JENDRZEJAK and COMMISSIONER OF POLICE
[2011] WASAT 106
•14 JULY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: JENDRZEJAK and COMMISSIONER OF POLICE [2011] WASAT 106
MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)
HEARD: 27 MAY 2011
DELIVERED : 14 JULY 2011
FILE NO/S: CC 1852 of 2010
BETWEEN: STEPHEN HARRY JENDRZEJAK
Applicant
AND
COMMISSIONER OF POLICE
Respondent
FILE NO/S :CC 1853 of 2010
BETWEEN :STEVEN DAVID JENDRZEJAK
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm licence - Revocation - Fit and proper person
Legislation:
Firearms Act 1973 (WA), s 11, s 11(1), s 11(3), s 11(3)(a), s 11(3)(a)(iii), s 11(5), s 11(6), s 19(1), s 19(1)(a), s 23(9a)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A, Sch VIII
State Administrative Tribunal Act 2004 (WA), s 27, s 27(1)
Result:
Decision affirmed
Licence revoked
Category: B
Representation:
CC 1852 of 2010
Counsel:
Applicant: Selfrepresented
Respondent: Senior Constable S Bagley
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
CC 1853 of 2010
Counsel:
Applicant: Selfrepresented
Respondent: Senior Constable S Bagley
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Minitti v Commissioner of Police [2010] WASCA 198
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
Two applications which had a common factual foundation were heard together:
a)CC 1852 of 2010 was brought by Mr Stephen Harry Jendrzejak for review of a decision by a delegate of the Commissioner of Police dated 19 November 2010 to revoke his firearm licence; and
b)CC 1853 of 2010 was brought by Mr Steven David Jendrzejak for review of a decision of the same date by the same delegate to revoke his firearm licence.
Steven David Jendrzejak is the son of Stephen Harry Jendrzejak. In both cases, the licence was revoked because the delegate of the respondent considered that the applicant was not a fit and proper person to hold a firearm licence.
SH Jendrzejak was convicted of five charges under the Firearms Act 1973 (WA) and two charges of possession of a prohibited substance with intent to sell or supply contrary to the Misuse of Drugs Act 1981 (WA). He is still subject to a suspended sentence for these offences. Mr SD Jendrzejak was not convicted of offences under the Firearms Act 1973 but he was convicted of a single charge under the Misuse of Drugs Act 1981. He remains under a suspended sentence arising from that offence.
The convictions under the Misuse of Drugs Act 1981 and the fact that the applicants are each subject to suspended sentences as a consequence are strong evidence that each of the applicants is not a fit and proper person to hold a firearm licence for the purposes of s 11(1). Mr SH Jendrzejak's convictions for firearms offences are themselves sufficient reason to conclude that he is not a fit and proper person under s 11(3) of the Firearms Act 1973.
The applicants put forward various matters to show that they were fit and proper persons, and put forward evidence about the circumstances of the offences. However, the Tribunal was satisfied that each of the applicants was not a fit and proper person to hold a firearm licence. The Tribunal concluded that the firearm licence of each of the applicants should be revoked.
The Tribunal affirmed the decisions under review and dismissed this application.
Introduction
Mr Stephen Harry Jendrzejak (SH Jendrzejak) and Mr Steven David Jendrzejak (SD Jendrzejak) have a joint firearm licence for seven firearms. The licences of each of SH Jendrzejak and SD Jendrzejak was revoked by a letter from a delegate of the Commissioner of Police (Commissioner) dated 19 November 2010. SH Jendrzejak and SD Jendrzejak each seek review of those decisions.
In respect of each application the substantive question for determination is whether the applicant is a 'fit and proper person' to hold a firearm licence within s 11(3) of the Firearms Act 1973 (WA) (Firearms Act).
It is convenient to set out the legislative framework of the decisions to revoke the licences and for the review of those decisions by the Tribunal, and then consider the circumstances of each applicant.
Legal framework for the applications
The revocation of a firearm licence is governed by s 20(1) of the Firearms Act. It provides that the Commissioner may revoke a firearm licence if he is satisfied that the holder of a licence is not a person who could be granted a licence under s 11 of the Act.
Section 11(1) of the Firearms Act provides that the Commissioner cannot grant a licence if the Commissioner is of the opinion that the person is not 'a fit and proper person to hold a licence'. By this mechanism, the primary question which arises in these proceedings is whether the applicant is a 'fit and proper person' under s 11(1) of the Act.
Section 11(3)(a)(iii) of the Firearms Act provides that the Commissioner has a sufficient ground to conclude that a person is not a fit and proper person if that person has been convicted of any offence against the Firearms Act within a period of five years prior to the application for a licence. Section 11(5) provides that the Commissioner may form the opinion that a person is a fit and proper person, notwithstanding a conviction under s 11(3)(a)(iii). Section 11(3)(a) was considered by the Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 at [300] (Wignall):
Section 11(3)(a), therefore, provides some clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists, although it still leaves the Commissioner with a discretion to regard particular circumstances in which the conviction was made.
Section 11(6) of the Firearms Act permits the Commissioner to form the opinion that a person is not a fit and proper person even if that person has not been convicted of an offence against the Act and allows the Commissioner to take into account anything else that could have been taken into account if s 11(3) of the Act had not been enacted.
The meaning of the expression 'fit and proper person' was considered by the Court of Appeal in Minitti v Commissioner of Police [2010] WASCA 198 (Minitti) at [11] (Pullin JA):
... The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348. In Tavelli, Wheeler JA observed that prior convictions may be relevant to an application if they represent a course of disregard for the law as to reflect adversely on the character of the person committing them. Tavelli was referred to by SAT in Wignall and Commissioner of Police [2006] WASAT 206 as a case providing guidance to the question as to whether an applicant for a firearms licence was a fit and proper person to hold the licence.
Convictions for offences under an Act other than the Firearms Act are clearly matters that can be taken into account in deciding whether a person is a fit and proper person, although it is necessary to go beyond the mere fact of conviction and consider the circumstances of any conviction (Minitti at [18]).
In Wignall, the Tribunal gave further guidance about the proper approach to the meaning of the expression 'fit and proper' in s 11(1). It said at [295] - [297]:
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.
In Tavelli v Johnson (Unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1966), Wheeler J had to deal 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). At pages 7 9, Wheeler J, with the caution 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, suggested that some factors relevant to prior convictions can be listed. Wheeler J suggested that convictions will generally be regarded as more serious in the statutory context if:
•they occur in the course of or relate to carrying out of the proposed licensed occupation;
•they are offences of dishonesty, broadly understood. This is because, at least in the case of the security agents legislation, 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;
•they occur while the person is the holder of a licence under the Act;
•they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
Wheeler J further suggested, at pages 7 9, that indications that a person may be of good character and a fit and proper person, notwithstanding previous convictions, may be gleaned from the following factors:
•where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. The 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;
•if the offences were committed a substantial time ago. One would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors;
•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;
•a person's character generally since commission of the offences, including his lack of offending, age, family support, paid and voluntary work and character references. Character references, however, will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
While the passage from Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) has been applied in the context of firearm licences, the Tribunal is not presently concerned with occupational licensing. The applicants will not be deprived of their living if the joint licence is revoked. The firearms the subject of the licences were used for recreational purposes.
These are applications in the review jurisdiction of the Tribunal. Under s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal stands in the shoes of the Commissioner and must decide afresh whether a licence should be revoked. The Tribunal is required to make the correct and preferable decision. Neither party bears an onus of proof in matters dealt with under s 27 of the SAT Act.
Application for adjournment
A factor in the original decisions to revoke the licences was that the applicants had each been convicted of possession of cannabis with intent to sell or supply and had been declared to be drug traffickers.
At the start of the hearing, the applicants applied for an adjournment on the basis that they intended to see a lawyer during the afternoon of the hearing and then lodge an appeal, mainly about the finding that the applicants were drug traffickers (assuming that the lawyer gave them advice that an appeal was warranted).
I refused the application for an adjournment because:
a)the applicants had had ample time to see a lawyer since their convictions. They were sentenced for the drug offences on 2 August 2010. These proceedings were commenced on 15 December 2010;
b)the applicants had pleaded guilty to all the charges brought against them; and
c)if the applicants were successful in their appeal and unsuccessful in their applications to this Tribunal, they could apply for firearm licences under s 11 of the Firearms Act, armed (if that is the right word) with the outcome of the appeal.
SH Jendrzejak
I turn now to consider the circumstances of SH Jendrzejak.
SH Jendrzejak was born on 28 March 1959 and lives in Collie. He gave evidence that he has had a firearm licence for 35 years.
SH Jendrzejak held a licence jointly with SD Jendrzejak for the following firearms:
Make
Type of Firearm
Serial Number
Calibre
Sportco
Single Shot Rifle
DA484
7.62M
Winchester
Rifle Lever Repeater
F708844
.22 Magnum
Omark
Single Shot Rifle
SDV721
.308
Rossi
Air or Gas Rifle
0932
.177
Sportco
Bolt Repeat Shotgun
WC245AB
12G
Stirling
Shotgun, DB Side/Side
A985620
.22
Miroku
Shotgun DB Und/Over
63266MT
12G
The respondent relies upon SH Jendrzejak's criminal convictions to establish that he is not a fit and proper person to hold a licence.
On 2 August 2010, SH Jendrzejak pleaded guilty to and was convicted of two counts of possession of prohibited drugs with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MD Act).
The respondent tendered the statement of material facts in respect of the offences. It shows that SH Jendrzejak and SD Jendrzejak were stopped by police officers on 2 April 2010 when driving in SH Jendrzejak's car. Two hessian bags were found, one of which contained 5.515 kilograms of cannabis and the other, 6.850 kilograms of cannabis. A tarpaulin, shade cloth, hessian bags, gloves, scissors and secateurs were also found.
The police officers then searched SH Jendrzejak's house. During the search, the police officers found another 551 grams of cannabis material in a locked chest freezer in a shed. Clipseal bags and scales were found, along with 107 grams of cannabis seeds, fertiliser, hessian bags and black plastic sheeting.
At the hearing before the Tribunal, SH Jendrzejak and SD Jendrzejak disputed the weight of the cannabis found in the car. Under s 32A and Sch VIII of the MD Act, a person found in possession of more than 3.0 kilograms of cannabis is deemed to possess the cannabis for the purposes of sale or supply. SH Jendrzejak contended that the 'real' weight of the cannabis was less than this threshold. However, he conceded in crossexamination that he had accepted the statement of facts put forward by the prosecution in relation to these offences, which included assertions about the weight of the cannabis. Of greater significance in the present case is the fact that the applicants conceded that they intended to supply cannabis to their friends. Although it was not contended that the applicants ran a commercial operation, supply without charge is still 'supply' for the purposes of the MD Act. A concession to this effect was made by counsel retained by the applicants before Judge Sweeney when the applicants were sentenced for the drug charges on 2 August 2010. A copy of the transcript of those proceedings was tendered by the applicants.
Judge Sweeney sentenced SH Jendrzejak to 18 months imprisonment on the first charge under the MD Act and six months imprisonment on the second charge. Both sentences were suspended for a period of two years. Judge Sweeney declared that SH Jendrzejak was a 'drug trafficker' under s 32A of the MD Act on the basis that the quantity of cannabis in his possession was more than 3.0 kilograms.
SH Jendrzejak gave evidence about the circumstances in which he came into possession of the cannabis. He said that he and his son had been out shooting and had come across cannabis growing in the bush. They made a decision to take the cannabis but had not gone to the site for the purpose of taking the cannabis. SH Jendrzejak also gave evidence that he had found the other smaller quantity of cannabis seed as well. He had put it in the freezer and, he said, forgotten about it. He stated that he had kept the cannabis seed with the intention of growing cannabis but had not done so. One might be sceptical whether a regular user of cannabis would simply forget having 551 grams of cannabis in the freezer but SH Jendrzejak was not challenged in crossexamination on this point.
SH Jendrzejak was an invalid pensioner suffering chronic pain. He had been a regular cannabis smoker for about 10 years before the offences. He stated that he was on medication but the tablets interfered with his stomach. Using cannabis, he said, allowed him to reduce his prescription medication. SH Jendrzejak gave evidence that he had not used cannabis since the offences.
When the police searched the home of SH Jendrzejak, they also found evidence of contraventions of the Firearms Act. The police charged him with the following offences:
a)Possession of unlicensed ammunition (one box of .22 rimfire ammunition) and one live round of .380 ammunition (contrary to s 19(1)(a) of the Firearms Act).
b)Possession of a Norinco .177 air rifle (contrary to s 19(1) of the Firearms Act).
c)Possession of a Savage .380 semi automatic pistol (contrary to s 19(1) of the Firearms Act).
d)Possession of two .22 spearfishing powerheads (contrary to s 19(1) of the Firearms Act).
e)Failure to ensure safekeeping of firearms/ammunition (contrary to s 23(9a) of the Firearms Act).
On 16 June 2010, SH Jendrzejak pleaded guilty to and was convicted of the charges. A global penalty of $700 was imposed. SH Jendrzejak's firearm licence was suspended for 12 months.
SH Jendrzejak gave evidence about the circumstances of each of these contraventions. He said he had a licence for the unlicensed .22 rimfire ammunition, although he did not produce it to the Tribunal. He said that he had not had a chance to put the ammunition in a secure cupboard before the search, although he also stated that he did not have a secure gun cupboard at his home. Apparently, when SD Jendrzejak moved out of his parents' home, he took the gun cupboard with him. SH Jendrzejak said the unlicensed Norinco air rifle belonged to a family friend, was broken, had been placed under the bed two years earlier and was forgotten about. This account is inconsistent with the statement of material facts tendered by the respondent, which recounts that SH Jendrzejak's wife led the police to the air rifle, which was 'leaning in the corner of the main bedroom, unsecured'. However, SH Jendrzejak was not crossexamined on this inconsistency. SH Jendrzejak said that the pistol was broken, with parts missing and was located on top of a wardrobe in the bedroom. As to the spearfishing powerheads, SH Jendrzejak said that he was not aware that they had to be locked away and that Department of Fisheries inspectors had seen them but had not raised any issues. The single bullet was found in a drawer by itself.
SH Jendrzejak had also been convicted of a couple of minor charges as a youth. They are not material to the present case.
He tendered a favourable character reference from his local Member of the Legislative Assembly, addressed to the Magistrate of the Magistrates Court in Bunbury. The reference appears directed to the drug charges and describes SH Jendrzejak's actions as 'out of character'.
SH Jendrzejak stated that, prior to his conviction, he had been somewhat blasé about the use of cannabis. He said he now appreciated its seriousness. He stated that he had stopped using cannabis since the offences and had increased the amount of his prescription medication.
He stated that he regretted the conduct giving rise to the offences.
Consideration
I find that SH Jendrzejak is not a fit and proper person within s 11(3) of the Firearms Act, although the factors presented in this case are by no means all one way.
It is evident that SH Jendrzejak has held a firearm licence for a considerable period of time, apparently without prior incidents. The evidence suggests that, apart from these offences, SH Jendrzejak is of good character and an accepted member of the community. I also accept that SH Jendrzejak regrets the events giving rise to the convictions under the MD Act.
SH Jendrzejak has been convicted of five offences against the Firearms Act. A single offence is sufficient to enable the Tribunal to conclude that SH Jendrzejak is not a fit and proper person to hold a firearm licence. SH Jendrzejak's position was, in effect, that each of the offences was a minor 'technical' contravention and that there was no real danger because the firearms were broken. This is not a complete answer, although it does somewhat lessen the gravity of the offences. Because of the danger associated with firearms, strict compliance with the regulatory regime is required. Further, there were a number of contraventions. SH Jendrzejak's compliance with the legislative requirements was lax.
SH Jendrzejak was convicted of contraventions of the MD Act and was declared a 'drug trafficker'. I do not consider that the declaration in itself has significant weight over and above the fact of the convictions and the circumstances of those convictions. The convictions involved quite a lot of cannabis, whether the quantity was more or less than the 3.0 kilogram limit under s 32A and Sch VIII of the MD Act. Although there was no suggestion of a commercial operation, the cannabis was to be supplied to friends. The conduct giving rise to the first contravention was not spur of the moment. It took some time to accomplish. Additionally, SH Jendrzejak had previously found, and taken and kept cannabis. SH Jendrzejak appears to have been a regular user, although the use was associated with chronic pain and difficulties with SH Jendrzejak's medication. He gave evidence that he had not used cannabis since the offences. Notwithstanding the circumstances favourable to SH Jendrzejak, the contraventions of the MD Act remain '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' (see Tavelli at [8]).
Coupled with the firearm offences, the contraventions of the MD Act satisfy me that SH Jendrzejak is not a fit and proper person to hold a firearm licence. The decision of the delegate of the Commissioner should be affirmed and the application dismissed.
SD Jendrzejak
SD Jendrzejak's circumstances are somewhat different from those of SH Jendrzejak.
One difference is that he pleaded guilty to and was convicted of only a single contravention of the MD Act, that is, possession of the quantity of cannabis found in the car. He too admitted before Judge Sweeney that the cannabis in his possession was to be supplied to others.
At the sentencing hearing, Judge Sweeney accepted that SH Jendrzejak was the prime mover in taking the drugs. That being said, SD Jendrzejak is 29 years old and should be capable of deciding independently of his father to not commit serious criminal offences.
He is married, with a 10monthold son.
He has had a firearm licence for approximately 10 years. There was no record of any contraventions of the Firearms Act.
He works as a machine operator driver for a mining company near Collie. He is subject to random drug testing at work. There have, apparently, been no positive results since his conviction.
SD Jendrzejak stated that he had used cannabis for about 10 years prior to the offences, but that he had weaned himself off it since the offence.
He said that his use of firearms was essentially a recreational pastime, although he hoped to shoot professionally at some time in the future.
SD Jendrzejak also tendered a favourable reference from his local Member of Parliament.
He expressed his regret and remorse at having committed the offence. I am satisfied that his regret and remorse were sincere and genuine.
Consideration
Again, there is material which suggests that SD Jendrzejak is a fit and proper person. He held a firearm licence for a number of years without incident. He does not have any prior criminal convictions. He appears to be a well regarded member of the community in stable employment.
However, SD Jendrzejak was sentenced to an 18 month sentence for the drug charges. The sentence was suspended for 24 months. SD Jendrzejak will be liable to serve the sentence if he reoffends during the 24 month period of suspension. If, at the end of the period of suspension, SD Jendrzejak has not reoffended, the sentence will be discharged. In effect, the suspension period is a period during which SD Jendrzejak has the opportunity to demonstrate that he has a proper approach to the requirements of law. A proper regard for the requirements of the law is an essential quality of the holder of a firearm licence because it is not practical for the police to undertake detailed supervision of the conduct of individual licence holders and because firearms are a risk to public safety.
The nature of his breach and the fact that SD Jendrzejak is subject to a suspended sentence lead me to conclude that, at present, SD Jendrzejak is not a fit and proper person to hold a firearm licence.
The decision of the delegate should be affirmed and the application dismissed.
Orders
1.The decisions of the Commissioner of Police each dated 19 November 2010 are affirmed.
2.The applications are dismissed.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR S ELLIS, SENIOR SESSIONAL MEMBER
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