KATICH and COMMISSIONER OF POLICE
[2015] WASAT 2
•8 JANUARY 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: KATICH and COMMISSIONER OF POLICE [2015] WASAT 2
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 9 DECEMBER 2014
DELIVERED : 8 JANUARY 2015
FILE NO/S: CC 1027 of 2014
BETWEEN: CEDO CHAS KATICH
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms - Previous convictions under the Firearms Act 1973 (WA) - Fit and proper - Time lapsed since convictions - Remorse shown by applicant - Public interest
Legislation:
Firearms Act 1973 (WA), s 11
Firearms Regulations 1974 (WA)
State Administrative Tribunal Act 2004 (WA), s 20(1)(a)(iii), s 27(1), s 29(1), s 29(3)
Result:
Application dismissed and decision of Commissioner of Police to revoke firearm licence affirmed
Summary of Tribunal's decision:
Mr Katich sought a review of the decision by the Commissioner of Police pursuant to the Firearms Act 1973 (WA) to revoke his firearm licence. The licence authorised Mr Katich to possess 14 different firearms.
The Commissioner of Police explained its decision by saying that Mr Katich was no longer a fit and proper person to be licensed following several convictions under the Firearms Act such as failure to ensure safekeeping of firearms and ammunition; being in a possession of unlicensed firearms and ammunition; and disposing a firearm to a person without a licence.
Counsel, Mr Hammond, contended on behalf of Mr Katich that Mr Katich is remorseful of the transgressions; that he requires firearms for purposes of his farming operations; that he had been waiting for an amnesty to be called to enable him to hand in the unlicensed firearms and ammunition; and that in general he continued to be a fit and proper person to be licensed to possess a firearm.
The Tribunal affirmed the decision to revoke the firearm licence. The Tribunal found that in light of the serious nature of the convictions, Mr Katich would not, if he were to apply at this stage for a firearm licence, be regarded as a fit and proper person to be licensed to possess a firearm.
Category: B
Representation:
Counsel:
Applicant: Mr J Hammond
Respondent: Sgt S Bagley (Acting as Agent)
Solicitors:
Applicant: Hammond Legal
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minitti v Commissioner of Police [2010] WASCA 198
Minniti v Motor Vehicle Industry Board [2011] WASCA 275
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:
Introduction
The application concerns a review of a decision of the Commissioner of Police (respondent) to revoke a firearm licence. Mr Cedo Katich (applicant) says he is a fit and proper person to be licensed, regardless of his convictions under the Firearms Act 1973 (WA) (Firearms Act). The respondent says that it is of the opinion that the applicant is not a fit and proper person to be licensed and therefore seeks an order that dismisses the application.
Issue
Should the decision of the respondent to revoke the firearm licence 1576205 (firearm licence) of the applicant be set aside?
Background
The respondent wrote to the applicant by letter dated 8 July 2014 to inform the applicant that it had decided to revoke the firearm licence of the applicant (decision) as a result of criminal convictions of the applicant under the Firearms Act. The applicant was entitled to possess 14 different firearms.
The applicant lodged an application for review of the decision on 22 July 2014. The applicant sought orders for the decision to be set aside; for the firearm licence to be reinstated; and for the firearms to be returned to the applicant.
The matter was originally set down for a hearing to take place on 20 October 2014, but following a request for adjournment, the matter was heard on 9 December 2014. The Tribunal reserved its decision at the conclusion of the hearing.
Summary of facts
The facts giving rise to the application are not in dispute. In essence, the applicant was convicted on 16 June 2014 of several offences under the Firearms Act (offences). The offences are set out in the 'List of Criminal Court Outcomes' that formed part of Exhibit B. The offences entail the applicant's failure to properly secure firearms and ammunition; the applicant being in possession of unlicensed firearms and ammunition; and the applicant making a firearm available to another person who was not licensed to possess a firearm.
The issue that separates the parties is whether the offences are adequate for the Tribunal to form an opinion that the applicant is no longer a fit and proper person to be licensed, or whether the circumstances surrounding the events that led to the convictions, the remorse shown by the applicant and the need for the applicant to possess a firearm licence for purposes of his rural farming activities, are sufficient grounds for the decision to be set aside.
Both parties made written and oral submissions and witnesses were called to give character evidence. The Tribunal has taken all of the information into account before coming to its decision.
The facts can be briefly summarised as follows.
The applicant is a 63‑year‑old gentleman who, for close on 40 years, has been working at the same vineyards in Caversham. The vineyards are located at Nos 245, 899, 2280, 2998 and 3130 West Swan Road, Caversham.
The applicant was licensed, until the decision, to possess 14 firearms. The applicant had been licensed for many years and had no previous convictions under the Firearms Act.
On 24 May 2013, the Police executed a search warrant under the Firearms Act, on a property of the applicant. The applicant participated fully in the process and also accompanied the Police to other properties which were not included in the warrant but where the applicant had kept firearms and ammunition. The applicant showed to the Police all the firearms and ammunition that he kept, including firearms and ammunition for which he did not hold a licence. The Police charged the applicant with several offences under the Firearms Act. The applicant played a constructive role during the criminal prosecution and pleaded guilty to the offences.
On 16 June 2014 in the Perth Magistrates Court, the applicant was convicted of and fined for the following criminal offences on 24 May 2013:
•Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime ‑ fine $1,000.
•Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime ‑ fine $1,000.
•Contravenes/fails to comply with any provision of the Firearms Regulations 1974 (WA) ‑ fine $100.
•Contravenes/fails to comply with any provision of the Firearms Regulations 1974 (WA) ‑ fine $100.
•Dispose of firearm to person without licence/permit ‑ fine $5,000.
•Failed to ensure safe‑keeping of firearm/ammunition ‑ fine $1,000.
•Failed to ensure safe‑keeping of firearm/ammunition ‑ fine $1,000.
•Failed to ensure safe‑keeping of firearm/ammunition ‑ fine $100.
•Failed to ensure safe‑keeping of firearm/ammunition ‑ fine $1,000.
•Failed to ensure safe‑keeping of firearm/ammunition ‑ fine $1,000.
•Failed to ensure safe‑keeping of firearm/ammunition ‑ fine $1,000.
•Permit unlicensed person to possess firearm/ammunition ‑ fine $250.
•Permit unlicensed person to possess firearm/ammunition ‑ fine $250.
•Possess unlicensed ammunition ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $500.
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global).
•Possess unlicensed firearm ‑ fine $3,000 (global)+.
•Possession of contrivance known as a silencer ‑ fine $250.
•Possession of contrivance known as a silencer ‑ fine $250.
The applicant was ultimately convicted of 30 offences.
The respondent decided to revoke the firearm licence of the applicant as a result of these offences and subsequent convictions. The applicant seeks a review of the decision to revoke the firearm licence.
Statutory framework
The following principles serve as the basis under the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the Firearms Act for the Tribunal's review function.
The proceeding is referred to as a hearing de novo (s 27(1) of the SAT Act), which means that all the information available to the respondent, as well as any additional information that has become available since the decision, may be considered by the Tribunal. The purpose of the review is to produce the correct and preferable decision. The Tribunal is therefore placed in the same position as the respondent and the decision of the Tribunal becomes the decision of the respondent: s 29(1) of the SAT Act. The Tribunal may affirm the decision, vary the decision or set aside the decision and substitute it with its own decision: s 29(3) of the SAT Act.
The discretion of the Tribunal must be exercised against the provisions of the Firearms Act. The licence to acquire a firearm is not a right, but a privilege; hence the regulatory regime whereby the obligation is on the applicant to demonstrate why he should be licensed and why the applicant, in order to be licensed, must continue to be a fit and proper person to hold a licence: s 11(1)(c) of the Firearms Act. A licence may be revoked if the respondent is satisfied that the applicant could not be granted a firearm licence if he were at this stage applying for a licence: s 20(1)(a)(iii) of the Firearms Act.
Section 11(1)(c) of the Firearms Act provides that the respondent, or in this case the Tribunal, cannot grant an approval if the Tribunal is of the 'opinion' that the applicant is not a fit and proper person to be licenced. Section 11(3)(a) of the Firearms Act provides some examples of when the Tribunal has 'sufficient ground' to form an opinion that a person is not fit and proper to be licenced ‑ for example, if the person was convicted of an offence under the Firearms Act. The discretion of the Tribunal, however, is not limited to the specific considerations set out in the Firearms Act; the Tribunal may also take any other relevant information into account when forming its opinion. The Tribunal is also not bound to revoke a firearm licence for the mere fact that one or more of the grounds in s 11(3)(a) of the Firearms Act have been met: s 11(5) of the Firearms Act.
Submissions
Both parties made written and oral submissions. Those submissions can be summarised as follows:
The respondent says as follows:
•The Firearms Act is aimed to protect the public by, amongst other things, setting stringent standards for the safe storage of firearms and ammunition. A high level of trust is placed in a firearm licensee to comply with the Firearms Act and to ensure that firearms and ammunition are properly and securely stored. The applicant failed to discharge himself of this responsibility, with several firearms and thousands of rounds of ammunition not being properly secured or stored.
•The Firearms Act sets out a detailed framework within which firearm licences are regulated. This framework is essential for public safety to ensure that firearms can only be lawfully possessed by persons who meet those statutory requirements. The applicant showed a blatant disregard for the law by taking possession of and keeping for a prolonged period of time, firearms and ammunition for which he held no licence.
•The concerns for public safety demand that firearms should only be made accessible to persons who comply with the stringent provisions of the Firearms Act. It is particularly in the public interest that the unlawful possession of firearms is prevented. The applicant acted recklessly and irresponsibly by making available to an unauthorised person a firearm (for which the applicant was also not licensed).
•In conclusion, these serious transgressions against the Firearms Act are adequate for the Tribunal to form an opinion that if the applicant were to apply for a firearm licence now, the licence cannot be granted since the applicant is not a fit and proper person to be licensed. The decision to revoke the firearm licence should therefore be affirmed and the application should be dismissed.
The applicant says as follows:
•The applicant acknowledges his wrongdoing under the Firearms Act and has shown deep regret and sincere remorse for his actions. The applicant cooperated fully with the Police when the search warrant was executed and even took the Police to other properties that were not included in the warrant. The applicant cooperated fully during the prosecution process and pleaded guilty to the offences.
•The applicant has been licensed to possess firearms for many years and has had no offenses recorded under the Firearms Act. The applicant is a person of good repute and of high standing in the community, and he is generally regarded as a man with high integrity.
•The applicant owns and manages vineyards and requires firearms, at least small calibre firearms, for purposes of his daily farming activities and to combat vermin and invasive birds (for example, Rainbow Lorikeets). The Tribunal is therefore invited to consider reinstating the firearm licence albeit with a reduced number of firearms.
•The unsecured, licensed firearms and ammunition were kept readily available by the applicant since those were used for personal protection, farming activities or practice shooting.
•The unlicensed firearms and ammunition would have been handed to the Police if an amnesty had been announced.
•The giving of a firearm to a family friend was an act of stupidity for which the applicant is deeply remorseful and he now realises he should never have done it.
•In conclusion, the firearm licence should be reinstated with all the firearms included, or a reduced number of firearms, in light of the particular circumstances of the applicant, the remorse shown, his general good character and the unlikeliness of the offences being repeated.
At the conclusion of the hearing, the parties raised the possibility that the Tribunal might decide to reinstate the firearm licence but review the type of firearms listed on it. The Tribunal said to the parties that it would first consider the primary question before it - namely, whether the applicant is fit and proper to be licensed ‑ and, if necessary, it may invite further written or oral submissions about the number and nature of firearms to be listed on the licence. In light of the Tribunal's decision, there is no need for this option to be pursued. The applicant may, in due course, again apply for a firearm licence and that can be dealt with on merit.
Evidence
Two persons, Mr Vince Katich and Mr Charlie Harold Knezovic, were called by the applicant to give evidence in support of the application. The applicant also gave evidence. A witness statement was filed for Mr Graeme Harris but the applicant decided not to call Mr Harris to give evidence. The Tribunal takes all of the evidence into consideration. The Tribunal also takes into account all other information before it; for example, the Pre‑sentence Psychological Report of Dr Phil Watts (Exhibit E, Annexure 2) as well as the transcript of proceedings of the Magistrates Court dated 16 June 2014.
Consideration
The Firearms Act sets out a regime for the management and control of firearms in Western Australia. It is trite to say that to be licensed to possess a firearm demonstrates a high level of trust that is placed in an individual since the potential consequences of a firearm not being properly used or stored may be severe and far reaching. In essence, the Firearms Act seeks to regulate who possesses a firearm; for what purpose a firearm may be issued; what calibre firearm may be possessed; and the proper storage and safekeeping of firearms.
There is an obligation on an individual to satisfy the Commissioner of Police that the person is fit and proper to be licensed and that the person continues to be fit and proper even after a licence had been issued.
The Firearms Act therefore establishes an ongoing obligation on firearm licensees to comply with the requirements of the Firearms Act. The high level of trust displayed towards licensees also requires from them to ensure that firearms and ammunition are safely stored and secured. This is to minimise the risk of firearms or ammunition falling into the wrong hands.
The Firearms Act is mandatory when it comes to who may possess a firearm. Section 11(1) of the Firearms Act determines that the Commissioner of Police 'cannot' grant a firearm licence to a person if the 'opinion' of the Commissioner of Police is that the person is not a fit and proper person to be licensed. Once a licence is granted, the same standard continues to apply; namely, that a firearm licence may be revoked if the Commissioner of Police is then of the opinion that a licensee is no longer a fit and proper person to be licensed. There is a practical onus on the licensee to demonstrate that it continues to be a fit and proper person to be licensed (Wignall and Commissioner of Police [2006] WASAT 206 at [282]).
The Firearms Act does not define what is meant by 'fit and proper'. The Firearms Act provides some guidance by referring to an offence under the Firearms Act as being a 'sufficient ground' for forming an opinion that a person is not a fit and proper person to be licensed, but at the same time, the Firearms Act bestows a discretion on the Tribunal to find that a person is a fit and proper person even if such a person had offended under the Firearms Act: s 11(5) of the Firearms Act). The Tribunal therefore has a wide discretion to take into account all relevant information to assess whether a person is fit and proper to be licensed.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [380], it was emphasised that the expression 'fit and proper' carries no precise meaning. Its meaning must be taken from the context in which it is used, the activities that are sought to be regulated and the ends to be served. There is, according to the court, no exhaustive meaning to be attached to 'fit and proper' and it may include references to character or reputation.
In Minitti v Commissioner of Police [2010] WASCA 198, Pullin JA (with whom Newnes JA and Mazza J agreed) said, at [11]:
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 andBusiness 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: AustralianBroadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348.
In Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli v Johnson), Wheeler J (as her Honour then was) made a number of observations about the significance of prior convictions in the context of an inquiry into fitness and propriety. Her Honour said:
It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework. With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;
(2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
(3)they occur while the person is the holder of a licence under the Act;
(4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
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:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. 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. As to character references, I would caution that they 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.
In Minniti v Motor Vehicle Industry Board [2011] WASCA 275 at [33], it was emphasised that:
The potential considerations mentioned by Wheeler J in Tavelli v Johnson are not, of course, to be treated as though they were prescriptive elements in a statutory formula. As her Honour said, 'there can be no inflexible rules'. Whether and to what extent they are to be applied and given weight will depend upon the circumstances of each case in the context of what is an overall evaluative assessment of fitness and propriety.
After consideration of all the evidence and submissions before it, the Tribunal is of the opinion that the applicant is not a fit and proper person to be licensed to possess a firearm and therefore the decision to revoke the firearm licence should be affirmed.
The reasons for this finding are:
1)The failure of the applicant to properly secure and store firearms is, in itself, a sufficiently serious offence to form an opinion that he is not a fit and proper person to be licensed. The explanations offered by the applicant for the failure to properly store and secure the firearms are weak, demonstrate lack of insight and show a reckless disregard for the responsibilities of a firearm holder. The applicant explained how he required firearms to be readily available because of fears for his personal safety, but at the same time, he seems to lack insight that firearms cannot be held for purposes of personal protection; he has not had any threats to his life or property; and, even if he had, placing firearms in an unsecured area is in contravention of the Firearms Act. The applicant seems to have been oblivious of his responsibilities under the Firearms Act until he was apprehended. Although the applicant says he had been a responsible firearm licensee for 35 years, the failure to safely keep firearms was not a mere one‑off transgression ‑ several firearms and thousands of rounds of ammunition were not properly secured. The defense raised by the applicant that the firearms and ammunition were well hidden in various places illustrates his lack of insight into the potential danger in which he placed himself and members of the public by failing to properly secure firearms and ammunition. This is indeed a case of extreme recklessness and neglect and disqualifies the applicant from continuing to be licensed to possess a firearm.
2)The possession of firearms and ammunition for which the applicant was not licensed is, in the view of the Tribunal, an extremely serious offence under the Firearms Act and is an adequate fact to form the opinion that the applicant is not a fit and proper person to be licensed. The explanation given by the applicant that a friend had delivered the firearms and ammunition to him and that, after the friend had passed away the applicant did not know what to do with the firearms and ammunition, is not acceptable. This explanation highlights the lack of insight by the applicant into the seriousness of what he had done over a long period of time. Being in possession of unlicensed firearms and ammunition is a serious concern to the public, the law‑enforcing agencies and to the Tribunal as the licensing authority. The explanation by the applicant that he would have handed in the firearms and ammunition if an amnesty had been called lacks credibility. The evidence before the Tribunal is that a general amnesty was, in fact, announced between 1 October to 31 December 2006, and yet the applicant failed to hand in the firearms; the applicant failed to call the Police when his friend passed away in 2006 to bring the unlicensed firearms and ammunition to their attention; and the applicant failed to discuss the unlicensed firearms and ammunition with a legal representative – in fact, the applicant knowingly retained the unlicensed firearms and ammunition, and for close to seven years, he made no effort to bring this to the attention of the authorities. Even if the applicant had not been aware of the amnesty, a responsible firearm licensee (a) would not accept unlicensed firearms and ammunition and (b) would have reported unlicensed firearms and ammunition to the relevant authorities. The applicant did neither. Even if the applicant was scared to call the Police out of fear that he may be charged, it shows his lack of understanding of the responsibilities of a licensee by holding onto the unlicensed firearms and ammunition. The public interest and the responsible regulation of firearms demand that the applicant's licence be revoked.
3)The making available of an unlicensed firearm to a friend of the applicant who was not licensed to possess a firearm must be on the highest possible scale of offences under the Firearms Act. The explanation given by the applicant when questioned by the Tribunal was evasive, demonstrated a lack of insight, and showed a disregard to the proper management and control of a firearm. The applicant sought to defend his actions by saying that Nicola, a friend of his son, had repeatedly asked for a firearm because Nicola had fears for the safety of his wife and had some difficulty with patrons of the pub that he was running, and so, out of sympathy, the applicant gave Nicola an unlicensed firearm for personal protection. The applicant also says that he gave Nicola a .410 gauge shotgun because it was the 'least powerful' firearm. During examination, the applicant failed to explain coherently what he had meant by the shotgun being the least powerful; what use he had anticipated the shotgun could be put to; and whether he had any knowledge about the ability of Nicola to safely utilise or store such a firearm. As was correctly pointed out by the honorable Chief Magistrate Heath during sentencing on 16 June 2014, the applicant, in effect, became an 'arms dealer' by providing a firearm to Nicola (T:25; 16.06.14). The explanations given by the applicant are either naïve in the extreme or they show a total disregard for the law that regulates the possession of firearms. This conviction, on its own, is adequate for the Tribunal to form an opinion that the applicant is not a fit and proper person to be licensed.
4)The Tribunal accepts that the farming activities of the applicant may be impacted upon by him not being licensed to possess a firearm for the culling of birds. The interest of the public, however, outweighs the interests of the applicant. If the applicant had been convicted of a less serious infringement, the conviction may not have been sufficient to form an opinion that he is not a fit and proper person to be licensed. The opposite is, however, the case. The applicant, knowing that he requires a firearm for purposes of his farming operations, (a) failed to properly secure licensed firearms and ammunition, (b) possessed numerous unlicensed firearms and thousands of rounds of ammunition, and (c) gave an unlicensed firearm to another person. The applicant acted in total disregard of the Firearms Act and that renders him not fit and proper to be licensed.
5)The Tribunal notes that the applicant says that he is remorseful about the convictions. This is, in part, accepted by the Tribunal. On the other hand, the applicant continued to explain and justify his decisions as if there were some rationale that vindicated the lack of care and recklessness. On the one hand, he is remorseful about the lack of safekeeping of firearms and ammunition but on the other hand, he says that the items were so well hidden that no one would have stumbled across them. One the one hand, he says he was waiting for an amnesty but on the other hand, he did not discuss with anyone, including his brother, Mr Vince Katich who is a former superintendent of the WA Police, the predicament in which he found himself. On the one hand, the applicant says he was aware that he was offending under the Firearms Act while he was in possession of unlicensed firearms and ammunition, and yet on the other hand, he failed to report this or to seek advice for close to seven years. On the one hand, he is remorseful about having given another person an unlicensed firearm, but then, under examination, he attempts to explain and justify his decision based on the purported threat that Nicola was exposed to or concerns about his wife's safety. On the one hand, the applicant says he understands his responsibilities under the Firearms Act but on the other hand, he defends using the firearms as potential weapons of self‑defence because he was keeping large amounts of cash at his premises rather than placing it in a bank. The applicant, on the one hand, says he had suffered trauma overseas; however, the report of Dr Watts finds that the applicant does not suffer from any 'significant clinical concerns' and, even if he had, the experiences he had endured cannot, in the view of the Tribunal, be used as justification for the offences he committed. Dr Watts goes on to say that, in his assessment, the applicant did not intend to do any harm, but that he displayed 'poor judgment', and that it seemed as if the applicant 'completely underestimated the potential seriousness of his attitude to the various guns …'. Account must, however, be taken of the fact that the applicant is a person who has been licensed for 35 years; he is expected to understand his obligations well; and he is expected to comprehend the importance of compliance with the Firearms Act. The remorse of the applicant must therefore be considered in the context of the seriousness of the offences and the vast experience he has had with firearms. In short, the remorse expressed by the applicant is diluted by his ongoing attempts to explain and justify his actions. The Tribunal accepts that the applicant cooperated constructively with the Police. This fact was taken into account in the criminal proceedings, but the seriousness of the offences continues to blemish the fitness and properness of the applicant for purposes of holding a firearm licence.
6)The Tribunal rejects the suggestion that the offences for which the applicant was convicted ought to be seen as one‑off in nature. Mr Hammond, the legal representative of the applicant, described the convictions as a 'one‑off series of events'. The opposite is true. The applicant acted in disregard of the Firearms Act for an extended period of time when he received and continued to possess unlicensed firearms and ammunition. The ongoing breaches of the Firearms Act, combined with the failure to properly secure firearms and ammunition, and making available a firearm to a person not licensed to possess a firearm, are individually and collectively of such seriousness that the Tribunal forms the opinion that the applicant is not fit and proper to be licensed. These events cannot be described as a 'one‑off' event, but are seen by the Tribunal as ongoing and systematic breaches of the Firearms Act.
7)The Tribunal accepts that it may be unlikely for the applicant to reoffend. That is, however, only one consideration that the Tribunal can take into account. The seriousness of these convictions is rarely seen by the Tribunal, and when all factors are taken into account, the Tribunal is of the opinion that, if he had applied for a firearm licence now, the applicant would not be regarded as a fit and proper person to be licensed.
8)The character reference given by Mr Knezovic, a friend of the applicant, is of limited value because Mr Knezovic acknowledged during examination that although he believes the applicant is a fit and proper person to be licensed, he did not pay attention to the detail of the convictions of the applicant and, in fact, did not know the full extent of the convictions of the applicant. Mr Knezovic categorised all the offences as one single incident, which clearly erodes the reliability of his character reference.
9)The character reference by Mr Vince Katich is also of limited value to the Tribunal. Although Mr Vince Katich speaks about his experience as a police officer, he concludes that his brother was a fit and proper person to be licensed because it was 'total stupidity' and a 'nothing event'. The Tribunal gives little weight to the character reference of Mr Vince Katich because he either does not comprehend the obligations of a firearm licensee or he is strongly biased towards the interests of the applicant.
In conclusion, the Tribunal is satisfied that, because of s 11 of the Firearms Act, the applicant could not be granted a firearm licence if he were now applying for it since the Tribunal is of the opinion that the applicant is not a fit and proper person to be licensed.
The application should therefore be dismissed and the decision to revoke the firearm licence should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for a review of the decision to revoke firearm licence 1576205 is dismissed.
2.The decision is affirmed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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