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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : HULME and COMMISSIONER OF POLICE [2012] WASAT 126 MEMBER : MS NATASHA OWEN-CONWAY (MEMBER) HEARD : 27 FEBRUARY 2012 DELIVERED : 20 JUNE 2012 FILE NO/S : CC 2084 of 2011 BETWEEN : ROBERT HULME Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords: Revocation of firearms licence Application to review Application to reinstate firearms licence Guilty plea entered to charge of assault occasioning bodily harm Conviction of offence involving violence Whether applicant not a fit and proper person to hold a firearms licence Legislation: Criminal Code Act Compilation Act 1913 (WA), s 317(1)
Firearms Act 1973 (WA), s 4, s 5(1), s 5(2), s 5A(3), s 11(1), s 11(1)(a), s 11(1)(c), s 11(3)(a)(ii), s 11(5), s 20, s 20(1), s 20(1)(a)(iii), s 22, s 22(2), s 29(2)
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Firearms Amendment Act 1996 (WA)
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 13, s 17, s 27 Result: Application dismissed
Category: B
Representation: Counsel:
Applicant : Selfrepresented
Respondent : Senior Constable Bagley (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Knight v Commissioner of Police [2011] WASC 93
McGee v Chitty [2011] WASCA 125
Minitti v Commisioner of Police [2010] WASCA 198
Minniti and Commissioner of Police [2009] WASAT 223
Penketh v Commissioner of Police [2010] WASC 254
Turner v Keegan [2001] WASCA 9
Wignall and Commissioner of Police [2006] WASAT 206
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Hulme was convicted of one count of assault occasioning bodily harm on 3 October 2011, following his entry of a guilty plea to the Presiding Magistrate on that day. The offence to which Mr Hulme pleaded guilty involved acts of violence by Mr Hulme. At that time, Mr Hulme owned a number of firearms and held them pursuant to a valid firearms licence. The Commissioner of Police revoked Mr Hulme's firearms licence on 14 November 2011 pursuant to s 20(1) of the Firearms Act 1973 (WA), upon the basis that Mr Hulme was not a fit and proper person to hold such a licence. Mr Hulme sought a review of the Commissioner's decision by the State Administrative Tribunal pursuant to s 22 of the Firearms Act 1973 (WA) on 23 December 2011 and for an order to reinstate his firearms licence. 2 Mr Hulme gave evidence before the Tribunal to explain his involvement in the incident that gave rise to the offence. The evidence adduced by Mr Hulme was not consistent with the statement of material facts which formed the basis of the charge laid and in respect of which Mr Hulme pleaded guilty. Mr Hulme's evidence before the Tribunal was directed towards substantially ameliorating his involvement in the offence. The evidence was rejected by the Tribunal as implausible in all of the circumstances. The Tribunal concluded that Mr Hulme's conviction of an offence involving violence, his role in the offensive conduct and his decision to lead evidence to establish an implausibly favourable background to the offence demonstrated that the applicant is not a fit and proper person to hold a firearms licence. The Tribunal held this view notwithstanding the many favourable written statements made to the Tribunal about Mr Hulme's character. 3 The Tribunal concluded that, whilst Mr Hulme's offensive conduct may have been entirely out of his usual character, the seriousness of the offence and the applicant's involvement in the commission of the offence reflected adversely upon Mr Hulme's character sufficiently for the Tribunal to conclude that he is not a fit and proper person to hold a firearms licence, and to justify the revocation of his licence pursuant to s 20(1) of the Fireams Act 1973 (WA). 4 Mr Hulme's application to set aside the Commissioner's decision to revoke his firearms licence and to reinstate the same was dismissed. (Page 4)
The application and proceedings in the Tribunal 5 On 23 December 2011, Mr Hulme (applicant) filed an application pursuant to s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) in the State Administrative Tribunal (Tribunal), in which he sought a review of a decision made by the Commissioner of Police (respondent), made on 14 November 2011, whereby the respondent revoked the applicant's firearms licence. The applicant sought an order for the reinstatement of his firearms licence. The grounds for the application are expressed as follows. In February 2011, I was involved in a situation for which resulted in me being charged with Assault Occasioning Bodily Harm. A physical altercation occurred between a work colleague and another man[,] and I became involved when I tried to separate them. The situation got out of hand and I truly regret my actions while in this stressful situation. They were out of character[.] [H]owever I pleaded guilty to the offense as I had been involved. Apart from a D.U.I. back in 1993, which was dealt with as a spent conviction, I did not have a criminal record until now. For this offense, the Magistrate noted my good character, my remorse and my character references and issued a fine only. This offense did not involve firearms or threats of firearms. I have responsibly held a Firearms License and firearms since 1997. My firearms are kept locked in an approved cabinet and my License is paid every year. I have four young children under the age of 13, so I know how important it is to responsibly act with firearms in the house. I use my firearm twice a year, when I do some shooting at a friend[']s farm. I am enclosing reference[s] from a variety of people who know me well, which I submitted to the magistrate, during my case. I hope this will give you a better understanding of my true character and not what has been portrayed[.] I believe I am of good character to hold a Firearm[s] License and Firearms. I made one error of judgment from which I have learned a valuable lesson and one which I know will never be repeated. 6 The applicant attached the following documents to his application: • Copy of letter of revocation of the applicant's firearms licence issued by the respondent, dated 14 November 2011. • Copy of Western Australian Police interim property receipt, dated 8 December 2011. • Character reference letter from City of Bunbury councillor, Judy Jones, dated 12 October 2011. (Page 5)
• Character reference letter from Ms Josephine Hulme, dated 30 September 2011. • Character reference letter from Mr Geoffrey Leder, dated 15 December 2011. • Character reference letter from Mr Graham J Liebeck, Director Bunbury Taxis, dated 10 March 2011. • Character reference letter from Mr Matthew James Gare, addressed to the Presiding Magistrate Bunbury Courthouse, dated 13 April 2011. • Character reference letter from Mr Grant A Mitchell, First Class Prison Officer, Bunbury Regional Prison, dated 7 March 2011. • Character reference letter from Ms Christine Matthews, dated 10 March 2011. • Character reference letter from Ms Joanne Foster, Teacher/Librarian, to the Presiding Magistrate, dated 12 May 2011. • Handwritten character reference letter from Mr Tim Figtins, undated. • Handwritten character reference letter from Mr Andrew Cooke, dated 10 March 2011. • Character reference letter from Ms Rachel Jefferies, dated 13 October 2011. • Handwritten character reference letter from Mr Doug Slater, past Director of Bunbury Taxis, dated 11 March 2011. • Character reference letter from Mr Mark Shallis, dated 2 May 2011. • Character reference letter from Mr Edwin Chial, dated 1 November 2010. • Character reference letter from Mr Jon Weatherburn, dated 15 May 2011. (Page 6)
• Handwritten character reference letter from Ms Westerduin, undated. • Character reference letter from Ms Melanie Laud, dated 7 March 2011. • Character reference letter from Ms Marion Swanepoel, dated 7 March 2011. • Character reference letter from Mr Phil Brown, Bridgestone Tyres Bunbury, dated 9 March 2011. • Character reference letter from Dr A MacGregor, dated 8 March 2011. • Character reference letter from Mr Jeffrey Lewis, dated 9 October 2011. • Character reference letter from Ms Wendy M Clarke, dated 19 October 2011. 7 On 12 January 2012, the matter was listed for an initial directions hearing. The applicant appeared in person and the respondent was represented by Senior Constable Bagley. On that day, the Tribunal made directions to facilitate the filing and serving of documentation and material upon which the parties intended to rely at the hearing. On 3 February 2012, the respondent filed his statement of issues, facts and contentions together with a bundle of documents upon which he intended to rely. On 20 February 2012, the applicant filed a letter, dated 13 February 2012, with attachments being: • a letter from the Director of Public Prosecutions to the applicant, dated 7 April 2012; and • the applicant's reply to the respondent's statement of issues, facts and contentions upon which the applicant intended to rely as his statement of issues, facts and contentions, together with additional documents upon which he intended to rely. 8 The matter was listed for hearing on 27 February 2012. 9 On 27 February 2012, the final hearing of the evidence and submissions in support and in opposition to the application was undertaken. On this occasion, the applicant gave oral evidence and was (Page 7)
crossexamined. In addition, the Tribunal asked certain questions of the applicant and the respondent was granted the opportunity to ask any questions arising out of the Tribunal's questions. 10 The Tribunal's decision was reserved. The Tribunal made a final order on 9 March 2012, whereby the application was dismissed. The decision was made upon the basis that the reasons were to be subsequently published. These are those reasons. 11 The parties proceeded upon the basis that the application for review was made within time. The Tribunal notes that the applicant asserts that the decision to revoke his firearms licence was made on '8 December 2011', although he has attached the notice of revocation which is dated 14 November 2011. The respondent did not raise the issue and the Tribunal concludes that the timeliness of the application was not a contested issue. Although the application for review was filed in the Tribunal more than 28 days after the date of the decision to revoke the applicant's firearms licence, the Tribunal extends the time for the making of the application for review in this matter.
The issues 12 The questions for determination and the Tribunal's determination of those issues are: 1) Whether the applicant was convicted of an offence involving violence prior to 14 November 2011, being the date of the revocation of the licence? The answer to this question is: yes. 2) If so, whether the applicant's conviction for an offence involving violence occurred less than five years prior to the date of the revocation of the licence? The answer to this question is: yes. 3) Whether, in all of the circumstances and based on the evidence and information before the Tribunal at the hearing, the Tribunal, standing in the shoes of the respondent, should form the opinion that the applicant is not a fit and proper person to hold a firearms licence? The answer to this question is: yes. 4) Whether, in the event that the Tribunal were to form the opinion that the applicant is not a fit and proper person to (Page 8)
hold a firearms licence, it should exercise the discretion conferred upon the respondent, standing in the shoes of the respondent, to revoke the applicant's firearm licence? The answer to this question is: yes.
The statutory framework 13 The express purpose of the Firearms Act is stated to be: [t]o make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition … and for incidental and other purposes. 14 The history and the purpose of the amendments made to the Firearms Act by the Firearms Amendment Act 1996 (WA) are referred to in Turner v Keegan [2001] WASCA 9 and McGee v Chitty [2011] WASCA 125 (McGee). The broad purpose of the Firearms Act, as amended, is to protect the public. One of the means adopted by the legislature to protect the public from the misuse of firearms is control over the ownership and use of firearms by a system of licences, permits and approvals (McGee per Mazza JA at [31]). The discretionary power to issue a firearms licence is conferred upon the respondent, which power the respondent may delegate to authorised officers. 15 Section 5(1) of the Firearms Act vests responsibility for the administration of that Act in the relevant Minister, but s 5(2) of the Firearms Act provides that the administration 'shall be carried out by the Commissioner'. The 'Commissioner' is defined by s 4 of the Firearms Act to be the respondent. Section 5A(3) of the Firearms Act provides that the respondent may delegate any power that he has under the Firearms Act, other than those of his functions delegated to him by the regulations made pursuant to the Firearms Act, or the power that the respondent has to delegate as conferred by s 5A(3) of the Firearms Act. The permitted delegation must be to a member of the police force, and must be effected by a signed instrument of delegation. 16 Although the signed instrument of delegation was not before the Tribunal, the Tribunal refers to s 29(2) of the Firearms Act which provides: In any proceedings under this Act a document or writing purporting to be, or to be a copy of or extract from, any licence, permit, approval or other document issued under this Act, or provided or produced to the (Page 9)
Commissioner or a member of the Police Force in connection with any application or request for information under this Act (a) is evidence which is admissible, and is to be accepted as to the matter contained in the document in the absence of proof to the contrary; and (b) if it is proved to be an examined copy or extract, purporting to be signed and certified as such by or on behalf of the Commissioner, is for all purposes sufficient evidence of the matter contained in the original without producing the original. 17 Where a member of the police force issues a letter of revocation of a firearms licence, in which that member asserts that he is a delegate of the respondent for the purposes of issuing the letter of revocation, such statement and letter is, in these proceedings, admissible evidence of that fact of delegation and is to be accepted as that fact in the absence of evidence to the contrary. On 14 November 2011, Inspector V Hussey of the police force of Western Australian wrote to the applicant notifying him that he was the respondent's delegate and that his approval to possess the firearms listed was revoked pursuant to s 20 of the Firearms Act. 18 Section 20 provides: (1) Where the Commissioner is satisfied (a) that a person who is the holder of a licence … … (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 … revoke any licence, permit or approval relating thereto … … (3) The Commissioner shall give notice in writing to the holder, where any licence, permit or approval issued or granted under this Act is revoked or varied, of the reasons for the decision. 19 Section 11(1) of the Firearms Act provides that the respondent: (Page 10)
20 Section 11(3)(a)(ii) of the Firearms Act provides that if a person, within five years prior to their application for a firearms licence, has been convicted of an offence involving violence, then that fact alone is 'sufficient grounds for forming an opinion that a person is not a fit and proper person to hold a firearms licence' for the purpose of s 11(1)(c) of the Firearms Act. Read together, s 11(1)(c), s 11(3)(a)(ii) and s 20(1)(a)(iii) of the Firearms Act empower the respondent to revoke a firearms licence if, at the time of considering the revocation, the licensee had, in the previous five years, been convicted of an offence involving violence. The respondent is not obliged to form an opinion that a person is not a fit and proper person to hold a firearms licence simply because the licensee has a relevant conviction. Section 11(5) of the Firearms Act provides that the respondent 'may' form the opinion that the licensee is a fit and proper person to hold the firearms licence, notwithstanding the fact of a relevant conviction. 21 Further, if the respondent were to form the opinion, in any matter, that the licensee was not a fit and proper person to hold a firearms licence, s 20(1)(a)(iii) of the Firearms Act does not compel the respondent to revoke the firearms licence held by that person. Section 20(1)(a)(iii) confers a discretionary power on the respondent to revoke the firearms licence. 22 The question is: what factors are relevant to the assessment of whether a person is not a fit and proper person to hold a firearms licence? In Tavelli v Johnson (Unreported; SCt of WA Library No 960693; 25 November 1996) (Tavelli), Wheeler J made observations concerning the relevance of prior convictions in deciding whether a person was or was not 'fit and proper' to be licensed as a security agent pursuant to the Security and Related Activities (Control) Act1996 (WA). Her Honour's observations were applied by this Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 and in Minniti and Commissioner of Police [2009] WASAT 223 (Minniti). The Tribunal's application in Minniti of her Honour's observations in Tavelli was held by the Court of Appeal to not have amounted to an error of law and implicitly affirmed as being applicable guidelines by which the Tribunal is to assess whether or not a person is fit and proper in the context of the exercise of a statutory (Page 11)
discretion (Minitti v Commisioner of Police [2010] WASCA 198) (Minitti). Relevantly in this application, those principles may be summarised as follows: 1) There can be no inflexible rules and no policy that restricts the exercise of the statutory discretion. 2) The statutory discretion is to be exercised 'anew in the circumstances of each application in light of the statutory framework' (Minitti). 3) A conviction, if serious by its nature (and notwithstanding that the conviction does not relate to the vocation or the licence in issue, or does not involve dishonesty where honesty is critical to the vocation or the use of the licence in issue), is relevant to the issue of whether the person is 'fit and proper'. 4) The conviction, if serious in the sense that it represents 'a course of disregard for the law, as to reflect particularly adversely on the character of the person who committed the offence', is relevant to the issue of whether the person is 'fit and proper' (Minitti per Pullin JA at [13]).
The Tribunal's jurisdiction 23 In making the application to the Tribunal, the applicant has exercised his statutory right to seek a review of the respondent's decision to revoke his firearms licence (s 22 of the Firearms Act). The application falls within the Tribunal's review jurisdiction (s 13 and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of 'hearing de novo' for the purpose of producing the correct and preferable decision at the time of the decision on review (s 27 of the SAT Act).
The facts 24 The applicant is a taxi plate owner and is a taxi driver (suspended at the time of the hearing). The applicant operates his taxi business as part of the Bunbury Taxi Co-Operative. The applicant also held a firearms licence no 3634562 in respect of two rifles and a shotgun. 25 The applicant gave evidence that on or about 12 February 2011, the applicant's colleague was assaulted during the course of the colleague (Page 12)
undertaking work as a taxi driver in the Bunbury area. The applicant gave sworn evidence before the Tribunal that he attended the injured colleague in response to a call for help by him. When he attended, he stated that he chased one of his colleague's offenders, the offender was unconscious when he caught up with him, he was able to take a good look at the offender's face and that he stood over the offender until the police arrived. The applicant was on duty on the night of 14 February 2011 at approximately 8.30 pm, when he testified that he heard on the taxi radio that the base station operator had received a call from a telephone number requesting a fare, which number was connected with the offender involved in the incident on 12 February 2011. There was no independent evidence of the incident on 12 February 2011, or that the caller on 14 February 2011 or the telephone number was connected with any earlier incident. 26 The applicant testified that another friend and taxi driver colleague, Mr Collins, telephoned him to inform him that Mr Collins had observed the offender from the incident on 12 February 2011 walking along the street just after the telephone call for a taxi had been made on 14 February 2011, and that the Bunbury Taxi Co-Operative base station operator had informed the caller that the Co-Operative would not accept a fare from him on that occasion or in future, on account of the incident on 12 February 2011. The applicant also testified that Mr Collins said to the applicant during that telephone call that Mr Collins recognised the offender from the incident on 12 February 2011 as the caller. 27 The applicant gave evidence that Mr Collins then made the suggestion to the applicant that he and the applicant, together, meet immediately with the caller (whom, at this stage, they both believed was the offender involved in the incident on 12 February 2011) and inform him that they would not accept his fare and instruct him not to request a taxi from the Bunbury Taxi Co-Operative again, on account of the caller's conduct on12 February 2011. The applicant, in his evidence and under crossexamination and in response to questions by the Tribunal, did not provide an explanation why he and Mr Collins thought that they should meet with the caller facetoface to deliver that message, having conceded that the applicant's state of mind was that the Bunbury Taxi Co-Operative base station operator had told the caller that the taxi service would not assist that caller on that occasion, or again in the future. The applicant testified that it had not occurred to him to put to Mr Collins that they should telephone or write to the caller and tell him not to call the Bunbury Taxi CoOperative again. In the circumstances of this matter, the Tribunal does not accept that the applicant's stated reason was the reason (Page 13)
why the applicant and Mr Collins attended to meet with the offender on the evening of 14 February 2011. The applicant then agreed with Mr Collins to drive to the location where the caller was walking and meet with him. 28 The applicant admitted that when he arrived at the location of the caller, he switched off the GPS tracking system (GPS) installed in his taxi. He said he switched the GPS in his taxi off because leaving the GPS on resulted in a substantial drain on the taxi's battery. In the circumstances of this matter, the Tribunal does not accept that this was the reason why the respondent turned off his taxi GPS. The applicant and Mr Collins parked their respective taxis around the corner from and nearby to where the caller was walking in Bunbury. After some questioning, the applicant made the following statements to the Tribunal under oath: 1) He did not require a torch to see the caller. 2) He recognised the caller from an incident on 12 February 2011. 3) When he and Mr Collins alighted from their respective taxis, Mr Collins carried a torch made of metal and approximately 30 centimetres in length. 4) He also owned a torch, which he kept in his taxi, but it was smaller than that carried by Mr Collins on 14 February 2011. 5) In response as to why either Mr Collins or the applicant would carry a torch when they did not need the torch to see, the applicant responded that: 29 The implication from this last statement is that the applicant carried a torch as a weapon, albeit a defensive weapon. The fact that Mr Collins was carrying a long metal torch when he alighted from his taxi to speak with the caller did not surprise the applicant. The prosecutorial notes filed by the respondent in this application note that the applicant stated to the (Page 14)
police that he had a torch with him when he got out of his taxi, but that it was 'short and made of plastic'. The Tribunal concludes that as the applicant did not need a torch to see, in both the applicant and Mr Collins carrying their torches, they were expecting the possibility of needing to, at least, defend themselves with their torches. This might suggest that the applicant and Mr Collins did not expect to simply talk to the caller. In the circumstances of the case as put before the Tribunal, the Tribunal finds that the applicant expected that there may well be a physical altercation and went prepared for that altercation. 30 The applicant stated in evidence that as he and Mr Collins approached the caller, the caller became aggressive and attacked Mr Collins, while the applicant spoke with a lady accompanying the caller (Ms Wein). It later became known to the applicant that Ms Wein, the caller's fiancée, was, in fact, the person who had made the call to the Bunbury Taxi Co-Operative and she had called for the taxi using the caller's telephone. The applicant made the following statements in his evidence: 1) Mr Collins was on the floor and the caller was on top of Mr Collins. 2) The applicant pushed and shoved the caller to try to encourage him to release his grip on Mr Collins. 3) The applicant punched the caller a number of times to encourage the caller to release Mr Collins. 4) The applicant put his 'foot in' to the caller in an attempt to lever the caller off Mr Collins. 5) In response to the respondent's representative's question, the applicant stated he picked up Mr Collins' torch from where it lay on the ground and hit the victim a 'couple of times'. 31 All of this evidence was in terms of, and in the context of, Mr Collins being the victim of an assault by the caller, and the applicant trying to come to the aid of Mr Collins to rescue him from the attack. In this scenario, the caller was the offender. 32 The applicant did not make any written or oral statement about how Mr Collins freed himself from the caller's attack, or how and when he and Mr Collins left the scene. The applicant did not make a written or oral (Page 15)
statement as to why he and Mr Collins left the scene, or the state of the caller when they left. There is no evidence that the applicant called for an ambulance or for police assistance. 33 The applicant's admission that he hit the offender 'a couple of times' with the metal 30 centimetre long torch, previously carried by Mr Collins, is consistent with the kind of injuries that the caller (Mr Gatso) sustained during this incident, and which injuries are depicted in the photographs produced by the respondent to the Tribunal. Mr Gatso claims that he was the victim of an assault by the applicant and Mr Collins, according to the statement of material facts in the criminal proceedings brought against the applicant by the police. Mr Gatso, said that he received 16 stitches to his head, a number of cuts and a black eye. As a result of the incident, he was very sore and bruised the next day, and his back was very sore. Mr Gatso said in his statement to the Police, that he was selfemployed and unable to work for about a week because of the injuries he sustained. Mr Gatso could recall little of the incident. Ms Wein witnessed the incident on 14 February 2011 and made a written statement to the police. Ms Wein's statement was produced to the Tribunal by the respondent. In her statement, Ms Wein identified the applicant and Mr Collins as the assailants by reference to their taxi licence plate numbers. Her evidence, briefly, is as follows: 1) The assailants alighted from two taxis. 2) One of the assailants - with the cropped hair - was holding a large black torch in one of his hands. 3) The torch looked much bigger and more solid than a normal torch. 4) Ms Wein was standing 3 4 metres away from the two assailants both taxi drivers who looked 'pretty agro'. 5) Without warning, 'the guy with the torch' hit Mr Gatso in the head with the torch. 6) 'The other guy' kicked Mr Gatso in the back, causing Mr Gatso to fall forwards. 7) 'They grabbed' Mr Gatso by the shirt and spun him around, ripping his shirt. (Page 16)
8) Ms Wein attempted to pull 'the guy with the torch' off, but she was pushed away and 'knocked' to the ground. 9) Mr Gatso was on the floor face down. 10) The assailants were beating Mr Gatso with the torch and kicking him. 11) Ms Wein called the Emergency Services telephone number and noted the taxi licence plate numbers, which she gave to the police. 12) Mr Gatso was unconscious for about 30 seconds and there was 'blood everywhere'. 13) Ms Wein thought, momentarily, that Mr Gatso was dead. 34 In this scenario, Mr Gatso was the victim and the applicant and Mr Collins were the assailants. 35 The applicant was subsequently charged with one count of assault occasioning bodily harm pursuant to s 317(1) of the Criminal Code Act Compilation Act 1913 (WA). The applicant was convicted of assault occasioning bodily harm on 3 October 2011, following his guilty plea to the Magistrate presiding in the Bunbury Magistrate's Court on that day. The charge was based upon the statement of material facts by the Director of Public Prosecutions for Western Australia (DPP) and the statements of Ms Wein and Mr Gatso produced by the respondent in this application. In summary, the statement of material facts are as follows: 1) Mr Gatso (described in the material facts as the 'victim') saw the taxis and started making his way towards them, presumably because he had called for a taxi. 2) Mr Collins was carrying a 'Maglight' torch. 3) Mr Collins struck Mr Gatso on the head with the torch. 4) The applicant kicked Mr Gatso in the middle of the back. 5) Mr Collins and the applicant continued to hit and kick Mr Gatso while he lay on the ground. 6) The applicant pushed Ms Wein away to the ground. (Page 17)
36 The applicant testified, in this Tribunal, that he pleaded guilty upon the advice of his solicitor and after full disclosure by DPP of all the documents including the photographs of Mr Gatso's injuries, Ms Wein's and Mr Gatso's statements. The applicant gave evidence before the Tribunal that he knew that there was a possibility of a jail term if found guilty and felt that possibility was a 'threat', and pleaded guilty in an endeavour to obtain a lighter penalty and avoid the possibility of a jail term. Whatever his motivation, he did enter a plea of guilty based upon the statement of material facts. 37 Before this Tribunal, however, the applicant sought to ameliorate his involvement in the incident on 14 February 2011 and to explain away his conviction. Further, he cast some doubt upon the proficiency of the advice that he received in representation before the Magistrate and indicated that he thought that the possibility of a jail term was a 'threat', all of which persuaded him to plead guilty. 38 There was no evidence before the Tribunal that the statement of material facts was the subject of any dispute in the guilty plea. In entering a plea of guilty, the applicant is taken to have admitted the statement of material facts. The fact that he was advised, or it was suggested, by the prosecution that a jail term was possible is not a 'threat' that vitiates the guilty plea, or diminishes the conviction and the weight to be attributed to the conviction in considering whether the applicant is not a fit and proper person to hold a firearms licence. 39 In fact, in this Tribunal, the applicant has made admissions that he hit Mr Gatso a number of times with the torch, albeit to help Mr Collins. Such an admission is arguably inconsistent with the statement of material facts, but the inconsistency is not at all favourable to the applicant. On the evidence before the Tribunal, and particularly the conviction, the evidence of a plea of guilty to the charge, the consequent admission of the statement of material facts and the admission in his evidence before the Tribunal that he hit Mr Gatso several times with the metal 30cm long torch, the Tribunal concludes that the applicant's assertions before the Tribunal that his conviction should not be given significant weight is not accepted. Further, the Tribunal rejects the applicant's evidence before the Tribunal that he and Mr Collins simply intended to meet Mr Gatso facetoface to speak with him about not providing him with their services in the future. The Tribunal considers that the applicant and Mr Collins did not merely intend to speak with Mr Gatso, but intended, at the very least, to make him afraid of them. There is no reasonable explanation for their decision to speak with him (particularly if they expected an (Page 18)
altercation) and no reasonable explanation for the applicant and Mr Collins carrying a torch to speak with Mr Gatso (particularly, as they could see Mr Gatso without the aid of a torch). This is further supported by the applicant's decision to switch off his GPS, which, in all of the circumstances, the Tribunal concludes was an action taken to avoid detection. There was no independent evidence of the incident said to have occurred on 12 February 2011, or that Mr Gatso was the offender on that occasion. The Tribunal does not accept the statements made by the applicant on these two issues, as the Tribunal considered that the applicant was somewhat evasive in his evidence, particularly when asked why he felt the need to meet the caller facetoface and why he and Mr Collins were each carrying torches. The Tribunal finds that the applicant had a tendency to tailor his evidence to suit his application. Ultimately, the applicant's version of the facts would suggest that he and Mr Collins were the victims and that Mr Gatso was the assailant. However, such evidence is wholly inconsistent with the scenario presented by the statement of material facts which were admitted by reason of the guilty plea. 40 In short, the Tribunal finds that the scenario posed by the applicant is, in all of the circumstances and in light of the documentary evidence to the contrary before the Tribunal, implausible.
The review 41 The Tribunal is satisfied that the applicant was convicted of an offence involving violence on 3 October 2011, for the purpose of s 11(3)(a)(ii) of the Firearms Act. As the conviction occurred less than five years prior to the respondent's consideration, it is a conviction that would sufficiently support a conclusion that the applicant is not a fit and proper person to hold a firearms licence for the purposes of s 11(1)(c) of the Firearms Act. Based upon the facts of the incident from which the conviction arose and the evidence of the applicant, the Tribunal is satisfied that the nature of the conviction in this case alone is sufficient to support the conclusion that the applicant is not a fit and proper person to hold a firearms licence for the purposes of s 11(1)(c) of the Firearms Act. 42 The question for the Tribunal is whether, in all of the circumstances, the Tribunal considers that the applicant is not a fit and proper person to hold a firearms licence. The Tribunal does not consider that the applicant was fully frank in giving his evidence before the Tribunal, and for the reasons stated above the Tribunal rejects the scenario he advanced. The facts, as admitted by the applicant's guilty plea and as found by the Tribunal, indicate that the offence was very serious in nature and could (Page 19)
very easily have caused a fatality. The decision to confront Mr Gatso in the threatening manner that the applicant did with a torch in his hand and in the company of Mr Collins, also with a torch in his hand is consistent with Ms Wein's statement that both taxi drivers appeared to be aggressive and indicated, at the very least, that the applicant and Mr Collins were expecting an altercation. The incident did not occur in the heat of the moment or by accident. The applicant planned with Mr Collins to meet Mr Gatso, and the Tribunal is satisfied that the applicant knew that a physical altercation was very likely and armed himself with his torch in the company of Mr Collins, ready for action. The applicant's reason for confronting Mr Gatso is not credible. The decision to confront Mr Gatso, as they did, and to become engaged in a violent altercation, as described in the statement of material facts and Ms Wein's statement, indicate a disregard of the law and Mr Gatso's rights. The applicant's additional evidence, directed to explain his conduct by reference to an alleged incident that occurred two days prior (even if the earlier incident did, in fact, occur), does not, in the Tribunal's opinion, have the effect of mitigating his involvement in the incident on 14 February 2012. The applicant's explanation and evidence tends to suggest a lack of insight into his conduct because, whilst the applicant did readily admit his conduct on 14 February 2012 was foolish and misguided, he presented a scenario to the Tribunal that cast him in the role of victim or rescuer rather than aggressor. The Tribunal is satisfied that the episode was a serious offence, that the applicant displayed a disregard of the law and Mr Gatso's rights, and generally reflects 'particularly adversely' upon the applicant's character. 43 Against this conclusion, the Tribunal must consider the very many positive character statements provided by the applicant to the Tribunal. The Tribunal has carefully considered each and every statement of character reference given for the applicant. The Tribunal is satisfied that the applicant has many supporters in the taxi industry in Bunbury including his: 44 The Tribunal is satisfied that the applicant has carried out his duties as a taxi driver in an exemplary fashion in the past and has been patient with those of his passengers who may well have been difficult. These (Page 20)
facts suggest that the applicant is suited in his occupation as a taxi driver, but the Tribunal notes that the applicant has received a suspension of the same for a period of time arising from the applicant's conviction on 3 October 2011. 45 Whilst the applicant's involvement in the incident on 14 February 2012 and the commission of the offence involving violence was out of his ordinary character, the Tribunal considers that the applicant's conduct at that time and his evidence before the Tribunal, directed to ameliorate his involvement in the offence, leads to the Tribunal's conclusion that the applicant was involved in a sufficiently serious violent offence that, in all of the circumstances, reflect adversely upon his character, and is persuaded thereby that he is not a fit and proper person to hold a firearms licence for the purposes of s 11(1)(c) of the Firearms Act. The Tribunal further concludes that in the circumstances of this matter, the discretion to revoke the applicant's firearms licence pursuant to s 20(1) of the Firearms Act is justified and, in this case, is the correct and preferable decision.
Other matters raised by the applicant 46 First, the applicant submitted that as his firearm was not involved in the offence, the offence should not be considered sufficiently important or weighty to detract from the nature of his fitness to hold a firearms licence. The Tribunal rejects that submission. Section 20(1)(a)(iii) of the Firearms Act and the reference to s 11(1)(a) and s 11(3)(a)(ii) of the Firearms Act, makes clear that the relevant offence supporting the opinion that a person is not a fit and proper person to hold a firearms licence for the purposes of s 11(1)(c) and s 20(1)(a)(iii) of the Firearms Act need not relate to the use of the firearm at all. Further, the breadth of the power conferred by s 20 of the Firearms Act demonstrates that the power which may be exercised by the respondent is not limited to where the licensee has committed an offence against the Firearms Act or any other law, or where the conduct of the licensee becomes cognisable by a court (Knight v Commissioner of Police [2011] WASC 93 (Knight) per Heenan J at [21]). 47 Secondly, the applicant asserted that he had been punished for the offence for which he had been convicted and that the revocation was yet another punishment. The Tribunal rejects this submission. The power conferred upon the respondent by s 20 of the Firearms Act (that is, to revoke or not renew) is not a judicial power, but rather a statutory administrative power (Knight per Heenan J). The administrative power (Page 21)
conferred upon the respondent is extensive but limited by the object, scope and purpose of the Firearms Act, which is the protection of the public and public safety. There was no submission that the respondent had exercised the s 20 Firearms Act power improperly to punish the applicant. Such an exercise would be an improper exercise of the s 20 Firearms Act power (Penketh v Commissioner of Police [2010] WASC 254; Knight per Heenan J). There is no basis to assert that the respondent has, in fact, exercised the s 20 Firearms Act power improperly on the facts of this matter. The applicant's submission really was that the revocation of his firearms licence felt, to him, like an additional punishment. The fact that the applicant may perceive the revocation as an additional punishment does not mean that a revocation of his firearms licence in this matter, pursuant to the s 20(1) of the Firearms Act power, is an improper exercise of the statutory power. The revocation may be an additional consequence flowing from the applicant's conviction on 3 October 2011, but there is no evidence that the respondent revoked the applicant's firearms licence as a punishment rather than in the course of exercising his statutory function to protect the public when issuing and considering the revocation of firearms licences under the Firearms Act.
Conclusion 48 For the above reasons, the Tribunal has concluded, following a review, that the respondent's decision should not be set aside, as sought by the applicant. Accordingly, the application is dismissed.
Order 49 The application is dismissed |