Kleinig v Registrar of Firearms - [2015] SADC 104

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application for Review)
KLEINIG v REGISTRAR OF FIREARMS
[2015] SADC 104
Judgment of His Honour Judge Tilmouth
3 July 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Decision of a Delegate of the Registrar of Firearms to cancel the appellant's firearms licence, rescinded and remitted for reconsideration on account of material misapprehension of the facts.
Firearms Act 1977 (SA) s 5(10)-(13), s 6(2), s 20(2), s 26(B) & (C); Firearms Regulations 2008 (SA) reg 5A(b), r 13; Fryer v The Registrar of Firearms [2015] SADC 103, referred to.
Teachers Registration Board of South Australia v Edwards (2013) 117 SASR 246; Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150; House v The Queen (1936) 55 CLR 499; Glen v Registrar of Firearms [2011] SADC 22; Davies v Registrar of Firearms [2005] SASC 149, applied.
Zammit v Registrar of Firearms (2010) 271 LSJS 313, [33], considered.

KLEINIG v REGISTRAR OF FIREARMS
[2015] SADC 104
The issue on appeal

This is an appeal from a decision of a Delegate of the Registrar of Firearms cancelling Mr Kleinig’s firearms licence. At the heart of the grounds of appeal are the contention that the Registrar made too much of offences unrelated to firearms committed by Mr Kleinig in 2008 and 2012, and too little of subsequent events. For reasons to follow, the appeal must be allowed and the matter remitted for reconsideration.
The Delegate’s reasons - suspension
The matter commenced with applications by Mr Kleinig of 31 January 2014 to renew his firearms licence and of 3 March 2014, for a permit to acquire a firearm, a Savage single-barrel rimfire rifle.[1] As a consequence, Mr Kleinig’s offender history and other information were obtained by way of background checks,[2] from a Firearms Control System maintained by South Australian Police (SAPOL), with respect to his firearms licence history for the purposes of assessing the application.[3]
[1] AB 1.
[2] Such checks are both authorised and mandated by R 13 of the Firarms Regulations 2008 (SA).
[3] AB 2-19.
In a letter from the Delegate dated 23 May 2014, Mr Kleinig was informed of a decision to suspend his firearms licence in accordance with s 20(2) of the Firearms Act 1977 (SA), on the basis he was not then considered to be a ‘fit and proper person’ to possess a firearms licence.[4] This conclusion was principally based on convictions against Mr Kleinig in the Berri Magistrates Court in 2009 and in 2012.
[4] AB 20-26.
In reaching that conclusion the Delegate paid regard to other summary offences committed by Mr Kleinig, for which he was sentenced in 1992, 1995, 1998, 2001, 2006 and 2007, as to which he observed: [5]
(D)ue to the age of these offences, they have diminished weight in relation to my decision, however they have some relevance.
[5] AB 22.
The Delegate’s reasons for suspension next refer to trespass and assault offences allegedly committed in Berri on 25 and 26 October 2008. For these, in March 2009, Mr Kleinig was convicted and subjected to a four-month suspended term of imprisonment, on condition he be of good behaviour for 18 months. Those offences were assessed by the Delegate in the following terms:[6]
On 25 October 2008 you entered Unit 2 at 26 Loeder Street in Berri as a trespasser and assaulted Michael Svendsen, the 16 year old victim in this matter. As the victim was opening the door you forced it open and grabbed the victim by the throat with two hands and pushed him back inside. The victim states you said “Where’s Dylan, I’m gonna break his legs”. The victim stated Dylan is his 16 year old friend who is in a relationship with your step daughter. After entering the house you grabbed an unopened 700ml bottle of Jim Beam black label off the kitchen table and started drinking it. You then left the unit and stood out the front with a female called Trish who was identified by the victim as the mother of Dylan’s girlfriend. When the victim asked you if he could leave you said to him “If I find out you’ve lied to me I’m going to beat the fuck out of you.” Michael Penhall is the resident of Unit 2 at 26 Loader Street in Berri and the owner of the bottle of Jim Beam.
On 26 October 2008 you again entered Unit 2 at 26 Loader Street with the intention of committing an assault. You gained entry by cutting the flyscreen of the front window which was open. When Jason Gibbs, the 17 year old victim arrived at the address you came out of the unit. The victim asked if you were looking for Dylan. When you stated you were the victim told you he hadn’t seen Dylan. You then assaulted the victim by grabbing him by the jumper near to his chest and pulling him inside the unit, then pushing him backwards onto the couch. You then grabbed the victim by the jumper and lifted him back up saying “Go get him”, then pushed the victim out the door towards his car. When the victim opened the car door you grabbed him by the shoulder and turned him around saying “you’re not going anywhere. You’ve got a telephone, call him.” You then grabbed the victim by the throat with your hand and held him against the car. The victim does not recall being struck but his nose started to bleed. You pushed the victim away from the car then grabbed him by the throat and pushed him back against the car.
You admitted to police you grabbed both victims. You also admitted it was understandable the victims would be in fear of you as you were angry, had been drinking and you were concerned for your step daughter.
[6] AB 23.
The final offence to which the Delegate paid regard to was a third driving with excess alcohol committed on 14 January 2012, for which Mr Kleinig was convicted and fined $100 in June of 2012 in the Holden Hill Magistrates Court. He was also disqualified from holding a driver’s licence for seven days, bearing in mind that a significant period of disqualification had then been served. This offence occurred in Berri where his blood alcohol content was recorded at 0.110 grams. The two previous convictions for the same offence occurred in 1992 (blood alcohol content of 0.152 grams) and 1998 (blood alcohol content 0.111 grams), both in Berri.
Taken in combination, these offences led the Delegate to consider ‘in my view serious and gives rise to concern that you may be no longer a fit and proper person to hold a firearms licence within the meaning of s 20(1)(b) of the Firearms Act’, and ‘that it may be contrary to the public interest to permit you to continue to possess and use firearms’, pursuant to s 20(1a)(a) thereof.[7]
[7] AB 23.
The reasons proceeded to point out that the suspension did not constitute cancellation, that the effect of the decision was to disentitle Mr Kleinig from possessing firearms of any class, which were to be surrendered to SAPOL. Finally the letter advised Mr Kleinig the Delegate was in the process of ‘considering whether your licence should be cancelled’.
The solicitor for Mr Kleinig wrote to the Delegate on 24 June 2014 pointing out that Mr Kleinig was a local man living at Glossop with his parents, that he had held five registered firearms licences for some 20 years, and that for ‘most of his working life, [he] has worked in the oil and gas industry in States other than South Australia’.[8] He advised that Mr Kleinig worked in Queensland, had substantial property holdings both at Winkie in the Riverland and in Queensland, that he earned very good money in the industry and that he paid $1,300 per month maintenance for his son.
[8] AB 35-36.
As to the events of 25 and 26 October 2008, the solicitor advised they were in fact the one incident. He maintained that Mr Kleinig went to the house because clothing belonging to his stepdaughter had been removed and that it had occurred over five and a half years previously. He added that Mr Kleinig did so under stress, and that he was cooperative with the police in resolving that matter.
Delegate’s reasons - cancellation
Notwithstanding these submissions, in his letter of 28 July 2014, the Delegate proceeded to cancel the firearms licences, being satisfied that Mr Kleinig was not a fit and proper person to hold a firearms licence pursuant to s 5(11) of the Firearms Act.[9] This letter catalogued the offence history in precisely the same terms as in the letter of suspension, and placed exactly the same weight on 25and 26 October 2008 incidents as quoted above. Having considered the substance of the information conveyed by the solicitor’s letter, the Delegate formed the view that the offending of 2009 ‘occurred over a three hour period,’ and that the three offences of driving whilst intoxicated:[10]
… shows a pattern of behaviour involving alcohol use and a disregard for the law … over a 20 year period which shows you have not learnt from your mistakes or modified your alcohol intake.
[9] AB 48.
[10] AB 48.
Then followed the decision to cancel, based on the conclusion that Mr Kleinig was ‘not a fit and proper person to hold a firearms licence – pursuant to s 5(11) of the Act.’ Given the nature of the offences in question here, the only applicable part of s 5(11) of the Firearms Act to the facts of this case, could be s 5(11)(c), which provides:
5—Interpretation
(11) For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person—
…
(c) has been found guilty of an offence involving actual or threatened violence in this State or any other State or Territory of the Commonwealth or in any other part of the world.
Firearms Review Committee
A review of the cancellation decision by the Firearms Review Committee was sought pursuant to s 26B of the Firearms Act. This took place on 10 December 2014. Review by the Firearms Review Committee is a prerequisite step before the right of appeal against a decision of the Registrar of Firearms, or his Delegate, accrues under s 26(C)(1) of the Firearms Act.
A letter from his solicitor to the Committee of 26 September 2014, pointed out, amongst other things:[11]
If one looks at his conduct over the last 6 years and his careful building up of assets (as well as his ongoing commitment to his son) it seems clear that he is a fit and proper person to hold a firearms licence. When the committee sits on the 10^th of December, it will be almost 3 years since his last offence, which was a PCA but a category 1 PCA only.
[11] AB 53.
By letter of 23 December 2014, the Firearms Review Committee resolved to remit the decision to suspend back to the Delegate of the Registrar of Firearms. In fact, it should have been a decision to remit the decision to cancel. This was considered by both parties as a simple clerical slip and taken by them to be an effective remission of the decision to cancel. The Committee recorded:[12]
Mr Kleinig presented to the Committee as a sensible man who is hard working and who has put his past behind him. Mr Kleinig does not drink alcohol to excess and has to submit to breath tests daily at his current work site. The Committee is of the view that consideration should be given to reinstating Mr Kleinig’s firearms licence.
The basis of these conclusions come from submissions and statements made to the Committee by or on behalf of Mr Kleinig, an audio recording of which is not before the court, but which are not in any event, disputed.
[12] AB 55.
Nevertheless, after having reviewed the comments of the Firearms Review Committee, by notification dated 11 January 2015, the Delegate upheld his previous decisions both to suspend and cancel the firearms licence. The notification repeated that the ‘gravity of your offending and the serious penalty issued must be taken into consideration’ with respect to the offences occurring in 2008, leading to the suspended sentence of four months imprisonment.[13]
[13] AB 58.
Submissions on appeal
Counsel for the appellant properly points out that for the purpose of considering whether or not a person is ‘fit and proper’ within the meaning of ss 5(10)-(13) and 6(2) of the Firearms Act, those sections must be read in conjunction with each other, and that they are informed by the objectives of the legislation: Teachers Registration Board of South Australia v Edwards.[14] The notion of ‘fit and proper’ involves attributes of ‘honesty, knowledge and ability’: Hughes & Vale Pty Ltd v New South Wales (No 2),[15] in the context of the particular legislative regime in question, in this case the possession and use of firearms: Marksman Training Systems Pty Ltd v The Registrar of Firearms.[16] That determination is to be made on the basis of the situation as at the time the determination to cancel is made.
[14] (2013) 117 SASR 246, [48].
[15] (1955) 93 CLR 127, 156.
[16] [2014] SADC 150, [169].
Counsel for the appellant stressed that although at the time of those offences Mr Kleinig may properly have been considered to be unfit to hold a firearms licence, the situation over the intervening years had changed to the point that Mr Kleinig has demonstrated he is now a fit and a proper person for the purpose of holding a firearms licence: Davies v Registrar of Firearms.[17] It was further submitted that Mr Kleinig was a consistently hardworking man who continued to care for his seriously ill son, so that all the subsequent circumstances should have been accorded more significance: Zammit v Registrar of Firearms.[18] Had it been available to him at the time submissions were made reference would no doubt have been made to Fryer v The Registrar of Firearms,[19] in aid of the latter submission.
[17] [2005] SASC 149, [27], per Gray J.
[18] (2010) 271 LSJS 313, [33].
[19] [2015] SADC 103, Judge Chivell.
Counsel for the respondent contended there was a proper evidentiary basis to conclude that Mr Kleinig was not a fit and proper person to hold a firearms licence, and that in keeping with the policy of the firearms regime to ensure the safety of the public and that only responsible persons are entitled to hold appropriate licences, the decision to cancel was wholly consistent with these objectives.
Fit and proper person - analysis
Section 5(11) of the Firearms Act provides for circumstances in which a person is taken not to be ‘fit and proper’, including as pointed out earlier, any person who has been found guilty of an offence ‘involving actual or threatened violence’: s 5(11)(c) or any person who has been found guilty of an offence prescribed by regulation: s 5(11)(ca). A serious criminal trespass in a place of residence is a prescribed offence for the purposes of reg 5A(b) of the Firearms Regulations 2008 (SA), whereas a basic trespass offence is not.
Of greater moment is the question of the treatment by the Delegate of the trespass related events of October 2008. He noted an assault on one victim on 25 October 2008 constituted by the acts of grabbing around the throat, and a theft by taking a stubby of Jim Beam from the kitchen table. The above recital of the Delegate’s analysis of the facts reveals that he treated the events of the early hours of the next morning as constituting a second act of trespass (‘you again entered’) and that he acted upon a second assault on another victim constituted by grabbing him by the jumper. It appears as if the Delegate gathered this information from police apprehension reports prepared after the events for submission to police prosecutions.
It is clear that the offences of 2008 for which Mr Kleinig was sentenced in 2009, are at the core of the Delegate’s reasons, apart from his additional observations relating to the driving with excess blood alcohol offences. The official records of proceedings in the Berri Magistrates Court tell a different story. One charge of serious criminal trespass in a place of residence was dismissed for want of prosecution. Only one charge of assault was laid.
The Magistrate’s remarks indicate that pleas of guilty were entered to a basic offence of trespass (which attracted a maximum penalty of three years imprisonment) by ‘barging’ his way in to the residence looking for his stepdaughter, an assault by ‘shoving’ the first victim to the throat, and a technical form of taking property without the owner’s consent, by emptying the bottle of Jim Beam Bourbon, thinking the occupants were too young to be drinking alcohol. His Honour continued to find:[20]
I am entitled to have regard to your age, lack of antecedence [sic] that is the fact that you have no prior convictions or even been before a court, the fact that you are contrite by your guilty plea, the fact that you cooperated in your conversation with the police and that you are a good candidate for rehabilitation.
[20] Police v Kleinig 30.3.09 MCBER08-2355, MCBER09-466, [6].
The Magistrates reasons demonstrate that the single sentence of four months suspended imprisonment was imposed for three offences, a basic charge of trespass, a single assault (shoving by the throat) and the ‘theft’. Accordingly, the Delegate rested his decisions on a factual basis effectively involving a second count of trespass and an additional count of assault, when they were not charged. Counsel for the Registrar fairly accepted in her written submissions filed on the appeal that ‘the Registrar’s synopsis … does not accurately reflect the factual basis on which the appellant was convicted …’.[21] Each material misapprehension of the facts thereby amounts to furnishing ‘cogent reasons’ for departing from the decision of the Delegate to cancel Mr Kleinig’s Firearms licence.[22]
[21] Second Outline of Argument, para 24.
[22] 42E(3) District Court Act; House v The Queen (1936) 55 CLR 499, 505.
Mr McGee for Mr Kleinig submitted that the court should substitute its own finding that Mr Kleinig was now a fit and proper person to hold his firearms licences, particularly as years have passed without blemish since the trespass related offences, except of course for the 2012 excess alcohol offence, which was committed just over three years ago on 7 June 2012. Although this course has its attractions, on balance the better course is to remit the matter so as to permit consideration of licence conditions, if any, in the event that the licence is not cancelled. Given that well over a year has elapsed since the original suspensions of the licence, it is sufficient to observe that it would be open to revoke the cancellations in light of the decisions of Gray J in Davies,[23] of the Firearms Review Committee and that no firearms offences were involved. As Judge Beazley points out in Glen v Registrar of Firearms,[24] ‘a person’s record should not be held against him indefinitely’.
[23] Above.
[24] [2011] SADC 22, [67].
Conclusion and orders
The appeal is therefore allowed. The decision of the Delegate of the Registrar of Firearms to cancel Mr Kleinig’s firearms licence made on 11 January 2015 is rescinded, and remitted to the Registrar of Firearms or his Delegate, to consider afresh in accordance with these Reasons.[25] There will be a direction pursuant to s 42F(c) of the District Court Act that the Delegate obtain and consider the audio recording of proceedings before the Firearms Review Committee, should such recording remain available.
[25] Section 42F(b)(c) District Court Act.