DI CHIERA and COMMISSIONER OF POLICE - [2020] WASAT 145

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION:   DI CHIERA and COMMISSIONER OF POLICE [2020] WASAT 145
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   31 AUGUST 2020
DELIVERED          :   20 NOVEMBER 2020
FILE NO/S:   CC 3 of 2020
BETWEEN:   TOMMASO DI CHIERA
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence - Previous licence expired - Application for new licence - Review of Commissioner's decision to refuse to issue new licence - Convictions, within a period of five years, for offences involving violence and breach of restraining order - Whether applicant nevertheless a fit and proper person to hold a firearm licence

Legislation:

Criminal Code (WA), s 313(1)(a)
Firearms Act 1973 (WA), s 5, s 5A, s 9A, s 9A(7), s 11, s 11A, s 11A(2)(c), s 11B, s 11C, s 16, s 16(1)(a), s 22
Restraining Orders Act 1997 (WA), s 61(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b), s 32(4), s 32(7)(a)

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms A Western

Solicitors:

Applicant	:	N/A
Respondent	:	Commissioner of Police

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Coumbe v Whittaker [1999] WASCA 151
Killen v Commissioner of Police [2014] WASC 427
Knight v Commissioner of Police [2011] WASC 93
Maxwell v Dixon [1965] WAR 167
Minitti v Commissioner of Police [2010] WASCA 198
Nickels and Commissioner of Police [2010] WASAT 19
Penketh and Commissioner of Police [2009] WASAT 174
Penketh v Commissioner of Police [2010] WASC 254
Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246
Roongrote and Commissioner of Police [2018] WASAT 115
Tavelli v Johnson (1996) (unreported, WASC, Library No 960693, 25 November 1996
Wally and Commissioner of Police [2014] WASAT 98
Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Until May 2017, the applicant held a firearm licence which permitted him to possess ten firearms for recreational hunting and shooting. Shortly before the expiration of that licence, the applicant was charged with offences of common assault and breaching an interim violence restraining order. In August 2018, the applicant (whose firearm licence had by that time expired) was convicted of two counts of common assault and one count of breach of a restraining order. In May 2019, the applicant applied for a new firearm licence. That application was refused by the respondent, citing the applicant's convictions and the circumstances giving rise to them as reasons for that decision. The applicant contends that he is a fit and proper person to hold a firearm licence and, by this proceeding, seeks a review of the respondent's decision.

Regulatory framework

Firearms Act 1973 (WA)

In these reasons, unless otherwise specified, any reference to a legislative provision, or to 'the Act', is a reference to the Firearms Act 1973 (WA).
Pursuant to s 5, the respondent, the Commissioner of Police (Commissioner), has carriage of the administration of the Act, which includes the licensing and control of firearms. The performance of those functions may be delegated by the Commissioner to prescribed members of the Police Force (s 5A). In these reasons, unless otherwise specified, a reference to the respondent includes an officer acting as delegate of the Commissioner.
Section 16 provides for the various types of licence which may be issued under the Act to eligible applicants, and s 9A provides for the duration and renewal of licences, with duration varying according to the type of licence issued. A firearm licence may only be renewed within a 12 month period from its expiry; thereafter only an application for a new licence may be made (s 9A(7)).
The Commissioner is prohibited under s11(1) from issuing a licence to a person if the Commissioner is of the opinion that to do so:
(a)would be contrary to s 11A or to the regulations made under s 11B or s 11C (which provisions largely go to the requirement that a person should have a genuine reason or need for the firearm); or
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the licence.
Section 11A prescribes the 'genuine reasons' for possessing a firearm or ammunition, which include that it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission: s 11A(2)(c).
Pursuant to s 11(2), if the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take that into account in deciding whether that person is fit and proper to hold a licence under the Act.
Section 11(3) provides that the Commissioner will have sufficient grounds for forming an opinion that a person is not fit and proper to hold a firearm licence in certain circumstances, which include that the Commissioner:
(a)is satisfied that, within a five year period before applying of the licence:
(i)the person was convicted of an offence involving violence: s 11(3)(a)(ii); or
(ii)a violence restraining order was made against the person: s 11(3)(a)(iv);
(b)is satisfied that the person fails to meet standards of mental or physical fitness considered necessary for holding a firearm licence: s 11(3)(b); or
(c)suspects, on the basis of an intelligence report or other information, that the person is a threat to public safety: s 11(3)(c).
It is clear, from its own terms and the sub-sections that follow it, that s 11(3) informs, rather than limits, the exercise of the respondent's discretion.
(a)As to its terms, the use of the phrase 'sufficient grounds' makes it apparent that the grounds specified in s 11(3) are neither necessary nor exclusive.
(b)As to the sub-sections that follow, pursuant to s 11(5) the Commissioner, notwithstanding being satisfied of one of the matters in s 11(3), may nevertheless form an opinion that a person is fit and proper to hold a firearm licence. Further, s 11(6) provides that the Commissioner may take account of matters other than those in s 11(3) in forming an opinion that a person is not fit and proper to hold a firearm licence.
Section 22 provides that a person aggrieved by a decision of the Commissioner may apply to the Tribunal for review of the decision. This proceeding arises out of such an application.

Tribunal's role and jurisdiction

An application for review made pursuant to s 22 falls, by reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), within the Tribunal's review jurisdiction, and the respondent's decision not to issue a firearm licence to the applicant is a 'reviewable decision' under the SAT Act.
In the exercise of its review jurisdiction, the Tribunal:
(a)does not determine the validity or otherwise of the reviewable decision: Killen v Commissioner of Police [2014] WASC 427 at [42]-[43];
(b)undertakes a hearing de novo (s 27(1) of the SAT Act), meaning that the Tribunal must make the reviewable decision afresh. In doing so, the Tribunal has the same jurisdiction, functions and discretions as those of the original decision-maker, in this case being the Commissioner (s 29(1) of the SAT Act);
(c)may consider, but is not limited by, the reasons given by the respondent for the reviewable decision (s 27(3) of the SAT Act), and may take into account any new or additional information which was not provided to the respondent at the time that the reviewable decision was made (s 27(1) of the SAT Act); and
(d)may affirm, vary or set aside the reviewable decision, and in the latter case my substitute its own decision (s 29(3) of the SAT Act), to arrive at the correct and preferable decision (s 27(2) of the SAT Act).

Issue to be determined

The issue for the Tribunal to determine is whether, on the basis that it is the correct and preferable decision, a firearm licence should be issued to the applicant. Of particular relevance to the determination of that issue, in the circumstances, is whether the Tribunal can be satisfied that the applicant is a fit and proper person within the meaning of s 11 to hold a firearm licence, having regard to his criminal conviction history.

Evidence

Proceedings in the Tribunal are to be conducted fairly with all relevant material disclosed to the parties (s 32(7)(a) of the SAT Act). The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2)(b) of the SAT Act) and may inform itself on any matter as it sees fit (s 32(4) of the SAT Act). Unless it adopts them, the Tribunal is not bound by the rules of evidence and the practices and procedures applicable to courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act).
A final hearing of the application was held on 31 August 2020 (Hearing).
Both parties filed various documents and materials, which were put into a hearing book prepared by the Tribunal and taken into evidence (Exhibit 1). Each party's documents included a statement of issues, facts and contentions (Exhibit 1, pages 17-37 and pages 138145, respectively) and supporting documents.
With the consent of the applicant, the respondent adduced full transcripts of the trial, conducted in the Magistrate's Court between 20 and 24 August 2018, of the criminal proceedings which resulted in the applicant's convictions (Exhibit 2).
The applicant's evidence also included video footage which was provided on a USB stick and that was taken into evidence separately (Exhibit 3).
At the Hearing:
(a)the applicant, who was not legally represented, gave oral evidence and called the following additional witnesses:
(i)Bruno Grenci;
(ii)Vincenzo Di Chiera;
(iii)Domenic Di Chiera (Domenic); and
(iv)Rosa Hawgood.
(b)the respondent called Detective Senior Constable Derek Jonathan Nicholson (Detective Nicholson); and
(c)each party had the opportunity to examine and crossexamine the witnesses.
All of the above evidence has been considered by the Tribunal in making its findings on material questions of the facts, which are set out below, and in arriving at its decision.

Material facts

Prior to its expiration on 29 May 2017, the applicant held a firearm licence issued under s 16(1)(a), being licence number 03405367 (Previous Licence), which permitted him to possess ten firearms for recreational hunting and shooting.
Since the Previous Licence expired on 29 May 2017, the applicant's opportunity to renew it ceased on 29 May 2018.
By an application dated 27 May 2019, together with supporting documents (Exhibit 1, pages 76-90), the applicant applied to the Commissioner for a new firearm licence (New Application), permitting him to possess the following five firearms:
(a)a 22 LR calibre rifle (Stirling, serial number A539482);
(b)a .44/40 calibre rifle (Winchester, serial number CH08054)
(c)a 22 Mag calibre rifle (Ruger, serial number 62029800);
(d)a 20G calibre shotgun (Beretta, serial number 25331);
(e)a .308 calibre rifle (Remington, serial number B6094046).
The New Application was supported by 'property letters' authorising the applicant to shoot 'vermin' on rural properties in Warralakin and Gidgegannup (Exhibit 1, pages 85, 89-90).
The applicant also called his brother, Vincenzo Di Chiera, who gave evidence (which the Tribunal accepts) that:
(a)the Gidgegannup property is a jointly-run family farm of around 200 acres, on which cattle and sheep are raised;
(b)the applicant attends the property three or four days a week; and
(c)under the Previous Licence, the applicant used firearms to shoot vermin on the property and to euthanise sick animals when necessary.

Offences and surrounding circumstances

Following a Magistrate's Court trial conducted between 20 and 24 August 2018 (Trial), the applicant was:
(a)convicted of:
(i)two counts of aggravated common assault (s 313(1)(a) of the Criminal Code (WA)), arising out of incidents that occurred on 5 October 2016 (First Assault) and 15 November 2016 (Second Assault); and
(ii)one count of breach of a violence restraining order (s 61(1) Restraining Orders Act 1997 (WA)), arising out of events that occurred on 30 January 2017 (VRO Breach),
(collectively, the Offences); and
(b)acquitted of one count of aggravated stalking, one count of creating a false belief, and one further count of breach of a violence restraining order.
The circumstances surrounding these charges and convictions are outlined briefly below.
It is uncontentious that, towards the end of 2016:
(a)the applicant and his then wife of some 25 years (Silvana) had separated; and
(b)there was conflict between the applicant and Silvana in relation to the dissolution of their marriage and the distribution of their assets, which included a business, Di Chiera Bros Continental Store, which operated out of premises at 527 Fitzgerald Street, North Perth (Store).
The applicant takes issue with the statement of material facts in relation to each of the Offences, and submitted that the Tribunal should accept the facts as found in the Trial (Exhibit 1, pages 18-9). The findings of material fact that follow in relation to the Offences are consistent with the findings of the learned magistrate in the Trial.
Each of the First Assault and the Second Assault took place at the Store.
In relation to the First Assault (Exhibit 2, pages 389-390), on 5 October 2016:
(a)late in the day, the applicant approached Silvana when she was standing behind a counter, and an argument between them ensued, then escalated;
(b)Silvana may at some stage have attempted to push past the applicant to leave, but the applicant had blocked her path, preventing her from leaving the area behind the counter;
(c)in the course of the argument, the applicant grabbed Silvana by the throat and applied force (albeit not particularly forcefully); and
(d)Silvana attempted to step away and, in the course of doings so (either because the floor was slippery or because of accidental contact with a mop bucket), she fell to the floor (this was a consequence of, but not part of, the First Assault).
The applicant travelled overseas from around 12 October 2016 to 14 November 2016 (Exhibit 2, page 390).
In relation to the Second Assault (Exhibit 2, pages 391-393), on 15 November 2016:
(a)shortly after the applicant entered the Store, a significant argument emerged between him and Silvana, principally concerning possession of a chequebook;
(b)with a view to leaving the premises, Silvana went into the office (accessed via the kitchen area at the Store) to collect her keys, bag and the chequebook;
(c)the applicant followed her into the office and pushed her, by the throat or upper chest area, forcefully backwards 2 to 3 metres with her ending up across a desk along the rear wall. During this course of events, Silvana screamed;
(d)one of the Store staff, whose evidence at the Trial was wholly accepted by the learned magistrate (who described it as 'particularly impressive and detailed and consistent': Exhibit 2, page 392), heard the scream and went towards the office where she observed the applicant's hands on Silvana's neck, that Silvana was red and not breathing, and that she was struggling; and
(e)other people in the Store rushed to assist, and with their intervention Silvana managed to escape the assault and to exit the office. However, in the course of her doing so, the applicant grabbed at her, removing some of the hair from her head.
The learned magistrate found the Second Assault to be 'forceful, prolonged and significant' (Exhibit 2, page 392).
On 17 November 2017, an interim violence restraining order (VRO) was issued and served on the applicant (Exhibit 1, page 68). That VRO:
(a)prohibited the applicant from being, relevantly, within 20 metres of Silvana, the place of her work, or any vehicle under her control; and
(b)was later, on or about 12 March 2017, revoked.
On 30 January 2017, while the VRO was still current, the applicant committed the VRO Breach, as follows (Exhibit 2, pages 396398):
(a)at some time around or after 7 pm, the applicant, who lived at a private residence at the same address as the Store, parked a vehicle (a black ute) in the driveway closest to the business premises at that address;
(b)the Store, which at that time was being operated by Silvana, was due to close at 7 pm but, on that night, had stayed open a little longer to serve a late customer before closing up;
(c)when Silvana exited the Store after 7 pm, probably closer to 7.30 pm, she observed the black ute which straddled an area that prevented or impaired her from closing a gate;
(d)Silvana could not see who the driver was and went to investigate, cupping her hands to look into the window. She observed the applicant sitting in the driver's seat, being a matter of some 3 to 5 metres from her; and
(e)at the time the applicant parked, and then remained, on the premises, he could and did observe a vehicle which he knew to be Silvana's, and he approached and remained within 20 metres of that vehicle (being a vehicle under her control).

Further incident

At the Hearing, further (contested) evidence was heard in relation to a further incident that occurred at the Store on 6 January 2017 (Further Incident).
It is uncontentious, and the Tribunal finds, that on that day police officers, including Detective Nicholson and Senior Constable Tiam Cann, attended the Store premises and approached the applicant, who was standing behind a counter, to speak to the applicant about the VRO.
What followed is a matter of dispute.
Detective Nicholson gave evidence to the effect, and the respondent contends, that:
(a)Senior Constable Cann sought to explain to the applicant that the terms of the VRO meant that he could not remain on the Store premises and that he was required to leave;
(b)the applicant immediately became agitated and angry and raised his voice, shouting that he did not agree with the terms of the VRO and its enforcement;
(c)the applicant went to collect his key and wallet. Detective Nicholson followed him as far as the entry to the kitchen area, where he could observe the applicant. The applicant then picked up a screwdriver and stood, holding the screwdriver, staring at Detective Nicholson, who said words to the effect: 'Put it down, don't be an idiot'; and
(d)the applicant's brother, Domenic, took the screwdriver from the applicant and the applicant left the Store with Domenic.
The applicant contends, and was supported by the evidence of Domenic to the effect that:
(a)a group of six armed police officers attended the Store, said that because of the VRO the applicant could not be on the premises, and demanded that he leave the Store;
(b)the applicant tried to explain that there was an agreement that permitted him to be at the Store (because Silvana was not there), but that Detective Nicholson would not listen, and aggressively demanded that the applicant leave (or he would be arrested);
(c)the police were, and in particular Detective Nicholson was, aggressive and intimidating; and
(d)the applicant was not aggressive or threatening and did not brandish a screwdriver or any other weapon.
Both Detective Nicholson and Domenic were consistent in their versions of events under crossexamination. The Tribunal found both to be credible witnesses, having differing recollections and interpretations of the events connected with the Further Incident.

The Tribunal finds that the exchange between Detective Nicholson and the applicant was tense, with both asserting their positions in a determined manner. The Tribunal considers it unnecessary to make further findings in relation to the Further Incident.

The parties' contentions

The applicant's contentions may be summarised as follows:
(a)the applicant previously held firearm licences for over 30 years, and there have been no incidents involving or complaints about deficiencies in his use or storage of firearms;
(b)the Offences did not involve the use of a firearm;
(c)the Offences and circumstances giving rise to them 'were all confined to a short period of times during the breakdown of a 25 year long marriage and dispute over finances', which circumstances arose four years ago and have now resolved;
(d)the applicant is remorseful for the conduct giving rise to the Offences, and has successfully completed counselling ('Connect and Respect') under the community based order, which has been of benefit to him;
(e)he does not have a history of violence, does not pose a risk to anyone, and has demonstrated self-control in circumstances of tension and conflict (Exhibit 1, pages 29-30; Exhibit 3);
(f)he has been assessed as being a fit and proper person to hold an unrestricted approved manager's liquor licence and to hold a permit to operate a video lottery terminal (in October 2018 and September 2019, respectively); and
(g)he is a fit and proper person to hold a firearm licence.
The respondent's contentions may be summarised as follows:
(a)each of the applicant's Offences is an offence that falls within the scope of s 11(3)(a) (Relevant Offence) and is a sufficient basis to form the opinion that the applicant is not a fit and proper person to hold a firearm licence;
(b)the Offences are serious, involving not just violence, but circumstances of aggravation being violence within a family relationship (domestic violence);
(c)the applicant's evidence and submissions regarding the circumstances of the Offences seek to minimise his culpability, particularly in relation to the Second Assault, and demonstrate a lack of insight and genuine remorse for his conduct;
(d)the Offences and the Further Incident are consistent with the applicant having a propensity for violence;
(e)the applicant had not raised evidence sufficient to displace an expectation arising under s 11(3) (as to which the respondent referred the Tribunal to Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [300]) that the applicant, having been convicted of Relevant Offences, is not a fit and proper person to hold a firearm licence;
(f)the applicant is not a fit and proper person to hold a firearm licence; and
(g)the Tribunal should affirm the respondent's decision to refuse to grant a firearm licence to the applicant.

Consideration

As noted above, the issue to be determined is whether, in relation to the New Application, the applicant should be granted a firearm licence. Even where, as in this case, the fit and proper person test is the central issue, because the Tribunal undertakes a review hearing de novo, it must in reaching its decision be satisfied of the applicant's eligibility and suitability to hold a firearm licence, taking account of any relevant criteria under the Act, in respect of which the applicant bears a 'practical onus': see Wignall at [279]-[285].
The Tribunal is satisfied that the applicant has a genuine reason under s 11A(2)(c) for possessing a firearm and ammunition.
The Tribunal also accepts that there is no suggestion that the applicant:
(a)has used a firearm for an unlawful purpose;
(b)has otherwise breached the requirements of the Act in relation to the use or storage of firearms or ammunition; or
(c)lacks the physical or mental capacity to handle a firearm responsibly.
Accordingly the Tribunal is satisfied that, on the evidence before it, if the applicant is otherwise found to be a fit and proper person to hold a firearm licence, then there would be no reason not to grant the applicant a licence and the application should succeed.

The 'fit and proper person' test

As noted by the Tribunal in Roongrote and Commissioner of Police [2018] WASAT 115 (Roongrote) at [19]-[20]:
(a)the term 'fit and proper' carries no precise meaning and takes its meaning from its context and the activities in which the person is or will be engaged and the ends to be served by those activities (citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321); and
(b)in any case, an applicant should be assessed as being possessed of the requisite knowledge of the duties and responsibilities 'devolving upon him as the holder of a particular licence under a particular Act' (citing Maxwell v Dixon [1965] WAR 167).
The fact that the applicant has been assessed as fit and proper to hold an unrestricted approved manager's liquor licence and to hold a permit to operate a video lottery terminal does not speak to his suitability to hold a firearm licence. Each of these licencing contexts involves distinct regulatory language, context and purposes.
The Court of Appeal has emphasised the breadth of the expression 'fit and proper person' in s 11, and the discretion to be exercised in its application.
(a)In Minitti v Commissioner of Police [2010] WASCA 198 (Minitti), the applicant seeking review of a decision to reject his application for a firearm licence had contended (at [10]) that the correct test was whether the applicant was 'going to harm themselves or another person through the possession of a licensed firearm or in the exercise of rights associated with holding a firearm licence, or would use it for illegal activity'. The Court of Appeal rejected any such restriction to forming an opinion of whether an applicant is fit and proper to hold a firearm licence, describing (at [11]) the purpose of the expression 'fit and proper' as being 'to give the widest scope for judgment and for rejection of an application for a licence'.
(b)Similarly, in Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246 (Jones), the Court of Appeal held that 'fit and proper' was not confined by considerations of public safety, stating (at [22]) that all matters bearing on the question of fit and proper person, in the context of the Act, are to be considered.
There is no doubt that there are reasonable and sufficient grounds for the Tribunal to be satisfied that the applicant is not a fit and proper person to hold a firearm licence. So much is clear from the express language of s 11(3), pursuant to which the fact of the applicant's Offences are, without more, sufficient (see Jones at [22]). Nevertheless, it is also clear that the Tribunal may look beyond the fact of the Offences themselves, to consider (amongst any other relevant matters) the circumstances and conduct of the applicant before, at the time of and since the Offences.
In Tavelli v Johnson (1996) (unreported, WASC, Library No 960693, 25 November 1996 (Tavelli) Wheeler J (as she then was) made observations about the relevance of prior convictions when assessing whether a person is fit and proper (in a different legislative context). While she cautioned that there can be 'no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework', she noted that a number of considerations might influence the relevance of convictions to assessments of character. Those considerations have been accepted as relevant to, and applied in the context of, assessments of fitness and properness under the Act (see, for example, Minitti at [11] and Wignall at [296]-[297]).
In Penketh v Commissioner of Police [2010] WASC 254 (Penketh), the Supreme Court (at [52]) approved the Tribunal's application of Tavelli in assessing whether a person was fit and proper to hold a firearm licence under the Act (see Penketh and Commissioner of Police [2009] WASAT 174 at [34]), as follows:
… As that decision makes clear, the 'fit and proper person' formula allows the widest scope for the exercise of the discretion of the decision-maker. It is to be exercised in the light of the applicable statutory framework, with the fitness and propriety of the person to hold the particular licence in question being the relevant question. Prior convictions might be regarded as more or less significant depending on a variety of matters, including their age, whether they relate to the licence under consideration and whether they reflect particularly on the character of the putative licensee. In relation to the latter, insight and remorse, actions taken to militate against the future repetition of the offences, and other indicators that the licensee has reformed his or her character can be factors which go in favour of the grant of the licence.
The Tribunal accepts that the Offences did not involve a firearm and do them of themselves involve or give rise to concerns about breaches of the Act. However, Minitti, Jones and Wignall make it clear that the fit and proper test under s 11(3) involves the weighing up of all relevant information and is not properly confined by reference only to the applicant's use of firearms.
Rather, the concern in this case is whether the applicant, by his conduct, has demonstrated such aggression and lack of self-control as to be illsuited in character to a person having possession of a firearm (that is, whether he is not a proper person to possess a firearm).
The respondent points to an observation made in Wignall (at [300]) that s 11(3)(a) evinces:
… some clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists[.]
Although that observation should be regarded as being incidental to the decision (because there was no suggestion that the applicant in Wignall had, during the five year period preceding his application for the firearm licence, been convicted of any Relevant Offence: Wignall at [291]), the Tribunal, with respect, agrees with it.
Accordingly, the Tribunal considers that, in weighing all the matters relevant to the exercise of its discretion, where an applicant has been convicted of a Relevant Offence, there ought generally be evidence of some relevant change in the applicant's circumstances to overcome the weight given to the expectation arising under s 11(3)(a). Such an approach is consistent with that described in [55] above.
In Wally and Commissioner of Police [2014] WASAT 98 for example, the Tribunal noted (at [47]) that upon review, it may take into account the trigger for a person's behaviour that had resulted in a conviction but which trigger is no longer relevant to the person's behaviour. In that case, despite the applicant's long history of multiple convictions, including a conviction for common assault in the previous five years, the Tribunal was satisfied that at the time of his application he was a fit and proper to hold a firearm licence. The Tribunal accepted that he taken responsibility for his actions, ceased consuming alcohol and other illicit substances (found to be the triggers for his offending behaviour), expressed genuine regret and remorse and had taken steps to ensure he would not re-offend.
Similarly, Nickels and Commissioner of Police [2010] WASAT 19, the applicant had been convicted of Relevant Offences (each including assaults against police officers) but was nevertheless found to be fit and proper and granted a firearm licence. The Tribunal accepted that the applicant's breaches of the Act were not deliberate; she was remorseful for her offending and had demonstrated a change in her character.
Although the Tribunal is assisted by considering analogous cases, it must ultimately exercise its broad discretion anew in the circumstances of this particular application, in the light of the statutory framework: Tavelli.
The Tribunal has had regard to the applicant's submissions and contentions (see [44] above), but is ultimately unpersuaded by them.
In his submissions, the applicant has referred to the fact that the conduct giving rise to the Offences took place four years ago. The Tribunal notes that the language of s 11(3)(a) expressly frames the relevant five year period around the time since conviction, rather than the time since the commission of offending conduct. Accordingly, while the Tribunal may, in considering surrounding circumstances, have regard to the passage of time since the offending conduct (in this case, four years), it must do so in the context that the time since conviction (in this case, two years) is the period that attracts the operation of, and ‘expectation’ under, s 11(3).
The Tribunal accepts that over the intervening period since the Offences:
(a)there is no evidence or suggestion that the applicant has engaged in violent or offending behaviour;
(b)the applicant has attended counselling; and
(c)there has been some change in the applicant's circumstances, noting that the dissolution of the applicant's marriage and associated division of assets has been resolved, and he no longer has contact with Silvana.
The Tribunal also has regard to the evidence before it regarding the applicant's conduct in stressful workplace situations, illustrated by the video footage in Exhibit 3 and supported by the evidence of Vincenzo Di Chiera and Bruno Grenci. The Tribunal finds that in relation to those situations the applicant demonstrated judgement, restraint and control.
The difficulty, however, is that those situations occurred in a very different relational dynamic, where the applicant was not personally and emotionally invested. In contrast, each of the Offences occurred in the context of a highly personal (family) conflict. In that context, in relation to the First Assault and the Second Assault, the applicant:
… had become angry, enraged even, by the situation their relationship had become … His anger and frustration had eventually dominated and overcome him each time.
(Exhibit 2, page 402)
The Tribunal considers the commission of any incident of family violence to be a matter of utmost seriousness, and of such a character as to be generally incompatible with the possession by the perpetrator of a firearm.
While the applicant has in his submissions expressed remorse and regret that ‘any of these events occurred’, a number of his submissions (made both orally and in writing) were framed such as to:
(a)suggest or infer that the Offences and the removal of his firearms were caused or contributed by the conduct or ulterior motives of others (Silvana, her barrister in their divorce proceedings, and the police - see for example: Exhibit 1, pages 20, 22 and 26); and
(b)minimise the significance of his own conduct (he made repeated references, for example, to one of the assaults being forgotten by Silvana: Exhibit 1, pages 20, 22, 27).
The tenor of these submissions was similar to others made by the applicant in the Trial, which the learned magistrate described (Exhibit 2, page 409) as:
… attributing responsibility to your former wife for your behaviour; attributing responsibility [to] her for what might have happened as a result of other orders made in other courts.
It was on the above basis that, as part of the community based order to which the applicant was sentenced, the applicant was required to attend counselling. Although he has completed that counselling and says he has benefitted from it, the applicant's acceptance of responsibility for and about the significance of his conduct does not appear to differ materially from that which he displayed at the time of his sentencing.
The applicant has not demonstrated such acceptance of responsibility and insight into his own conduct as for the Tribunal to be satisfied that the applicant's character has, in the period since the Relevant Offences, changed such as to militate against the risk of his reoffending in similar circumstances. The Tribunal is not satisfied that the evidence displaces the weight of expectation under s 11(3)(a), created by the applicant's convictions.
Accordingly, weighing the applicant's convictions for the Relevant Offences, the circumstances in which the Offences occurred, and the further circumstances relevant to the New Application (including the passage of time), the Tribunal has formed the opinion that, on balance, the applicant is not a fit and proper person to hold a firearm licence. In reaching its assessment in this regard, the Tribunal has placed no weight on the Further Incident.
It follows that the correct and preferable decision is that a firearm licence should not be issued to the applicant.

Findings and sentence at Trial

Finally, the Tribunal notes that, in his submissions (Exhibit 1, page 37), the applicant stated:
… I don't know how these proceedings are conducted but it seems to me that I am on trial all over again for matters that were heard and determined by Magistrate Huston over a 5 day trial and 2 other trials to vary and dismiss the Interim VRO. Magistrate Huston found that I was not a threat to my ex-wife, there was no history of violence, the convictions were quarantined her particular period in time and I was not likely to reoffend.
As held in Knight v Commissioner of Police [2011] WASC 93 (at [14][15]), the power exercised by the Commissioner (and the Tribunal in its place) under the Act is not a judicial power, but rather a statutory administrative power, exercisable for a different purpose, being the control and licensing of firearms. Considerations taken into account for the purpose of sentencing do not limit the Tribunal in relation to the findings it makes in respect the matters of which it must satisfy itself under the Act.
Further, as highlighted by the Court of Appeal in Coumbe v Whittaker [1999] WASCA 151, decisions made under the Act are aimed not at punishing the applicant, but at serving the protective purpose of the Act in the public interest. The fact that the applicant has already been sentenced in relation to the Offences has no bearing on the decision to be made by the Tribunal; it does not constitute double punishment (see: Roongrote at [22]).

Orders

The Tribunal orders:
1. The decision of the respondent not to issue a firearm licence to the applicant is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B MCGIVERN, MEMBER
20 NOVEMBER 2020