FLETCHER and COMMISSIONER OF POLICE
[2011] WASAT 210
•09/11/2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: FLETCHER and COMMISSIONER OF POLICE [2011] WASAT 210
MEMBER: MR D AITKEN (MEMBER)
HEARD: 9 NOVEMBER 2011
DELIVERED : EDITED REASONS DELIVERED ORALLY ON 9 NOVEMBER 2011
FILE NO/S: CC 1256 of 2011
BETWEEN: WILLIAM JAMES FLETCHER
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Whether applicant is a fit and proper person to hold a firearms licence - Convictions for offences against the Firearms Act 1973 (WA) - Possession of unlicensed firearms - Possession of licensed firearms whilst not the holder of the licence for them - Failure to store firearms in accordance with the requirements of the Firearms Act 1973 (WA)
Legislation:
Firearms Act 1973 (WA), s 11, s 11(1)(c), s 11(3), s 11(3)(a)(iii), s 11(5), s 11(7), s 20(1)(a)(iii), s 20(1)(aa), s 22(2)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Result:
Application dismissed.
Decision under review affirmed.
Category: B
Representation:
Counsel:
Applicant: Mr G Massey
Respondent: Senior Constable S Bagley
Solicitors:
Applicant: Holborn Lenhoff Massey
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Nickels and Commissioner of Police [2010] WASAT 19
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
Wignall and Commissioner of Police [2006] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, Mr Fletcher, sought a review of a decision by the Commissioner of Police to refuse his application for a licence for five firearms on the basis that Mr Fletcher was not a fit and proper person to hold a firearms licence.
Mr Fletcher had been convicted of possession of two unlicensed firearms (a pistol and a rifle on which the serial number had been removed) and possession of two firearms (a shotgun and an air rifle) which were licensed to another person. The convictions resulted from an incident where Mr Fletcher had accidentally shot himself with the pistol whilst he was removing it from under a mattress where he had hidden it. None of the firearms were stored in accordance with the requirements of the Firearms Act 1973 (WA) at the time they were discovered by the police during a search of Mr Fletcher's home after he attended hospital for treatment of his gunshot wound.
Mr Fletcher had held a firearms licence for a number of other firearms for a period of 48 years prior to the convictions. That licence was revoked following the convictions and Mr Fletcher subsequently applied for a new firearms licence.
The Tribunal decided that Mr Fletcher was not a fit and proper person, at this point in time, to hold a firearms licence in the circumstances in the light of the statutory framework of the Firearms Act 1973 (WA). The fact that Mr Fletcher had been in possession of the unlicensed hand gun for nine years and the unlicensed rifle on which the serial number had been removed for nine months, and had failed to store the firearms correctly, were all serious matters. Whilst the Tribunal accepted that Mr Fletcher was a person of good character and had demonstrated genuine remorse and contrition regarding his actions which lead to the convictions, they were only recent and the seriousness of them outweighed the mitigating factors.
The Tribunal therefore dismissed the application and affirmed the decision of the Commissioner of Police to refuse the application by Mr Fletcher for a firearms licence.
The Tribunal's reasons taken from the transcript and edited in minor respects, were as follows.
Introduction
The applicant, Mr Fletcher, is seeking a review under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) of a decision of the respondent, the Commissioner of Police (Commissioner), made on 16 August 2011 to refuse his application to licence five firearms, namely:
1).243 calibre rifle bolt repeater, serial No 11P2770;
2)12 gauge calibre shotgun, double barrel shotgun, serial No 146705;
3).22 calibre rifle bolt repeater, serial No 70197451;
4).22 calibre Hornet Rifle bolt repeater, serial No 709835; and
5).223 calibre rifle bolt repeater, serial No 78390644.
Mr Fletcher previously held a firearms licence No 1386827 in respect of four of those firearms and three other firearms. That firearms licence was revoked by the Commissioner in August 2010 under s 20(1)(a)(iii) and s 20(1)(aa) of the Firearms Act, with the notice of revocation stating that the Commissioner had taken the following information into consideration:
•The circumstances associated with an incident that occurred on 27 June 2010 where police intervention was required after Mr Fletcher was admitted to hospital due to a self‑inflicted gun shot wound;
•The firearm concerned was an unlicensed hand gun, and further that Mr Fletcher was also found to be in possession of a further three unlicensed firearms that were located unsecured at his residence; and
•Mr Fletcher's subsequent prosecution for possession of unlicensed firearms and possession of a firearm under circumstances of aggravation (hand gun).
Mr Fletcher did not seek a review of that decision by the Commissioner to revoke his firearms licence.
Mr Fletcher subsequently applied for a licence for the above five firearms stating in the application that the reason for applying for the licence was 'recreational/hunt/shoot', and that the genuine need for each of the firearms was for eradicating rabbits and foxes and also 'occupational use' for the disposal of sick and injured livestock on his property.
On 16 August 2011, the Commissioner refused the application by Mr Fletcher to licence the firearms on the basis that the Commissioner had formed the opinion under s 11(1)(c) of the Firearms Act, that Mr Fletcher was not a fit and proper person to hold the licence.
On 25 August 2011, Mr Fletcher lodged an application with the Tribunal seeking a review of the decision of the Commissioner to refuse to licence the firearms. A directions hearing was held on 8 September 2011 at which programming orders were made. Pursuant to those orders, the Commissioner filed and served a statement of issues, facts and contentions and supporting documents and in response, Mr Fletcher filed and served a statement of issues, facts and contentions and supporting documents.
At the hearing the Tribunal received into evidence the documents filed by the parties, plus some photographs handed to the Tribunal during the hearing by Mr Massey, the counsel for Mr Fletcher. Those documents included a signed statement of evidence by Mr Fletcher dated 18 October 2011, on which he has been cross‑examined and re‑examined during the hearing.
Role of the Tribunal in review proceedings
Under s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the Tribunal considers the application de novo, which means that the Tribunal is standing in the shoes of the Commissioner with the functions and discretions exercisable by the Commissioner under the Firearms Act, and is not confined to the matters which were before the Commissioner.
Under s 27(2) of the SAT Act, the purpose of the review is to produce the correct and preferable decision at the time of the review. No party bears any formal onus to prove any facts, but an applicant for a firearms licence bears a practical onus to satisfy the Tribunal that the requirements of s 11 of the Firearms Act have been met; see Wignall and Commissioner of Police [2006] WASAT 206 at [282].
Issue
The issue for the Tribunal to decide is whether it is satisfied, on the basis that it is the correct and preferable decision to make, that Mr Fletcher is a fit and proper person, for the purposes of s 11 of the Firearms Act, to hold the firearms licence sought by him.
Relevant provisions of s 11 of the Firearms Act
Section 11 of the Firearms Act relevantly provides:
(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 –
…
(iii)the person was convicted of any offence against this Act
…
…
(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.
Accordingly, if a person who applies for a firearms licence has been convicted of an offence against the Firearms Act within the previous five years, that is a sufficient ground for the Commissioner to form the view that he or she is not a fit and proper person to hold a firearms licence. If the Commissioner forms such an opinion, the Commissioner cannot issue the firearms licence. However, the Commissioner may form an opinion that the person is a fit and proper person to hold a firearms licence even if the person has been convicted of an offence against the Firearms Act within the previous five years. The Commissioner and, on a review, the Tribunal, have a discretion regarding the formation of the opinion on whether or not the person who has applied for a firearms licence in those circumstances is a fit and proper person to hold such a licence.
The offences against the Firearms Act
On 2 March 2011, Mr Fletcher pleaded guilty and was convicted of two offences against the Firearms Act:
1)possession of unlicensed firearms; and
2)possession of firearms and not being the holder of a licence to do so.
The offences involved the following firearms:
1).22 calibre single shot pistol (the pistol);
2).22 calibre magnum rifle (the magnum rifle) on which the serial number had been removed;
3)12 gauge shotgun (the shotgun); and
4).22 calibre air rifle (the air rifle).
The pistol and the magnum rifle were unlicensed firearms and were subject to forfeiture orders. The shotgun and the air rifle were licensed to another person and the police agreed that they could be returned to that person to enable that person to sell them to a licensed gun dealer.
The facts of those offences, which were not in contention between the parties, can be summarised as follows. On 27 June 2010, at 1 am, Mr Fletcher was at his home in East Fremantle and as he removed the pistol from underneath the mattress in his bedroom it discharged, causing a gunshot wound to his leg. He drove himself to Fremantle Hospital for treatment. Police attended the hospital and spoke with Mr Fletcher and ascertained that he did not hold a firearms licence for the pistol. The police executed a search warrant at Mr Fletcher's home and as a result, the police seized the pistol, the magnum rifle, the shotgun and the air rifle.
The circumstances in which Mr Fletcher came to be in possession of each of the seized firearms were as follows:
The pistol
The pistol had been owned by a friend of Mr Fletcher who had died in a car crash some nine years ago. It had never been licensed and Mr Fletcher said that when the friend died the pistol was left at Mr Fletcher's farm, and he had put it into his floor safe at the farm, and forgotten about it. When he moved to his house in East Fremantle, he put the pistol under the mattress of his bed, and then forgot about it again until his de facto wife discovered it on 24 June 2011.
The magnum rifle
Mr Fletcher said that about nine months ago he had been approached by an unknown male person at the Tradewinds Hotel who wanted Mr Fletcher to buy the magnum rifle, but the serial number had been 'ground off' so he did not agree to purchase it. Mr Fletcher said the following day he found the rifle in the back of his ute, and he had gone back to the hotel on a number of occasions to try and find the person so that he could return it to him, but without success.
The shotgun and the air rifle
Mr Fletcher said that he was in the process of buying the shotgun and the air rifle from the licensed owner of them and that he had encountered difficulty in transferring ownership to himself despite enquiries he had made at various police stations. Mr Fletcher said these firearms had been in his possession, but not licensed to him, while he made those enquiries.
Is Mr Fletcher a fit and proper person to hold a firearms licence despite his convictions under the Firearms Act?
In Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli), Wheeler J dealt with the relevance of prior convictions in deciding whether or not a person was fit and proper to hold a licence under a different statute.
In relation to the expression 'fit and proper', Wheeler J stated in Tavelli at page 7:
It must be stressed therefore 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.
Her Honour then went on to state that, in her view, convictions will generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to the carrying out of the occupation … ;
(2)they are offences of dishonesty, broadly understood. … ;
(3)they occur while the person is the holder of a licence under the Act;
(4)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.
Wheeler J went on in Tavelli to consider, at pages 8 and 9, some factors which may indicate that a person is a fit and proper person to hold a licence, notwithstanding prior convictions. Those factors are:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes … ;
(2)if the offences were committed a substantial time ago … ;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
(4)a person's character generally since his commission of the offences …
Mr Fletcher's contentions
Mr Fletcher contends that he is a person of good character, which is supported by numerous character references. The Commissioner does not take issue with this contention, and the Tribunal accepts that Mr Fletcher is a person of good character. However, the issue which is before the Tribunal is not whether Mr Fletcher is of good character but rather whether he is a fit and proper person to hold a licence under the Firearms Act.
It is contended by Mr Fletcher that:
•The incidents which lead to his convictions under the Firearms Act should be seen as aberrations in an otherwise good history of involvement with firearms over the period of 48 years, during which Mr Fletcher held a firearms licence prior to the revocation of that licence in August 2010;
•Whilst his behaviour regarding the pistol reflected a failure to take proper care in the handling of the firearm, it was an isolated event in relation to one firearm in Mr Fletcher's possession amongst the many firearms that he held;
•It was a mistake by him not to notify the police that the magnum rifle had come into his possession which, whilst troubling, should not be determinative of the question of whether or not he is a fit and proper person to hold a firearms licence; and
•There was no deliberate flouting of the law in respect of the magnum rifle, the shotgun and the air rifle being locked in a storeroom inside the garage instead of being secured in the gun safe, which is located inside that storeroom. Mr Fletcher said that he had taken those firearms out of the gun safe where they were normally secured on the day prior to them being found by the police, to hand the magnum rifle to the police and to take the shotgun and the air rifle to a gun dealer.
Mr Massey, on behalf of Mr Fletcher, contends that there are similarities in this situation and the situation in Nickels and Commissioner of Police [2010] WASAT 19 (Nickels). Mr Fletcher told the Tribunal that he considered the firearms to be adequately secured in a storeroom, although he concedes that he did not satisfy the requirements of the Firearms Act regarding the storage of them.
Mr Massey contends that most of the criteria in Tavelli which would lead to a conclusion that he is a fit and proper person, despite the convictions against the Firearms Act, are met by Mr Fletcher. However, there are two criteria in Tavelli which Mr Massey concedes are in issue. Firstly, that the convictions occurred while Mr Fletcher was the holder of a licence under the Firearms Act, and secondly, that the offences were not committed a substantial time ago. In respect to the latter, Mr Massey says that in the context of the fact that Mr Fletcher held a firearms licence for 48 years, it is difficult to see what purpose the effluxion of a further period of time would serve.
Commissioner's contentions
Senior Constable Bagley contends on behalf of the Commissioner that the offences of which Mr Fletcher has been convicted under the Firearms Act are serious, and that with 48 years of experience as the holder of a firearms licence Mr Fletcher ought to have known that:
1)To be in possession of a firearm he needs to hold a licence for that firearm;
2)Each firearm must be secured safely in accordance with the Firearms Act.
Senior Constable Bagley points to the fact that Mr Fletcher had written to the police in 1997 about an unlicensed firearm which he had become aware of, which showed that he was aware that he should have contacted the police as soon as the magnum rifle came into his possession.
It is contended by the Commissioner that the right to possess and use a firearm is a privilege, not a right, and that if a person fails to satisfy the requirements of the Firearms Act then he or she ought to lose that privilege for a period of time, which is contemplated by s 11(3)(a)(iii) of the Firearms Act to be a period of five years after conviction of any offence against the Act. Senior Constable Bagley makes the point that Mr Fletcher's conviction was only last year, and that a strong message needs to be given to the community that failure to store firearms properly is a serious issue and that not enough time has passed since Mr Fletcher's conviction.
Senior Constable Bagley makes the point that, had Mr Fletcher secured the pistol properly, then it would not have been caught on the mattress when he was moving it, which resulted in him being shot.
The Commissioner contends that Mr Fletcher engaged in a course of conduct which falls short of what is expected of someone who is a fit and proper person under the Firearms Act, and it remains in the public interest that Mr Fletcher remains unlicensed to hold any firearm.
Consideration
The Tribunal places considerable weight on the statement by Wheeler J in Tavelli that the discretion to decide whether or not a person is fit and proper, is to be exercised in the circumstances of each application in the light of the statutory framework.
There are a wide variety of offences against the Firearms Act which range in degree of seriousness. Parliament has opted to include within s 11(3)(a)(iii) of the Firearms Act, all of those offences. Significantly, s 11 of the Firearms Act itself underlines the importance of the requirements regarding the storage facilities for firearms, by the inclusion within s 11(7), as a ground for the refusal of an application for a licence, the refusal of a person to permit the police to inspect storage facilities. This emphasises that under the Firearms Act, the correct storage of firearms is a serious matter.
The Tribunal does not accept the contention by Mr Massey on behalf of Mr Fletcher that the situation in this matter is similar to that in Nickels. In Nickels the convictions for offences against the Firearms Act were due to Ms Nickels having left rifles and ammunition sitting inside a gun safe which was not locked and had the key sitting in the lock. Ms Nickels' evidence was that she had used one of the rifles the day before and that she had not left the home since returning the rifle to the safe and had she left the home she would have locked the gun safe and taken the keys with her.
Mr Fletcher was in possession of an unlicensed hand gun for a period of nine years. Even if he forgot about it when it was in the floor safe at his farm, at the time he discovered it in the course of moving from the farm to his house in East Fremantle, he should have either obtained a firearms licence for it and then stored it in accordance with the requirements of the Firearms Act, or disposed of it. He did neither of those things and that is a serious matter.
Mr Fletcher was in possession of the unlicensed magnum rifle, on which the serial number had been removed, for a period of approximately nine months. He ought to have notified the police as soon as he discovered the magnum rifle in the back of his ute, but he did not do so either then or subsequently. That also is a serious matter.
Those matters alone are sufficient to form the opinion that Mr Fletcher is not a fit and proper person for the purposes of s 11 of the Firearms Act, and makes the convictions in respect of those matters very serious for the purposes of the criteria set out in Tavelli.
Whilst the Tribunal accepts that Mr Fletcher has demonstrated genuine remorse and contrition regarding his actions which lead to the convictions for offences against the Firearms Act and has no doubt learned a painful lesson, the convictions were only recent and, in the circumstances, the mitigating facts set out in Tavelli do not outweigh the seriousness of the convictions at this point in time.
Conclusion
The Tribunal has concluded that the correct and preferable decision is that the application be dismissed and the decision of the Commissioner to refuse Mr Fletcher's application for a firearms licence be affirmed.
Orders
The application is dismissed.
The decision of the respondent on 16 August 2011 to refuse the application by the applicant for a firearms licence is affirmed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D AITKEN, MEMBER
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