Carpenteri v Registrar of Firearms - [2021] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
CARPENTERI v REGISTRAR OF FIREARMS
[2021] SASC 27
Judgment of the Honourable Chief Justice Kourakis
17 March 2021

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENSING AND REGISTRATION - APPLICATION FOR LICENCE OR PERMIT - FIT AND PROPER PERSON
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
This is an appeal against a decision of the South Australian Civil and Administrative Tribunal (the Tribunal), on internal review, affirming a decision of the Tribunal to cancel the appellant’s firearms licence. The appellant’s firearms licence was suspended by the delegate of the Registrar of Firearms (the Delegate) after the appellant was found in possession of 20kg of harvested cannabis plant material. The appellant pleaded guilty to, and was convicted of, one count of trafficking in a controlled drug. The sentencing Judge accepted the appellant’s explanation that his involvement was ancillary and his intentions were to assist the co-accused, who was suffering from cancer, to produce cannabis oil for the purposes of pain relief. The sentencing Judge nonetheless convicted the appellant of trafficking because he was aware that the co-accused intended to sell any surplus.
A short time after the appellant’s conviction, the Delegate cancelled his firearms licence under s 20 of the Firearms Act 2015 (SA) (Firearms Act) on the basis that the appellant was no longer a fit and proper person to hold a firearms licence. The appellant appealed the Delegate’s decision to the Tribunal. A Senior Member of the Tribunal affirmed the Delegate’s decision on internal review.
The appellant appeals to this Court on two grounds: (1) that the decision was legally unreasonable in that it was made on an incorrect factual basis which failed to take into account the special circumstances accepted by the sentencing Judge; and (2) the reasons given by the Senior Member were inadequate and did not disclose the factual basis on which the decision was made.
Held per Kourakis CJ dismissing the appeal.
1. The jurisdiction exercised by the Registrar of Firearms under the Firearms Act is not dependent on, or in any way constrained by, findings made for the purposes of sentencing.
2. It would be an error of law to confine the Tribunal, in the exercise of its administrative jurisdiction, to facts found in the criminal jurisdiction where the exercise of the Tribunal’s jurisdiction is not so tied.
3. The Senior Member’s reasons disclose an adequate reasoning process based on a sound factual basis, which included the factual basis found by the sentencing Judge, in finding that the appellant’s conduct reflected poorly on his judgment and character such that he is unfit to hold a firearms licence.
Firearms Act 2015 (SA) ss 7, 14, 15, 17, 20. ; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 37, 39, 71.; Firearms Regulations 2017 (SA) sch 2, cl 1(b)., referred to.
That’s Entertainment WA Pty Ltd v Commissioner of Police (2013) 228 A Crim R 201; Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, applied.

CARPENTERI v REGISTRAR OF FIREARMS
[2021] SASC 27
Appeal to a Single Judge: Civil

KOURAKIS CJ: This is an appeal against a decision of the South Australian Civil and Administrative Tribunal (the Tribunal), on internal review, affirming a decision of the Tribunal to cancel the appellant’s firearms licence.
Mr Carpenteri has long held a firearms licence. It was last renewed for a period of one year on 29 June 2016. On 23 November 2016, after Mr Carpenteri was found in possession of 20 kg of cannabis plant material on 3 November 2016, his firearms licence was suspended by a delegate of the Registrar of Firearms (the Delegate).
Mr Carpenteri pleaded guilty to, and was convicted of, trafficking in cannabis on 8 February 2019. The sentencing Judge accepted that Mr Carpenteri’s offending was limited to assisting a co-accused, who was stricken with cancer, to produce therapeutic cannabis oil from 20 kg of freshly harvested cannabis.
On 1 March 2019, the Delegate cancelled Mr Carpenteri’s licence on the ground that he was no longer a fit and proper person to hold a licence, relying on s 7(3)(d) of the Firearms Act 2015 (SA) (the Firearms Act), which provides that a person may be found to be unfit to hold a firearms licence if convicted of a prescribed offence. Trafficking in cannabis is a prescribed offence.[1]
[1] Firearms Regulations 2017 (SA) sch 2, cl 1(b).
Mr Carpenteri appealed against the Delegate’s decision to the Tribunal. The Tribunal, in reviewing a decision of the Registrar, may, pursuant to s 37 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act), affirm, vary, or set aside the decision and may substitute its own decision. It may also make any other order the Tribunal considers appropriate.[2] A Senior Member of the Tribunal dismissed the application for internal review and affirmed the decision of the Delegate, primarily because the commission of the trafficking offence reflected poorly on Mr Carpenteri’s character and his judgment.
[2] Including any interim order pending the reconsideration and determination of the matter by the decision maker, and any ancillary or consequential order that the Tribunal considers appropriate: See: South Australian Civil and Administrative Tribunal Act 2013 (SA) s 37(1).
Mr Carpenteri appeals on two grounds. The first is that the decision was legally unreasonable in that it was made on an incorrect factual basis which failed to take into account the special circumstances of the offence which were accepted by the Judge. The second ground is that the reasons were inadequate in that the Senior Member did not articulate whether, and how, she had taken into consideration the Judge’s sentencing remarks and did not articulate, in a meaningful way, the basis for determining the factual matrix on which the decision was made.
Permission to appeal was given by a Master of this Court pursuant to s 71(2) of the SACAT Act. An appeal brought pursuant to s 71 of the SACAT Act is by way of rehearing pursuant to s 71(3a). Importantly, this Court may, in conducting an appeal, draw inferences of fact from evidence or material before the Tribunal and may allow further evidence to be presented.[3]
[3] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3b).
I would dismiss the appeal. The Senior Member’s reasons, proceeded on the factual basis found by the Judge. It is also clear enough from those reasons that the Senior Member decided that Mr Carpenteri’s participation in the production of cannabis oil, knowing that any oil, surplus to his friend’s requirements, would be sold, rendered him unfit to hold a firearms licence. In short, the Senior Member acted pursuant to s 7(3)(d) of the Firearms Act. No further elaboration was required.
The Firearms Act
Section 7 of the Firearms Act, in some respects precludes a finding that a person is fit to hold a firearms licence and, in other respects, guides the evaluation of an applicant’s fitness as follows:
7—Fit and proper person
(1)A person is not a fit and proper person for a purpose under this Act if—
(a)     the person is prohibited from possessing or using a firearm by an order of a court whether in South Australia or any other State or Territory of the Commonwealth; or
(b)     a firearms prohibition order applies to the person or a similar order under corresponding legislation of another State or Territory of the Commonwealth applies to the person.
(2)A person who has a physical or mental illness, condition or disorder, or in relation to whom other circumstances exist, that would make it unsafe for him or her to possess a firearm or ammunition is not a fit and proper person for a purpose under this Act.
(3)A person may be taken not to be a fit and proper person for a purpose under this Act if the person—
(a)     has not complied with the requirements of this Act in relation to the safe handling, use, storage or transport of firearms; or
(b)     has been found guilty of an offence under this Act, the repealed Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)     has been found guilty of an offence involving actual or threatened violence in South Australia or any other State or Territory of the Commonwealth or in any other part of the world; or
(d)     has been found guilty of an offence as prescribed by the regulations; or
(e)     has been found guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation of another State or Territory of the Commonwealth; or
(f)     is the subject, or has in the past been the subject, of—
(i)an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 or any other order of a similar nature made by a court whether in this State or any other State or Territory of the Commonwealth; or
(ii)a foreign restraining order; or
…
(4)In deciding whether a person is a fit and proper person for a purpose under this Act—
(a)     regard may be had to the reputation, honesty and integrity of the person, close associates of the person and any people with whom the person associates; and
(b)     regard must be had to—
(i)any risk of the person using a firearm for an unlawful purpose; or
(ii)any risk of the person using a firearm to harm himself or herself; or
(iii)any risk that the person will cause injury or harm to another by the use or threatened use of a firearm; or
(iv)any risk of the person failing to exercise continuous and responsible control over a firearm,
and, in that connection, regard may be had to the person's past behaviour, instability, intemperate habits, way of living or domestic circumstances.
(5)A person may be taken not to be a fit and proper person for a purpose under this Act if the person has made a threat of violence, or stated the intention, or sought, to acquire or use a prescribed firearm or any firearm for an unauthorised purpose.
…
(7)This section does not limit the grounds on which a person may be taken not to be a fit and proper person for a purpose under this Act.
Section 14 of the Firearms Act precludes a person whose licence has been cancelled from applying to again hold a licence for a period of three years:
14—Applications for licences
…
(4)Subject to any exception allowed under the regulations, if a person's firearms licence has been cancelled by the Registrar under section 20(6) or (7), an application for a firearms licence cannot be made by the person before the expiration of 3 years after the day on which the cancellation takes effect.
The power to grant a licence is conferred by s 15 of the Firearms Act. It provides that an applicant may be refused a licence if the Registrar is not satisfied that an applicant meets certain minimum criteria:
15—Grant of licences
(1)The Registrar may only refuse an application for a firearms licence if the Registrar is not satisfied—
(a)     that the applicant has made the application in accordance with this Act and met the requirements of the Registrar in connection with the application; or
(b)     that the applicant is a fit and proper person to hold the licence; or
(c)     that the applicant has a genuine reason to possess a firearm to which the application relates; or
(d)     that the applicant could use a firearm to which the application relates for the purpose that would be authorised by the licence; or
(e)     that the applicant has, in respect of any licence held by the applicant (whether under this Act or the repealed Act), complied with or satisfied the requirements of this Act or the repealed Act (as the case requires) or the conditions of the licence; or
(f)     that the applicant will comply with or satisfy the requirements of this Act or the conditions of the licence; or
(g)     in the case of an application to be a licensed dealer—
(i)that the applicant is to be primarily responsible for the management of the business that would be carried on under the licence; or
(ii)that the applicant has, or in the case of an applicant that is a company, the director or directors together have, sufficient business knowledge and experience and financial resources for the purpose of properly conducting the business that would be carried on under the licence; or
(iii)that the premises at which the applicant proposes carrying on the business are appropriate for the purpose; or
(h)     in the case of an application for a licence authorising the holder to possess and use firearms as an employee of a licensed dealer—that the applicant is not a disqualified person within the meaning of section 11; or
(i)    in the case of an application by a natural person—
(i)that the applicant has established his or her identity, date of birth and residential and postal addresses (the Registrar may require the applicant to provide evidence of identity in the same manner as would be required for the opening of an account at an ADI); or
(ii)that the applicant is an Australian citizen or permanent resident usually resident in South Australia; or
(iii)that the applicant has successfully completed training in the safe handling, use, storage and transport of firearms as required under the regulations; or
(j)    that he or she would be prepared to grant a permit to the applicant to acquire a firearm of a category that the applicant would be authorised to possess by the licence if it were granted; or
(k)     that the applicant meets a requirement prescribed by the regulations; or
(l)    that to grant the licence would be in the public interest.
…
(5)An application for a firearms licence must not be granted if the applicant has been found guilty of a prescribed offence within the 5 years immediately preceding the application.
…
(10)A firearms licence does not come into force until any licence fee required to be paid under this Act has been paid.
The terms, and the renewal, of firearms licences are governed by s 17 of the Firearms Act:
17—Term and renewal of licence
(1)Subject to this Act, a firearms licence remains in force—
(a) in the case of a licence that only authorises the possession or use of category A, B or C firearms or a licence that authorises the holder to carry on the business of a dealer—for a term not exceeding 5 years; or
(b) in the case of any other licence—for a term not exceeding the term prescribed by the regulations (which must not exceed 5 years).
(2)A licence may be renewed from time to time.
Section 20 of the Firearms Act empowers the Registrar to cancel a firearms licence:
20—Variation, cancellation and suspension of licences
…
(6)The Registrar may, by written notice served personally or by registered post on the licensee, cancel a firearms licence—
(a)     if satisfied that the licensee obtained the licence improperly; or
(b)     if satisfied that the licensee has not used a firearm for the purpose authorised by the licence; or
(c)     if satisfied that the licensee has failed to comply with or satisfy the requirements of this Act or the conditions of the licence; or
(d)     on any ground on which the Registrar might refuse an application by the licensee for such a licence.
(7)The Registrar must, by written notice served personally or by registered post on the licensee, cancel a firearms licence if the licensee is found guilty of an offence prescribed by the regulations for the purposes of section 15(5) committed after the commencement of this subsection.
(8)The Registrar may, by written notice served personally or by registered post on a licensee, suspend the licence pending an investigation as to whether grounds exist for action against the licensee.
(9)If grounds exist for cancelling a licence (other than the grounds referred to in subsection (7)), the Registrar may instead, by written notice served personally or by registered post on the licensee, limit the firearms that may be possessed or used by the licensee under the licence.
…
The offending
On 3 November 2016, police officers at a Crafers petrol station noticed a strong smell of cannabis coming from Mr Carpenteri’s vehicle. The occupants of the vehicle were Mr Carpenteri, who was the driver, and his passenger, Mr Surace. When the police searched the vehicle they found 10 kg of freshly harvested cannabis. Mr Carpenteri was arrested and taken to Mount Barker Police Station. The police obtained a warrant and conducted a search of Mr Carpenteri’s property. Police entered a large shed on the premises which was protected by an alarm system and CCTV cameras. In the shed was a bar, gym and storage rooms. The police found 48 firearms registered to Mr Carpenteri securely stored within the shed. They also found a further 10 kg of cannabis on drying racks and in other parts of the shed. The dry weight of all of the cannabis seized from Mr Carpenteri was 1.6 kg.
At the petrol station, Mr Carpenteri told police that he had agreed to help Mr Surace purchase a cheap ‘bag’ of cannabis and to ‘clean it up’ so that Mr Surace could take it as treatment for his cancer. Mr Surace told police that he had cancer. He told them that he and Mr Carpenteri had just purchased the cannabis cheaply at a grow room and intended to share what they expected to be about 1.5 pounds of dry cannabis. However, that account was apparently abandoned by Mr Surace in the sentencing hearing.
The Judge sentenced Mr Carpenteri on his explanation that Mr Surace had decided to take cannabis to alleviate the pain of his cancer and that Mr Carpenteri had agreed to help him produce cannabis oil for that therapeutic purpose. The Judge’s findings were:
Prior to the offending Mr Surace had been diagnosed with cancer and he advised you that he intended to use cannabis as a form of pain relief. He requested your assistance. He had purchased a quantity of cannabis for $1,500 in total but lived in a unit and had no place where he could dry and sort the cannabis. You agreed to assist him. The basis of the arrangement was that Mr Surace would purchase the cannabis, as he did, and you would provide premises to him to dry and sort the cannabis.
…
On the day of your arrest you had picked Mr Surace up. He had requested you to do so, having purchased the cannabis. He had conducted some research on the internet, endeavouring to learn how to dry and sort the cannabis.
…
The reason for purchasing the cannabis, as I have outlined, was raised with police at a very early stage. The basis of the plea is that you, Mr Surace, intended to use the cannabis, perhaps to produce cannabis oil, in order to achieve relief from the chronic pain that you suffer as a result of medical conditions, to which I will refer in a moment, and had there been an amount surplus to your needs, you might have sold a small proportion of the amount that was usable to offset the cost of purchasing and processing the cannabis.
I make the following observations. First, it appears from the first of the cited paragraphs that the arrangement between Mr Surace and Mr Carpenteri was made before Mr Surace purchased the cannabis. Whether or not that finding accords with material put before the Judge is not presently relevant. Only the sentencing remarks were before the Senior Member and the ground of appeal to this Court is that the Senior Member erred in not acting consistently with the Judge’s findings. It follows that, on the findings made by the Judge, Mr Carpenteri had some time to consider whether or not to involve himself in the scheme but joined in it before the cannabis was purchased.

Secondly, even though Mr Carpenteri and Mr Surace both linked the purchase of the cannabis to Mr Surace’s cancer, when spoken to by police neither of them mentioned producing cannabis oil. Moreover, Mr Surace told police that he and Mr Carpenteri intended to store the cannabis. That statement was not admissible against Mr Carpenteri in the criminal proceeding. However, subject to ensuring procedural fairness, the statement might have been relied on by the Delegate and the Senior Member to make different findings to those made by the Judge. However, as we shall see, the Senior Member ultimately proceeded on the factual basis found by the Judge.
Thirdly, although in the last of the cited paragraphs the Judge found only that Mr Surace’s plan was ‘perhaps’ to produce cannabis oil, later in his reasons the Judge accepted that cannabis oil production was the most likely intended use.
Fourthly, the police interrupted Mr Carpenteri and Mr Surace on what must have been the second trip on which they took cannabis to Mr Carpenteri’s premises, because some cannabis was found already stored there. It is not known whether the first of the trips was on the same or an earlier day. Notably, neither Mr Carpenteri nor Mr Surace told the police about the cannabis which was already drying in Mr Carpenteri’s shed. Finally, Mr Surace lived in a unit. Plainly enough, the use of Mr Carpenteri’s shed was critically important to this enterprise.
Nonetheless, the Judge found Mr Carpenteri’s role was ‘ancillary’. His Honour accepted that Mr Carpenteri did not stand to gain in any way and described his conduct as a ‘misguided attempt to assist a man you have known for many years, who was suffering from cancer, who had assisted you in the past, and who was seeking to relieve his chronic pain.’
The Judge accepted that Mr Carpenteri did not intend to take a direct part in any subsequent sale of cannabis oil by Mr Surace, but explained that Mr Carpenteri was nonetheless guilty of trafficking because he was aware that Mr Surace did intend to sell any surplus. The Judge was satisfied that Mr Carpenteri’s involvement was for altruistic purposes and that is was most unlikely that he would offend again. The Judge recorded a conviction without imposing any other penalty, and placed Mr Carpenteri on a bond in the sum of $1,000 to be of good behaviour for a period of three years.
The Tribunal decision
The Senior Member had before her the Police Apprehension Report and the Judge’s sentencing remarks.
Mr Carpenteri filed an affidavit in the Tribunal in support of his application to review the decision of the Delegate. However, Mr Carpenteri did not attend the hearing and was therefore not available for cross‑examination. No adjournment was sought. As a result, those parts of his affidavit which attempted to elaborate on the circumstances of his offending were not received.
The Senior Member noted the submission put on Mr Carpenteri’s behalf that the Tribunal should read into the Judge’s decision not to impose a penalty of imprisonment, which would have attracted, by force of statute, conditions prohibiting Mr Carpenteri from possessing firearms an opinion that Mr Carpenteri was fit to continue to hold a firearms licence. That submission is misconceived and the Senior Member correctly rejected it. The simple bond to which Mr Carpenteri was sentenced shows only that the Judge did not consider a period of imprisonment was warranted. No conclusion can be reached on whether the Judge had any view about Mr Carpenteri’s fitness to hold a firearms licence more generally. Moreover, it was not part of the Judge’s sentencing function to form any opinion on that question. That responsibility fell to be determined administratively pursuant to the Firearms Act.
The Senior Member’s reasons for affirming the decision of the Delegate were:
[12]The Tribunal is entitled to take Mr Carpenteri’s criminal history into account in reviewing the Delegate’s decision. It is notable that he has in 3 separate ways transgressed against the law relating to weaponry in SA – firstly in 2011 in possessing an unregistered air rifle, and secondly and thirdly in 2016 in possessing prohibited weapons. That is not a history of responsible behaviour in regards to weaponry. It detracts significantly from the submission put on behalf of Mr Carpenteri about his ‘previous responsible storage and use of firearms’ (applicant’s outline of argument dated 9 July 2019 at paragraph 20).
[13]In relation to a criminal history of drug offending, there are previous decisions of both the District Court and the Tribunal upholding the cancellation of firearms licences when the licence holder had drug convictions. There does not need to be any nexus between the firearms and the drug offending. Mr Carpenteri was convicted of ‘traffic (type unknown) in a controlled drug – basic’. The Registrar submits that is a more serious charge than possession. I accept that submission. I reject the applicant’s contention that the weight of the charge is diminished by the fact that out of 20kg of cannabis detected, only 1.6kg was ‘usable’, or by Mr Carpenteri’s involvement with the cannabis being characterised by the sentencing judge as ‘ancillary’ or ‘altruistic’. It was and remains a serious charge regardless of Mr Carpenteri’s motive. Becoming involved with drug offending reflects poorly on both Mr Carpenteri’s character and his decision-making ability, even if his involvement was ‘ancillary’.
[14]Mr Carpenteri contends that in reaching the decision to cancel Mr Carpenteri’s firearms licence the Delegate placed undue weight on his association with his co‑accused Mr Surace. The Tribunal is satisfied that there are sufficient reasons to affirm the decision to cancel Mr Carpenteri’s firearms licence without needing to examine minutely Mr Surace’s history or Mr Carpenteri’s association with him.
(Citations omitted)
Ground 1 – Incorrect factual basis
The review of the Delegate’s decision by the Tribunal was by way of rehearing and the Tribunal may therefore receive further evidence. [4] The Tribunal must reach the correct or preferable decision having regard, and giving appropriate weight, to the decision of the original decision-maker.[5] The Tribunal must act according to equity, good conscience and the substantial merits of the case.[6]
[4]     South Australian Civil and Administrative Act 2013 ss 34(3), (5).
[5]     South Australian Civil and Administrative Act 2013 s 34(4).
[6]     South Australian Civil and Administrative Act 2013 s 39(1)(c).
Section 39(1)(b) of the SACAT Act provides:
(b)the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and
Subparagraph (b) confers a discretion on, but does not oblige, the Tribunal to adopt the findings, decision or other judgment of a court. It is a facilitative provision designed to encourage efficiency in administrative decision-making and to avoid the re-litigation of facts on which the Tribunal can safely rely because of the nature of the proceedings in which the facts were found.
Plainly enough, findings made by a court in criminal proceedings are generally reliable. However, it will not always be appropriate to adopt them in administrative decisions which are made under legislative schemes calculated to protect the public. The purpose of criminal proceedings is the conviction and punishment of offenders and the exoneration of the innocent. Convictions are generally based on findings made beyond reasonable doubt. They may therefore constitute a sound basis on which to proceed in schemes calculated to protect public safety. However, on sentencing, the prosecution may not be in a position to prove an aggravating circumstance beyond reasonable doubt, but the evidence of that circumstance may be sufficient to deny an offender a licence. An offender carries the onus of proving on the balance of probabilities a mitigating factor affecting his or her sentencing. However, the prosecution, or the Court, may for a number of reasons take a generous view of the evidence which favours the offender. The decisions of the Director of Public Prosecution as to whether or not to accept a factual basis for a guilty plea will be affected by a range of considerations appropriate in the discharge of the Director’s prosecutorial duties, but which may not adequately serve the public interest in the exercise of the protective powers under the Firearms Act.
The jurisdiction exercised by the Registrar of Firearms under the Firearms Act is not dependent on, or in any way constrained by, findings made for the purposes of sentencing. It may be otherwise when an administrator exercises a discretion enlivened by the fact of a criminal conviction, or otherwise substantially controlled by it. However, the powers of the Registrar of Firearms are enlivened by any conduct which affects a licensee’s fitness to hold a firearms licence, whether or not it is an offence and whether or not there has been a conviction. The discretion to not grant, suspend or cancel a firearms licence can be exercised irrespective of a conviction.
Consistency in decision making is desirable, but, it would be an error of law to bind or confine the Tribunal, in the exercise of its jurisdiction, to the facts as found on that conviction, where the exercise of jurisdiction is not tied to a conviction.[7] That is so because the purpose of the criminal proceedings is the enforcement of the criminal law and the appropriate punishment of offenders, whereas the purpose of the regulatory jurisdiction, exercised by the Registrar under the Firearms Act, is the safety of the community.
[7] Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 at [48], [104].
In That’s Entertainment WA Pty Ltd v Commissioner of Police,[8] Pritchard J, sitting in the Supreme Court of Western Australia, in reasoning with which I respectfully agree, put it this way:[9]
First, … the Commission is required to engage in a quite different task from that of a Court dealing with a prosecution. The Commission applies a different standard of proof and may have regard to evidence which would not be admissible in a Court where rules of evidence apply. Moreover it does so in order to decide if conduct which is alleged constituets [sic] a proper cause for disciplinary action. In that context, a conclusion that proper cause existed for disciplinary action on the basis that a licensee engaged in conduct which breached the LC Act would not be in consistent with an earlier decision to acquit the licnesee [sic] of an offence in respect of that conduct.
Secondly, as I have already observed, the purpose of disciplinary proceedings is quite different from the purpose of criminal proceedings. The object of criminal proceedings includes the punishment of those who disobey the law, while the object of disciplinary proceedings is to protect the public by maintaining standards of behaviour of persons permitted to work or carry on business in a particular industry or profession …
[8] (2013) 228 A Crim R 201.
[9] That’s Entertainment WA Pty Ltd v Commissioner of Police (2013) 228 A Crim R 201 at [66]-[67].
Mr Carpenteri was sentenced on favourable facts based on nothing more than submissions. The circumstances of this case exemplify the occasions on which it may be necessary for the Registrar, and on review, the Tribunal, to inquire into the circumstances of an offence, and make independent findings. Be that as it may, the Senior Member’s reasons in paragraph [13] cited above show that she proceeded on the basis of the facts as found by the Judge. In [13] the Senior Member proceeded on the basis that Mr Carpenteri’s involvement was, as the Judge found, altruistic. The words ‘even if’ at the conclusion of the paragraph, in context, mean ‘notwithstanding’. They do not show that the Senior Member proceedings on a different, unspecified, factual basis.
Ground 2 – Inadequate reasons
The Delegate and the Senior Member, on the review of the Delegate’s decision, relied on s 7(3)(d) of the Firearms Act as a relevant consideration in cancelling Mr Carpenteri’s licence. In one sense, s 7(3) of the Firearms Act is unnecessary. Even in the absence of that subsection, all of the matters it prescribes could properly support a finding that an applicant is unfit to hold a firearms licence. In this case, for example, the evidence of the police as to Mr Carpenteri’s possession of cannabis, which he did not deny before the Registrar of the Tribunal, may have been a sufficient basis on which to find that he was no longer fit to hold a firearms licence.
The legal effect of s 7(3) of the Firearms Act is twofold. It constitutes the circumstances therein prescribed mandatory considerations. Secondly, subparagraph (b) to (e) make the fact of a finding of guilt sufficient evidence of the underlying facts. Section 7(3) of the Firearms Act requires the Registrar to consider whether, by reason of the prescribed matter in itself, an applicant is fit to hold a firearms licence. In the ordinary course, it will be necessary that the Registrar provide reasons as to why the criterion is, or is not, sufficient to warrant a finding that a person is unfit. That obligation also falls on the Tribunal on a review of the Registrar’s decision. It is not sufficient simply to record that a licensee was convicted of a prescribed offence. That is the starting point of the enquiry and not the end point. The issue is whether the conviction warrants a finding that the licensee is unfit or not. It follows that it was necessary for the Senior Member to explain her finding that Mr Carpenteri was unfit by more than a mere reference to s 7(3)(d) of the Firearms Act. The Senior Member did just that.
I accept that the rejection, in paragraph [13] of the Senior Member’s reasons, of Mr Carpenteri’s contention that the relative weight of the conviction was diminished by the Judge’s finding that Mr Carpenteri’s involvement was ancillary or altruistic, if read in isolation, would disclose error. However, it is clear that the Senior Member meant only that despite Mr Carpenteri’s motive, the trafficking of cannabis is a serious offence. The Senior Member’s reasons for finding that Mr Carpenteri was unfit were succinctly expressed. The Senior Member’s finding that the offending reflected poorly on Mr Carpenteri’s decision-making ability is necessarily a reference to the implications of the very findings of the Judge on which Mr Carpenteri relied and which are stepped out in [17] to [20] above.
As important are the steps which Mr Carpenteri did not take. There was no indication in the sentencing remarks that Mr Carpenteri had attempted to persuade Mr Surace to use lawful means to obtain pain relief. Nor did Mr Carpenteri counsel him to procure only small amounts of cannabis which would obviously have been for personal use. Mr Carpenteri’s involvement, although altruistic, showed a fundamentally irresponsible approach to compliance with the criminal law.
The Senior Member also relied on Mr Carpenteri’s prior firearms offence and the finding of offensive weapons in the shed and in his vehicle. Those circumstances would not necessarily have warranted cancellation of his licence in isolation. However, they showed that the commission of the trafficking offence was not an isolated lapse from the standards expected of persons licensed to hold firearms.
The Senior Member’s findings of poor judgment and character are soundly based on the facts as found by the Judge and Mr Carpenteri’s other antecedents. The reasons are adequate.
No utility in the appeal
A question arose before the Tribunal and on this appeal as to whether there was any utility in the appeal, having regard to s 15(5) of the Firearms Act operating on Mr Carpenteri’s conviction of trafficking. By reason of certain transitional provisions found in clause 38(1), Schedule 1 of the Firearms Act, s 15(5) does not apply to the renewal of firearms licences if the offence was committed before 1 July 2017. It follows that if Mr Carpenteri’s licence had not been cancelled, he would not have been precluded from obtaining a renewal of his licence. However, Mr Carpenteri’s licence has expired by effluxion of time irrespective of the cancellation by the Delegate. Even if the Tribunal had found that Mr Carpenteri’s firearms licence should not have been cancelled, it would still have been necessary for Mr Carpenteri to apply afresh for a firearms licence which he could not do for a period of five years. It follows, therefore, that even if the Tribunal had set aside the cancellation, the Delegate could not have granted Mr Carpenteri a firearms licence, by reason of s 15(5) of the Firearms Act, until after the expiration of the period of five years disqualification on 7 November 2023. The cancellation itself precludes Mr Carpenteri from applying for a new firearms licence only for a period of three years pursuant to s 14(4) of the Firearms Act, that is until 2 March 2022. Mr Carpenteri complains that he could not renew the licence whilst it was suspended and after it was cancelled by the Delegate. He contends that if the Tribunal, or this Court, were to set aside the Delegate’s decision, ancillary orders could be made in effect reviving the licence for the purposes of a renewal. Unless there is such an implied term, there is no substantive provision on which the ancillary order could operate. In effect, Mr Carpenteri contends for an implied term that stops the clock running while his firearms licence is suspended or cancelled. Such an implication would detract from the plain words of s 17 of the Firearms Act.
Ultimately, it is unnecessary for me to determine the question. However, in my view, the consequence that Mr Carpenteri is no longer exempt from the stricter licensing regime of s 15(6) of the Firearms Act is not so oppressive or arbitrary as to strain the text of the Firearms Act to provide for a licence to continue in effect after it has expired. The operation of s (7)(3)(d) of the Firearms Act on the suspension and cancellation were the consequences of Mr Carpenteri’s commission of the trafficking offences. If the term of a firearms licence expires whilst a cancellation is being considered, or appealed, the continuation of which is premised on the right to renew, there is no reason not to subject an applicant to the rigorous standards applied to first time applicants of a firearms licence.
I would dismiss the appeal on both grounds.