DOCHERTY and COMMISSIONER OF POLICE
[2010] WASAT 96
•1 JULY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: DOCHERTY and COMMISSIONER OF POLICE [2010] WASAT 96
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 21 JUNE 2010
DELIVERED : 1 JULY 2010
FILE NO/S: CC 512 of 2010
BETWEEN: GLENN DOCHERTY
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms Revocation of firearm licence Fit and proper Relevance of previous convictions Violence restraining orders Discretion of licensing officer Time that must expire before a person can be licensed after previous convictions Public interest Relevance and weight of character references - Issuing a firearm licence subject to condition that it may only be used at a rifle club
Legislation:
Firearms Act 1973 (WA), s 11, s 20, s 21
State Administrative Tribunal Act 2004 (WA), s 24(1), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
The application for review is successful
The Commissioner of Police must forthwith issue a firearm's licence to Mr Docherty to be colicensed for rifle bolt repeater Cz A480453 .22 Magnum
The licence is subject to a condition that Mr Docherty may only use it at a rifle club
Mr Docherty may in due course request from the Commissioner of Police that the condition be removed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr S Bagley (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
Woods and Commissioner of Police [2010] WASAT 4
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Docherty sought a review of a decision by a licensing officer, acting under the Firearms Act 1973 (WA), to revoke his firearm licence. Mr Docherty had been granted a .22 calibre firearm licence by the local delegated officer, but upon internal review, it was decided to revoke the approval and to cancel the licence on grounds that he was not a fit and proper person to be licensed.
Mr Docherty contended that the decision of the licensing officer should be set aside principally for two reasons: firstly, the licence had been granted to him by the local delegated officer and there was no basis for the reviewing officer, if circumstances had not changed, to revoke the licence. Secondly, the Commissioner of Police erred by forming the view that Mr Docherty was not a fit and proper person to hold the firearm. Mr Docherty accepted that he had committed wrongful acts in the past, but contended that those were more than five years ago and that he had changed his ways. Since the series of incidents in early 2005 on which the convictions were based, he has had no convictions of any nature. He has attended various courses to improve his life; he has been granted custody of his children; and he is in a stable relationship. He submitted several character references in support of the application.
Mr Simon Bagley, for the Commissioner of Police, explained that the Firearms Act 1973 (WA) authorises the licensing officer to revoke a firearm's licence if he is satisfied that if the person had applied at that stage for a licence, it would be refused. The licensing officer can therefore revoke a licence at any time, even after it has been granted. The licensing officer accepted in these proceedings that Mr Docherty had a genuine reason to be licensed but formed the opinion that, due to the seriousness of his criminal convictions, the violent nature thereof, and the little time that had lapsed since those convictions, the Tribunal should form the opinion that Mr Docherty is not a fit and proper person to be licensed.
The Tribunal accepted the evidence and contentions of Mr Docherty and found that:
a)more than five years had lapsed since the previous incidents;
b)he has not been convicted of any other offences since those incidents;
c)the Family Court recently awarded him custody of his children, regardless of the opposition thereto by his previous wife;
d)he has attended courses to change his demeanour; and
e)the character references speak of a man that is totally changed, that is remorseful of what he did wrong in the past, and that he is a fit and proper person to be licensed.
The Firearms Act1973 (WA) does not preclude a person from being licensed if he had been convicted of an offence of which violence constituted an integral part. The Act does, however, require that the Tribunal exhibit special care and diligence if a person with a violent past applies for a firearm licence. The Tribunal is satisfied that, given the circumstances of Mr Docherty, he is a fit and proper person to be licensed to hold a .22 calibre rifle. The Tribunal is, however, also mindful of the serious nature of those incidents and is therefore of the view that restrictions should be placed on Mr Docherty's licence. An adequate restriction is, if Mr Docherty is licensed to possess the rifle, that the use thereof is restricted to a rifle club. Mr Docherty can in due course apply to the Commissioner of Police to have the condition removed.
The Tribunal therefore set aside the decision of the licensing officer and substituted it with its own decision; namely, that the Commissioner of Police forthwith issue to Mr Docherty a licence to cohold the .22 rifle, but that a condition be imposed that Mr Docherty may only use the rifle at a rifle club.
Issue
Mr Docherty seeks a review of a decision of the Commissioner of Police (Commissioner) to revoke a firearm licence to hold a .22 rifle on grounds that Mr Docherty is not a fit and proper person to be licensed.
Background
The application for review of the decision was lodged on 15 April 2010. The first directions hearing took place on 6 May 2010. The hearing was set down for 21 June 2010. Both parties made written submissions and Mr Docherty and his partner, Ms Langley, gave evidence during the hearing. No other witnesses were called, although Mr Docherty submitted several written character references.
The decision was reserved on 21 June 2010.
Summary of facts
The facts are well set out in the respective submissions and evidence. The Tribunal has taken all of the information, submissions and evidence into account before coming to its decision.
The facts can be briefly summarised as follows.
Mr Docherty applied on 17 September 2009 for a firearm's licence to be colicensed with his partner, Ms Langley. The licence to be colicensed to hold a .22 Magnum rifle bolt repeater Cz A480453 was granted on 16 October 2009. The licence number was 3763737.
The issuing of the licence was the subject of internal review by the Commissioner.
On 10 March 2010, Mr Docherty was informed by Acting Senior Sergeant JE Hildebrandt, the officer in charge of firearm licensing services, that the licence had been revoked. Mr Hildebrandt explained in the letter that the licence had been issued as a result of a procedural error and that, as licensing officer, he had now formed the opinion that Mr Docherty is not, given his criminal record, a fit and proper person to be licensed.
Mr Hildebrandt referred to the criminal record of Mr Docherty. The record can be summarised as follows:
•possession of smoking implement 1992;
•stealing 1992;
•loitering 1992;
•burglary 1992;
•causing damage 1992;
•criminal damage by fire 1992;
•threatening and abusive behaviour 2006;
•escape legal custody 2006;
•cultivate prohibited plant 2006; and
•violence restraining orders were taken out against Mr Docherty in 2005 but those orders had not been renewed.
Mr Docherty has not been convicted of any offences committed after March 2005 and he has also had no traffic offences since then.
Mr Docherty applied for a review of the decision on 15 April 2010.
Statutory framework
The Tribunal will briefly summarise the statutory framework within which the review occurs.
The licence to acquire a firearm or to continue to hold a firearm is not a right, but a privilege; hence the regulatory regime imposed by Parliament whereby the obligation is on the applicant to demonstrate why he should be licensed. It is particularly in instances where a person has a history of, or a tendency towards, violence where Parliament expects the licensing officer to demonstrate vigilance when assessing an application; hence the inclusion into the Firearms Act 1973 (WA) (Firearms Act) the provisions of s 11(2); s 11(3) and s 11(6).
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 licensing officer.
The Tribunal is not limited to the statement of reasons given by the licensing officer (s 27(3) SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made (s 27(1) SAT Act). The objective of the Tribunal is to arrive at the best and preferable decision.
The review hearing is therefore de novo (s 27(1) SAT Act) and is not confined to the matters and information that were before the licensing officer at the time of the decision. In these proceedings, for example, several character references were filed that were not at the disposal of the licensing officer.
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
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the licensing officer (s 29(5) SAT Act).
The discretion of the Tribunal must be exercised within the context of the provisions of the Firearms Act. The question as to whether Mr Docherty is a fit and proper person to hold a firearm's licence must therefore be determined within the framework and objectives of the enabling Act.
Section 11(1) of the Firearms Act provides that the licensing officer, or in this case the Tribunal, cannot grant an approval if the Tribunal is of the 'opinion' that the person is not a fit and proper person to hold a licence.
Section 11(2) of the Firearms Act provides that the licensing officer may take into account whether the person has 'a history of, or a tendency towards, violent behaviour' when forming an opinion if the person is fit and proper to be licensed.
Section 11(3) of the Firearms Act provides that the licensing officer 'has sufficient grounds for forming an opinion that a person is not fit and proper' to be licensed if, within a five year period before the application, the person was convicted of an offence involving violence. The licensing officer is, however, not limited to take into account only convictions recorded in the last five years (s 11(5) Firearms Act).
Section 11(5) of the Firearms Act provides that, regardless of the provisions of s 11(3), the licensing officer may form an opinion that a person is fit and proper to hold a licence. Section 11(3) and s 11(5) therefore confirm the discretion of the Tribunal to take into account all relevant information before forming an opinion that a person is fit and proper to be licensed.
Section 20 of the Firearms Act provides that the licensing officer may revoke a firearm's licence if it is satisfied that the person holding the licence 'could not', because of s 11, 'be granted the approval or permit or issued a licence', as the case requires, 'if the person were then applying for it'.
Section 21 of the Firearms Act empowers the licensing officer to impose restrictions, limitations or conditions on a licence. A breach of such a condition can attract a penalty of imprisonment of up to 18 months or a fine of $6,000.
Can a firearm's licence, once granted, be revoked if all circumstances remain the same?
A preliminary question raised by Mr Docherty was whether the Commissioner had the power to revoke a licence after it had been granted and there was no change in the licensee's circumstances.
The answer to the question is 'Yes'. The power for a licence to be revoked after it has been granted is found in s 20 of the Firearms Act. This section allows the Commissioner at any time to revoke a licence if he is 'satisfied' that if the licensee were to apply then, a licence would not be granted. The section does not require the advent of new facts or circumstances since the time when the licence was granted.
In the matter of Woods and Commissioner of Police [2010] WASAT 4, the Tribunal, at [43], commented as follows on the power of the Commissioner to revoke a licence that had been granted:
It is clear from these provisions that Parliament had intended that even if a firearm's licence had been issued, it may be reviewed from time to time. The review may occur when an application is received for the licence to be renewed or at any time. The discretion of the licensing officer is not constrained to new information or new circumstances.
The Tribunal is therefore satisfied that Mr Hildebrandt acted within his powers when, upon the internal review of the granting of the licence, he decided to revoke it on grounds that he formed the opinion that if Mr Docherty were to apply at that stage, the licence would not have been granted.
The contention of Mr Docherty that the Commissioner acted without the necessary powers is therefore dismissed.
Contentions of the parties regarding 'fit and proper'
Both parties made written submissions and Mr Docherty and his partner, Ms Langley, gave evidence during the hearing. No other witnesses were called, although Mr Docherty submitted several written character references.
The contentions of Mr Bagley on behalf of the Commissioner can be summarised as follows:
•Mr Docherty is not a fit and proper person to hold a firearm and it is not in the interests of public safety for him to be licensed.
•Mr Docherty has a criminal record which includes acts of violence, burglary, assault, escape from custody and possession and cultivation of prohibited material.
•Several violence restraining orders have been issued against Mr Docherty in 2005. Those have all expired and have not been renewed, but the Tribunal should nevertheless take account of the fact that they had been issued.
•When Mr Docherty completed his firearms application form he failed to disclose all his criminal offences. He only referred to 'swearing after being assaulted' but to none of the other convictions. Failure to disclose the other offences is in itself an offence.
•The Tribunal should, if all the information is taken into account, come to the opinion that Mr Docherty is not a fit and proper person to be licensed at this stage. If he continues his rehabilitation efforts he may become eligible in the future, but the public interest does not justify him being licensed at this stage. Mr Docherty has shown in the past that lengthy intervals of acceptable behaviour may be followed with unexpected outbursts of anger and violence.
Mr Docherty gave a combination of submissions and evidence and these were supported by interventions by Ms Langley. The contentions and evidence of Mr Docherty can be summarised as follows:
•The criminal convictions in 1992 should not weigh heavily in the mind of the Tribunal, since he was very young when those were committed.
•The criminal convictions in 2006 arose from incidents in January 2005. More than five years have elapsed since those incidents and he has not had any convictions since that time.
•He accepts that the incidents in January 2005 were inexcusable and he is deeply sorry and remorseful for what he had done. Account must, however, be taken of the circumstances leading to the incidents and the events surrounding the incidents. He had been seriously assaulted by persons who had never been charged and, as a consequence, he acted in an illogical manner. His marriage was breaking up; he was at risk of losing access to his children; and he felt as if his entire life was falling apart.
•The Violence Restraining Orders (VRO) were taken out as part of marital issues and he would have opposed the issuing of the orders had he not been in hospital at the time. The VROs were therefore not contested. The VROs did not give rise to any charges and no application was made for the VROs to be reinstituted on expiry.
•Immediately after the January 2005 incidents, Mr Docherty submitted himself voluntarily for anger management and drug counselling. He was adamant to get his life on the right track and not to repeat the wrongs of the past.
•In recent proceedings before the Family Court, he was successful to obtain custody of his children, regardless of the fact that his wife opposed the application and explained in detail to the court what had happened in January 2005. The Court nevertheless accepted that he was a more fit and proper person to be given custody of the children than his previous wife was.
•When he applied for the firearm's licence, he was told by the local licensing officer, Senior Constable Ric Lyon, that his application would be approved because it was clear to Mr Lyon that Mr Docherty was a rehabilitated person and fit and proper to be licensed. Mr Lyon was fully aware of Mr Docherty's criminal record and that he (Mr Docherty) did not intend to give misleading information when he only stated one conviction on his application form. Mr Docherty assumed that only offences committed in the past five years had to be reported. It therefore came as no surprise to Mr Docherty when the licence was approved.
•The context within which he escaped legal custody must be noted. He was in hospital at the time, after having been assaulted, and was told that he would lose access to his children. He ran from the hospital to see his children out of fear that he might not see them again and, in doing so, was convicted of escaping custody.
•The character references submitted are supportive of the application. The referees were aware of his convictions; some made explicit mention thereof; and as a result, more weight should be attached to the reference than in the case of more general or vague references.
Consideration
The Tribunal is faced with compelling submissions by the parties.
On the one hand, the Commissioner has good grounds upon which to resist the licensing of Mr Docherty at this stage - the incidents in January 2005, for which Mr Docherty has been convicted, weigh heavily against him being licensed at this time - on the other hand, Mr Docherty has put up a strong argument to be licensed on grounds that the offences were committed more than five years ago; he has changed his life; and various persons have given strong character references in support of his contention that those incidents were completely out of character.
If the offences had been committed more recently, the Tribunal would not have hesitated to affirm the decision of the Commissioner. The public would have serious concerns if a person with a recent record of violent incidents was to be licensed.
However, as a general principle of law, and also under express provisions of the Firearms Act, and in accordance with decisions of courts and tribunals, it is accepted that a person could, after a period of rehabilitation, seek to be licensed to hold a firearm.
It must also be borne in mind that the licensing regime under the Firearms Act is not intended as a form of punishment but, rather, an assessment whether a person is fit and proper to hold a firearm.
When deciding if a person is 'fit and proper' to be licensed, the Commissioner must take into account all information, including the criminal record of the person, and also the steps the person has taken on the road to rehabilitation. The period of five years referred to in the Firearms Act is merely indicative of a suitable timeframe and the licensing officer may issue a licence before the five years has expired, or may even refuse to issue a licence after the five years has expired. The licensing officer therefore has an open discretion.
In these proceedings, Mr Bagley duly drew the attention of the Tribunal to Mr Docherty's criminal record and the events that occurred in January 2005 and March 2005. The Commissioner explained why a period of five years is not long enough for rehabilitation since Mr Docherty had also offended when he was much younger in 1992. The Commissioner's view was therefore that, without specifying an exact period, more time should lapse before he could be licensed. The Commissioner did not dispute that at the local office of the firearms branch, the authorised officer had been satisfied that Mr Docherty could be licensed.
Although Mr Bagley properly highlighted the reasons why Mr Docherty should not be licensed, he did not give similar attention to reasons why Mr Docherty ought to be licensed.
The Commissioner, in the view of the Tribunal, failed to properly take into account the events that have occurred since 2005 in the life of Mr Docherty. The extraordinary steps Mr Docherty has taken to bring rectification to his behaviour, the attendance at drug and behavioural classes of his own initiative, and the absence of any other offences in more than five years, should have more weight in a balanced application of all factors.
The letters of reference given to Mr Docherty were seemingly afforded little, if any, weight or credibility by the Commissioner. On proper reflection it is, however, clear that persons who wrote these letters were fully aware of Mr Docherty's criminal past; they were aware that he was applying for a firearm's licence and they supported it. The letters of reference were, therefore, more than the general type of 'feel good' references that the Commissioner often receives as part of firearms reviews. These letters were very specific; they dealt with Mr Docherty's past; and they spoke about a changed person. The Tribunal is, therefore, of the view that greater weight should have been given to the character references.
Upon reflection of all the evidence before it, the Tribunal makes the following observations:
•Mr Docherty made a very positive impression on the Tribunal in the way he gave evidence, his response to questions, his acknowledgement of the errors he has made, the attempts he has made to bring his life to order and the passion he shows for his children. He demonstrated serious remorse for what had happened in 2005 and, although he tried to explain the background to the events, he was not trying to justify it or to escape liability. He appeared to the Tribunal as a very sincere and credible person who is of sound character.
•The convictions in 2006 arose from a series of related events in January 2005 and another incident in March 2005. The actions of Mr Docherty cannot be excused or justified. He received a penalty for them. Account must however be taken, when his fitness to possess a firearm is considered, to the background of those actions. He had been seriously assaulted by unknown persons; his marriage was collapsing; he ran the risk of losing custody of his children and his life was basically in shambles. He did not oppose the violence restraining orders sought against him but noted that those orders had not been renewed and no charges were brought of any violence by those who applied for the Violence Restraining Orders. At the same time, he immediately, following the events in January 2005, submitted himself for anger management and drug counselling. This was spontaneous and not at the initiative of the judiciary or in response to legal proceedings. The impression of the Tribunal is that he was overcome with remorse and wanted to take urgent steps to rectify his life.
•The decision of the Family Court in 2009 to award Mr Docherty custody of his children is an important factor to take into account in deciding where Mr Docherty has succeeded in rebuilding his life. The Tribunal accepts the evidence of Mr Docherty and Ms Langley that the Family Court had been made aware of his criminal convictions and the circumstances surrounding those convictions. The Family Court, nevertheless, on the basis of the time that had passed and the corrective actions Mr Docherty had made, awarded him custody of the children, regardless of the opposition of their natural mother.
•The character references submitted by Mr Docherty speak of a person who acted out of character in 2005, a loving father, a 'gentle giant', a responsible person when handling firearms and of sound character. In contrast to many character references received by the Tribunal, most of those submitted for Mr Docherty expressed knowledge of his criminal record and recommended him being licensed.
•A few examples of some of the comments made were as follows:
Anglicare, November 2005:
When interacting with his children, Mr Docherty appears very confident and capable. He appears to have a very strong attachment with his two boys and staff have often commented that their level of interaction is high and indicative of an excellent relationship.
Men's Relationship Program, 2005:
Please be advised that Mr Docherty has been accessing this service since 25 February 2005. He commenced accessing this service of his own volition, and continues to access it on a voluntary basis.
Mr Docherty sought assistance from this program in relation to anger management, which he thought may have been perceived as an issue in his relationship with and separation.
Mr Philip Cutting, prison social worker, 22 August 2005:
Glenn could be described as a gentle giant and was courteous and respectful in our sessions with evidence that Glenn was raised to be non confrontational.
Mr Keith Tyrer, 11 April 2010:
I am familiar with the circumstances surrounding the charges brought against Glenn in 2005, and whilst these are serious matters, there are many extenuating factors that contributed to his actions at that time, in particular the vicious assault suffered by Glenn at the hands of several assailants
…
It was extremely pleasing when Glenn successfully applied for his firearms licence, as I was able to witness the excellent positive effect that this had on his self confidence, and the reinforcement of the positive changes that Glenn had made in his life.
…
I have absolutely no hesitation in providing this character reference for Glenn, and I do sincerely believe that his demeanour, manner and repeated demonstrations of responsible and safe handling of firearms and bows, decrees him to certainly be a 'fit and proper' person to hold a firearm[']s license [sic].
Kerry Langley, 21 May 2010:
I have complete knowledge of the circumstances surrounding the charges brought against Glenn in 2005 … The custody process fully explored Glenn's past, in the attempt by his ex-wife to discredit him, but his commitment to the safety and well-being of his children being the only motivator, Glenn did not indulge in mud slinging or excuse making, and was rewarded by the Family Court with full custody of the children, over the mother. … I firmly believe that Glenn has made such positive changes to his life that he is now in a place where he makes quality life choices, evidenced by over five years of absolutely no incident.
He has certainly left his troubled past behind him …
Ms Christine Falconbridge, 24 May 2010:
I have known GLENN DOCHERTY for 36 years and as such am familiar with his history.
I was able to attend court in support of Glenn throughout the proceedings resulting from the vicious assault he suffered approximately five years ago … Glenn has put his past firmly behind him, and because of this I had absolutely no hesitation in giving him written permission to shoot on my property. I have observed Glenn a number of times whilst shooting, and have always noted how responsible he is with the handling and use of his [own] rifle, and in particular how safety conscious he is.
Mr Kurt Jason, 24 May 2010:
I would ask respectfully that any unfortunate events that occurred in Glens [sic] youth may not affect the outcome of the rest of his life when he has clearly made every effort to move towards and become a Father, Partner and Friend that we could all hope that every member of our community could be.
Mr Ron Willox, 31 May 2010:
I have held my WA firearms licence for approximately 25 years, and having known GLENN DOCHERTY for his whole life, I used to take him fishing, camping and shooting from when he was about 11 years old. … Glenn is a loving, patient and diligent father who has taught his children the same responsibility for, and respect of firearms that he has, and I am more than happy to accompany Glenn on shooting trips.
The Tribunal is impressed with the way in which Mr Docherty has rectified his life.
At the same time, the Tribunal takes seriously the concerns of the Commissioner who contends that not enough time has lapsed for Mr Docherty to be licensed.
The Tribunal is of the view that a middle ground can be found. In essence, the Tribunal is of the opinion that Mr Docherty is a person who is fit and proper to be licensed. Out of a sense of caution, the Tribunal believes, however, that a condition should be placed on the licence to the effect that it may only be used at a rifle range. Mr Docherty can in due course apply to the Commissioner to have the condition removed.
The Tribunal is of the view that this approach is consistent with the principles set out in Tavelli v Johnson(unreported, WASC, Library No 960693, 25 November 1996), at [7] - [9] when dealing with previous offences, namely, that Mr Docherty has shown genuine remorse and contrition; he has demonstrated true insight into what he did wrong; there has been a major change in his circumstances; the offences were committed more than five years ago; and the character references were particularly useful since they were given in full knowledge of the offences and the applying for a firearm's licence.
The Tribunal, therefore, finds that the approval to grant a firearm's licence to Mr Docherty should be granted on the basis that the Tribunal is of the opinion that Mr Docherty is a fit and proper person to hold the licence. The Tribunal further finds that in light of the submissions made by the Commissioner, and out of a sense of abundant caution, the issuing of the licence be made subject to a condition that it may only be used at a rifle club.
Orders
1.The decision by the Commissioner of Police to refuse to issue a firearm's licence to Mr Docherty is set aside.
2.The Commissioner of Police must forthwith issue to Mr Docherty a licence to be co-licensed for rifle bolt repeater Cz A480453 .22 Magnum.
3.The Commissioner of Police must further issue the licence subject to the condition that it may only be used at a rifle club.
4.Mr Docherty may in due course apply to the Commissioner of Police for the condition to be removed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
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