JG and COMMISSIONER OF POLICE
[2022] WASAT 65
•1 AUGUST 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: JG and COMMISSIONER OF POLICE [2022] WASAT 65
MEMBER: MS C CONLEY, MEMBER
HEARD: 9 DECEMBER 2021
DELIVERED : 1 AUGUST 2022
FILE NO/S: CC 1081 of 2021
BETWEEN: JG
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms licence - Application for review of decision to refuse to grant firearms licence - Whether applicant a fit and proper person to hold firearms licence - Convictions for offences involving violence - Mental fitness to hold firearms licence - Decision of Commissioner affirmed
Legislation:
Firearms Act 1973 (WA), s 8, s 10, s 10A, s 11, s 11B, s 11C, s 16(1)(a), s 18(4a)(b), s18(4b), s 18(4c), s 18(5), s 22, s 23, s 23B, s 23(2), s 23(3)
Firearms Regulations 1974 (WA), reg 3, reg 3A(1), reg 7(3), reg 24, reg 25, Sch 1
Freedom of Information Act 1992 (WA)
Inquiry Agents Licensing Act 1954 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 24, s 27, s 27(1), s 27(2), s 29, s 29(1), s 29(3), s 32(4), s 61(4), s 62
State Administrative Tribunal Rules 2004 (WA), r 10
The Criminal Code 1913 (WA), s 279, s 280, s 313(b), s 317(1), s 392, s 393
Result:
Application unsuccessful
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms A Western |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Western Australia Police Force |
Case(s) referred to in decision(s):
Anderson and Commissioner of Police [2008] WASAT 75
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bertola v The Commissioner for Police [No.2] [2015] WASC 489
Blackman and Commissioner of Police [2018] WASAT 20
Coumbe v Whittaker [1999] WASCA 151
Di Chiera and Commissioner of Police [2020] WASAT 145
Docherty and Commissioner of Police [2010] WASAT 96
Jeffries and Commissioner of Police [2011] WASAT 145
Killen v Commissioner of Police [2014] WASC 427
Knight v Commissioner of Police [2011] WASC 93
Lloyd and Commissioner of Police [2013] WASAT 162
Ludgate and Commissioner of Police [2013] WASAT 151
Maxwell v Dixon [1965] WAR 167
McGee v Chitty [2011] WASCA 125
Minitti v Commissioner of Police [2010] WASCA 198
Nickels and Commissioner of Police [2010] WASAT 19
Penketh v Commissioner of Police [2010] WASC 254
Polizzi and Commissioner of Police [2014] WASAT 144
Polizzi v Commissioner of Police [No.2] [2017] WASC 166
Punter and Commissioner of Police [2020] WASAT 142
Re Jones; Ex parte the Commissioner of Police [1999] WASCA 246
Roongrote and Commissioner of Police [2018] WASAT 115
Shore and Commissioner of Police [2011] WASAT 9
Tavelli v Johnson (unreported, WASC, Library No. 960693, 25 November 1996)
Wally and Commissioner of Police [2014] WASAT 98
Wignall and Commissioner of Police [2006] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Background
By an application dated 5 January 2021, the applicant applied to the respondent, under the Firearms Act 1973 (WA) (Firearms Act), to license two firearms for recreational hunting and shooting purposes.[1]
[1] Exhibit 1 at page101.
On 8 February 2021, the respondent's delegate (respondent) refused the application for a firearms licence (firearms licence) on the basis that the applicant is not a fit and proper person to hold a licence under the Firearms Act because of his criminal convictions for offences involving violence.[2]
[2] Exhibit 1 at pages 23-24.
On 10 July 2021, the applicant applied to the Tribunal for a review of the decision by the respondent.[3]
Issue for determination
[3] Exhibit 1 at pages 2-7.
The issue for determination in the Tribunal is whether, on the basis that it is the correct and preferable decision, the applicant should be granted a firearms licence under the Firearms Act and, in particular, whether the applicant is a fit and proper person to hold a firearms licence.
Proceedings in the Tribunal
A final hearing of the application was held on 9 December 2021 (Hearing). At the Hearing, the applicant gave evidence and was crossexamined. No other persons gave evidence.
Each of the parties filed various documents which were compiled into a Hearing Book prepared by the Tribunal and taken into evidence as Exhibit 1.
The following additional documents were accepted into evidence after the conclusion of the Hearing and following four directions hearings held on 30 December 2021, 4 February 2022, 15 March 2022 and 9 May 2022:
a)an employment services assessment report;[4]
b)a verification of medical condition;[5]
c)a letter to Dr Deborah Russell from the Royal Australian and New Zealand College of Psychiatrists regarding Consultation on the Arms Legislation Bill;[6]
d)a letter from Dr Quadros dated 22 January 2022;[7]
e)a medical assessment dated 3 June 2015;[8] and
f)a report from Dr Gulati dated 10 March 2022.[9]
Agreed facts
[4] Exhibit 2.
[5] Exhibit 3.
[6] Exhibit 4.
[7] Exhibit 5.
[8] Exhibit 6.
[9] Exhibit 7.
The agreed facts[10] are as follows:
[10] ts 8-9, 9 December 2021; Exhibit 1 at pages 32-34.
a)On 22 July 2015, the applicant was convicted of armed robbery upon a plea of guilty and was sentenced to a three year and two months Conditional Suspended Imprisonment Order (Suspension or Order). The offence occurred on 31 December 2014 at a Pharmacy 777 store in Karratha (pharmacy). During the course of the robbery, the applicant:
i)concealed a carving knife in his shorts and entered the pharmacy;
ii)spoke with the pharmacist to request a quantity of Endone and, when refused on the basis that he did not have a prescription, the applicant produced the knife and repeated his demands;
iii)walked behind the counter and grabbed the pharmacist by her right forearm, ordering her to open the safe and forcing her to the rear of the pharmacy; and
iv)reached inside the safe and took 900 dexamphetamine and 600 Endone tablets.
b)In sentencing the applicant, the Judge made the following remarks:
i)the maximum penalty for armed robbery is life imprisonment;
ii)the quantity of drugs taken by the applicant from the pharmacy was significant;
iii)the offence involved a level of premeditation and planning on behalf of the applicant that showed careful consideration;
iv)the offence involved a significant element of persistence and actual violence;
v)the victim was a vulnerable pharmacist (who was a small female and clearly demonstrated signs of fear) and there were other customers present in the pharmacy; and
vi)the nature of the premises of the pharmacy was such that, by virtue of what its stocks and the requirements for it to be open, means that it is a soft target which attracts the special protection of the courts.
c)During the period of Suspension, the applicant breached the Order by re-offending on 22 October 2015 when he committed one offence of common assault and one offence of assault occasioning bodily harm.
d)On 3 March 2016, the applicant appeared before the Supreme Court of Western Australia (Supreme Court) and as a consequence of these breaches the Judge ordered that he was required to serve the term of three years and two months imprisonment in full.
e)On 21 March 2016, the applicant was convicted upon a plea of guilty of common assault and assault occasioning bodily harm (convictions). The convictions relate to an incident that took place on 22 October 2015 at an employment agency at the Ashburton Aboriginal Corporation in South Hedland.
f)The incident involved the applicant picking up a chair and throwing it, narrowly missing his case officer and causing her to run from her office into the hallway. The applicant then followed her into the hallway where he pushed the case officer to the chest using two hands, causing her to hit the wall and fall to the ground. The applicant's case officer sustained injuries to her wrists, hip and shoulder. When approached by another employee and asked to leave, the applicant then pushed the employee, causing her to make contact with a doorframe.
g)In sentencing the applicant to a total of seven months imprisonment for the convictions, the Magistrate described the incident as 'cowardly attacks on some poor unfortunate people who were only just doing their job'.[11] The Magistrate ordered that the total sentence of seven months imprisonment was to be served concurrently with the sentence of three years and two months imprisonment which the applicant was already serving.
h)On 5 January 2021, the applicant submitted an application for a firearms licence (2021000092OFIRZ), seeking to license the following firearms for recreational hunting and shooting purposes:
i)Shotgun (make: Adler serial number: 20Au05203; calibre: 12G); and
ii)Rifle Bolt Action (make: Zastava; serial number 46485; calibre: .22 LR).
i)In support of the application, the applicant provided letters from Evan Rutherford indicating that he has permission to shoot vermin including rats, pigeons, rabbits, foxes, wild cats, wild dogs, pigs, goats and scrub bulls at Mr Rutherford's faming property in Binnu.
j)On 8 July 2021, the respondent served the applicant with a letter dated 12 February 2021, advising that his application had been refused on the basis that he was not considered to be a fit and proper person to hold a firearms licence due to his convictions for armed robbery, breach of conditional suspended imprisonment order, assault occasioning bodily harm and common assault.
k)On 10 July 2021, the applicant sought review of the decision to refuse his application for a firearms licence with the Tribunal.
[11] Exhibit 1at page 156.
I accept the facts as agreed by the parties.
Contentions of the parties
The applicant's contentions[12] may be summarised as follows:
[12] Exhibit 1 at pages 39-40.
a)the majority of past unsuccessful applicants in the Tribunal have been cases where s 11(3) of the Firearms Act was in operation. This is not such a case;
b)the successful applicants in a number of Tribunal cases[13] had similar or greater offending history by quantity, although of somewhat less seriousness but still involving violence, drugs, firearms offences and association with outlaw groups;
[13] The case to which the applicant referred are: Punter and Commissioner of Police [2020] WASAT 142 (Punter); Blackman and Commissioner of Police [2018] WASAT 20 (Blackman); Wally and Commissioner of Police [2014] WASAT 98 (Wally); Lloyd and Commissioner of Police [2013] WASAT 162 (Lloyd); Ludgate and Commissioner of Police [2013] WASAT 151 (Ludgate); Jeffries and Commissioner of Police [2011] WASAT 145 (Jeffries); Shore and Commissioner of Police [2011] WASAT 9 (Shore); Docherty and Commissioner of Police [2010] WASAT 96 (Docherty); Nickels and Commissioner of Police [2010] WASAT 19 (Nickels); and Anderson and Commissioner of Police [2008] WASAT 75 (Anderson).
c)the factors that contributed to the applicant's offending no longer exist:
i)the applicant's accommodation is stable;
ii)his alcohol consumption is well managed; and
iii)the applicant has a real sense of stability for, perhaps, the first time.
d)shooting activities could be a source of enjoyment for the applicant and an outlet that gets the applicant involved in an outdoor pursuit;
e)the sentence imposed for the armed robbery offence, based on the maximum penalty, was at most mid-range for the offence type;
f)the rehabilitation programs undertaken in custody by the applicant were extensive covering a period of some five months;
g)the supporting documents provided to the Tribunal suggest a wholly positive outlook of the applicant, based on information covering some 14 years; and
h)the offences were regrettable acts by someone who is otherwise, on balance, of good character.
The respondent's contentions[14] may be summarised as follows:
a)the Tribunal should find that there are sufficient grounds to form the opinion that the applicant is not a fit and proper person to hold a firearms licence on the basis that he has convictions for serious offences involving violence, including armed robbery;
b)the applicant has been convicted of three offences that demonstrate a tendency towards violence;
c)whilst the convictions occurred more than five years ago, the nature and circumstances of the offending is sufficiently serious to support a conclusion that the applicant is not a fit and proper person to hold a firearms licence; and
d)the facts in Wally can be distinguished from this matter.
Review jurisdiction of the Tribunal
[14] Exhibit 1 at pages 34-36.
This application falls within the Tribunal's review jurisdiction under the Firearms Act and the State AdministrativeTribunal Act 2004 (WA) (SAT Act).[15]
[15] Firearms Act, s 22 and SAT Act, s 17.
In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and the evidence before the Tribunal at the time of review.[16]
[16] SAT Act, s 27(1) and s 27(2).
The Tribunal does not determine the validity or otherwise of the reviewable decision.[17]
[17] Killen v Commissioner of Police [2014] WASC 427 at [42]-[43] per Pritchard J.
The Tribunal is not limited in its consideration to the material that was before the original decision-maker, nor to a consideration of the original decision-maker's reasoning alone.[18]
[18] SAT Act, s 27.
All of the functions and discretions conferred on the original decisionmaker are conferred on the Tribunal in addition to the powers conferred on the Tribunal by the SAT Act.[19] Accordingly, the Tribunal stands in the shoes of the Commissioner of Police (Commissioner) to make the correct or preferable decision.[20]
[19] SAT Act, s 29.
[20] Polizzi v Commissioner of Police[No.2] [2017] WASC 166 at [67] per Corboy J.
The power exercised by the Tribunal is not a judicial power, but rather a statutory administrative power, exercisable for the purpose of the control and licensing of firearms.[21]
[21] Knight v Commissioner of Police [2011] WASC 93 at [15] per EM Heenan J.
Decisions made under the Firearms Act are not aimed at punishing an applicant for a firearms licence, but rather at serving the protective purpose of the Firearms Act in the public interest.[22]
[22] Coumbe v Whittaker [1999] WASCA 151 at [10], [13] and [14] per McKechnie J.
An applicant for a firearms licence bears a practical onus to satisfy the Tribunal that the requirements of s 11 of the Firearms Act have been met.[23]
[23] Wignall and Commissioner of Police [2006] WASAT 206 at [282] per President Barker, Member Mansveld and Sessional Member Lord.
On review, the Tribunal may affirm, vary or set aside the reviewable decision and, in the latter case, may substitute its own decision to arrive at the correct and preferable decision.[24]
General observations about the issuing of licences
[24] SAT Act, s 29(3).
The prerequisites for the issue of a licence to a person vary depending on the regulatory scheme. However, applicants are commonly required to satisfy the licensing authority of one or more of the following:
a)that they meet particular personal requirements, such as attainment of a minimum age;
b)that they have the requisite degree of skill or a particular qualification to carry out the activity or occupation authorised by the licence; and/or
c)they are of good character or a fit and proper person to be the holder of a licence.
The fact that a person holds a licence for one activity or occupation does not necessarily mean that he or she satisfies the prerequisites for the issue of a licence for a different activity or occupation. This is because each licensing regime 'involves distinct regulatory language, context and purposes'.[25] For example, the fact that a person has satisfied the prerequisites for the issue of a driver's licence does not mean that he or she will satisfy the prerequisites for the issue of a firearms licence.
The issuing of licences under the Firearms Act
[25] Di Chiera and Commissioner of Police [2020] WASAT 145 at [51] per Member McGivern.
Public protection and safety from the misuse of firearms is central to an understanding of the regulatory scheme provided for by the Firearms Act which controls the possession, carriage and use of firearms by a system of licences, permits and approvals.[26]
[26]McGee v Chitty [2011] WASCA 125 at [31] per Mazza JA.
Under the Firearms Act, it is an offence for a person to carry or use a firearm.[27] However, there are two exceptions to the prohibition. First, where the person holds a licence or permit under the Firearms Act entitling that person to carry or use a firearm.[28] Second, where the person is exempt from the requirement to hold a firearms licence.[29]
[27] Firearms Act, s 23(3).
[28] Firearms Act, s 23(3).
[29] Firearms Act, s 8 and s 23(3).
There are a number of different firearms licences which may be issued under the Firearms Act, including a 'Firearm Licence' (firearms licence) which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that firearms licence, and ammunition for that firearm.[30]
[30] Firearms Act, s 16(1)(a).
A person cannot simply apply for a firearms licence under the Firearms Act in the expectation that such a firearms licence will be granted. This is because a firearms licence under the Firearms Act is a privilege, not a right,[31] and the licensing authority must be satisfied that the prerequisites for the issue of a firearms licence have been met.
[31] Docherty and Commissioner of Police [2010] WASAT 96 at [19] per Member De Villiers.
An application for a licence is required to be in the form set out in the Firearms Regulations 1974 (WA) (Firearms Regulations) and to be accompanied by the following: the relevant fee; a current firearm serviceability certificate for the firearm in respect of which the application is made; evidence of the applicant's identity; and evidence that the applicant has passed a firearms safety test.[32]
[32] Firearms Regulations, reg 3, reg 3A(1), reg7(3), reg 25 and Sch. 1.
There are a number of provisions which prohibit or restrict the grant of a firearms licence under the Firearms Act. Having regard to those provisions, the prerequisites for the issue of a firearms licence to an applicant are:
a)the applicant must be aged 18 years or over;[33]
b)the applicant must be a fit and proper person to hold the firearms licence; [34]
c)the issue of the firearms licence must not be undesirable in the interests of public safety; [35]
d)the applicant must have a genuine reason and, where applicable, a genuine need, for acquiring or possessing the firearm or ammunition for which the licence is sought and must not otherwise be prevented from holding a licence under the Firearms Regulations;[36]
e)the applicant must have complied with the requirements relating to photographs, statements, inspection of storage facilities and provision of information;[37]
f)the applicant must have successfully completed any courses of training required by the Firearms Regulations; [38] and
g)the firearm to which the application relates must be safe and serviceable[39] and be capable of complying with the prescribed safety standards and tests applicable thereto.[40]
Fit and proper to hold a firearms licence
[33] Firearms Act, s 10.
[34] Firearms Act, s 11(1)(c), (2), (3), (5)-(6).
[35] Firearms Act, s 11(1)(b).
[36] Firearms Act, s 11(1)(a), s 11A, s 11B and s 11C.
[37] Firearms Act, s 11(7) and (8).
[38] Firearms Act, s 10A.
[39] Firearms Act, s 12.
[40] Firearms Act, s 18(5) and Firearms Regulations, reg 24.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond) at 380 their Honours Justices Tooney and Gaudron JJ observed:
The concept of 'fit and proper' cannot be divorced entirely from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In Minitti v Commissioner of Police [2010] WASCA 198 (Minitti) at [11] Pullin JA, with whom Newnes JA and Mazza J agreed, said that the purpose of the expression 'fit and proper' gives 'the widest scope for judgment and for rejection of an application for a licence' under the Firearms Act. His Honour also said at [13]:
The [Firearms] Act makes provision for the control and regulation of firearms and ammunition and the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition. See the long title to the Act. It is obvious that the statutory context requires consideration to be given to the interests of public safety. This is a consideration the decision maker is bound to take into account (see s 11(1)(b)). The requirement that the person who is to be granted a firearms licence be a fit and proper person goes arm in arm with the consideration of public safety. The nature and circumstances of the criminal convictions will be a matter for assessment by the tribunal.
The expression 'fit and proper' takes it meaning from its context, the activities in which the person is or will be engaged, and the ends to be served by the activities authorised under the licence.[41] Further, that expression incorporates the qualities of honesty, knowledge and ability.[42]
[41] Roongrote and Commissioner of Police [2018] WASAT 115 at [19]-[20] per Member Owen-Conway referring to Bond.
[42] Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at [9] per Dixon CJ, McTiernan and Webb JJ.
An applicant for a licence must, in any case, be assessed as being possessed of the requisite knowledge of the duties and responsibilities 'devolving upon him as the holder of a particular licence under a particular Act'.[43] In the case of the Firearms Act, an applicant must be assessed to possess the requisite knowledge of the duties and responsibilities of owning and using a firearm, as imposed by the Firearms Act and in a way that preserves public safety.[44]
[43] Maxwell v Dixon [1965] WAR 167 at page 169 per Hale J.
[44] Blackman at [38]-[39] per Member Leslie; see also Lloyd at [26] per Member Owen-Conway.
The expression 'fit and proper' is not confined to a consideration of public safety and all matters bearing on the question of fit and proper, in the context of the Firearms Act, are to be considered.[45] The context clearly includes s 11(2), s 11(3), s 11(4), s 11(5) and s 11(6) of the Firearms Act.[46]
Section 11 and fitness and propriety
[45] Re Jones; Ex parte the Commissioner of Police [1999] WASCA 246 (Re: Jones; Ex parte) at [22] per Parker J (Steytler and White JJ agreeing).
[46] Re Jones; Ex parte at [18] per Parker J (Steytler and White JJ agreeing); Penketh v Commissioner of Police [2010] WASC 254 (Penketh) at [40] per Simmonds J.
In deciding whether a person is a fit and proper person to hold a firearms licence under the Firearms Act, the Commissioner may take into account whether the person has a history of, or a tendency towards, violent behaviour.[47]
[47] Firearms Act, s 11(2).
The Commissioner has sufficient ground for forming an opinion that a person is not a fit and proper person to hold a firearms licence:
a)if satisfied that at any time within the period of five years before the person applies for the firearms licence the person was, inter alia, convicted of an offence involving violence whether in Western Australia or in any other place; or
b)if satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or firearms licence; or
c)suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.[48]
[48] Firearms Act, s 11(3).
When a person applies to the Commissioner for a firearms licence, the five year period for the purposes of s 11(3) of the Firearms Act is calculated back from the date when the person applied for that firearms licence.
When a person seeks review in the Tribunal of a refusal to grant a firearms licence, the five year period for the purposes of s 11(3) of the Firearms Act is also calculated back from the time when the person applied to the Commissioner for the firearms licence rather than when the person lodged his or her application for review in the Tribunal. Although the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision,[49] there is nothing in the SAT Act or the Firearms Act which deems the date when the person lodged his or her application for review as the date when the person applied for his or her firearms licence for the purposes of calculating the five year period in s 11(3) of the Firearms Act.
[49] SAT Act, s 29(1).
It is also important to note that it is the conviction with which s 11(3) is concerned, and not the date when the offence was committed.
The effect of s 11 on prior convictions
The effect of s 11 in respect of prior convictions is as follows:
a)a conviction referred to in subsection 11(3) is 'in itself and without more a sufficient ground in law for forming an opinion that the person is not a fit and proper person'[50] to hold a firearms licence;
b)notwithstanding the existence of a conviction falling within s 11(3)(a) of the Firearms Act, which may ground an opinion that the person is not fit and proper, the Commissioner may form a contrary opinion; and
c)the grounds specified in s 11(3) are 'neither necessary nor exclusive' since that subsection does not limit the Commissioner's ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or firearms licence under the Firearms Act, to take into account a conviction or order made outside the period of five years referred to in paragraph (a) of that subsection or anything else that could have been taken into account if that subsection had not been enacted.[51]
Section 11 and mental fitness
[50] Re Jones; Ex parte at [18] per Parker J (Steytler and White JJ agreeing); Penketh at [41] per Simmonds J.
[51] Punter at [12](a) per Member McGivern and Firearms Act, s 11(6).
Before granting or issuing a firearms licence, the Commissioner must ensure that, if there is any apparently reliable indication that the person may not meet the standards of mental or physical fitness referred to in s 11(3)(b) of the Firearms Act, sufficient evidence has been provided to satisfy the Commissioner that the person does meet those standards.[52]
[52] Firearms Act, s 18(4a)(b). See also Bertola v The Commissioner for Police [No.2] [2015] WASC 489 at [17] per Deputy President Pritchard J.
That evidence may include a certificate from a medical practitioner to the effect that the person has been examined and has not been found to have any physical or mental condition that could reasonably result in the person being considered not to be a fit and proper person to hold a firearms licence under the Firearms Act.[53]
[53] Firearms Act, s 18(4b).
Further, on being provided with such a certificate, the Commissioner may request from the medical practitioner any further information that the Commissioner considers to be relevant.[54]
[54] Firearms Act, s 18(4c).
There is nothing in the Firearms Act which specifies the standards of mental fitness which have to be met by an applicant. In Polizzi and Commissioner of Police [2014] WASAT 144 at [58]-[59] the Tribunal held:
58In the Tribunal's view, the mental and physical fitness that the Commissioner considers necessary must be considered in the light of the object, scope and purpose of the Firearms Act; that is, balancing the public safety and the private rights of members of the community to use and possess a firearm. The Tribunal notes that the form of the Firearms application referred to in Sch 1 of the Firearms Regulations 1974 (WA) in reg 3 requests every applicant to make a statement about the mental and physical fitness of an applicant for a firearms licence:
…
59Although not addressed by either party in submissions, the temperament of the individual concerned is a central matter in making an assessment of fitness and propriety for the purposes of s 11(3)(b) as well as s 11(2) of the Firearms Act. In the Tribunal's view, if a person suffers a mental condition that affects his judgment and temperament in a way that might make him a risk to public safety that is beyond the contemplation of the Firearms Act expressly or implicitly, that fact will inevitably have a bearing on the issue before the Tribunal - the fitness and propriety of the applicant to retain his firearm licence pursuant to the Firearms Act.
In my view, the standard of mental fitness for a person to hold a firearms licence necessarily relates to ensuring that the person will not, by reason of being able to carry and use a firearm under the firearms licence, pose a risk to his or her own life or safety or the lives and safety of other members of the public.
I am supported in this view by other provisions of the Firearms Act. For example, s 23B of the Firearms Act provides, relevantly, that if a health professional is of the opinion that because of the patient's mental, or emotional condition, it is not in the person's interest or not in the public interest that the person possess any firearms or ammunition to which the patient is believed to have access, then the health professional may inform the Commissioner of that opinion. Similarly, s 23(2) of the Firearms Act makes it an offence for a person to use, carry or be in actual physical possession of a firearm whilst affected by alcohol or drug, or alcohol and drugs.
The effect of s 11 on mental fitness
The effect of s 11(3) of the Firearms Act in respect of mental fitness is that a person's failure to meet standards of mental fitness necessary for the person to hold a firearms licence is in itself and without more a sufficient ground in law for forming an opinion that the person is not a fit and proper person to hold a firearms licence.
Prior convictions and the factors in Tavelli v Johnson
Prior convictions are often at the forefront of a decision as to whether or not a person is 'fit and proper' to hold a firearms licence. This is because prior convictions are seen as evidence of bad character and character is relevant to the question of fitness and propriety.
The relevance of prior convictions in deciding whether a person is fit and proper to hold a licence was considered by her Honour Justice Wheeler in Tavelli v Johnson (unreported, WASC, Library No. 960693, 25 November 1996) (Tavelli). Although the decision was in relation to a different statutory context, namely a licence under the Inquiry Agents Licensing Act 1954 (WA), her Honour noted that the discretion 'falls to be exercised anew in the circumstances of each application in the light of the statutory framework'.[55]
[55] At page 7.
Her Honour Justice Wheeler outlined a number of factors which, in her view, made convictions more serious in the statutory context:[56]
a)where they occur in the course of or relate to the carrying out of the occupation (carried out under the licence);
b)where they are offences of dishonesty, broadly understood;
c)where they occur while the person is the holder of a licence under the Act; and
d)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.
[56] At pages 7-8.
Her Honour Justice Wheeler then considered the factors which might indicate that a person may be of good character and a fit and proper person notwithstanding previous convictions. Those factors were described as follows:[57]
(1)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 the person's words;
(2)if the offences were committed a substantial time ago. I 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 I list and, in appropriate cases, on others;
(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;
(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.
The interaction between s 11 of the Firearms Act and the factors in Tavelli
[57] At pages 8-9.
The factors outlined in Tavelli are applicable to the assessment as to whether or not a person is fit and proper in the context of the exercise of the statutory discretion to grant a firearms licence under the Firearms Act.[58]
Is the applicant a fit and proper person to hold a firearms licence?
[58] Minitti at [11] per Pullin JA (Newnes JA and Mazza J agreeing); Penketh at [52] per Simmonds J; Blackman at [33] per Member Leslie.
There are two matters which, on the evidence before the Tribunal, bear on the question as to whether the applicant is a fit and proper person to hold a firearms licence. First, the applicant's criminal convictions; and, second, the applicant's mental fitness.
The applicant's criminal convictions
On 31 December 2014, the applicant committed an offence of armed robbery at the pharmacy (Armed Robbery Offence). He was convicted of the Armed Robbery Offence on 22 July 2015.
On 22 October 2015 the applicant committed an offence of assault and an offence of assault occasioning bodily harm in respect of two employees at an employment agency at the Ashburton Aboriginal Corporation in South Hedland (Assault Offences). He was convicted of the Assault Offences on 21 March 2016.
The facts concerning the commission of the Armed Robbery Offence and the Assault Offences are set out in the agreed facts at [8] above.
Nature and seriousness of the offences
There are very few offences in The Criminal Code 1913 (WA) (Criminal Code) which carry a maximum penalty of life imprisonment. The offence of armed robbery contrary to s 392 of the Criminal Code is one such offence. The penalty for armed robbery is the same as the penalty for the offences of murder, attempted murder, manslaughter, and assault with intent to rob.[59]
[59] Criminal Code, s.279, s 280, s 283 and s 393.
The offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code carries a maximum penalty of between five and seven years. The offence of assault contrary to s 313(b) of the Criminal Code carries a maximum penalty of between 18 months and three years imprisonment.
When the applicant was sentenced for the Armed Robbery Offence on 22 July 2015, the sentencing Judge identified the following aggravating factors:[60]
a)an element of premeditation and planning;
b)an element of persistence;
c)the use of actual violence;
d)the pharmacist was a vulnerable female;
e)the premises of the pharmacy targeted was a soft target;
f)there were customers as well as other staff in the pharmacy; and
g)the quantity of drugs taken was significant.
[60] Exhibit 1 at pages 129-131.
The sentencing Judge also identified the following mitigating factors: [61]
a)the youth of the applicant (aged 23 years);
b)the applicant's plea of guilty;
c)the applicant's willingness to accept responsibility for the offending (including the fact that the applicant handed himself in to the Police after the commission of the offence) and had expressed limited victim empathy;
d)the applicant's difficult upbringing;
e)no other criminal convictions in Western Australia and only traffic infringements in Tasmania; and
f)the applicant's prospects for rehabilitation.
[61] Exhibit 1 at pages 131-136.
The sentencing Judge found that the Armed Robbery Offence was 'a serious offence of its kind but at no higher than mid-range'.[62] Whilst the sentencing Judge imposed the Suspension on the applicant, he also pointed out to the applicant the serious implications which were liable to follow from non-compliance with the requirements of the Order.
[62] Exhibit 1 at page 131.
The offence of armed robbery is, when judged objectively, a serious offence having regard to its penalty. Although the Armed Robbery Offence was not considered by the sentencing Judge to be the most serious offence of its kind, the circumstances of the commission of the Armed Robbery Offence were serious. In particular, the applicant was armed with a large knife, he stole a significant quantity of Endone and Dexamphetamine and his victim was extremely traumatised.
When the applicant was sentenced for the Assault Offences, the sentencing Magistrate noted that the offences would of themselves carry a term of imprisonment.[63]
[63] Exhibit 1 at page 156.
As a result of the commission of the Assault Offences, the applicant was in breach of his Suspension and was sentenced for the Armed Robbery Offence in the Supreme Court.
The Assault Offences are, when judged objectively, less serious than the Armed Robbery Offence. However, the circumstances of the commission of the Assault Offences were serious enough to warrant a sentence of imprisonment. In particular, the applicant threw a chair and used violence against two employees of the employment agency causing one of the employees to sustain multiple injuries.
The convictions of the applicant and s 11 of the Firearms Act
In this matter, the applicant applied for a firearms licence on 5 January 2021. Accordingly, the five year period for the purposes of s 11(3) of the Firearms Act is calculated back from 5 January 2021.
The applicant was convicted of the Armed Robbery Offence on 27 July 2015. Therefore, that conviction falls just outside the five year period for the purposes of s 11(3) of the Firearms Act. However, notwithstanding that the conviction for the Armed Robbery Offence falls outside the five year period, it is appropriate that the Armed Robbery Offence be taken into account as permitted by s 11(6) of the Firearms Act. This is for two reasons. First, the Armed Robbery Offence was a serious offence. Second, the Armed Robbery Offence involved violence and, in particular, the use of a weapon.
The applicant was convicted of the Assault Offences on 21 March 2016. Therefore, these convictions fall inside the five year period for the purposes of s 11(3) of the Firearms Act and are, without more, sufficient grounds for forming an opinion that the applicant is not a fit and proper person to hold a firearms licence. However, even if the Assault Offences did not fall inside the five year period, I would have taken them into account as permitted by s 11(6) of the Firearms Act.
The Armed Robbery Offence and the Assault Offences committed by the applicant all involved violence. Accordingly, I am satisfied having regard to those offences that the applicant has a history of, or tendency towards violent behaviour which I may take into account in deciding whether the applicant is a fit and proper person to hold a firearms licence as permitted by s 11(2) of the Firearms Act.
The convictions of the applicant and the factors in Tavelli which make convictions more serious in the statutory context
The factors set out in [49] above provide a useful starting point for considering the seriousness of the applicant's convictions.
The convictions did not occur in the course of, or relate to, the carrying out of an occupation under a firearms licence. Nor did the offences occur while the applicant was the holder of a firearms licence. Further, none of the offences involved the use of a firearm.
To the extent that the Armed Robbery Offence involved stealing then it is, in my view, an offence involving dishonesty. In the present case, the Armed Robbery Offence involved the applicant stealing a significant quantity of drugs (Endone and Dexamphetamine) from the pharmacy for his own use.[64] The Assault Offences are not offences of dishonesty.
[64] Exhibit 1 at page 130.
When taken together, I find that the Armed Robbery Offence and the Assault Offences are so serious, in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the applicant.
Factors which might indicate that the applicant may be a fit and proper person notwithstanding previous convictions
The factors set out in [50] above provide a useful framework for considering whether the applicant is of good character notwithstanding his criminal convictions and I have adopted them in this decision.
Remorse, contrition, insight and understanding
As outlined above, when the applicant was sentenced in the Supreme Court for the Armed Robbery Offence, the sentencing Judge observed that the applicant had 'only expressed limited victim empathy' as indicated in the pre-sentence report.[65] The sentencing Judge also noted, from the psychiatric report, that the applicant 'did not appear to have significant remorse' and he did not see any other material as to remorse for which he could give the applicant credit.[66]
[65] Exhibit 1 at page 132.
[66] Exhibit 1 at page 132-133.
The applicant provided the Tribunal with a redacted copy of the psychiatric report (2015 Psychiatric Report) submitted to the Supreme Court for sentencing which he had obtained under the Freedom of Information Act1992 (WA). The author of the 2015 Psychiatric Report expressed the view that the applicant 'did not appear to have significant remorse regarding the offending behaviour, justifying it on the basis that he was driven to do so because of lack of help from the local mental health service'.[67]
[67] Exhibit 6.
At the sentencing hearing in relation to the Assault Offences, counsel for the applicant submitted in effect that the applicant had demonstrated remorse and victim empathy because he wrote to both of the complainants after speaking to a community corrections officer and sent them apology letters and a $50 Coles gift voucher.[68]
[68] Exhibit 1 at page 155.
At the Hearing, the applicant said that he regretted the Armed Robbery Offence. When he was asked at the Hearing why he regretted it, his answers related to the impact the Armed Robbery offences had on him; his disappointment in himself; his reputation and what his family thought of him; and his shock at being imprisoned.[69]
[69] ts 32, 9 December 2021.
The applicant was also asked about his regrets in relation to the Assault Offences. His answers again related to the fact that he did not like what he had done; that he did not like that he committed harm to other people; and he did not like that he lost control of himself. He added that it was not his intent to inflict those harms but it happened, and he regretted it. [70]
[70] ts,33, 9 December 2021.
During the closing submissions, counsel for the Commissioner submitted that the applicant had described his offending as regrettable and had tended to focus on the impact of his offending on his own life which, in the respondent's view, demonstrates a tendency towards minimisation of his conduct and was not indicative of genuine insight, remorse or acceptance of responsibility for his actions.[71] In response the applicant appeared to be saying that he could not speak for the victims of his offending but he was sorry for what he did.[72]
[71] ts 72, 9 December 2021.
[72] ts 72, 9 December 2021.
The fact that the applicant turned himself into the Police shortly after the Armed Robbery Offence is, in my opinion, an indication of his remorse for the Armed Robbery Offence.
Whilst I accept that the applicant does have regret for his offending and apologised to the victims of the Assault Offences soon afterwards, I find that the clear focus of the applicant's regret is the impact his offending had on himself rather than his victims. In my view, this suggests limited insight.
Time since commission of offences
The Armed Robbery Offence was committed on 31 December 2014 and the Assault Offences on 22 October 2015. Accordingly, a period of approximately seven and a half years has elapsed since the commission of the Armed Robbery Offence and a period of approximately six years and eight months has elapsed since the commission of the Assault Offences.
The temporal factor is relevant to the restoration of character following the commission of an offence or offences in three ways:
a)First, as a period of time within which the person is to serve his or her punishment and undergo rehabilitation.
b)Second, as a period of time during which the person has not reoffended.
c)Third, as a period of time to enable the person to take steps to address any factors which may have given rise to the commission of the offence(s).
The question as to whether a substantial period of time has elapsed since the commission of the offence is inextricably linked to the seriousness of the offences. That is, as a general rule, the more serious the offence the greater the period of time which needs to elapse.
The periods of time which have elapsed since the commission of the offences are reasonably substantial.
Any change in the applicant's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated
There are a number of factors which, on the evidence before the Tribunal, gave rise to the commission of the offences.
The applicant gave evidence that at the time of the commission of the Armed Robbery Offence he did not have any accommodation, apart from his vehicle, and that he did not have a job and only $50 in his wallet.[73] He said he committed the Armed Robbery Offence with the knowledge that he might be arrested and taken into custody and then he would have some accommodation.[74] He also said that he had drunk about half a bottle of scotch prior to the commission of the Armed Robbery Offence and that he had a craving for Endone after he consumed the scotch.[75]
[73] ts 16, 9 December 2021.
[74] ts 39, 9 December 2021.
[75] ts 16, 9 December 2021.
At the sentencing hearing for the Assault Offences, the prosecutor submitted that the applicant attended an employment agency for a follow-up on a job-seeker application and that the Assault Offences arose after he became frustrated with the process.[76] Counsel for the applicant submitted that the offences were alcohol-related and that the applicant drank three standard drinks of whisky beforehand. Further, it was submitted that the applicant accepted 'his judgment was clouded by the alcohol he had consumed'.[77]
[76] Exhibit 1 at page 152; see also ts 31 and 40, 9 December 2021.
[77] Exhibit 1 at page 154.
I am satisfied, on the evidence before me, and find that the factors giving rise to the commission of the offences (when taken together) were a lack of accommodation, unemployment, lack of money, alcohol consumption, and substance abuse. Accordingly, it is necessary to see whether, and to what extent, these factors have been addressed by the applicant.
Accommodation
The applicant gave evidence that, following his release from prison, he lived in community housing provided by the same organisation. The applicant gave evidence that he had lived in a rental unit in West Perth for nearly two years.
During cross-examination, the applicant was asked what would happen if his accommodation for some reason became unavailable. The applicant said he did not expect that his accommodation would become unavailable because he pays his rent and all of his property inspections have been positive.[78] He also said that if for some reason he ended up without accommodation, then he would either go to a hostel or something like that as there are plenty of them or go back to live with his father.[79]
[78] ts 39, 9 December 2021.
[79] ts 39-40, 9 December 2021.
In her report to the Tribunal, Dr Quadros stated that she had only seen the applicant twice at the practice and that she had not seen him since 11 July 2020. In her report, Dr Quadros stated that the applicant was initially homeless following his release from prison and then housed in transitional accommodation.[80]
[80] Exhibit 5.
I accept the evidence of the applicant in respect of his accommodation. I am satisfied on that evidence and find that the applicant is now in stable accommodation and that he is aware of alternative accommodation options available to him should he end up without accommodation. Accordingly, I find that the lack of accommodation as a factor giving rise to the Armed Robbery Offence is a factor which has been eliminated.
Employment
The applicant gave evidence that although he applies on average for 20 or so jobs a month, he has been unemployed since his release from prison.[81]
[81] ts 17, 9 December 2021.
I accept the evidence of the applicant in respect of his employment situation. Accordingly, I am satisfied on the evidence and find that the applicant is not currently employed and that the lack of employment as a factor giving rise to the offences is a factor which has not been eliminated.
Lack of money
The applicant gave evidence that he is on Centrelink benefits.[82] There was no evidence to suggest that the applicant lives beyond his means. Accordingly, I am satisfied on the evidence and find that the lack of money as a factor giving rise to the Armed Robbery Offence is a factor which has been ameliorated because of his receipt of Centrelink benefits.
Alcohol consumption
[82] ts 17, 9 December 2021.
At the time the 2015 Psychiatric Report was prepared, the applicant informed the author that he consumed alcohol most days of the week, up to six scotches and that he would be quite intoxicated three or four times a week. In the 2015 Psychiatric Report the author stated that:
a)the applicant had a significant alcohol use disorder which spanned many years and that alcohol intoxication was probably a significant factor at the time of the offending;
b)the applicant needed to address his alcohol use and might benefit from seeing a psychiatrist to further evaluate his treatment needs;
c)the applicant's current offending seemed to be rather erratic and impulsive behaviour on his part, likely fuelled by alcohol intoxication; and
d)the applicant's underlying risk profile was somewhat mixed with a moderate level of risk given his ongoing alcohol use affecting future offending risk.
At the Hearing, during his evidence-in-chief, the applicant stated that he drinks most days after he eats dinner and that he has three or four drinks of either beer or wine.[83] However, during crossexamination, the applicant stated that he did not drink every night, but it might be every second day and that they were standard drinks.[84] He also stated that on special occasions he will drink spirits but that was 'pretty rare'.[85]
[83] ts 20-21, 9 December 2021.
[84] ts 41, 9 December 2021.
[85] ts 42, 9 December 2021.
During the Hearing, the applicant also said that he went to Cyrenian House after he was released from prison and saw a psychologist specific to substances (alcohol and drugs) for about six months.[86]
[86] ts 24, 9 December 2021.
When cross-examined, the applicant gave evidence that his alcohol consumption is not monitored by his general practitioner.[87]
[87] ts 43, 9 December 2021.
In December 2020 the National Health and Medical Research Council released a revised version of the Australian guidelines to reduce health risks from drinking alcohol (Alcohol Guidelines). In the Alcohol Guidelines, it is stated that healthy adults should drink no more than 10 standard drinks a week and no more than four standard drinks on any one day to reduce the risk of harm from alcohol. I have had regard to the Alcohol Guidelines pursuant to s 32(4) of the SAT Act, which provides that '[t]he Tribunal may inform itself on any matter as it sees fit', in respect of the applicant's alcohol consumption.
I accept the evidence of the applicant in respect of the volume of his alcohol consumption. I am satisfied and find, on the basis of the evidence of the applicant, that the applicant still consumes alcohol, including spirits, and that his consumption of alcohol may on occasion exceed the weekly limits recommended in the Alcohol Guidelines. I also find, on the basis of the evidence of the applicant, that the applicant has taken some steps to deal with issues concerning his alcohol consumption, including his attendance at programs in prison concerning substance abuse and attendance at Cyrenian House.
Although the applicant's alcohol consumption has, on his evidence, been reduced, I am satisfied on the evidence and find that alcohol consumption as a factor giving rise to each of the offences is a factor which has not been eliminated.
Substance abuse (other than alcohol)
When the applicant committed the Armed Robbery Offence he stole a significant quantity of Endone and Dexamphetamine which he said was for his personal use.
At the time the 2015 Psychiatric Report was prepared, the applicant informed the author that he had been smoking cannabis since the age of 18 and between the ages of 18 and 20 he was using it on a daily basis but had not smoked cannabis for one year.
The applicant gave evidence that he:
a)smoked cannabis every day for a two year period between 2009-2010/2011 and had used some cannabis whilst he was in prison, but is not currently smoking cannabis;[88]
b)was prescribed Endone for pain in 2010 but had not taken it since 2014;[89]
c)was prescribed Dexamphetamine in 2010 or 2011 and again in 2014;[90]
d)attended Cyrenian House for substance abuse when he got out of prison;[91] and
e)does not consume any drugs now other than the prescription drugs he takes which he specified as Fluoxetine (an antidepressant) and Quetiapine/Seroquel (for sleeping).[92]
[88] ts 18-20 and 41, 9 December 2021.
[89] ts 35, 9 December 2021.
[90] ts 36-37, 9 December 2021.
[91] ts 24-25, 9 December 2021.
[92] ts, 21-22, 35-37, 41, 43, 46 and 48, 9 December 2021.
I accept the evidence of the applicant concerning his use of drugs as there was no evidence to the contrary. I am satisfied on the basis of the evidence of the applicant and find that the applicant no longer consumes illicit drugs. Accordingly, I find that substance abuse as a factor giving rise to the offences is a factor which has been eliminated.
The applicant's character generally since his commission of the offences
Rehabilitation during term of imprisonment
In the Individual Management Plan for the applicant prepared by the Department of Corrective Services, there were a number of positive comments made about the applicant.[93] First, it was noted that he was a quiet prisoner who was polite and respectful in his dealings with staff. Second, it was noted that he appeared to interact well with other prisoners and was compliant with the prison routine. Third, it was noted that he was a dedicated worker who demonstrated a positive work ethic.
[93] Exhibit 1 at pages 12-13 and 46-47.
The applicant provided the Tribunal with a number of certificates which detailed his completion of a number of courses during his incarceration. Those certificates are:
a)General Offending Program Completion Certificate dated July 2017 where the course content included Managing Feelings, Substance Abuse and Getting Along with Others;[94]
b)Certificate of Attainment for successful completion of Anger Management dated 21 September 2017;[95]
c)Certificate of Attainment for successful completion of Life Skills Workshop dated 16 November 2017;[96]
d)Certificate for successful completion of Peaceful Pathways Basic Workshop dated 24 May 2018;[97] and
e)Certificate of Completion Pathways Program dated 15 June 2018.[98]
[94] Exhibit 1 at page 9.
[95] Exhibit 1 at page 10.
[96] Exhibit 1 at page 11.
[97] Exhibit 1 at pages 17-18.
[98] Exhibit 1 at page 19.
The applicant gave evidence at the Hearing that the work for the courses he completed in prison was extensive. He also pointed out that although the courses were not mandatory, his understanding was that his chances of obtaining parole would be pretty minimal if he did not do them.[99]
[99] ts 53, 9 December 2021.
During the Hearing, I asked the applicant what insights he got from doing the programs. He answered that he recognised that an excess of drinking alcohol, spirits, was a no-no, not a good thing and contributed to his recklessness.[100]
[100] ts 53, 9 December 2021.
I accept the evidence of the applicant about his rehabilitation in prison. Accordingly, I am satisfied on the evidence of the applicant and find that the applicant took positive steps towards his rehabilitation whilst he was in prison.
Lack of offending
The applicant gave evidence at the Hearing that, apart from a couple of traffic convictions, he had no criminal convictions before the Armed Robbery Offence.[101]
[101] ts 32, 9 December 2021.
It was not in dispute that the applicant had not been convicted of any further offences since 2016.
Although I find that the applicant has not been convicted of any offences since 2016, I note that the applicant was not released from prison until September 2018. This means that the applicant has, in practical terms, not committed any offences in the community for a period just short of four years.
Age
At the time of the commission of the offences, the applicant was aged between 23 and 24 years of age. The applicant is now 31 years of age.
Support from family and friends and others
In terms of family supports, the applicant gave evidence that:
a)he speaks to his father pretty regularly, rarely speaks to his mother; and is not in contact with his stepmother or stepsisters;[102]
b)he does not have any friends who provide him with support;[103]
c)he is not a member of any sporting associations or clubs or groups;[104] and
d)he knows his immediate neighbours and there is no conflict there.[105]
[102] ts 27, 9 December 2021.
[103] ts 27, 9 December 2021.
[104] ts 27-28, 9 December 2021.
[105] ts 28, 9 December 2021.
I accept the evidence of the applicant in terms of his family and community supports. Accordingly, I am satisfied on the evidence and find that the applicant has little in the way of family or other supports.
Paid and voluntary work
The applicant provided the Tribunal with a copy of one of his school reports from his final year of high school in 2007.[106] It is apparent from that report that the applicant was performing at a high level and highly regarded by his teachers.
[106] Exhibit 1 at pages 57-66.
Between leaving high school and his imprisonment, the applicant gave evidence that he was employed in a number of different jobs.[107] He worked as a security guard and completed a Certificate II in Security and a baggage screening course. He enlisted in the Royal Australian Air Force in 2008 and completed Phase 1 of the Reserve Recruit Course.[108] He also worked at a number of Commonwealth Government agencies.
[107] ts 10-15, 9 December 2021.
[108] Exhibit 1 at pages 93-95.
The applicant gave evidence that, following his release from prison in September 2018, he completed a Certificate III in Heavy Machinery.[109] The applicant provided the Tribunal with copies of his Certificate III in Surface Extraction Operations[110] and a Certificate of Attainment which stated that he was licenced to operate a boom-type elevating work platform.[111]
[109] ts 17, 9 December 2021.
[110] Exhibit 1 at page 21.
[111] Exhibit 1 at page 22.
As I have outlined above, the applicant is not currently employed.
Character references
The Tribunal will attach weight to a positive character reference given in respect of an applicant where:
a)the referee has a particular standing in the community;
b)the referee has known the applicant for a sufficient period of time to be able to comment on their character and standing within the community; and
c)the referee provides the character reference in full knowledge of the applicant's criminal history.[112]
[112] Wally at [50] per Member Wallace; Jeffries at [60] per Member Ward.
The applicant did not provide the Tribunal with any character references. During the Hearing, I asked the applicant whether he had anyone who could provide him with a reference or speak about the person he is now and the applicant told me 'no'.[113] This was most unfortunate because it meant that there was no person, other than the applicant himself, to attest to the applicant's character and their standing in the community. Accordingly, I find that the applicant does not have anyone to attest to his character and standing in the community.
Analogous cases
[113] ts 35, 9 December 2021.
The applicant referred to a number of decisions of the Tribunal in which a decision by the Commissioner or the Commissioner's delegate to refuse an application for, or to revoke, a firearms licence was set aside upon review by the Tribunal notwithstanding that the applicant in each case had a significant criminal history.
As was pointed out in Punter, 'although the Tribunal is assisted by considering analogous cases, it must ultimately exercise its broad discretion anew in the circumstances of this particular application, in the light of the statutory framework'.[114]
[114] At [61].
Each applicant in each of the cases discussed below will be identified as the Applicant (Applicant).
The Applicant in Wally, was refused a firearms licence by the Commissioner because of his extensive criminal history consisting of 121 criminal convictions and 35 traffic convictions, including several convictions relating to violence and/or alcohol-related offences. The Tribunal set aside the decision. The key factors to which the Tribunal had regard were:
a)it was almost five years since the Applicant had committed a criminal offence;
b)there had been a marked change in the Applicant's behaviour since he made the decision to give up alcohol and drugs (in circumstances where most of the prior offending took place whilst he was under the influence of alcohol and drugs);
c)the Applicant's involvement with a community church;
d)the fact that none of the Applicant's offending involved a firearm;
e)written references and other evidence which reinforced the Applicant's good standing in the local community;
f)the Applicant's employment; and
g)the Applicant's long-term relationship with wife and their shared responsibility for 13 children.
The decision in Wally may be distinguished from the matter presently under consideration because the Applicant in that case had given up alcohol, was employed and had strong community and family supports and references.
The Applicant's firearms licence in Ludgate, was revoked by the Commissioner on the basis of a conviction for attempting to pervert the course of justice and some alcohol-related traffic offences. The Tribunal set aside the decision. The key factors to which the Tribunal had regard were: the Applicant was not currently drinking alcohol; and the Applicant was now fully aware of his responsibilities in relation to alcohol and driving.
The decision in Ludgate may be distinguished from the matter presently under consideration because in that case the Applicant had given up alcohol.
In Jeffries, the Applicant was refused a firearms licence by the Commissioner because of his extensive criminal history over a period of 30 years. The Applicant's criminal convictions often arose from the consumption of alcohol. The Tribunal set aside the decision. The key factors to which the Tribunal had regard were:
a)a decision by the Applicant to dramatically reduce his alcohol consumption and then abstain from alcohol completely;
b)the Applicant's full-time employment; and
c)the fact that the Applicant had not been convicted of any Firearms Act offences.
The Tribunal made it clear that '[t]he reduction in the [A]pplicant'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'.[115]
[115] Jeffries at [31] per Member Ward.
The decision in Jeffries may be distinguished from the matter presently under consideration because in that case the Applicant had given up alcohol and was employed.
In Punter, the Applicant sought a review of a decision by the Commissioner to revoke his firearms licence because he was convicted the previous year of an unlawful assault following an incident of domestic violence. The Applicant submitted that he was an alcoholic and at the Hearing in the Tribunal gave evidence that he had been treated and reviewed by his general practitioner in relation to that condition, attended weekly meetings of Alcoholics Anonymous (AA) and, save for one relapse, had remained alcohol free for a year. That evidence was supported by drug and alcohol testing, evidence from the applicant's general practitioner and the secretary of the AA meeting and evidence from the Applicant's wife that he had remained sober. The Tribunal was satisfied that the Applicant had become a fit and proper person to hold a firearms licence and that his firearms licence should not be revoked. The Tribunal said:
The Tribunal accepts that alcohol is the principal trigger of the applicant's aggressive behaviours. The Tribunal finds that when the applicant is not abstinent of alcohol he is not a fit and proper person to possess a firearm.
Accordingly, the most significant factor in favour of the application is the considerable progress the applicant has made, since the Incident, to treat his alcoholism and manage his associated behaviours. Nevertheless, the period that has elapsed since the Incident is relatively short, and the applicant has, for most of that time, been subject to supervision under the community based order to which he was sentenced. The applicant's ongoing employment in an environment that requires regular drug and alcohol testing, and his regular attendance at AA meetings, are significant contextual factors in satisfying the Tribunal that the trigger for the applicant's aggression is likely to remain absent notwithstanding the expiration of the community based order.[116]
[116] At [67]-[68] per Member McGivern.
The decision in Punter may be distinguished from the matter presently under consideration because in that case, the Applicant's offences were less serious, he was employed, he had given up alcohol and his alcohol abstention was monitored.
In Lloyd the respondent revoked the Applicant's firearms licence on the basis that the Applicant was not a fit and proper person to hold a firearms licence because he had been convicted of several traffic offences, offences concerning the obstruction of public officers and disorderly behaviour in public. The Tribunal set aside the decision. The Tribunal held:
In this case, the applicant has presented as a person whose history suggests that he is a diligent, skilled employee, has no convictions involving violence, weapons or a contravention of the Firearms Act and has not been the subject of a violence restraining order, notwithstanding, on his own admission, episodes when he has been loud and unreasonable. The Tribunal finds that the convictions all involved alcohol, but they are not so serious as to reflect a characteristic disregard of the law. The convictions, in the context of all of the evidence, do not establish a disregard of the law generally, or that the issue of a firearm licence to the applicant poses a threat to public safety. The Tribunal finds that the applicant's episodes of rude, uncooperative and unreasonable behaviour, fuelled by alcohol, are understood by the applicant to be obstructive and that, whatever the reason, he has matured somewhat and has gained insight into the ramifications of his loud and unruly behaviour when challenged.[117]
[117] At [55] per Member Owen-Conway.
The decision in Lloyd may be distinguished from the matter presently under consideration because in that case the Applicant's offences were less serious and the Applicant was employed.
In Shore, the Commissioner refused to grant the Applicant a firearms licence on the basis that the Applicant was not a fit and proper person to have a firearms licence because of convictions for possession and cultivation of cannabis with intent to sell or supply and failure to ensure safe-keeping of ammunition. The Tribunal set aside the decision. The key factors to which the Tribunal had regard were:
a)the circumstances of the convictions, including the Applicant's explanations (that he had suffered a serious work accident and turned to cannabis as a form of pain relief);
b)the Applicant's expressions of remorse and commitment to not reoffend;
c)the elimination of factors contributing to the offences; and
d)the intervening period of four years of good behaviour and positive character references.
The decision in Shore may be distinguished from the matter presently under consideration because in that case the Applicant's offences were less serious; he had eliminated the factors contributing to the offending; and he had character references.
In Docherty, the Commissioner revoked the Applicant's firearms licence on the basis that the Applicant was not a fit and proper person to hold a firearms licence because of his criminal record. The Applicant had historic convictions from 1992 (possession of smoking implement, stealing, burglary, loitering, criminal damage, criminal damage by fire) and more recent convictions in 2006 (threatening and abusive behaviour, escape from legal custody, cultivation of a prohibited plant). Violence restraining orders had also been taken out against the Applicant in 2005 but had not been renewed. The Tribunal set aside the decision. The key factors to which the Tribunal had regard were:
a)the Applicant's genuine remorse, contrition and true insight into what he did wrong;
b)he had attended courses to change his demeanour;
c)a major change in his circumstances (he had gained custody of his children following his marriage breakup and was in a supportive relationship);
d)the offences were committed more than five years ago and he had not reoffended; and
e)positive character references.
The decision in Docherty may be distinguished from the matter presently under consideration because in that case the Applicant's offences were less serious, and he had character references.
In Nickels, the Commissioner refused the Applicant's application for a firearms licence on the basis that the Applicant was not a fit and proper person to hold a firearms licence because of her criminal record. The Applicant's criminal history between 2001 and 2009 chiefly consisted of firearms and weapons offences and assault offences.
The Tribunal set aside the decision. The key factors to which the Tribunal had regard were:
a)the Applicant's criminal history arose from situations of conflict with the police in 2001, 2002 and 2006 and that, since then, there has been no similar offending;
b)there was nothing to suggest that the Applicant had ever displayed an aggressive or violent disposition towards any person or group, apart from police officers;
c)the firearms offences were the result of the Applicant's ignorance of the legal requirements for the storage of firearms and a lax approach to compliance with the requirements of the Firearms Act rather than any deliberate flouting of the requirements;
d)the Applicant had since taken measures to comply with the requirements;
e)the Applicant was genuinely remorseful for her previous offending and had demonstrated a change in her character since undertaking an anger management course in 2006; and
f)positive character references.
The decision in Nickels may be distinguished from the matter presently under consideration because in that case the Applicant's offences were less serious, and she had character references.
In Anderson the Commissioner revoked the applicant's firearms licence for two reasons, including her relationship with a member of an outlaw motorcycle gang. The Tribunal set aside the decision.
The decision in Anderson may be distinguished from the matter presently under consideration because in that case the Applicant had been convicted of less serious offences.
Having regard to the principles relating to whether a person is fit and proper to hold a firearms licence, the matters set out above concerning the applicant and the analogous cases, I am satisfied and find that the applicant is not a fit and proper person to hold a firearms licence because of his criminal convictions. This is for the following reasons:
a)the applicant has convictions for the Armed Robbery Offence and the Assault Offences;
b)the convictions for the Assault Offences occurred within the five year period before the applicant applied for a licence and each conviction is, without more, a sufficient ground for forming an opinion that the applicant is not a fit and proper person to hold a firearms licence;
c)the applicant's convictions are so serious, in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the applicant;
b)whilst the applicant regrets the commission of the offences and has shown some insight into his offending, the focus of his regrets are the impact the offending had on himself and he has continued to show little empathy for the victims of his offending;
c)whilst the applicant has made progress in addressing some of the factors which led to the commission of the offences such as obtaining stable accommodation and dealing with his drug abuse, not all of those factors have been eliminated. In particular, the applicant continues to consume alcohol on a regular basis in circumstances where there is no independent monitoring of his alcohol consumption and the applicant has not been employed since his release from prison; and
d)although the applicant has taken some positive steps to redeem his character since the commission of the offences in 2014 and 2015 and has not been convicted of any criminal offences since his conviction for the Assault Offences in 2016, he does not have anyone to attest to his character and position in the community, is unemployed and has little in the way of family or other supports.
The applicant’s mental fitness
In Polizzi, as outlined above, the Tribunal noted that the application form for a firearms licence in Sch. 1 of the Firearms Regulations requires every applicant to make a statement about his or her mental and physical fitness. The form set out in the Firearms Regulations contains a number of questions which relate to the prerequisites for the issue of a firearms licence including the following two questions relating to mental and physical fitness:
a)'In the last 5 years have you been treated for any medical condition that could affect your fitness to hold a firearms licence or regularly used prescription medication or other drugs?'; and
b)'Do you have any physical or mental condition that could affect your fitness to hold a firearms licence?'.
The application form provided to the Tribunal by the respondent[118] does not match the application form required to be submitted by the Firearms Regulations. Importantly, for the purposes of this matter, it does not contain the questions set out above in [149] or the answers to those questions. Accordingly, subsequent to the Hearing, the Tribunal queried with the parties whether the application form provided to the Tribunal by the respondent was complete. The applicant advised the Tribunal that all the questions were answered and that he believed that part of the form is electronically held by Licensing. The respondent advised that pages 101 to 108 of the hearing bundle is the entire application form submitted to the Western Australia Police. Given that the Tribunal stands in the Commissioner's shoes in making a decision, it would have been helpful to have had access to the information which the application form in the Firearms Regulations requires to be provided to the Commissioner.
[118] Exhibit 1 at pages 101-108.
Notwithstanding that the Tribunal did not have the answers to the questions in the application form referred to in [149] above, the Tribunal did have other evidence concerning the applicant's mental fitness to hold a firearms licence.
In the 2015 Psychiatric Report[119] the author states that when she interviewed the applicant, the applicant reported:
a)he had been diagnosed with anxiety and depression but did not take his antidepressant medication;
b)he had been prescribed dexamphetamine for probable attention deficit disorder;
c)in May 2011 he made a self-harm attempt by stabbing himself in the back which caused a laceration to his liver and was hospitalised. During his hospitalisation, he was seen by a psychiatrist and diagnosed with possible psychosis, placed on Olanzapien (described by the author as an anti-psychotic medication); and
e)during the previous three years or so, he had been taking Fluoxetine, an antidepressant medication, and was taking 80 milligrams (described by the author as a high dose).
[119] Exhibit 6.
The author of the 2015 Psychiatric Report diagnosed the applicant with alcohol use disorder and possible anxiety and depression. The author also noted the following psychosocial and contextual factors: lack of employment, lack of supports, and an upcoming court case. In the author's opinion, the applicant was not affected by a mental disorder at the time of the offending.
During the Hearing, the applicant gave evidence that he took antidepressants (Fluoxetine) and sleeping tablets (Quetiapine/Seroquel)[120] and that he had been on the antidepressants since 2012.[121] He stated that he suffered from depression, anxiety and social anxiety.[122]
[120] ts 21-22, 35-37, 41, 43, 46 and 48. 9 December 2021.
[121] ts 37, 9 December 2021.
[122] ts 45-47, 9 December 2021.
The applicant also gave evidence that he is not currently under the care of a psychiatrist, although he did see a psychiatrist in 2021, and that he just sees his regular doctor.[123] When cross-examined, the applicant stated that he took his medication consistently.[124]
[123] ts 37-43, 9 December 2021.
[124] ts 48, 9 December 2021.
During the Hearing, the applicant offered to provide the Tribunal with a report given to Centrelink to which he had made reference. After the Hearing, the applicant duly submitted to the Tribunal an Employment Services Assessment Report, prepared by a social worker at Centrelink, dated August 2021 (ESA Report).[125]
[125] Exhibit 2.
In the ESA Report it is stated that Dr Quadros had diagnosed the applicant with major depression and anxiety and that it was a permanent condition. Further, in the ESA Report, reference is made to Dr Quadros identifying the diagnosis of alcohol dependence with psychosis.
The verification of medical condition(s) form dated 11 January 2020 (VMC Form) was completed by Dr Quadros.[126] In the VMC Form Dr Quadros listed two diagnoses in respect of the applicant. First, Major Depression with Generalised Anxiety diagnosed in 2011 which she described as permanent. Second, Alcohol Dependence with Psychosis diagnosed in 2017 which she described as temporary and in relation to which Dr Quadros noted the applicant '[d]rinks only moderately now'. Dr Quadros also reported that the applicant was on Fluoxetine and Quetiapine. Dr Quadros also stated that the applicant probably had post-traumatic stress.
[126] Exhibit 3.
As a result of the receipt of the ESA Report and the VMC Form, the Tribunal requested that Dr Quadros provide a report. Dr Quadros provided a report to the Tribunal dated 22 January 2022.[127] In her report, Dr Quadros stated that:
a)she did not have current knowledge of the applicant's drug or alcohol use, but she would not imagine him to be a suitable candidate for a firearms licence with his past forensic history and history of substance misuse;
b)she was unsure about the applicant's compliance with medication at this point however his past compliance was a bit intermittent but that also had to do with finances and being homeless;
c)the applicant's last medications prescribed at the practice were Fluoxetine and Quetiapine;
d)the applicant was assessed by Dr Gulati on 22 September 2021;
e)Dr Gulati's formulation on that initial assessment was of a likely psychotic disorder as a working diagnosis with ongoing residual negative symptoms with possible cognitive deficits and low-grade positive symptoms; and
f)Dr Gulati also thought that there could be an underlying Cluster A/C personality traits.
[127] Exhibit 4.
As a result of the receipt of the report from Dr Quadros, the Tribunal requested that Dr Gulati provide a report. Dr Gulati provided a report to the Tribunal dated 10 March 2022.[128] In his report, Dr Gulati set out his provisional working diagnosis in respect of the applicant:
I construed the presentation on the line of a psychotic disorder with ongoing residual negative symptoms, possible concurrent cognitive deficits, and low-grade positive symptoms. There could be a possibility of an underlying Cluster A/C personality traits, but it was extremely difficult to affirm in the absence of information and collaterals.
[128] Exhibit 7.
Dr Gulati was asked to comment on whether the applicant's condition affected his cognitive skills and ability to make informed decisions relating to the use of firearms. In his report, Dr Gulati stated that he could not comment on the applicant's capacity.
There are a number of items of evidence before the Tribunal which provide an apparently reliable indication that the applicant may not meet the standards of mental fitness referred to in s 11(3) of the Firearms Act. These are as follows:
a)a diagnosis by the author of the 2015 Psychiatric Report that the applicant has a significant alcohol use disorder, anxiety and depression;
b)a diagnosis by Dr Quadros that the applicant suffers permanent major depression and anxiety (and was diagnosed in 2011) and possible post-traumatic stress disorder;
c)a diagnosis in 2017 of alcohol dependence with psychosis reported by Dr Quadros;
d) a provisional working diagnosis by Dr Gulati in 2021 that the applicant suffers from 'a psychotic disorder with ongoing residual negative symptoms, possible concurrent cognitive deficits, and low-grade positive symptoms'; and
e)an incident in 2011 in which the applicant self-harmed by stabbing himself in the back causing a laceration to his liver and a diagnosis of possible psychosis.
I find that insufficient evidence has been provided to the Tribunal to satisfy me that the applicant meets the standards of mental fitness referred to in s 11(3)(b) of the Firearms Act and at [44] above. This is for three reasons. First, neither Dr Quadros nor Dr Gulati were prepared to attest or certify that, notwithstanding the diagnoses of mental illness made by them, the applicant was mentally fit to hold a firearms licence. Second, the applicant declined an opportunity to provide further medical evidence to the Tribunal relating to the matters raised by Dr Quadros and Dr Gulati. Third, although the applicant saw Dr Gulati in 2021, he is not under the care of a psychiatrist.
I am satisfied on the evidence before the Tribunal and find that the applicant fails to meet the standards of mental fitness that I consider to be necessary for him to hold a firearms licence under the Firearms Act. Accordingly, pursuant to s 11(3)(b) of the Firearms Act, I have a sufficient ground for forming an opinion that the applicant is not a fit and proper person to hold a firearms licence under the Firearms Act.
The applicant provided the Tribunal with a copy of a submission by the Royal Australian & New Zealand College of Psychiatrists (RANZCP) to the Finance and Expenditure Committee of the New Zealand Parliament dated 22 October 2019 in respect of consultation on the Arms Legislation Bill (the RANZCP submission).[129] The RANZCP indicated that they strongly supported the Government's response to institute a moratorium on semi-automatic weapons of the type used in the Christchurch mass shooting. The RANZCP also advocated for the 'fit and proper' person test to continue when considering a person's access to firearms and stated:
We also note excluding a person from owning a firearm (where they have a genuine reason to do so) by reason of mental illness alone is discriminatory and unjust. An appropriate balance must be struck between the protection of individual interests and the public interest.
[129] Exhibit 4.
The RANZCP submission has little relevance to the resolution of this matter. There is nothing in the Firearms Act which prohibits a person who has a mental illness from obtaining a firearms licence. However, all applicants for firearms licences under the Firearms Act must meet the required standards of mental fitness.
The other prerequisites for the issue of a firearms licence
Given my findings that the applicant is not a fit and proper person to hold a firearms licence, it is not necessary for me to consider the other prerequisites for the issue of a firearms licence set out in [28] above.
The correct and preferable decision
I have decided that the correct and preferable decision is that the applicant should not be granted a firearms licence under the Firearms Act. This is because I am not satisfied that he is a fit and proper person to hold a firearms licence for the reasons set out above. Accordingly, the decision of the respondent not to issue a firearms licence to the applicant should be affirmed.
Protection of the identity of the applicant
Under s 62 of the SAT Act the Tribunal may on its own initiative, in the circumstances described in s 61(4), order that any information that might enable a person who has appeared before the Tribunal to be identified is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
The circumstances referred to in s 61(4) of the SAT Act are:
(a)to avoid endangering the national or international security of Western Australia or Australia; or
(b)to avoid damaging inter-governmental relations; or
(c)to avoid prejudicing the administration of justice; or
(d)to avoid endangering the physical or mental health or safety of any person; or
(e)to avoid offending public decency or morality; or
(f)to avoid endangering property; or
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.
The applicant was commendably frank in giving evidence to the Tribunal in respect of his mental health.
The Tribunal does not wish to deter other applicants for firearms licences from seeking review in the Tribunal because they fear that issues concerning their mental fitness to hold a licence will be laid bare to the public without appropriate protection of their identity
Accordingly, I have decided that it is in the interests of justice that the applicant in this matter should be identified as JG rather than by his name.
Orders
The Tribunal orders:
1.The decision of the respondent not to issue a firearms licence to the applicant is affirmed.
2.The name of the applicant is not to be published.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
1 AUGUST 2022
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