HENDERSON and COMMISSIONER OF POLICE - [2009] WASAT 218

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: HENDERSON and COMMISSIONER OF POLICE [2009] WASAT 218

MEMBER: MR T CAREY (MEMBER)

HEARD: 9 SEPTEMBER 2009 AND 5 OCTOBER 2009

DELIVERED : 3 NOVEMBER 2009

FILE NO/S: CC 966 of 2009
CC 967 of 2009

BETWEEN: KEVIN LESLIE HENDERSON
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licences under Firearms Act 1973 (WA) - Licences revoked due to threats made in telephone conversation and physical fitness ground - Whether the retention of licences not in interests of public safety - Fit and proper person

Legislation:

Firearms Act 1973 (WA), s 11(1), s 11(1)(b), s 11(3)(b), s 20, s 20(1)(a)(iii)

Result:

Applications unsuccessful

Category: B

Representation:

Counsel:

Applicant: Mr WF Manning
Respondent: Sgt S Bagley (Representative)

Solicitors:

Applicant: Sceales & Co
Respondent: Commissioner of Police

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant's firearm licences permitting the possession of two rifles and three handguns were revoked primarily as a result of a telephone conversation in which the applicant was said to have made threats to the safety of himself and others. A second ground that he suffered from physical impairments, such that it was not suitable to continue to hold the licences, was also relied on by the respondent.
On its review of the revocation decisions, the Tribunal accepted the evidence from the other participant to the telephone conversation. It found that the vulnerability of the applicant's position, as he perceived it, with regard a suggestion that a bypass road might affect land which he had, at great personal cost, subdivided in preparation for sale, was not entirely wellfounded, and amounted to no more than the possibility of a delay of some four months before the final outcome was known. His loss of selfcontrol to the extent that he threatened to harm himself and others represented a failure to comply with his responsibilities as a firearm licensee of the most serious kind. It led the Tribunal to conclude that reissue of the licences was not desirable in the interests of public safety and that the applicant was presently not to be regarded as a fit and proper person to hold them.
The Tribunal was not satisfied on the evidence that, by reason of the applicant's physical condition, he was not a fit and proper person to hold the licences.
In the event, the Tribunal dismissed both applications for review and affirmed the decision to revoke the licence in each case.

Introduction

Mr Henderson (applicant) seeks review of the following separate decisions of a delegate of the Commissioner of Police (respondent):
•Decision made on 3 June 2009 to revoke the applicant's firearm licence No 8808939 to possess two Steyr rifle bolt repeaters (rifles decision); and
•Decision also made on 3 June 2009 to revoke the applicant's firearm licence No 1757313 to possess one Pardini self-loading handgun and two Smith & Wesson handgun revolvers (handguns decision).
The rifles decision is the subject of matter CC 966 of 2009. The handguns decision is the subject of matter CC 967 of 2009.
In both of the letters giving notice of the decisions, there is reference to the decision being based upon:
An incident occurred on Tuesday, 19 May 2009 where threats were made regarding the safety of another person as well as your own safety.
In the letter giving notice of the rifles decision, the incident referred to was said to form the basis of the delegate's satisfaction that it was not in the interests of public safety for the applicant to retain the firearms as provided by s 11(1)(b) of the Firearms Act 1973 (WA) (Firearms Act). In the letter giving notice of the handguns decision, the following differences compared with the other letter appear:
•The delegate's lack of satisfaction was in terms 'that you cannot establish a genuine need for the continued retention of the firearms as provided by sections 11(1)(b) and 11(3)(b) of the [Firearms] Act'.
•In addition to the incident of 19 May 2009, the decision was said to be based on:
… the severe health handicaps you have at present which would prevent you using firearms.
At the commencement of the hearing, Sgt Bagley, who appeared for the respondent, indicated that the letter was not correct to the extent that it made reference to the issue of genuine need. The correct reference should have been in terms that retention of the firearms was considered not desirable in the interests of public safety and that the applicant was considered not to be a fit and proper person to hold the licence. As the matters were argued in the Tribunal, the respondent also relies upon its assessment that the applicant is not a fit and proper person in support of the rifles decision.

Issues

The issues which the Tribunal must determine are whether the rifles decision and the handguns decision ought be affirmed on either or both of the following bases:
1.The incident on 19 May 2009 leading to the conclusion that continuation of the licences is not desirable in the interests of public safety and/or that the applicant is not a fit and proper person to hold them.
2.The applicant's physical issues are such that he is not fit and proper.
I will refer briefly to the statutory framework within which the decisions under review were made before referring to the evidence underlying the two bases just identified. Then, under 'Consideration', I make my findings and conclusion.

Relevant statutory scheme

The respondent is authorised to revoke firearm licences in the circumstances described in s 20 of the Firearms Act. Both decisions were made under s 20(1)(a)(iii), which provides:
20. Revocation etc.
(1)Where the Commissioner is satisfied -
(a)that a person who is the holder of a licence, permit or approval under this Act -
…
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto …
Section 11 of the Firearms Act 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 -
…
(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 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 -
…
(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
…

19 May 2009 incident

The respondent relies upon a statement of Aldijana Sinanovic, which statement is Exhibit 2. Ms Sinanovic is an officer employed within the Department of Premier and Cabinet. According to her written statement, confirmed in her oral evidence to the Tribunal, on 19 May 2009, when she was fulfilling the role of community access officer for the Department, she received a telephone call from the applicant. The applicant asked her to record his conversation, to which she responded that there were no devices to do so. She placed the applicant on hold and obtained confirmation that what she had told him was correct. After reconnecting the line to the applicant, she said that she normally wrote down what transpires in calls so that he could tell her what his call was about.
According to Ms Sinanovic, the applicant then informed her to the following effect:
a)The Premier and opposition leader know him very well, as do various government departments such as the police and Main Roads.
b)He has a subdivision and the project has been halted because he made his feelings known to the government about his daughter's death. His daughter died when the power went out, meaning that the lights she went through were down and a drunk driver sped through them and killed her. The police did nothing about the lights, even though they knew about them being down and Western Power did nothing to fix the problem either.
c)The West Australian government killed his daughter.
d)The police charged him with an offence he did not commit.
e)He was feeling suicidal.
f)His subdivision has been targeted; the development has been halted because he requested an inquest into his daughter's death.
g)Western Power and Main Roads are at fault. Main Roads is putting a highway through his subdivision, which is worth millions. He has lost millions.
h)He was prepared to take somebody's life.
i)Something must be done about it. The Premier's Office and the Premier need to do something. He has had enough.
j)He would take matters into his own hands if nothing was done.
k)He 'said something about shooting somebody'.
l)The subdivision in Bindoon is in trouble. The government is sticking it up him because he stuck it up somebody because of the death of his daughter. He wants the conditions lifted to be able to sell his land. They have to do something now.
According to Ms Sinanovic's statement, Mr Henderson became teary and increasingly agitated and asked to speak with the Premier. She told him that she had no authorisation to put him through to the Premier and that he would have to wait until 11 am (the call having commenced at about 10.35 am) when her supervisor got out of a meeting. The applicant asked whether she could interrupt the Premier, to which she replied that he would just have to wait. The applicant responded:
I want a call back immediately! If I don't get a call back in 10 minutes I'll take matters into my own hands! I'll even call Channel 7, 9 and 10. I want the Premier to do something NOW.
Ms Sinanovic then said:
I can get someone to (call) you back in 20 minutes, not 10 - if you could be patient, we can possibly help you by pointing you in the right direction.
The applicant responded with a claim that the West Australian Government was responsible for his daughter's death.
At the conclusion of the call, Ms Sinanovic immediately contacted her supervisor, Ms Stringer, to bring her telephone discussion with the applicant to her attention. Ms Stringer gave evidence confirming that she was interrupted by Ms Sinanovic in the course of a meeting in which she was involved.
Subsequent to the telephone call by the applicant to the Department of Premier and Cabinet, a search warrant under the Firearms Act was executed at the applicant's residence and his firearms were seized.
The applicant's evidence regarding the phone call appears in his written statement, which is part of Exhibit 8, at [41] [49]. I reproduce those paragraphs here:
41.I have read the Statement by Aldijana Sinanavic [sic] annexed to the Respondent's Statement of Issues, Facts and Contentions.
42.In general, I agree with her account of the telephone conversation which took place on the morning of 19 May 2009.
43.However, I do not recall saying that I was feeling suicidal or that I was prepared to take somebody's life.
44.I also do not recall saying anything to the effect that I would be shooting somebody.
45.I recall saying that I said that I would take the matters into my own hands. By this I meant that I would not let the matter rest. I intended to make representations to various people and also considered contacting the local television stations to get some publicity for my case.
46.I was in a very emotional state during the course of that telephone conversation. I was shocked and angry at the action of the Main Roads Department, which would have the effect of preventing me from proceeding with the sale of my subdivision for four months or so.
47.I was most distressed and believe I did lose selfcontrol. I cannot say that I did not make statements about harming myself or others, but I do not recall making those statements.
48.If I did make those statements, it would not have been my intention to harm anyone.
49.My only thoughts were that everything I had was gone, and that I and my family would be financially ruined by this action.
Earlier in his statement, the applicant touched upon the death of his daughter in 2003, and referred in some detail to his attempts to develop land he had acquired near Bindoon. As the applicant described it, the Bindoon development had virtually been brought to the marketing stage and involved his personal investment of between $5 million and $6 million. However, contrary to an indication the applicant had previously received from the local government authority that the developed land would not be affected by any proposal for a road bypass of Bindoon, on the morning of 19 May 2009 he received a call from Main Roads advising him that that Department was considering an option for a bypass affecting his land. After being faxed a plan showing two options, one of which traversed his subdivision, the applicant telephoned Main Roads to speak with the officer in charge of the consultation process. That officer explained that the other option was the Department's preferred option, but that the second option affecting his subdivision was included as part of the public consultation process. That process was to be completed in October. The applicant telephoned the Shire and was advised by a councillor that he believed the other option would be adopted, although it would take time for the process to be completed. It was then that the applicant telephoned the Department of Premier and Cabinet. According to his statement, the applicant had had previous experience in dealing directly with the Premier over his daughter's death, and that he was assured at that time that he could seek assistance from the Premier directly if he needed any help on any matter.
The applicant produced, for the purposes of the hearing, a letter from Main Roads dated 25 June 2009 reporting on the outcome of the community consultation, in terms that:
…
The comparative assessment of the two corridor alignment options and the community feedback clearly indicates that Option 1 … is the preferred option. …
The Shire of Chittering and the Study Steering Committee have subsequently endorsed corridor Option 1 as the preferred option. Therefore, Option 2 will not be considered further.
…
The references to 'Option 2' in the letter are to the option affecting the applicant's subdivision.

Applicant's physical condition

The respondent relies upon the apparent difficulty the applicant has with certain movements to support its case of his failure to meet standards of physical fitness (Firearms Act, s 11(3)(b)). According to the respondent's statements of issues, facts and contentions, during the police investigation (a reference to the execution of the warrant on 19 May 2009) 'the applicant was observed by police to experience tremors, shakes and suffering with poor fine motor skills'. Further, the applicant required assistance from his wife with some of his physical movements. Although the applicant's physical problems were expressed in the respondent's statement of issues, facts and contentions as leading to the result that he would not be capable of carrying out required club shoots to remain a club member, this submission appears linked to the statement in the letter notifying the applicant of the handguns decision that no genuine need to retain the handguns was established. However, such problems as he has can be related directly to the issue of fit and proper by reason of s 11(3)(b) of the Firearms Act.
Footage of execution of the warrant appears on a DVD, tendered as Exhibit 7, which was played at the hearing. It showed the applicant engaged in such activities as removing his firearms from a safe, speaking on the telephone and manoeuvring himself in order to sign a document placed before him. He used only his left hand to grab things and his right hand was continually shaking. He required his wife's assistance to move a chair away from a table to enable him to sit down before signing the document. The statements of the police officers who attended referred to various aspects of his physical abilities. The claim is made by two of the officers that the applicant said that he had recently suffered a stroke, although the playing of the DVD at the hearing, and my subsequent viewing of it, did not reveal such a statement.
The applicant, in his written statement, accepts that he suffers from a condition manifesting itself in tremors in his right hand and lower arm. He says that he has seen a number of doctors about the condition but its cause has not been conclusively identified. He attributes them to stress and notes that they commenced when he was dealing with the inquest into his daughter's death. He says the tremors were slight at first, but since last year have become more pronounced. He says, however, that the tremors are not constant and that he was and remains able to shoot at targets at the 'Pistol Club', which he says helps him to relax and deal with stress. He says that he uses both hands when shooting with pistols and he can place the gun on a pistol rest to steady it if necessary.
The applicant tendered (Exhibit 11) correspondence to and from the Midland Sporting Firearms Association, of which the applicant is a member, confirming that the Association provides facilities for members to shoot using a pistol rest in a sitting position. According to the Association, many members take advantage of this, particularly those with injuries and arthritis. There is a competition division specifically for this kind of shooting. Members using it can enjoy competitive shooting, with greater comfort but without compromising safety or control.

Consideration

It is clear that a person's previous offending or criminal behaviour may 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. Typically, the previous behaviour has manifested itself in either a conviction or a charge for an offence which may result in a conviction. However, there is no reason to limit the range of behaviour to which regard might be had in this way. It is an enquiry into whether or not the person is 'fit and proper' for the purposes of the licensing scheme in question, which is the matter for consideration. Additionally, in this case, the grounds for the decisions include that to permit the applicant to retain his licences would not be desirable in the interests of pubic safety.
In this case, the two matters which have been relied upon as founding the revocation decisions, if made out, are in my view clearly of a nature which would be sufficient to sustain the decisions.
Dealing first with the incident on 19 May 2009, I make the following introductory comments. First, the conduct occurred a little over five months ago. There is therefore no question that it is now too dated to give rise to any current concern. Second, the threats made, if they were made, relate directly to the firearm licences under consideration. They contemplated misuse of those licences of the most serious type. Third, the applicant knew, indeed demanded, that a record of his conversation with Ms Sinanovic be kept, giving the conversation even greater significance.
Although (as one would have expected) the applicant disavowed ever having any intention to harm anyone, whether by use of his firearms or otherwise, his evidence to the Tribunal in response to that of Ms Sinanovic that:
•he was feeling suicidal;
•he was prepared to take somebody's life;
•he would take matters into his own hands if nothing was done; and
•he had said something about shooting somebody,
was uncomfortably ambivalent. Although he generally agreed with her account of the telephone conversation, he says that he does 'not recall saying' such things. Further, he could not say that he did not make statements about harming himself and others; he said he was most distressed and believed that he did lose selfcontrol during the conversation.

I am satisfied that Ms Sinanovic's account of the telephone conversation is in all respects factual. In one sense, it is reassuring, in the context of considering the operation of the firearm regulation regime in this State, that the details of the conversation, going to the matters which it did, left a strong impression on her which was clearly the case.
I accept that the applicant regarded himself as being in an extremely vulnerable position. That vulnerability was not entirely wellfounded however, the officers from Main Roads and the local government apparently attempting to ensure him that the option of building the road through his subdivision was merely being promoted for the purpose of public consultation, with very little, if any, prospect of it becoming reality. Indeed, the applicant attributes his shock and anger (at [46] of the applicant's statement) to the effect that the action of Main Roads would have of preventing him from proceeding with the sale of his subdivision for some four months.
I also accept that the advice from Main Roads in its letter of 25 June 2009 appears to totally discard the possibility of the road affecting the subdivision. That emergency appears to have been averted. The question remains however, whether this is sufficient to quell the serious concerns any reasonable person would harbour concerning the continuation of the applicant's licences arising from the events of 19 May 2009.
The right to possess and use firearms is a privilege which is strictly controlled in this State. With the privilege comes responsibility. The extremely serious threats, which I am satisfied the applicant made in a telephone conversation to the assistant of the Premier, indicate a failure of the applicant in adhering to his responsibilities of the most serious kind. It is difficult to imagine a more serious statement from a firearm licensee to the effect that he was considering harming himself or someone else, particularly where such a statement is accompanied by a reference to 'shooting'. In my view, the circumstances in which it is said that the applicant lost his selfcontrol, to a point where he indulged in making the statements he did, give rise to an ongoing concern about his suitability as the holder of a firearm licence. That concern is not erased by an assertion that he never intended to carry out his threats. It is, in my view, necessary for a further period of exemplary behaviour to elapse before the confidence lost by his own conduct might be restored.
For these reasons, my conclusion is that both the rifles decision and the handguns decision remain the correct and preferable decision and should be affirmed on both the grounds relied upon by the respondent.
I turn to the question of the applicant's physical condition. It is fair to describe the evidence on this issue as less than satisfactory. It would have been possible for the police, through the directions hearing process of the Tribunal, to secure some proper medical evidence of any current condition of the applicant impacting upon his use of firearms, but no attempt in that regard was made. Rather, the respondent relies upon observations of police officers on the occasion of the execution of the warrant, an alleged admission by the applicant of having suffered a stroke recently, and what can be seen on the DVD as to the applicant's movement.
The applicant himself relates his tremors, which are clearly apparent on the DVD, to stress. Equally clearly, the execution of the warrant was a stressful time for him. He makes the case that when he uses his firearms, his stress levels disappear. Further to that, he has the option of a pistol rest, which is a device which is used by many other members of the rifle club who suffer from similarly serious afflictions.
Although no doubt a matter to be kept under review, in my view, the respondent has failed to establish the case against the applicant that he is not a fit and proper person to hold a firearm licence by reason that he fails to meet the standard of physical fitness required of a holder of a licence.

Conclusion

By reason of my conclusion arising from the incident occurring on 19 May 2009, in my view, the correct and preferable decision is that both revocation decisions must stand on the basis that the reissue of the licences would not be desirable in the interests of public safety and the applicant is not presently a fit and proper person to hold them.

Orders

The Tribunal orders that:
1.The applications for review are dismissed.
2.The decision of the respondent's delegate to revoke the applicant's firearm licence No 8808939 is affirmed.
3.The decision of the respondent's delegate to revoke the applicant's firearm licence No 1757313 is affirmed.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER