Fryer v The Registrar of Firearms

[2015] SADC 103

District Court of South Australia

(District Court Administrative and Disciplinary Division)

FRYER v THE REGISTRAR OF FIREARMS

[2015] SADC 103

Judgment of His Honour Judge Chivell (ex tempore)

26 June 2015

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS

Appeal against decision of Registrar of Firearms cancelling the appellant’s firearms licence following his appearance before a magistrate on drugs charges. Reasons for Registrar’s decision considered in light of information relied upon, information not taken into account and additional information provided.

Appeal allowed.

Firearms Act 1977 (SA) s 5(11), s 20(1), s 26C; District Court Act 1991 (SA) s 42E, referred to.

FRYER v THE REGISTRAR OF FIREARMS
[2015] SADC 103

1. I should record my gratitude to both counsel for the thoroughness and helpfulness of their submissions in this matter.  They both presented material which has been well researched and very helpful to me with the preparation of these brief remarks.

2. On 15 August 2014, the Registrar of Firearms, through his delegate Detective Inspector Michael Fisher, cancelled Mr Fryer’s firearms licence. He had the power to do that under s 20(1) of the Firearms Act[1] because he was satisfied that Mr Fryer was not a fit and proper person to hold a licence. That is evidenced in the letter to Mr Fryer dated 15 August 2014, at page 3.  Mr Fryer has appealed against that decision.

   [1]    Firearms Act 1977  (SA)

3. The Registrar’s decision was based on Mr Fryer’s commission of the offences of cultivating more than a prescribed number of cannabis plants and possessing prescribed equipment. These are both prescribed offences. Section 5(11) of the Firearms Act provides that a person who commits such an offence may be taken not to be a fit and proper person to hold a firearms licence. I emphasise the use of the word ‘may’. The commission of a prescribed offence does not make a conclusion that the offender is not a fit and proper person inevitable.

4. The offences were committed on 7 March 2014. Mr Fryer was hydroponically cultivating eight large and eight small cannabis plants at his home in Lobethal. There were also a number of seedlings. The cultivation set-up was extensive. A large amount of equipment was in use. There was other equipment which had obviously been previously used, and the cultivation was in a purpose-built room on the premises. The offences were obviously premeditated, organised and substantial, and therefore serious.

5. To that extent, I accept the submissions made by Ms Stirling, counsel for the respondent, about the nature of the offending. Indeed, Mr Anders, counsel for the appellant, did not argue to the contrary.

6. Mr Fryer was very frank with the police. He admitted his guilt to them and pleaded guilty at the earliest opportunity. He told them that he grew the cannabis for pain relief.

7. In the Mount Barker Magistrates Court on 13 August 2014, Magistrate Dixon regarded the offences as serious. His Honour referred to the scale of the cultivation. He referred to the fact that Mr Fryer no longer used cannabis, that he had no relevant prior convictions, and that he lived on a rural property and had a genuine need for a firearm.

8. Mr Dixon was initially sceptical, but was persuaded that a conviction for these offences would put at risk Mr Fryer’s firearms licence. He noted Mr Fryer’s genuine need for a firearm on a rural property. On that basis, he refrained from recording a conviction and imposed fines totalling $1400. There were other costs and levies, of course, and the cannabis and equipment were obviously forfeited to the Crown.

9. The learned Magistrate’s concern for Mr Fryer’s firearms licence was well justified. Two days later the Registrar cancelled the licence, apparently regardless of the fact that no convictions were recorded. Certainly no mention of that was made in his letter to Mr Fryer.

10. I accept that the Registrar was not bound by the Magistrate’s sentence, because they were performing entirely different functions. Ms Stirling correctly points out that the Registrar’s function is administrative. However, both the Magistrate and the Registrar had, as their principal concern, the protection of the public. That is a basic principle of sentencing. So to that extent, at least, there were commonalities in the two processes.

11. At Mr Fryer’s request, through his solicitor, the matter was referred to the Firearms Review Committee. On 12 November 2014, the Firearms Review Committee affirmed the Registrar’s decision. Helpfully, the Firearms Review Committee advised Mr Fryer:

    however the Committee is of a view that there is little time since Mr Fryer was before the court and it is felt that he should be monitored for Cannabis use with toxicology tests over a period of 12 months before applying for a new firearms licence.

12. Mr Fryer has appealed to this court pursuant to s 26C of the Firearms Act. The appeal is governed by s 42E of the District Court Act 1991. There is a discretion to receive further evidence. I must give due weight to the decision appealed against and the reasons for it, and not depart from the decision except for cogent reasons. That is s 42E(3).

13. The Registrar gave the following reasons for his decision:

    ·that it was of concern that Mr Fryer was growing cannabis;

    ·growing cannabis is a prescribed offence;

    ·there is a proven connection between drug offending and firearms offending;

    ·the risk to public safety is significantly increased when both types of offending are committed concurrently;

    ·he must consider the public interest, and in particular the protection of the public.

14. It is conceded by the respondent that the fourth point was erroneous. Although true in principle, there was no evidence that both types of offending were committed in this case. So that particular observation of the Registrar was irrelevant to his decision.

15. It is noted that, as I said, the Registrar’s decision was made on 15 August 2014, only two days after Mr Fryer’s appearance before Magistrate Dixon.

16. The Registrar acknowledged that Mr Fryer had produced medical evidence showing that he may no longer be using cannabis. The Magistrate had accepted that he was no longer using cannabis.

17. Mr Fryer had produced a letter from his general practitioner, a urine drug screen result dated 22 May 2014 and a prescription for legitimate pain medication. The general practitioner, Dr Allen, described Mr Fryer as an ‘honest and upstanding character’, based on his 15 years experience in treating him.

18. Mr Fryer has had a long history of the possession and use of firearms without any suggestion of misuse. This was not taken into account, on the face of the documents produced by the Registrar. Nor was Mr Fryer’s genuine need for a firearm, a matter regarded as significant by the Magistrate.

19. I accept that the need for a firearm is a different issue from the question of fitness and propriety. However, the importance of the firearm to the appellant is a relevant fact, it seems to me, because it touches on the degree of responsibility with which the appellant has approached the issue of possession and use of firearms over the years.

20. It is well accepted and obvious that the principal policy of the Act is the protection of the public. Although it is not alleged that Mr Fryer was engaged in commercial drug activity, it is well known that growing cannabis attracts home invasions and that firearms are sometimes deployed for protection. Such an incident was mentioned in the letter of the Firearms Review Committee to the appellant dated 14 November 2014.

21. But such considerations are generic to drug offending. By vesting a discretion in the Registrar, parliament clearly did not intend that every drug offence necessitates cancellation of a firearms licence. There was no evidence that public safety concerns were of particular or unusual significance in this case. There was no specific evidence that Mr Fryer has operated a firearm while intoxicated by cannabis, another aspect of public safety raised by Ms Stirling.

22. It is true that the appellant acknowledges that he was a very heavy user of cannabis. He told the police that he smoked cannabis all day, every day. The evidence of Dr Jason White, the very well-respected toxicologist, is material to that issue as to the effect of cannabis impairment, but the bottom line seems to me to be that Mr Fryer’s use of cannabis has never led to any action by the police or complaint by any other person in regard to his use and/or storage of the very extensive collection of firearms that he has had over the years.

23. It is now almost 16 months since the offences were committed. There is evidence that Mr Fryer has had a series of toxicology screens in the intervening period showing that, at least for the period of three months prior to each of those screens, he has not reverted to cannabis use. On the evidence of the doctor, he regularly donates blood plasma to the Red Cross. My understanding is that that would not be acceptable if he had resumed cannabis use.

24. The appellant continues using his prescribed medication for pain relief rather than cannabis. That is for a period of almost 16 months; as the Firearm Review Committee observed, a period of more than 12 months. It seems to me that is ample demonstration that Mr Fryer is no longer addicted to cannabis.

25. There was in my view little justification for the view that Mr Fryer presented a risk to public safety in August 2014. The Registrar obviously thought to the contrary, but that said, it seems to me it was based upon a misconception that he had committed both drug and firearm offences when he was considering the exercise of his discretion. Certainly, Mr Dixon, the Magistrate, did not think that Mr Fryer presented a risk to public safety, otherwise it seems to me he would not have exercised his discretion in the way he did in order to assist Mr Fryer to retain his firearms licence.

26. And finally, the firearms review panel clearly thought that a period of 12 months or so should allay any concerns that the community might have about Mr Fryer having a firearms licence.

27. So for all those reasons, in my view there are cogent reasons to depart from the Registrar’s decision to cancel Mr Fryer’s firearms licence. The reasons include the taking into account of inaccurate information, the failure to take into account relevant information, and the additional information now provided by the appellant’s general practitioner. I have outlined each of those categories of evidence in these reasons.

28. For those reasons, I allow the appeal. The decision of the Registrar is rescinded. I order that Mr Fryer’s firearm licence No. 24933Z be reinstated forthwith.

29. I will hear counsel as to any further matters.