EPD and COMMISSIONER OF POLICE - [2018] WASAT 132

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION:   EPD and COMMISSIONER OF POLICE [2018] WASAT 132
MEMBER:   MR T CAREY (MEMBER)
HEARD:   1 NOVEMBER 2018
DELIVERED          :   7 DECEMBER 2018
FILE NO/S:   CC 1115 of 2018
BETWEEN:   EPD
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence Refusal to grant licence Violence restraining order within five years before licence application Convictions for indecent dealing Particularly adverse reflection on character

Legislation:

Firearms Act 1973 (WA), s 11, s 22(2)
State Administrative Tribunal Act 2004 (WA), s 18(1), s 27(1), s 27(2), s 29(1), s 29(3), Div 3 Pt 4

Result:

Application for review of decision of Commissioner of Police

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr T Pontre

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

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

Minitti v Commissioner of Police [2010] WASCA 198
Tavelli v Johnson (1996) (unreported, Supreme Court, WA, Wheeler J,
Lib No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

EPD (applicant) seeks review under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) of a decision of a delegate of the Commissioner of Police (respondent) made on 14 May 2018 to refuse the applicant's application to license a rifle bolt action retriever .22 long rifle.
The respondent's letter giving the applicant notice of the decision refers to the applicant being deemed, in accordance with s 11(3)(a)(iv) of the Firearms Act, not to be a fit and proper person by reason of a violence restraining order (VRO) having been made against him within the preceding five years.
The applicant first obtained a licence to possess and use firearms in 1990. His most recent firearm licence expired in 2012.
In September 2010, the applicant was convicted on 13 counts of indecent dealing with a child under 13 years. He appealed against his convictions. On 7 December 2011, the appeal was allowed to the extent that six of the convictions were set aside and a new trial of those convictions was ordered. He was convicted on the retrial on all six counts. The net outcome was that he was sentenced to five years' imprisonment commencing on 30 June 2010. He served his full term and was released on 29 June 2015.
The VRO was granted on an interim and ex parte basis on 25 March 2015. It was for a period of six months. It was served on the applicant on 27 March 2015, and was operative until about 26 September 2015. It was not extended after that date.
The applicant submits that neither the VRO nor his convictions ought to preclude a finding that he is a fit and proper person for the purposes of the Firearms Act, and that the respondent's decision should be overturned.

Relevant statutory scheme

The decision was made under s 11(1) of the Firearms Act. Section 11 states relevantly:
11.Exercise of Commissioner's discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that
…
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
…
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence
(i)the person was convicted of an offence involving assault with a weapon; or
(ii)the person was convicted of an offence involving violence; or
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place; or
…
(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion[.]

The Tribunal's review

This matter falls within the review jurisdiction of the Tribunal, the subject of Div 3 Pt 4 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising its review jurisdiction, the Tribunal is required to deal with a matter in accordance with the SAT Act and the enabling Act (in this case, the Firearms Act): s 18(1) of the SAT Act.
The review is by way of a hearing de novo and may involve consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon review: s 27(2) of the SAT Act.
The Tribunal has functions and discretions corresponding to those exercisable by the decisionmaker in making the decision under review: s 29(1) of the SAT Act. The Tribunal may make any order it considers appropriate, including to affirm the decision, vary the decision or set it aside and substitute its own decision, or send the matter back to the decisionmaker for reconsideration: s 29(3) of the SAT Act.

Issues

On the basis of the parties' written and oral submissions, it is necessary for me to deal with the following issues in arriving at my ultimate decision:
1.whether or not the making of the VRO within the five year period referred to in s 11(3) of the Firearms Act is determinative that the applicant cannot be a fit and proper person; and
2.whether or not the applicant should be regarded as a fit and proper person, separately from the operation of the s 11(3) Firearms Act deeming provision, with particular regard to the indecent dealing convictions.
Although the second issue was not identified in the respondent's letter notifying its decision, I am able to have regard to it in my consideration of the correct and preferable decision at the time of this decision.

Violence restraining order

The way in which the respondent submits the VRO is to be treated is that the deeming provision of the s 11(3) of the Firearms Act applies, and that the absence of any factor which might lead to the discretion under s 11(5) of the Firearms Act to determine that, despite the VRO, the applicant is to be determined to be a fit and proper person, dictates that the contrary conclusion remains.
In my opinion, the maintenance of an opinion that a person is not fit and proper based solely on the historical fact that a VRO was made against him or her during the required five year period might in some cases render harsh and unjust results.
In a typical case, a person might obtain a VRO against the person the subject of the restraint by reason of communications or other contact between the two in the period immediately preceding the application for the VRO.
In the present case, the only reason that s 11(3) of the Firearms Act has any application to the applicant's case is that, on the evidence, the VRO was obtained by one of the victims of his offending at least seven years after the offence or offences against the protected party. The VRO was served on him and became effective towards the end of his five years imprisonment. It was not based upon any fresh action of any type by the applicant. Rather, it reflected the apprehension of the protected person about what the applicant may be minded to do upon his release from prison based upon his offending behaviour at least seven years previous.
The legislative policy underlying the deeming provision applying to a VRO obtained within the five year period referred to it in s 11(3) of the Firearms Act is easily understood in the typical case as I have described it. I must confess to some difficulty in assigning the same policy to the circumstances in which the VRO against the applicant was obtained.
I would favour the view that the particular circumstances in which the VRO against the applicant was obtained may of themselves be sufficient for a decision-maker to exercise the discretion available to it under s 11(5) of the Firearms Act, despite there being no additional matter in favour of a finding of fit and proper.

Indecent dealing convictions

At the initial hearing in this proceeding, I queried the relevance to the issue of a licence to possess and use a firearm of convictions of the nature recorded against the applicant. It was convenient to do so at that time given the application of the respondent for orders for suppression and a closed hearing to facilitate production of additional evidence going to the circumstances of the offences. Ultimately, directions were made for the filing of written submissions on the subject before the orders being sought were considered.
Based on the respondent's written submissions, the case for the relevance of the convictions comprised the assertion that the convictions were particularly serious; they manifested a propensity to invade the personal rights of victims, thereby injuring members of the public and prejudicing public safety; they impacted on the applicant's capacity to be trusted; and they represented a general stain on the applicant's character.
As the authorities in this area make clear, a person's previous offending behaviour will often be a relevant factor in determining whether he or she is of good character or a fit and proper person for the purposes of a licensing regime such as that under the Firearms Act. An instructive authority in this regard is Tavelli v Johnson (1996) (unreported, Supreme Court, WA, Wheeler J, Lib No 960693, 25 November 1996) (Tavelli). The Court of Appeal in Minitti v Commissioner of Police [2010] WASCA 198 (Minitti) cited Tavelli with approval. The respondent's submissions draw heavily from Wheeler J's observations in Tavelli.
As made clear in Tavelli, 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 or not they relate to the licence under consideration and whether or not they reflect particularly on the character of the putative licensee. In relation to the latter, Wheeler J said convictions are generally to be regarded as more serious if:
They are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
Further, 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.
My ruling that the applicant's convictions are relevant to the determination of the current proceedings was based on an acknowledgement that it is open, in considering the fit and proper question in the context of a statutory licensing regime, to have regard to convictions which, although they do not occur in the course of or relate to carrying out of the licensed activity, fall into the 'so serious' category identified in the passage quoted from Tavelli. As I also noted in my reasons for my ruling, the relevance of any conviction is to be determined by reference to the particular applicable statutory context: Minniti at [13].
I propose to outline some of the circumstances of the proven indecent dealing charges as they have been set out by the judges charged with assessing penalty before considering the appropriate significance to be attached to the convictions. Given that after the re-trial the same sentence was imposed, and that the judge presiding at the retrial (Staude J) endorsed the sentencing remarks of the initial presiding judge (Stevenson DCJ), the remarks of both judges are apposite.
The remarks of Stevenson DCJ appear in Exhibit 13, being the transcript of the hearing on 3 September 2010. They include:
(a)The 13 counts concern offences against five separate students who were in one of the applicant's classes at school.
(b)Except for one count, which occurred during a school camp, all the offences were committed in the applicant's classroom at the school.
(c)The evidence of each complainant was that he was constantly touched by the applicant when he was in his class;
(d)With one possible exception, each of the victims was new to the school, and the applicant singled him out in a way over and above his attention conferred on other students. This attention further alienated the victims individually;
(e)The additional alienation increase the opportunity for the applicant to ingratiate himself with the victim and minimise the ability of the victim to complain;
(f)The applicant created the illusion to those around him, including other teachers, of being open and above board in his interactions with his students;
(g)As a result of complaints by other staff, the applicant was given four written formal warnings based on the school policy prohibiting any physical contact between teachers and students;
(h)A psychiatric report indicated that the applicant had no empathy for his victims and that he lacked remorse for his offences;
(i)The applicant denied his offences; and
(j)According to the psychiatrist, a moderate range of risk of reoffending exists.
Judge Staude's sentencing remarks regarding the six re-tried counts appear in Exhibit 12, comprising the transcript of a hearing on 23 August 2012. His Honour made the following pertinent remarks:
(a)Each of the six offences involved the sexual exploitation of a nine-year-old boy where sexual contact occurred not only on the occasion specified in the in indictment, but on numerous other occasions during the course of each complainant's time in the applicants class;
(b)Each of the three complainants was groomed by praise, encouragement and gifts and conditioned by acts of gradually increasing intimacy to acquiesce without complaint to the applicant's abuse;
(c)The applicant purposefully cultivated the trust and confidence of the children and their parents. The breach of trust was egregious in that the victims were too young to resist the applicant's presentations, or even to understand them;
(d)The applicant did not accept his wrongdoing, and therefore had no remorse for his actions. This situation arose due to the applicant's unwillingness to face the truth and take responsibility; and
(e)As a result of this unwillingness, the applicant's prospects of rehabilitation are poor.
Counsel for the respondent characterised the applicant's offending as cynical and calculated, involving gross breaches of the trust imposed upon him as a teacher. He emphasised the applicant's lack of remorse and low chance of rehabilitation. He observed that in the very document setting out the grounds for review, the applicant sought to discredit the evidence in court by two brothers, both victims of his, and to cast aspersions upon the role of one or both of their parents.
The respondent contends for the following aspects of the applicant's convictions are significant in considering whether or not he is a fit and proper person to obtain a firearm license, and whether to allow him a licence would not be desirable in the interests of public safety:
(a)The offences were very serious, and committed over a long period;
(b)The offences represent a serious invasion of the physical integrity of the victims, and were in disregard of their safety and well-being;
(c)The applicant engaged in manipulation to disguise his wrongdoing;
(d)The offending occurred in circumstances of a serious breach of trust; and
(e)The offences cast a stain on the applicant's general character.
The applicant is 63 years of age. He was a teacher, but in light of his convictions can no longer work in his chosen profession. The applicant has always denied the offences and continues to do so, including at the hearing. He did accept, however, that it was necessary to proceed on the premise that he had committed the offences for which he was convicted.
The applicant adopted the contents of a letter of advice he received from a lawyer whom he had retained for advice. The letter, from DG Price & Co and dated 20 July 2018, is Exhibit 7.
According to the lawyer's letter, the applicant's convictions in themselves do not demonstrate that the applicant is not currently a fit and proper person to hold a firearm license because, among other things:
•the most recent offence is some nine years ago, which is a substantial period of time;
•although the applicant does not admit the offending, he agrees that the facts alleged against him and accepted by a jury discloses behaviour that no one should be engaged in;
•the applicant is a low risk of reoffending in that the offences occurred opportunistically when he was teaching;
•the applicant's circumstances have changed since the offending. The applicant is a much older man now and his character has changed by virtue of spending five years in custody;
•he has been of good character since his release from prison, to which his character references attest; and
•the applicant has made charitable donations and contributed to his local community.
The applicant, who appeared on his own behalf at the hearing, also referred to a number of projects initiated by him for his school students: a poetry book, a series of drawings, a cricket booklet, CDs of various activities in camp, and a class movie. The cost of producing these works was borne by the applicant.
Finally, the applicant submitted that he has served his sentence at considerable personal cost, and that his desire was to get back as far as that is possible to a normal life. He asked rhetorically, for how long must a person be penalised?

My consideration

The seriousness of the applicant's convictions cannot be doubted. His crimes are odious to all rightminded members of the community and represented a gross invasion of the privacy of his victims and equally gross breach of trust of the parents and school community.
Unfortunately, the applicant's refusal to accept and take responsibility for his proven wrongdoing represents a significant impediment to any assessment of his being of good character or propriety. I labour under the same apprehension as Staude J did when his Honour deemed the applicant's prospects of rehabilitation as poor.
My initial reluctance concerning the relevance of offending which, at first blush, bears little or no relevance to the offender's suitability as a licensee under the Firearms Act has been overtaken by the acceptance, to a large extent, of the respondent's contentions regarding the significance of that offending. The seriousness of the offences, the lack of empathy for the victims, the patent disregard by the applicant for both the laws of the land and policies of his former school, the lack of acknowledgement of his failings and, by necessary implication, his omission to address their underlying causes (as distinct from the restrictions imposed by the authorities upon him by way of imprisonment and disbarment as a teacher) must, in my view, place the applicant's offending well within the epithet that they are 'so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them'.

The conclusion just mentioned takes into account the fact that the most recent offending occurred in 2009. The lack of offending since is tempered in any event by the applicant's involvement in the armed legal system until 2012 and his five-year term of imprisonment, which was completed on July 2017.
Any claim that the applicant does not have the same opportunities to repeat his offending says nothing about actions taken by, or any change of attitude on the part of, the applicant in order to address his past failings. As such, it does not advance his claim to now being fit and proper.
The applicant's character references comprise two references of religious officers (one being a prison chaplain) at the time of the applicant's application for parole in 2013, which was unsuccessful, and a series of more recent references wherein the authors make plain their disagreement with the juries' guilty verdicts and/or the lack of impact those verdicts had upon the referees opinion of the applicant's character.
The generosity of spirit and pocket during the applicant's teaching career, and his ongoing financial assistance of good causes are laudable, but insufficient to excoriate the very serious offending recounted in the sentencing remarks, combined with the applicant's lack of acceptance of, and remorse for, that conduct.
I do not subscribe to the submission that the review application should be refused on the ground that the invasions of his victims' physical integrity justifies the conclusion that the issue of a licence under the Firearms Act is not desirable in the interests of public safety. In my view, a more direct nexus between a person's offending and the privilege of firearm use would be necessary for this outcome. In my view, this case is to be determined on the issue of whether or not the applicant can be regarded as a fit and proper person.
By reason of the offences which the law recognises in the form of 13 convictions for indecent dealing, in all of the circumstances that I have described, I am unable to conclude that the applicant meets the fit and proper person requirement. The review application must therefore be dismissed.

Order

The Tribunal orders that:
1.The application for review is dismissed.
2.The decision of the respondent's delegate on 14 May 2018 refusing to grant the applicant a firearm licence is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR T CAREY, MEMBER
7 DECEMBER 2018