| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : BENT and COMMISSIONER OF POLICE [2011] WASAT 143 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 22 AUGUST 2011 DELIVERED : 5 SEPTEMBER 2011 FILE NO/S : CC 595 of 2010 BETWEEN : VERNON BENT Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords: Firearm licence Genuine reason for the use of a firearm - Is the use of a particular calibre firearm reasonably justified - Interests of public safety - Relevance of use of firearm for military and sniper purposes - Implications of policy decision by the Commissioner of Police that no application by a private person to possess a .338 Lapua Magnum should be approved Legislation: Firearms Act 1973 (WA), s 11, s 11(1), s 11A(1), s 11A(2)s 11A(3), s 11B(1), s 22
Firearms Regulations 1974 (WA), Sch 3
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 9(c), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 32(2)(a), s 32(4) Result: The application is dismissed
The decision of the Commissioner of Police to refuse to issue the licence is affirmed Category: B
Representation: Counsel:
Applicant : Mr A Skerritt
Respondent : Snr Constable S Bagley
Solicitors:
Applicant : Barrister
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Re Brown; Ex parte Scudds (1995) 14 WAR 270
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Bent, the applicant, sought a review of a decision by the Commissioner of Police to refuse to approve his application to be licensed to hold a .338 Lapua Magnum rifle. Mr Bent contended that he had a genuine reason to possess the firearm since he wanted to use it for purposes of recreational shooting and hunting. He said that this particular calibre was reasonably justified in light of his need to shoot over long distances of more than 600 metres and up to 1.5 kilometres. Mr Bent contended that the fact that this calibre may also be used for military and sniper purposes is immaterial since the same argument would apply to several other calibres of firearms that are widely use for hunting and target shooing in Western Australia. 2 Senior Constable Bagley, for the Commissioner of Police, the respondent, opposed the application and said that Mr Bent had failed to demonstrate why this particular calibre is reasonably justified for his purposes. Senior Constable Bagley accepted that Mr Bent had a genuine reason for use of a firearm but according to the Commissioner the existing firearms which Mr Bent held were sufficient for his purposes. There was therefore, according to Senior Constable Bagley, no reasonable justification for the type of firearm the subject of these proceedings. Senior Constable Bagley also emphasised that it was the Commissioner's policy that private persons should under no circumstances be licensed to hold a .338 Lapua Magnum due to its excessive ballistic capabilities. 3 The Tribunal found that Mr Bent could not, to the satisfaction of the Tribunal, provide reasonable justification to be licensed to hold the .338 Lapua Magnum. The Tribunal agreed with the Commissioner that, based on the information provided by Mr Bent, the existing firearms for which he is licensed were adequate for hunting and target shooting, and that Mr Bent had failed to provide sufficient justification as to why the particular kind of firearm had to be added to his licence. The Tribunal also emphasised that it had to apply its discretion to questions of licensing of firearms and that if the Commissioner was of the view that the .338 Lapua Magnum should be banned from all private ownership, it could be done via statutory instruments. 4 The application for review was therefore dismissed and the decision of the Commissioner of Police to refuse to issue a licence to hold a .338 Lapua Magnum was affirmed. (Page 4)
Issue 5 If the application for a review of the decision by the Commissioner of Police (Commissioner) to refuse an application by Mr V Bent to hold a Category B firearm license for a .338 Lapua Magnum calibre BAT Machine RSS rifle (.338 Lapua Magnum) should succeed on the basis that Mr Bent has shown he has a genuine reason to possess the firearm and it is reasonably justified for him to be licensed with this particular calibre firearm.
Background 6 The application for review was lodged on 28 April 2010. After several adjournments, the hearing took place on 22 August 2011. The time it took for the matter to be heard can be attributed to several reasons, such as Mr Bent seeking new counsel to represent him; delays in filing documents; an application being made for discovery of documents and correspondence in possession of the Commissioner that may have been of relevance to this proceeding; and, finding a date suitable to the expert witnesses. 7 Four witnesses were called to give evidence during the hearing: the applicant, Mr Bent; Sergeant G Roberts; Senior Constable S Pavlovich and Senior Constable SF Harrison. An affidavit was filed by Sergeant McGrath although he was not available to give evidence. Mr Bent confirmed in his evidence that the description given by Sergeant McGrath, in paras 7 16 of his affidavit, of the dimensions of Mr Bent's property was accurate. 8 Sergeant Roberts and Senior Constable Harris were called as expert witnesses. 9 At the commencement of the hearing, the Tribunal invited the two expert witnesses to meet outside the hearing room in private to identify the issues on which they were in agreement; the issues on which they were in disagreement; and the reasons for the disagreement. They reported back to the Tribunal that they were in agreement as far as the history, and the technical and ballistic capabilities of the .338 Lapua Magnum were concerned. They disagreed on matters of ethics regarding the appropriate calibre to humanely dispose of certain animals and as to whether, in their assessment, Mr Bent should be licensed to possess the .338 Lapua Magnum. Both experts were of great assistance to the Tribunal and they are to be complemented for the succinct and clear way in which they put forward their views. (Page 5)
10 Both parties made written submissions which were amplified by oral submissions. The Tribunal took all of the information before it into account in coming to its decision.
Facts 11 Mr Bent applied on 8 February 2010 for a .338 Lapua Magnum to be added to his existing firearms licence. The .338 Lapua Magnum is a Category B firearm. In his application, Mr Bent indicated that he required the firearm for purposes of recreational hunting and shooting. He also said that he needed the firearm for the humane control of feral animals on his property and the property of his relatives. Mr Bent listed two properties where he intends to use the .338 Lapua Magnum. The first property is his own property of 2,500 hectares in the district of Mukinbudin where he says he needs the firearm to control wild dogs, emus and kangaroos. The second property belongs to Mr Bowron, a family member. The property of 30,000 hectares is called Donida Farms and is in the district of Mukinbudin. The feral animals listed on the application to be present on this farm are camels, scrub bulls, donkeys and wild dogs. 12 The application was refused on 5 April 2010 on grounds that, according to the delegated officer, Mr Bent had failed to demonstrate a genuine need for this particular calibre firearm. The potential risk to public safety of this type of calibre was also raised as a ground for refusal of the application. 13 Mr Bent is licensed to hold eight firearms of which three are Category B and two are Category C firearms. The two Category B firearms are a Ruger .243 (.243), a .44 Winchester Magnum (.44 Magnum) and a 7mm Weatherby Magnum (7mm Magnum).
Contentions 14 The contentions of the parties can be summarised as follows. Commissioner of Police 15 Mr Bagley contends on behalf of the Commissioner that Mr Bent has not shown sufficient justification for the .338 Lapua Magnum to be added to his license. According to Mr Bagley there are three reasons why Mr Bent does not satisfy the statutory requirements: firstly, the .338 Lapua Magnum should not be licensed to any private person due to its ballistic capabilities and the potential risk to the public since it is an ideal sniper rifle; secondly, Mr Bent already has a .7mm Magnum which (Page 6)
is ideally suited for the type of hunting and recreational shooting he wants to do; and, thirdly, the types of animals Mr Bent seeks to hunt are not suited for the .338 Lapua Magnum.
Mr Bent 16 Mr Skerrit, counsel on behalf of Mr Bent, contended that Mr Bent satisfies all the statutory criteria and should therefore be granted the licence. According to Mr Skerrit, the evidence shows that Mr Bent has a genuine reason for acquiring the .338 Lapua Magnum since he has a keen interest in recreational shooting and hunting, and he has access to properties where the rifle can be used safely. Mr Skerrit also argued that the purpose of the Firearms Act 1973 (WA) (Firearms Act) is not to prohibit gun ownership but to regulate it. Once Mr Bent has shown that he has a genuine reason and the particular calibre can be reasonably justified, he is entitled to expect that a licence will be issued. The possible use of a firearm for military purposes should not exclude it from private ownership. If the approach suggested by the Commissioner were to be followed, many calibres that are already widely in use would be disqualified. If the Commissioner is of the view that private possession of all .338 Lapua Magnums should be totally banned, such a restriction should be done by way of statutory instrument.
Evidence of witnesses 17 The evidence of the witnesses can be summarised as follows.
Sergeant F McGrath 18 Sergeant McGrath provided the Tribunal by way of affidavit with a description and dimensions of Mr Bent's property. Mr Bent accepted in his evidence that the description was accurate. The property is described as follows: ... 7. Mr Bent's property is located south of Forrest Avenue[,] Karloning in the Mukinbudin Shire between Aitken-Kookoobing Road to the west and Waika-Mukinbudin Road to the east. 8. The northern boundary of the property is 5 kilometres long. 9. The southern boundary of the property is 5.5 kilometres long. 10. The western boundary of the property is 1.5 kilometres long. 11. The eastern boundary of the property is 1.75 kilometres long. (Page 7)
12. The property consists of cleared and uncleared land. 13. Approximately 1.2 kilometres north of [Mr Bent's] homestead is the homestead of the O'Neil's. 14. Approximately 1 kilometre west of the property's western boundary is an operating quarry known as Snow Stone. 15. Approximately 3.5 kilometres to the south of the property is the Seaby Homestead. 16. Approximately 3 kilometres east of the property's eastern boundary is the McInnis homestead. ...
Senior Constable S Pavlovich 19 Senior Constable Pavlovich said that the 7mm Magnum already held by Mr Bent should serve the purpose for which he requires the .338 Lapua Magnum or, in the alternative, there are other calibre .338 options available of which the ballistic capabilities were not as excessive as the .338 Lapua Magnum. One such calibre is the .338 Federal. The effective range of the .338 Lapua Magnum is up to 1,500 metres and that exceeds any reasonable use that a private hunter or target shooter may have. At closer ranges, the capability of the .338 Lapua Magnum is excessive and other calibres can be used. In essence, the .338 Lapua Magnum is not primarily a hunting rifle but a rifle with military and sniper capabilities over exceptionally long distances. The calculations and equipment required for the use of the .338 Lapua Magnum at distances for which it was designed is 'beyond the realm of the normal hunter' and it is in any case 'fanciful' for a hunter to seek to shoot animals as the extreme distances of 800 metres plus as suggested by Mr Bent.
Experts: Sergeant G Roberts and Senior Constable SF Harrison 20 Sergeant Roberts and Senior Constable Harrison agreed on the general background of the .338 Lapua Magnum as set out in paras 15 36 of Sergeant Roberts' witness statement. 21 In essence, the .338 Lapua Magnum was developed to address the need within the military for a sniper rifle with a capability that exceeds 1,000 metres. It is regarded as 'one of the premier military sniper rifle systems available' (para 29 of Sergeant Roberts' statement). The .338 Lapua Magnum is, however, not necessarily limited for use by the military. It is also used internationally for target shooting and hunting. (Page 8)
22 Currently, the .338 Lapua Magnum is produced by various manufacturers. There are also other .338 calibre cartridges available, for example, the .338 Norma Magnum; the .338 Winchester Magnum and the .338 Remington Ultra Magnum. The fact that the .338 Lapua Magnum is used for military and civilian purposes is not unusual since the same applies to some other calibres that have dual use, for example: the .308 Winchester which is the civilian equivalent of the 7.63 by 51mm NATO; the .303 which was widely used in the Second World War; the 7.92mm; and the NATO/.223 Remington. 23 Sergeant Roberts and Senior Constable Harrison also agreed on the content of paras 26 32 of Sergeant Roberts' witness statement. Those paragraphs provide a basic comparison between the .308 Winchester, the .338 Lapua Magnum and the 7mm Magnum. 24 The experts also agreed that the .338 Lapua Magnum is not as simple to be used for hunting and shooting in the way that calibres such as the .303, .308 or 7mm can be used. The weapon is heavy, difficult to use and it has to be placed in a very stable position for purposes of accuracy. For the effective use of the .338 Lapua Magnum, a specialist knowledge of ballistics, mathematical skills, advanced optics, a ballistic computer and a specialist laser finder are required. It is, according to the experts, unlikely that inexperienced shooters will be able to use the .338 Lapua Magnum effectively since specialist equipment and so many advanced skills are required. 25 As far as the assessment of Mr Bent's application is concerned, the experts have divergent views. 26 Senior Constable Harrison questions the use of the .338 Lapua Magnum for the purposes listed by Mr Bent. He says that any range beyond 400 metres would be a serious test for any ordinary shooter or hunter and that given the excessive ballistic attributes of the .338 Lapua Magnum, Mr Bent does not satisfy the requirements to use the rifle for hunting purposes. As far as Mr Bent's need for target shooting is concerned, Senior Constable Harrison says that the same type of long distance, precision shooting and challenges can be obtained by using different size targets and different calibres over various distances. He says that there are no requirements to hunt over such extreme distances on the properties listed by Mr Bent and even if he had to shoot over long distances, the 7mm Magnum would suffice for the humane killing of the animals listed in the application. The .338 Lapua Magnum exceeds the safety template of all approved civilian shooting ranges in (Page 9)
Western Australia. Senior Constable Harrison concludes that Mr Bent has not shown reasonable justification for the .338 Lapua Magnum and that, given the military and sniper capacity of the .338 Lapua Magnum, it is in the public interest that no civilian should be licensed to hold it. 27 Sergeant Roberts says there is no justification to oppose an application for a .338 Lapua Magnum on the principle of its application for military use since there are many other calibres that are also in military and civilian use. The .338 Lapua Magnum has a greater capacity for the humane disposal of large boned animals at extreme ranges than the 7mm Magnum. When hunting at distances of over 600 metres, the .338 Lapua Magnum was the most appropriate firearm to be used. At distances of target shooting in excess of 1,000 metres, the .338 Lapua Magnum is the ideal choice of calibre. The risk of overshooting or a bullet ricocheting is present with the use of all firearms and there is nothing to suggest the .338 Lapua Magnum carries an inherently greater risk if used responsibly. Sergeant Roberts says that with sufficient training and practice, a person can become a proficient user of the .338 Lapua Magnum in long distance hunting or target shooting. He indicated at the hearing that he would not attempt to hunt a scrub bull at distances of 200 metres or 300 metres but rather at 100 metres. He would also not attempt to hunt a camel at ranges exceeding 600 metres due to the risk of not killing the animal humanely with one shot.
Mr V Bent 28 Mr Bent says he has been a sporting shooter for many years and due to his interest in long range shooting had a .338 Lapua Magnum custom made for his use. The .338 Lapua Magnum has capabilities for long range target shooting and hunting that are not found in any of his existing rifles. He is keen to push his shooting skills to their limit and once he has mastered the .338 Lapua Magnum on the target range, he will start using it for hunting. 29 The .338 Lapua Magnum will be used on his own property for purposes of shooting feral animals and vermin, particularly wild dogs that threaten his sheep. The dogs have become so sensitised to hunters that they must be shot at extreme ranges that exceed the capabilities of other rifles such as the 7mm Magnum. The 7mm Magnum is effective at up to 300 metres but in excess of that distance the .338 Lapua Magnum is required. There is no problem with large animals on his land. He anticipates that he will shoot dogs on his land at distances of 800 metres. (Page 10)
30 He also has access to hunt on Mr Bowron's land. There are lots of kangaroos on the land, as well as donkeys, stray scrub bulls (perhaps six per year) and the possibility of camels although he has never seen or shot at a camel on this land. 31 Mr Bent says he is completely aware of the potential risks of the .338 Lapua Magnum but that he understands ballistics well enough to know where a bullet will land and what the safety range is within which this calibre can be used. He will also undertake training to use the .338 Lapua Magnum effectively and has the means to acquire the technical equipment necessary to support shooting over such long distances. He is also willing to accept a condition that the .338 Lapua Magnum may only be used on Donida Farms. Mr Bent says that he currently has little experience in long distance shooting but he is keen to enhance his skills.
Statutory framework 32 The following excerpts provide the statutory framework against which the application is considered.
State Administrative Tribunal Act 2004 (WA) 33 The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the Commissioner of Police for purposes of the issuing of firearm licenses. 34 The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time the decision was made and in particular, information and evidence presented to it during the hearing (s 27(1) of the SAT Act). 35 The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decisionmaker at the time of the decision. 36 The powers of the Tribunal, according to s 29(3) of the SAT Act, are to: a) affirm the decision; b) vary the decision; or (Page 11)
Firearms Act 1973 (WA) 37 The relevant parts of the Firearms Act are as follows: 11. Exercise of Commissioner's discretion (1) The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that - 11A. Genuine reason required in all cases (1) An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought. (2) A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if - (3) A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified. 11B. Genuine need required in some cases (1) The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, (Page 12)
and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category.
Firearms Regulations 1974 (WA): Sch 3 cl 3 3. Genuine need test for category B To satisfy the genuine need test for category B the applicant must satisfy the Commissioner that a firearm of category A would be inadequate or unsuitable for the purpose for which the firearm is required.
Consideration 38 This review is conducted by way of a hearing de novo. The Tribunal's consideration of the application is therefore not confined to the information that was before the delegated officer when the decision was made (s 27(1) of the SAT Act). In his application for the licence, Mr Bent had said that his primary purpose was for control of animals, while during the hearing he said that he would initially use the rifle for target shooting and then, as his skills improved, he would use the rifle for hunting as well. In light of the de novo nature of the hearing, the Tribunal can take both these potential justifications into account when considering the application. 39 The presiding member explained to the parties that he is an experienced hunter and shooter and that pursuant to s 9(c) of the SAT Act, his knowledge may be of value in the proceedings. He requested the parties nevertheless, to explain the issues regarding ballistics and other technical information in layperson terms. 40 The Tribunal is placed in the position as delegated officer under the Firearms Act. The Tribunal is not limited in its review to the reasons for decision by the delegated officer but can take new information into account prior to making its decision. The purpose of the review is therefore for the Tribunal, as delegated officer, to produce a correct and preferable decision (s 27(2) of the SAT Act). The Tribunal explained to the two expert witnesses that their duty was not to the respective parties but to the Tribunal so as to assist it to come to the correct and preferable decision. The Tribunal is satisfied that the experts made a serious attempt to comply with this direction and they responded to questions to the best of their ability and according to their expert opinion. (Page 13)
41 The Tribunal is not bound by the rules of evidence (s 32(2)(a) of the SAT Act) and may 'inform itself on any matter it sees fit' (s 32(4) of the SAT Act). Mr Skerrit agreed for the Tribunal to take into evidence the affidavit of Sergeant McGrath. Mr Skerrit contended, however, that the Tribunal should not, save for the parts of the affidavit of Mr McGrath that describes the property of Mr Bent, place any reliance on the affidavit. The Tribunal is satisfied to rely principally on the affidavit of Mr McGrath for purposes as suggested by Mr Skerrit since the remainder of the affidavit is either based on hearsay information or is the subject of direct evidence in the proceedings. 42 The Firearms Act makes provision in the long title for the 'control and regulation of firearms' and s 11(1) stipulates that the delegated officer 'cannot' issue a permit for a licence if he is 'of the opinion'. Section 11A(1) further provides that 'a licence cannot be issued' to a person who in the 'opinion' of the delegated officer 'has not been shown to have a genuine reason for acquiring or possessing the firearm'. Section 11A(3) of the Firearms Act provides that a person does not have a genuine reason for acquiring a particular kind of firearm 'unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified'. Schedule 3 cl 3 of the Firearms Regulations 1974 (WA) (Regulations) determines that to 'satisfy the genuine need test for category B the applicant must satisfy the Commissioner that a firearm of category A would be inadequate or unsuitable for the purpose for which the firearm is required'. 43 These provisions of the Firearms Act provide the Tribunal with the discretion to take into account information that is relevant and applicable to the specific application under consideration to determine if a licence can be issued. The discretion of the Tribunal must be exercised within the framework of the Firearms Act and the Regulations. 44 This has been confirmed by the Supreme Court of Western Australia in ReBrown; Ex parte Scudds (1995) 14 WAR 270, where the court held that 'the grant of a licence [under s 22 of the Firearms Act,] is discretionary and will not be granted if the Commissioner, or magistrate [on appeal], forms the opinion that the applicant does not have a good reason' within s 11 (own emphasis). 45 The long title of the Firearms Act sets out the purpose of the Firearms Act as to make provision for the 'control and regulation' of firearms and ammunition. The use of these words signifies that (Page 14)
possession of a firearm is not by itself a right, but is subject to the licensing officer being satisfied that the requirements of the Firearms Act are met. That is where the discretion lies. The fact that a person meets certain criteria, for example, that he/she has access to land where a firearm may be used, does not mean that a license would automatically be issued. The word 'control' is defined as 'to exercise restraint or direction over' and 'to hold in check' (Macquarie Concise Dictionary 6th ed, 2004). The responsibility of the Tribunal is to take into account all the provisions of the Firearms Act, including the interests of the public, when making its decision. 46 The Tribunal now turns to the requirements of the Firearms Act, and the evidence and submissions of the parties. The Tribunal will assess the application for review in light of the two requirements as identified by the parties, namely, whether Mr Bent has a 'genuine reason' for possessing the .338 Lapua Magnum and whether the acquisition of the firearm can be 'reasonably justified'.
'Genuine reason' 47 The Commissioner does not take issue that Mr Bent has a genuine reason to acquire a firearm. Mr Bent is a primary producer and he had already shown in previous applications for firearm licences that he needs firearms for purposes of eradication of vermin and feral animals. Mr Bent confirmed during the hearing that he suffers losses to crops and sheep due to damage caused by kangaroos and wild dogs. This explains why Mr Bent is already licensed to possess several firearms. 48 The Tribunal is in agreement with the Commissioner that Mr Bent does have a genuine reason to be licensed to possess a firearm suitable for his purposes. 49 The question is whether this particular kind of firearm can be reasonably justified?
General prohibition 50 The Tribunal will commence by responding to the contention by Senior Constable Bagley that the .338 Lapua Magnum should not, as a matter of policy, be licensed to any private person due to its military capability. 51 The Tribunal does not accept that contention. The experts who gave evidence to the Tribunal were in agreement on the following: (Page 15)
a) Although the .338 Lapua Magnum was initially developed for military purposes, it is also used internationally for military, target shooting and hunting purposes; b) Many other calibres of rifles that have military and hunting application are in private use within Western Australia, for example the .303 and the .308; and c) There are several other .338 calibres that can be acquired within Western Australia for purposes of hunting and target shooting. 52 The Tribunal accepts this evidence. If the Commissioner is of the view that in light of its ballistic capabilities any private possession of the .338 Lapua Magnum should be completely prohibited, such prohibition can be effected by way of statutory instrument. In light of the current provisions of the Firearms Act, the Tribunal is clothed with the discretion to take into account all information before it and it cannot dismiss an application for review as a matter of policy without applying its discretion to all the information before it.
'Reasonably justified' 53 The Tribunal will next consider the question at to whether Mr Bent has provided sufficient evidence to reasonably justify the grant of the licence to possess a .338 Lapua Magnum. 54 The Tribunal is not satisfied that Mr Bent has demonstrated that the particular firearm he seeks to acquire, the .338 Lapua Magnum, can be reasonably justified in light of the evidence before it. 55 The reasons for this finding of the Tribunal are as follows.
Bentwood Farms 56 Mr Bent does not satisfy the Tribunal that a calibre such as the .338 Lapua Magnum is reasonably justified for use on Mr Bent's farm at Mukinbudin. This conclusion is for three reasons: 1) Mr Bent has said that the types of animals he wishes to hunt on his farm are wild dogs and kangaroos. Mr Bent failed to satisfy the Tribunal that this particular kind of firearm is required for the shooting of those animals in light of the wide range of calibres Mr Bent is already (Page 16)
licensed to hold. The .338 Lapua Magnum and its ballistic capacity is, for lack of a better word, complete 'overkill' for the shooting of wild dogs and kangaroos. The Tribunal accepts the evidence of Senior Constable Harrison and Senior Constable Pavlovic that for the effective and humane destruction of kangaroos and wild dogs, calibres such as the .22, .243, and .44 Magnum for which Mr Bent is already licensed, are adequate. 2) Mr Bent said that he would use the .338 Lapua Magnum for distances of up to 800 metres for the shooting of wild dogs since he could not get closer to them without damaging his crops. The Tribunal is not satisfied that the shooting of wild dogs at a distance of 800 metres is feasible or practicable in light of the evidence before it. Sergeant Roberts, who is an expert marksman in a class of very few, said that he had hunted, as part of his level of expertise, at distances in excess of 600 metres but that it was rare for recreational hunters to be able to master hunting over those distances. Senior Constable Harrison said that he has hunted extensively at distances of 20 400 metres but that the shooting of a target as small as a dog over such a long distance requires a marksman with very specialised skills and equipment. There were, in any event, according to Senior Constable Harrison other viable options available for the killing of problem dogs if they are outside of the range of Mr Bent's existing firearms. The Tribunal is not satisfied that Mr Bent has reasonably justified that he requires this calibre of firearm for the purpose of hunting kangaroos and wild dogs on his farm over such excessively long distances. 3) Mr Bent says that he is an experienced hunter and shooter and that he knows 'precisely' where his rounds would land if he were to be licensed to hold the .338 Lapua Magnum. Under examination of the Tribunal, Mr Bent acknowledged that he may have exaggerated and embellished his knowledge of ballistics since it is not as simple as he has suggested to determine exactly where a bullet will land. The Tribunal must, in taking account all relevant information, also consider the size of the property where Mr Bent intends to use the (Page 17)
.338 Lapua Magnum. The property is located in the wheat belt of Western Australia and comprises cleared and uncleared land. Mr Bent did not provide the Tribunal with a map or any photographs of the property. The Tribunal had to rely on the description offered by Sergeant McGrath. The evidence is that the property is northern boundary is approximately 5 kilometres long; 5.5 kilometres on the southern boundary; the western boundary is 1.5 kilometres; and the eastern boundary is 1.75 kilometres. Approximately 1.2 kilometres from Mr Bent's homestead is another home and approximately 1 kilometre from the western boundary is an operating quarry. The property is located south of Forrest Avenue and between AitkenKookoobing Road to the west and WaikaMukinbudin Road to the east. The relative small size of the property, the nature of the topography and location thereof, the proximity of public roads and the potential danger that overshooting or ricocheting of a bullet may hold to neighbouring properties combine to militate against the use of such a powerful firearm as the .338 Lapua Magnum for the purpose suggested by Mr Bent. Mr Bent's inexperience in the ballistics of a very powerful firearm such as the .338 Lapua Magnum is illustrated by his assertion that he knows where a bullet will land. Mr Bent failed to satisfy the Tribunal that the use of the .338 Lapua Magnum can be reasonably justified given the nature and characteristics of the land on which he intends to use it.
Donida Farms 57 Mr Bent does not satisfy the Tribunal that the .338 Lapua Magnum is reasonably justified for purposes of hunting on Donida Farms at Bonnie Rock in the district of Mukinbudin. This finding is for the following reasons: a) Mr Bent said in his application that the .338 Lapua Magnum would be used for the shooting of camels, donkeys and scrub bulls over long distances of more than 600 metres on Donida Farms. During the hearing, however, it transpired from Mr Bent's evidence of that he had never seen camels on the farm and there may, in his estimation, only be up to six stray scrub bulls (Page 18)
entering the farm (of 30,000 hectares) per year. He has, however, never seen scrub bulls or camels on the farm. He also said there was 'talk of camels' on the farm but otherwise he would like to use the rifle for purposes of hunting kangaroos and donkeys. Mr Bent's evidence corroborates the statement of Sergeant McGrath who says that he had been told that there were no camels or scrub bulls in the area of Bonnie Rock. Mr Bent has also never hunted a camel or scrub bull, even at short distances. He has shot bulls at point blank range but not as part of hunting. The owner of Donida Farms, Mr Justin Bowron, did not give evidence to the Tribunal about the prevalence of camels and scrub bulls on his land. Mr Bent, who appeared to be very sincere in the evidence he gave, failed to demonstrate that the large boned animals, such as camels and scrub bulls, that he suggests he would hunt on Donida Farms, are in fact present on the farm. The Tribunal is therefore not satisfied that Mr Bent had shown reasonable justification for requiring the .338 Lapua Magnum for the purpose of hunting camels and scrub bulls on Donida Farms. b) The Tribunal accepts that there are animals such as kangaroos, wild dogs and donkeys on Donida Farms. The Tribunal is, however, not satisfied that Mr Bent has shown reasonable justification, in light of the other firearms for which he is licensed, to use a .338 Lapua Magnum for hunting those animals. The experts were in agreement that technically, those animals can be hunted over excessive distances such as 800 metres, but they also stressed that it would not be the norm in ordinary hunting to attempt such long range shots due to the complexity thereof, the nature of bush and scrub land and the risk of not killing an animal with the first shot. Senior Constable Harrison also stressed that animals such as kangaroos, wild dogs and donkeys can be approached within ranges of 50 300 metres where hunting with the existing firearms such as the .44 Magnum and .234 would suffice. The Tribunal concurs with Senior Constable Harrison's evidence. The Tribunal accepts that it is within the realm of possibility for a top sniper such as Sergeant Roberts to hunt at a (Page 19)
distance of 800 1,500 metres, but there is nothing before the Tribunal to suggest Mr Bent falls within that category of expert marksman. The Tribunal is satisfied that for the type of hunting in which Mr Bent wishes to engage, the existing firearms are sufficient.
Target shooting 58 Mr Bent does not satisfy the Tribunal that the .338 Lapua Magnum is reasonably justified for purposes of target shooting. This finding is for the following reasons: a) The expert witnesses were in agreement that the use of the .338 Lapua Magnum requires very high expertise, specialised equipment and a practice range which is suitable for this highly dangerous calibre. There are no civilian rifle ranges in Western Australia that cater for the .338 Lapua Magnum. Mr Bent also did not suggest a civilian range where he could practice with the rifle. Although Mr Bent could use the rifle at Donida Farms, and although he said he is willing to acquire the specialist equipment and undergo training in the use of the rifle, the Tribunal is not satisfied that Mr Bent has shown reasonable justification as to why he should be licensed to possess (for purposes of target shooting) this calibre with such ballistic abilities. Mr Bent appears to be an amateur shooter who enjoys recreational hunting and target shooting. This does not, however, automatically constitute reasonable justification to be licensed for a .338 Lapua Magnum. The Tribunal has a wide discretion to consider the justification for a particular calibre firearm. The mere fact that a person wants to do target shooting and that such a person may have access to land where target shooting may occur, does not automatically mean a license will be granted. The Tribunal must exercise its discretion when all the relevant information before it is taken into account. b) Mr Bent also says he would use 'other people's property' to practice his long range shooting (para 11 of his statement). He does not, however, provide any detail of who those persons are, where their properties are located (Page 20)
and whether they have given permission for the shooting to occur. c) The Tribunal notes that Mr Bent is already licensed for several firearms which can be used for target shooting. Although Mr Bent says that he is an active member of a shooting club, there was no evidence before the Tribunal to suggest that the current firearms for which Mr Bent is licensed are not suitable for Mr Bent's level of expertise or experience. In fact, both expert witnesses agreed that very high levels of expert marksmanship can be obtained with the existing calibres at ranges of 200 400 metres and by using different targets, ammunition, calibrations and weather conditions. Although expert snipers would ultimately wish to use the actual rifle for long distances shooting, Mr Bent has not shown that he has reached a level of professionalism where there is reasonable justification for him to possess the .338 Lapua Magnum for purposes of target shooting.
Conclusion 59 In conclusion: the Tribunal is, for the above reasons, not satisfied that Mr Bent has shown reasonable justification to possess the .338 Lapua Magnum. 60 The application for review must therefore be dismissed and the decision of the Commissioner of Police to refuse to issue the licence must be affirmed.
Orders (Page 21)
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