JEFFRIES and COMMISSIONER OF POLICE - [2011] WASAT 145

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: JEFFRIES and COMMISSIONER OF POLICE [2011] WASAT 145

MEMBER: MS L WARD (MEMBER)

HEARD: 26 AUGUST 2011

DELIVERED : 6 SEPTEMBER 2011

FILE NO/S: CC 1756 of 2010

BETWEEN: FREDDIE JEFFRIES
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence under Firearms Act 1973 (WA) Previous convictions - Alcohol involved in previous incidents - Offence involving violence - Have factors giving rise to the offences been eliminated - Whether applicant is now a fit and proper person to hold a firearm licence

Legislation:

Criminal Code Act 1913 (WA), s 317(1)
Firearms Act 1973 (WA), s 11, s 11A, s 11B, s 22(2)
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(5)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

The application for review is successful

Category: B

Representation:

Counsel:

Applicant: Mr H Jackson
Respondent: Senior Constable S Bagley (Acting as Agent)

Solicitors:

Applicant: Pilbara Community Legal Service
Respondent: Commissioner of Police

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

Jeffries and Commissioner of Police [2011] WASAT 116
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 Freddie Jeffries sought review of a decision of a delegate of the Commissioner of Police under the Firearms Act 1973 (WA) refusing to grant him a firearm licence.
The refusal decision was made on the basis that Mr Jeffries was not a fit and proper person under s 11(1)(c) of the Firearms Act 1973 to have a firearm licence, due to his very extensive criminal charges, criminal court outcomes and traffic court outcomes. Mr Jeffries' convictions occurred over a 30 year span and include: assault occasioning bodily harm and assaulting a police officer.
The Tribunal considered various matters which it regarded as impacting upon whether Mr Jeffries should now be regarded as a fit and proper person for the relevant purpose. These matters included:
•the convictions and the circumstances of the convictions, including the applicant's explanations;
•the applicant's expressions of remorse and commitment to not reoffend;
•the elimination of factors contributing to the offences;
•the intervening period of good behaviour and the positive character references; and
•the most recent offence of violence which was committed in March 2009.
After hearing Mr Jeffries' evidence, the Tribunal was satisfied that Mr Jeffries was genuinely remorseful for his previous offending and that he had demonstrated a considerable change in his character and personal circumstances. These changes included his decision to dramatically reduce his alcohol consumption since 2004 when he moved to Jigalong Community to live permanently. In January 2011 he decided to abstain from alcohol completely. As of June 2011 he is in fulltime paid work as an Essential Services Officer in the Jigalong Community. Mr Jeffries has worked parttime in that role since 17 October 2005. Mr Jeffries previously held a firearm licence between early 2009 and 31 October 2010. He has never been charged with any Firearms Act offences.
The Tribunal concluded that Mr Jeffries had reestablished his credentials as a fit and proper person to hold a firearm licence.
The Tribunal set aside the delegate's decision and ordered the issue of the licence in relation to the two firearms set out below.

Background facts

Mr Freddie Jeffries (applicant) seeks review under s 22(2) of the Firearms Act 1973 (WA) (Act) of a decision of the delegate of the Commissioner of Police (Commissioner) made on 30 August 2011, and served on Mr Jeffries on 11 October 2010, to refuse his application for a firearm licence relating to two firearms, namely:
•a .223 calibre rifle bolt repeater CZ A534103; and
•a .22 calibre Hornet rifle bolt repeater CZ A534284.
Mr Jeffries previously held firearm licence No 3144128 in relation to two low powered firearms, for about 21 months, between January 2009 and 11 October 2010. Firearm licence No 3144128 was approved at station level by the officer in charge at Jigalong Police Station and expired on 22 January 2011.
Mr Jeffries applied on 8 June 2010 to add the above two firearms to his licence. He said he needed the additional licences for traditional hunting and destroying vermin. Mr Jeffries disclosed on the firearm licence application that he had previous convictions for 'drink driving offences and assault'.
On 30 August 2010 the Commissioner refused to license the additional two firearms as he found that Mr Jeffries was not a fit and proper person under s 11(1)(c) of the Act. On 11 October 2010, the Commissioner served Mr Jeffries with the refusal decision.

Application for review in the Tribunal

The application for review before the Tribunal is the Commissioner's decision to refuse to license the two additional firearms. That application was lodged with the Tribunal on 12 November 2010. By consent, on 12 May 2011, the time for commencement of this proceeding was extended pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (Rules).
The applicant requested several adjournments in order to obtain legal representation. The matter was then listed for hearing on 19 July 2011. However, the hearing date of 19 July 2011 was vacated at the Commissioner's request as he applied to seek an order that the proceedings be dismissed due to the jurisdiction of the Tribunal having ceased when firearm licence No 3144128 expired. After a hearing on the preliminary issue on 19 July 2011, the Tribunal found it did have jurisdiction to review the decision made by the respondent on 30 August 2010 to refuse a firearm licence in relation to the above two firearms (see: Jeffries and Commissioner of Police [2011] WASAT 116).
The Commissioner provided a statement of issues, facts and contentions and supporting documents on 5 July 2011. In response, on 5 August 2011 the applicant filed a statement of issues, facts and contentions, as ordered by the Tribunal. The applicant provided a signed statement. The applicant also filed signed statements from: Dr Randolf Spargo, the physician at Jigalong Community; Mr Cedric Wyatt, the Chief Executive Officer of Jigalong Community; and Mr Andrew Russo, the accountant for the Jigalong Community.
On 23 August 2011, the Commissioner advised that he accepted the statements given by the applicant's witnesses.
At the hearing on 26 August 2011 the applicant appeared by video link from Jigalong Community. The applicant gave evidence in chief. He was not crossexamined by the Commissioner. Both parties gave closing oral submissions and the applicant's counsel also provided written closing submissions.
At the hearing the Commissioner accepted that the applicant had a genuine reason for both firearms. Therefore the only issue for determination by the Tribunal is whether or not the applicant is a fit and proper person to hold a firearm licence as required by s 11(1)(c) of the Act.

Role of the Tribunal in review proceedings

The Tribunal has in accordance with s 29(1) of the State Administrative Tribunal Act 2005 (WA) (SAT Act) the same jurisdiction, functions and discretions as those of the delegated officer pursuant to the Act. The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act).
The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) of the SAT Act). In this case the Tribunal has all of the material which was before the Commissioner. The Tribunal also has additional evidence before it, as set out above, in the form of the applicant's evidence and the three signed statements from people who know the applicant from his time living in Jigalong Community and who all attest to his good character.
As the Tribunal considers the application de novo, which means that the Tribunal is standing in the shoes of the Commissioner with all of his powers under the Act, the decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
The purpose of the review is to produce the correct and preferable decision at the time of the review. Accordingly, no party bears any formal onus to prove any facts, but an applicant for a firearm licence, or a person seeking a review of a decision to revoke a licence, bears a practical onus to satisfy the Tribunal that the requirements of s 11 of the Act have been met: see Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [282] and Nickels and Commissioner of Police [2010] WASAT 19 (Nickels) at [22].

Respondent's contentions

The sole basis for the Commissioner's contention that the applicant was not a fit and proper person to hold a licence was his prior convictions.
In particular the Commissioner submitted that the applicant's conviction for an offence involving violence in the preceding five years alone is sufficient to form the opinion that he is not a fit and proper person under s 11(3)(a)(ii) of the Act.

Applicant's contentions

The applicant says that as of today he is a fit and proper person to hold the licence despite his criminal record. This is because he has taken significant steps since 2004 to 'turn his life around'.
In 2004 the applicant returned to Jigalong Community to live permanently. Since then he has been increasingly employed and he is now employed fulltime at Jigalong Community. Also, he has progressively reduced his alcohol intake to nil as of January 2011. Jigalong Community has been a dry community since 2009. He has also held elected positions of trust and responsibility within the Jigalong Community. In addition, three people in the Jigalong Community, who are aware of his criminal record, support his application for a firearm licence.
In relation to the applicant's offending which occurred more than five years prior to the application, the applicant submits that:
•the traffic offending which occurred between 7 May 1984 and 23 December 2003 appears to relate mostly to alcohol consumption and driving without a licence; and
•the non-traffic offending which occurred between 3 November 1980 and 23 December 2003 relates mostly to offending at the lower end of the scale, as indicated by the small fines imposed; the more serious offending occurred (resulting in short prison terms of days) occurred 25 years ago or more.
In relation to the applicant's offending, which occurred within the period of five years before the application, the applicant submits that:
•the applicant's conviction in relation to an assault occasioning bodily harm which occurred in Newman on 27 March 2009 and for which a fine of $750 was imposed, should be viewed as an aberration from what was otherwise several years lived without trespass onto the wrong side of the law;
•the applicant says that he was aware that the situation in Newman on 27 March 2009 might deteriorate; however he got involved in the situation due to his fraternal ties; and
•the applicant expresses regret in relation to the events of 27 March 2009 and says that he no longer drinks and avoids visiting Newman.

Issues

The issues for the Tribunal are whether it can be satisfied, on the basis that it is the correct and preferable decision to make, that the applicant is not a fit and proper person within s 11 of the Act to hold the firearm licence sought by him, having regard to the criminal convictions on which the Commissioner relies.

The relevance of prior convictions to the fit and proper person test in s 11(1)(c) of the Act

Section 11 of the Act prohibits the Commissioner from issuing a licence if the Commissioner is of the opinion that to do so would be contrary to s 11A or regulations made under s 11B or s 11C of the Act, or it is not desirable in the interests of public safety, or the person is not a fit and proper person to hold the licence.
Section 11(3) of the Act provides that the Commissioner will have sufficient grounds for forming an opinion that a person is not fit and proper person to hold a firearm licence in certain circumstances. One of those grounds is that the Commissioner is satisfied that within the period of five years before the person applies for the licence, the person was convicted of an offence involving assault with a weapon, an offence involving violence or any offence against the Act (see: s 11(3)(a)(i), s 11(3)(a)(ii) and s 11(3)(a)(iii) of the Act).
Section 11(6) of the Act goes on to provide that s 11(3) does not limit the Commissioner's ability to also take into account a conviction recorded outside the previous five year period, and anything else that could have been taken into account if s 11(3) had not been enacted (see: s 11(6) of the Act).
Prior convictions, beyond the five year period were considered in Nickels at [28] and they may be relevant where they occurred while the person was the holder of a firearm licence under the Act or, even if not the holder of a firearm licence, they may also be relevant if they are serious, either in themselves or as representing a course of disregard for the law. As set out in Nickels at [28]:
… In either case, the prior convictions would reflect particularly adversely on the character of the person who committed them: see Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) at 7 - 9 (Wheeler J), referred to in Wignall at [297].
The applicant's 'Court Outcomes History Criminal and Traffic', which was compiled on 22 July 2010, was provided to the Tribunal.
The Tribunal will now consider the applicant's criminal history in terms of s 11(3)(a) of the Act, in particular those offences falling within the five year period and then those beyond the five year period.
The applicant's criminal history shows that in the five years before he applied for his firearm licence (between 8 June 2005 and 8 June 2010), he was convicted of the following offences:
•Street drinking, date of offence 4 September 2008, resulting in a fine of $100; and
•Assault occasioning bodily harm (AOBH), date of offence 27 March 2009, resulting in a fine of $750.
The Tribunal attaches little weight to the street drinking offence as it is not so serious in itself or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the applicant (see: Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996) (Tavelli) at 8).
Only the AOBH offence is relevant to the provision of s 11(3)(a) of the Act as it involved violence.

Assault occasioning bodily harm (AOBH)

In relation to the five year period before the applicant applied for his firearm licence, the Tribunal notes that the applicant was convicted of an offence involving violence, namely AOBH. The effect of s 11(3)(a)(ii) of the Act means that the AOBH offence is relevant to whether a person is a fit and proper person to hold a licence under the Act.
The statement of material facts indicates that the AOBH offence occurred on the evening of 27 March 2009 near the water pipeline in Newman. The applicant and several others were sitting and drinking. The applicant was said to have punched and kicked a woman in the group causing a cut to her right eyebrow and a swollen bloody nose and lip.
The applicant gave evidence before the Tribunal in relation to the AOBH conviction. He said that he was in Newman with his brother celebrating a decision to prevent mining taking place at Lake Disappointment. He said that he did not have any legal advice before he pleaded guilty to the AOBH offence. He also denied that he ever kicked the woman concerned. He says that he hit her once only and that she attacked him first when he was trying to protect his brother. He said that he was acting in selfdefence and was not drunk at the time of the fight. He said that he knew all four people involved very well. The applicant said that he had now stopped drinking and that he avoided going to Newman where drinking is common. He said that he understood that you do not hit women; however he says that he did so once because it was in selfdefence.
The applicant's explanation before the Tribunal regarding the circumstances of the AOBH offence suggests that it was not especially serious in the context of deciding whether or not the applicant is a fit and proper person to hold a firearm licence. Further, the Commissioner did not challenge the applicant's explanation of those circumstances at the hearing.
The Tribunal notes that the summary conviction penalty for an offence of this type is imprisonment for two years and a fine of $24,000 (see: s 317(1) of the Criminal Code Act 1913 (WA)). Accordingly the imposition of a $750 fine on the applicant in the Newman Magistrate's Court also supports the conclusion that the applicant's offending, while clearly relevant under s 11(3)(a)(ii) of the Act, was at the lower end of the scale.

Offences occurring before 8 June 2005

The applicant's criminal history shows that in the years before 8 June 2005 he was convicted of numerous offences which may be generally classified as:
1)Public disorder offences resulting in fines.
2)Traffic offences.
3)Offences involving violence:
•assault public officer (APO), date of offence 1 January 2004, resulting in a fine of $800; and
•common assault, date of offence 25 January 1990, resulting in 14 days' imprisonment.
4)Dishonesty and stealing, 1980 and 1981, resulting in 14 days' imprisonment.

Offences occurring before 8 June 2005 and involving violence

Assault

There are two convictions involving violence in the period between 1990 and 2004, namely the APO and a common assault. A statement of material facts has been provided in relation to the APO offence. The offence occurred in the early hours of New Years Day 2004. The applicant and two others were pushing a shopping trolley containing cartons of beer in Newman. Police in a marked police car stopped the group to speak to them about using the shopping trolley. While the police spoke to one of the group the applicant reached in the car window and slapped the police officer twice in quick succession with an open palm. No injuries were sustained by the police officer as a result of the assault.
The applicant's evidence before the Tribunal was that the police questioned the group on 1 January 2004 as though they thought that the beer had been stolen. The applicant said that the beer was not stolen. He admits that he acted wrongly by slapping the police officer; however he was very frustrated with seemingly being accused of stealing the beer. The applicant says that he would now act differently if he found himself in this situation again.
The other offence involving violence, the common assault, occurred in 1990, now some 21 years ago. No further details in relation to this offence have been provided to the Tribunal, presumably due to the passage of time.
Both these offences were committed beyond the five year period set out in s 11(3)(a); however they may be taken into account in forming an opinion whether the applicant is a fit and proper person (see: s 11(6)(a) of the Act). Both these offences are violent offences as stated in s 11(3)(a)(ii) of the Act. However, while they are relevant to the question of the applicant's present fitness to hold the licence, due to the passage of time since the offences occurred the relevance of them is reduced.

The applicant's AOBH conviction in 2009 provides a sufficient ground under s 11(3) of the Act for forming the opinion that he is not a fit and proper person to hold a firearm licence. Section 11(5) of the Act provides that the Commissioner may form an opinion that a person is a fit and proper person, notwithstanding that a sufficient ground exists under s 11(3) of the Act for forming the contrary opinion. Having considered the facts relating to commission of the AOBH the Tribunal considers that the offence alone is not sufficient to find that the applicant is not a fit and proper person to hold a firearm licence.
The Tribunal does not accept the Commissioner's written submission that the applicant has been convicted of countless violence related offences (see para 18 of the Commissioner's statement of issues, facts and contentions). The applicant's Criminal Outcomes History indicates that he has been convicted of only three such offences over a period of 31 years.

Is Mr Jeffries a fit and proper person to hold a firearm licence notwithstanding his prior convictions?

As set out by the Tribunal in Wignall at [295]:
The question of what personal misconduct disqualifies a person from being considered 'fit and proper' to hold a licence has been considered in a number of statutory contexts, most often in a vocational regulation context. There are many persons who must hold a licence to work. These cases provide some guidance as to how the 'fit and proper' factor is to be interpreted in this particular case, although they are not in any way determinative of the issue.
One such relevant case is Tavelli. Justice Wheeler in Tavelli dealt with the relevance of prior convictions in deciding whether or not a person was 'fit and proper' to be licensed as a security agent under the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act) (see: Wignall at [296]).
In relation to the expression 'fit and proper', Wheeler J stated in Tavelli at 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.
Wheeler J stated in Tavelli at 7 to 8 that in her view prior convictions will generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to carrying out of the … occupation …;
(2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court, and that material may be suspect, where the character of the agent suggests dishonesty;
(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.
Further, Wheeler J went on to consider in Tavelli at 8 to 9 some factors which may indicate that a person is a fit and proper person to hold a licence, notwithstanding prior convictions. Those factors were:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes … [t]he understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by their words;
(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; [and]
(4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that has a number of complimentary character references from his previous employment.
Having considered the above factors in Tavelli the Tribunal has reached the following conclusions.
It is now about two and a half years since the applicant last offended. The Commissioner submitted that this period of time was not sufficient to determine whether the applicant's character has changed. In the Tribunal's view while two and half years is a reasonable period of time, although in the context of the Act which refers to offences within a five year period, it is not a substantial period.
The applicant's criminal history arose from situations often involving alcohol. His most recent offending is an example of this. While the applicant has offended in a violent manner on three occasions over a 31 year period, the sentences imposed indicate to the Tribunal that the violence was certainly at the lower end of the scale. Further, none of his offending has ever involved a firearm. The Tribunal is satisfied that the applicant is not otherwise an aggressive or violent person.
The applicant gave evidence before the Tribunal in a forthright and credible manner. He is in a longterm relationship which has spanned several decades. He acknowledged and explained his previous conduct and his personal circumstances. It is clear to the Tribunal that the applicant regrets the way he lived in the past and he puts his troubles mainly down to his drinking alcohol. He understands that drinking got him into a lot of trouble and, as a result, he removed himself from Newman where he says that drinking is commonplace. He has now lived at Jigalong Community for over seven years. Over that time he says that he reduced his alcohol intake to drinking on special occasions only. He has abstained from drinking alcohol since January 2011. The reduction in the applicant's drinking to nil indicates to the Tribunal that he understands the main reasons for his prior offending and that he has set about eliminating that factor from his life.
It is accepted by the Tribunal that the applicant's previous convictions are extensive. However his particular circumstances, that is a person who clearly had difficulties relating to the consumption of alcohol, the Tribunal finds that those convictions do not represent a course of disregard to the law so as to reflect adversely on his character. The Tribunal is satisfied that the applicant has learnt from his previous mistakes and notes that the vast majority of his offending occurred a substantial time ago and that he no longer drinks alcohol.
The three written references provided in support of the applicant's review emphasise his good standing in the local Jigalong Community. One referee states that the applicant's large number of criminal convictions 'are not a reflection of what Freddie is like today'. The applicant is described as a 'capable and passionate employee' who is 'reliable, hardworking and trustworthy'. The referee stated that he was 'surprised to hear that Freddie was charged with assault in 2009 as this is totally out of character based on the way I have observed him live his life at Jigalong'. Another referee was 'impressed with [the applicant's] initiative and thoroughness'. Another referee states that the applicant is to be 'commended for the way in which he has transformed and rehabilitated himself … in becoming a respected member of the Jigalong Community.' This referee had 'personally observed the way Freddie has distanced himself from alcohol' and is committed to 'his family, his community and his employment'.
The Tribunal is able to attach great weight to the three signed references as each of them refers to the applicant's criminal history which they have all sighted and read. It is very clear from the references that the applicant is a highly valued member of the Jigalong Community and that he is a leader and a hard worker. The character references support the conclusion that the applicant's character is now, as of the time of decision, such that he is a fit and proper person to hold a firearm licence.

Conclusion

For the reasons set out above, the decision of the Commissioner's delegate to refuse the applicant a firearm licence should be set aside.

Orders

Accordingly the Tribunal orders as follows:
1.The application for review is granted.
2.The decision of the delegate of the Commissioner of Police to refuse the applicant's application for a firearm licence in relation to two firearms is set aside.
3.The Commissioner of Police shall, as soon as possible, issue the firearm licence in relation to the applicant's two firearms, namely:
•a .223 calibre rifle bolt repeater CZ A534103; and
•a .22 calibre Hornet rifle bolt repeater CZ A534284.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L WARD, MEMBER