the Act.
I had excused the parties from attending at the formal delivery of these reasons and the pronouncement of my orders.
Formal Orders
1I dismiss the appeal.
2I affirm the order of cancellation of the licence, made by the Registrar and as affirmed by the Firearms Review Committee.
3As to the question of costs, there was no conduct in this case which would warrant an order for costs. Accordingly, I make no order for costs pursuant to either s. 42G or 42H of the District Court Act 1991.