LIPPI and COMMISSIONER OF POLICE - [2022] WASAT 72

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION:   LIPPI and COMMISSIONER OF POLICE [2022] WASAT 72
MEMBER:   MS C CONLEY, MEMBER
HEARD:   3 MARCH 2022
DELIVERED          :   23 AUGUST 2022
FILE NO/S:   CC 1491 of 2020
BETWEEN:   ADRIAN MATHEW LIPPI
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence - Application for review of decision to refuse to license firearm - Whether applicant has genuine reason - Whether particular firearm is reasonably justified - Particular firearm is not reasonably justified because applicant has another firearm for shooting animals at distance proposed - Decision of respondent affirmed

Legislation:

Firearms Act 1973 (WA), s 8, s 10A, s 11, s 12, s 18(5), s 22, s 23(3)
Firearms Regulations 1974 (WA), reg 24, Div 2, cl 2, Sch 3
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 27(1), s 27(2), s 29

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant	:	Mr D Hancock
Respondent	:	Ms A Western

Solicitors:

Applicant	:	N/A
Respondent	:	Commissioner of Police

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

Bent and Commissioner of Police [2011] WASAT 143
Bergmann and Commissioner of Police [2009] WASAT 233
Castaldini and Commissioner of Police [2013] WASAT 150
Coumbe v Whittaker [1999] WASCA 151
Kashani v Commissioner of Police [2011] WASC 6
Killen v Commissioner of Police [2014] WASC 427
Knight v Commissioner of Police [2011] WASC 93
McGee v Chitty [2011] WASCA 125
Polizzi v Commissioner of Police [No.2] [2017] WASC 166
Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By an application dated 10 September 2020, the applicant applied to the respondent, under the Firearms Act 1973 (WA) (Firearms Act), to license three additional firearms, including a Remington 300 Win Mag (.300 rifle) for recreational hunting and shooting purposes.[1]
[1] Exhibit 1 at pages 71-80.
On 2 November 2020 the respondent's delegate (respondent) refused the applicant's application to license the .300 rifle because the applicant is already licensed in respect of multiple firearms suitable for the requested task (specifically, a Nesika .338 Lapua (.338 rifle) and a Remington .270 (.270 rifle)) therefore the .300 rifle is not reasonably justified.[2]
[2] Exhibit 1 at pages 10-11.
The .270 rifle, the .300 rifle and the .338 rifle are all Category B firearms.[3]
[3] Exhibit 1 at pages 46 and 52-53; Firearms Regulations 1974 (WA) (Firearms Regulations), cl 2, Div.2, Sch 3
On 10 November 2020 the applicant applied to the Tribunal for a review of the decision by the respondent.[4]
[4] Exhibit 1 at pages 1-7.
In the applicant's Statement of Issues, Facts and Contentions (SIFC), the applicant clarified that he proposed using the .300 rifle to shoot donkeys, horses and feral dogs at a range of 500 yards[5] (457.2 metres).[6]

Issue for determination

[5] Exhibit 1 at pages 27 and 197.

[6] Measurements in yards and metres were used by witnesses during the proceedings so it has been necessary, for the purposes of consistency, to refer to both yards and metres.

The issue for determination in the Tribunal is whether, on the basis that it is the correct and preferable decision, the applicant should be permitted to have a licence for the .300 rifle under the Firearms Act and, in particular, whether:
a)the applicant has a genuine reason for acquiring or possessing the .300 rifle for which the licence is sought; and
b)the .300 rifle can be reasonably justified.

Proceedings in the Tribunal

A final hearing of the application was held on 3 March 2022 (Hearing). At the Hearing, the applicant gave evidence and was crossexamined. Three expert witnesses who had prepared a Joint Statement of Expert Witnesses[7] for the Tribunal also gave evidence and were cross-examined. The expert witnesses were Mr David Crook, Mr Michael Butcher and Sergeant David Tilt.
[7] Exhibit 1 at pages 195-201.
Each of the parties filed various documents (including a SIFC and witness statements) which were compiled into a Hearing Book prepared by the Tribunal and taken into evidence as Exhibit 1. During the Hearing, an additional property letter was taken into evidence.[8]
[8] Exhibit 2.
After the Hearing, each party filed closing submissions, and a further report from Mr Crook dated 9 March 2022 in respect of the reloading of ammunition was taken into evidence.[9]
[9] Exhibit 3.
After a directions hearing held on 24 May 2022, a statement of the applicant dated 23 May 2022 was taken into evidence.[10]

Agreed facts

[10] Exhibit 4.

An examination of each party's SIFC[11] shows that the following facts are agreed:
a)on 14 October 2020, the applicant submitted an application (number 20201130AFIRZ) to the respondent seeking to license three firearms including the .300 rifle;
b)at the time of submitting the application for the .300 rifle, the applicant held licences for 10 other firearms, including the .270 rifle and the .338 rifle, both of which are licensed for use in recreational shooting or hunting;
c)the application for the .300 rifle was accompanied by a statement from the applicant which purported to set out his genuine reason and justification for acquisition of the .300 rifle (and the two other firearms that were the subject of his application dated 14 October 2020). The applicant stated that he wished to obtain a 'rifle with a 26-inch barrel that is a good flat shooting rifle with enough energy and power to humanely kill scrub bulls, feral horses and donkeys'. The applicant expressed a view that use of his .338 rifle for eradication of donkeys, horses or bulls would be 'total overkill of power, energy and price per bullet, as the [.388 rifle] is around $7 per shot, compared to $2 per shot for the [.300 rifle]';
d)on 4 November 2020, the applicant was served with a letter dated 2 November 2020 advising that the application to license the .300 rifle had been refused;
e)the firearm licence was refused by the respondent on the basis that the applicant had not established a genuine reason for acquiring or possessing the firearm and the letter outlined the reasons for the refusal, namely that the .300 rifle was not considered to be reasonably justified as the applicant was licensed for the .270 rifle and the .338 rifle, both of which were considered suitable for the requested task of shooting scrub bulls, feral horses and donkeys on properties in Carnarvon and Three Springs;
f)on 10 November 2020, the applicant applied to the Tribunal for review of the decision; and
g)alongside his application for review, the applicant filed an email from Remington Pricing stating that the .300 RRP is $3.50 per round as opposed to $18 per round for the .338 Lapua Mag'. The applicant's handwritten annotation to this email correspondence states that the price difference between the two calibres 'is the exact reason why you use different rifles for different applications, the .338 is a big game rifle as stated before, there a $18 round is justifiable, using it on smaller vermin such as donkeys, horses, etc is not practical, it has way too much energy and is too expensive for this application'.
[11] Exhibit 1 at pages 23-29 (applicant's SIFC) and pages 37-41 (responden's SIFC).
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 23-29 and applicant's Closing Submissions at paras 13, 18, 20-21 and 24-27.
a)the .270 rifle owned by him is a light weight, off hand scrub rifle good to shoot out to 200 yards (182.88 metres);
b)the .300 rifle is good to shoot out to 500 yards (457.2 metres), as it is a heavier rifle, with a heavy duty barrel, bolt action, can be shot from the shooting bench with a bipod, and can withstand being shot in the hot conditions at that range;
c)the .270 rifle and the .338 rifle are not adequate or suitable for the applicant's purpose;
d)the cost of ammunition and firearm maintenance and barrel durability is a factor to be considered in any consideration of adequacy of purpose;
e)it is not economically feasible to use the .338 rifle to shoot vermin smaller than camels, as the rounds cost $18.00 each, compared with $3.50 each for the .300 rifle rounds;
f)is not economically feasible to use the .338 rifle to shoot vermin smaller than camels, as this rifle uses slow burning powder to reach long distances, which erodes the barrel more quickly, requiring the replacement of the barrel at significant cost;
g)the firearms owned by the applicant are not suitable for the type of shooting to be conducted by him, due to their individual characteristics and, in the case of the .338 rifle, the price of ammunition;
h)the applicant has a genuine reason to have the .300 rifle licensed to him and the licensing of the .300 rifle is justified in all the circumstances; and
i)the Tribunal should grant the application for the .300 rifle and set aside the respondent's decision.
The respondent's contentions[13] may be summarised as follows:
a)the applicant does not have a genuine reason for acquiring the .300 rifle on the basis that the particular kind of firearm is not justified;
b)the .300 rifle is not reasonably justified as the applicant has existing licences for the .270 rifle and the .338 rifle, each of which is capable of being used to eradicate scrub bulls, feral horses and donkeys. The .270 rifle is capable of being used to eradicate the other types of vermin listed in the applicant's property letter;
c)section 11A(3) of the Firearms Act permits the Tribunal to take into account the characteristics of the applicant's other firearms and to conclude that, if those firearms are adequate for the applicant's purpose, the particular kind of firearm the subject of the application is not reasonably justified: Kashani v Commissioner of Police [2011] WASC 6 (Kashani);
d)little or no weight should be attributed to the applicant's view that the difference in cost between rounds for the .338 rifle and rounds for the .300 rifle is such that use of the .338 rifle on smaller vermin is not justifiable or practical; and
e)the correct and preferable decision is that the Tribunal should affirm the decision of the respondent to refuse the application for the additional firearm.

Evidence of the witnesses

[13] Exhibit 1 at pages 39-41 and respondent's Closing Submissions at paras 8-9, 13-14 and 16.

The applicant's evidence is summarised below:
a)he is a self-employed butcher and commercial fisherman;[14]
[14] ts 13, 3 March 2022.
b)he currently has 12 firearms licensed to him;[15]
[15] ts 13, 3 March 2022.
c)he gets his ammunition through Raytrade;
d)as at June 2021, the price of the ammunition for the .338 rifle was $8.50 per round (wholesale including GST) and the price of ammunition for the .300 rifle was $2.12 per round (wholesale including GST); [16]
[16] ts 14-15, 3 March 2022.
e)the cost of a new barrel for the .338 rifle is $2,150 including GST;[17]
[17] ts 15, 3 March 2022.
f)weight is a factor in his desire to use the .300 rifle;[18]
[18] ts 16, 3 March 2022.
g)the .270 rifle weighs 4 kilograms, the .330 rifle weighs 5 to 6 kilograms and the .338 rifle weighs 8 to 9 kilograms (all kitted up);[19]
[19] ts 16-17, 3 March 2022.
h)he considers that there is higher risk of overpenetration with the .338 rifle compared to the .270 rifle and the .300 rifle.[20]
i)he reloads his own ammunition;[21]
j)in theory it is possible to save money by reloading your own ammunition if you can get the powder and get the projectiles but you cannot get them at the moment worldwide;[22]
k)his use of the .300 rifle depends on 'if we go out and how much vermin there is';[23]
l)the .300 rifle cost $5,000;[24]
m)he agreed that responsible shooters comply with rule 4 of the International Firearms Safety Rules (IFS Rules);[25]
n)rule 4 of the IFS Rules means that every shooter is responsible for his shot so what is beyond the target or what is in front of the target, once he pulls the trigger, he is responsible for what happens;[26]
o)over-penetration is an issue because he cannot guarantee that nothing is going to happen if the bullet over-penetrates;[27]
p)he has used his .338 rifle to shoot scrub bulls, donkeys and horses at Ella Valla Station at a range of 700800 metres (765.5-874.8 yards) and the animals were killed with one shot;[28] and
q)he has had the .270 rifle for about 12 years and the .338 rifle for about eight or nine years;[29]
[20] ts 20, 3 March 2022.
[21] ts 21, 3 March 2022.
[22] ts 22-23, 3 March 2022.
[23] ts 23, 3 March 2022.
[24] ts 24, 3 March 2022.
[25] ts 24, 3 March 2022.
[26] ts 24, 3 March 2022.
[27] ts 25, 3 March 2022.
[28] ts 27, 3 March 2022.
[29] ts 28, 3 March 2022.
The qualifications, experience and fields of expertise of the three expert witnesses are summarised below:
a)Mr Crook is part owner of a company which designs and manufactures precision rifles. He has been involved in shooting sports since 1966 and has served on the National Executive of the International Practical Shooting Confederation of Australia and was State Discipline Coordinator for the Sporting Shooters Association of Australia. He also served in the Australian Defence Force attaining the rank of Staff Sergeant. Prior to his retirement he worked in the Commonwealth Department of Heritage and Environment;[30]
b)Mr Butcher is the managing director of a company concerned with animal pest management. He was previously employed in a number of State Government departments and, in particular, was group manager of Agriculture WA and had state-wide responsibilities for projects managing pest animals. He has been trained in the use of various calibres of firearms and was a senior firearms instructor training field staff in the use of firearms against pest animals for both ground and aerial culling. Mr Butcher has conducted dozens of professional shooting/culling programs, and has extensive experience shooting. He has also conducted necropsies on shot animals to determine: the effects of where the bullet hit the animal, whether humane killing was achieved and the performance of the bullet and cartridge combination on animals. Mr Butcher has also extensively researched the exterior and terminal ballistics of ammunition in relation to shooting animals. He reloads ammunition and has worn out barrels on various calibre firearms due to large amounts of ammunition used on feral animals;[31] and
c)Sergeant Tilt is a member of the Western Australia Police Force and a firearms licensing supervisor attached to Licensing Services. He previously served in the Australian Regular Army (Army) for 23 years and attained the rank of Major. Sergeant Tilt has extensive shooting skills and experience in a wide variety of firearms from his time in the Army and as a civilian. He has also been a firearms instructor and the manager of live-firing ranges and training areas. He owns and regularly uses firearms, is a recreational target shooter, a recreational hunter and an experienced marksman. Sergeant Tilt is a member of the Sporting Shooters Association of Australia.[32]
[30] Exhibit 1 at pages 134-135 and 195-196.
[31] Exhibit 1 at pages 84-86 and 196.
[32] Exhibit 1 at pages 109-110 and 196.
The evidence of Mr Crook may be summarised as follows:
a)the .300 rifle is a long-range rifle and the .338 rifle is an extreme-range rifle;[33]
[33] ts 33, 3 March 2022.
b)the .338 rifle has a range of between 4 and 6 kilometres;[34]
[34] ts 33-34, 3 March 2022.
c)Eudamullah and Ella Vella Stations are suitable for long-range shooting;[35]
[35] ts 35-37, 3 March 2022.
d)he strongly disagrees that there is an absolute or ideal range at which a shot may not be taken because the outer limit depends on the calibre, the animal and the capabilities of the shooter;[36]
e)the .338 rifle was designed to have an effective range of 1,500 metres (1640.42 yards) whereas the .300 rifle was designed to have an effective range of 800 metres (874.8 yards);[37]
f)it can be challenging to get close to and stalk animals on flat ground;[38]
g)the Standard Operating Procedures (SOPs) put out by PestSmart say that for shooting the animals that the applicant had mentioned, 308 is the minimum calibre and the preferred ballistics are 300 magnum or greater;[39]
h)he agreed that all responsible shooters comply with rule 4 of the IFS Rules;[40]
i)he did not agree that looking at what is behind the shot always mitigates the risk of over-penetration because the animal may move because bullets don't arrive instantaneously;[41]
j)the .300 rifle is an optimal firearm for the 300500 range;[42]
k)he did not think you would get over-penetration with a .270 rifle at 500 metres (546.8 yards) but there is a possibility you would not get a clean kill because the projectile might have slowed down;[43]
l)he did not see a problem with over-penetration with the .300 rifle because you would have enough velocity for expansion, depending on the musculature of the animal;[44] and
m)you would get overpenetration with a .338 rifle;[45]
[36] ts 37-38, 3 March 2022.
[37] ts 40, 3 March 2022.
[38] ts 41-42, 3 March 2022.
[39] ts, 43, 3 March 2022.
[40] ts 44, 3 March 2022.
[41] ts 44-45, 3 March 2022.
[42] ts 46, 3 March 2022.
[43] ts 47, 3 March 2022.
[44] ts 47, 3 March 2022.
[45] ts 47-48, 3 March 2022.
The evidence of Mr Butcher may be summarised as follows:
a)over-penetration is a common issue with shooting;[46]
[46] ts 54, 3 March 2022.
b)to minimise the risk of over-penetration you need to look at a number of things: selecting the right bullet for the type of animals you are going to be hunting; the distance that you are going to be shooting at; and the velocity the bullet is travelling at;[47]
[47] ts 55, 3 March 2022.
c)rule 4 of the IFS Rules requires every hunter and every target shooter to know what is behind his or her target so if he or she misses the target or the bullet penetrates through the target, then he or she is going to know that there is a sufficient backstop behind the bullet to make sure it is safe;[48]
[48] ts 56, 3 March 2022.
d)it is also crucial to hit the animal in the right place: a shoulder shot is less likely to over-penetrate because there is more muscle and bones for the bullet to go through than the chest;[49]
[49] ts 56-57, 3 March 2022.
e)a .338 rifle at close range would not have overpenetration issues compared to a longer range when the bullet is starting to slow down or if you take a shoulder shot;[50]
[50] ts 56-57, 3 March 2022.
f)you can save a lot of money reloading ammunition - a half to a third of the cost of buying factory ammunition although you have to buy your reloading gear;[51]
[51] ts 58-59, 3 March 2022.
g)the cost of replacement barrels varies between $900 and $1,800;[52]
[52] ts 59-60 and 64-66, 3 March 2022.
h)the applicant could order a cerakoted barrel for $2,150;[53]
[53] ts 65, 3 March 2022.
i)he agreed that if the applicant intended to use 180 grain bullets he would be within the SOPs for camels;[54]
[54] ts 63, 3 March 2022.
j)the .338 rifle is safe to use at close range if the correct bullets are used and the safety rules for shooting are followed and that close range could be 10 to 100 metres (10.9-109.36 yards);[55]
[55] ts 66, 3 March 2022.
k)the .300 rifle is an excellent choice for shooting camels at close range if you are using the right bullets;[56]
l)the 180 grain bullet may not be a good bullet at close range;[57]
m)he agreed that the .300 rifle and the .338 rifle are longrange sniper rifles;[58]
n)he agreed that the .338 rifle can shoot long range out to 2,500 metres (2734.03 yards) but more usually 1,500 metres (1640.42 yards);[59]
o)he agreed that cartridges for the .338 rifle cost a lot more than cartridges for the .300 rifle but the cost of the cartridge is not a factor that he would take into account as a professional shooter;[60]
p)the applicant is an amateur shooter and can spend as much as he likes shooting animals recreationally;[61]
q)no one can guarantee a kill at 1,000 metres (1093.6 yards) using either a .300 rifle or a .338 rifle;[62]
r)he did not agree that the .338 rifle was dangerous to use closer than 500 metres (546.8 yards);[63]
s)he did not agree that there is a significant risk of overpenetration with the .338 rife because the risk depends on where you hit the animal and what bullet you use;[64] and
t)the chances of actually being able to shoot an animal at long-range, of actually seeing something at that range on a station in the Gascoyne and Pilbara is pretty low;[65]
[56] ts 67, 3 March 2022.
[57] ts 68-69, 3 March 2022.
[58] ts 72, 3 March 2022.
[59] ts 72, 3 March 2022.
[60] ts 73, 3 March 2022.
[61] ts 73, 3 March 2022.
[62] ts 74, 3 March 2022.
[63] ts 75, 3 March 2022.
[64] ts 76-77, 3 March 2022.
[65] ts 79, 3 March 2022.

The evidence of Sergeant Tilt may be summarised as follows:
a)the principle behind ethical shooting of animals is that the animal should not suffer;[66]
[66] ts 80, 3 March 2022.
b)ethical shooting involves the following: the hunter should have a suitable firearm to dispatch the animal with minimum pain; the hunter should ensure that he or she can place an accurate shot into either the brain or the heart; and the hunter should be able to find the animal afterwards in case it is wounded; and shooting as close as you practically can with the ability to find the animal and use a follow up shot if needed;[67]
[67] ts 80-81, 3 March 2022.
c)over-penetration is essentially if a projectile either penetrates through an animal or, conversely, if you miss the animal and the projectile goes past the animal;[68]
[68] ts 81, 3 March 2022.
d)there is an obligation on all hunters and shooters to be careful of where they fire their round: so, even if you have a good shot at an animal you have to be aware that you may miss, or your round may penetrate; there is an expectation that you are not only looking at your target but where your rounds are going to land;[69]
[69] ts 81, 83 and 85-87, 3 March 2022.
e)he agreed that the applicant's .270 rifle is suitable to humanely kill horses and donkeys up to 200 metres (218.72 yards);[70]
f)he agreed that the .300 rifle and the .338 rifle are suitable to humanely kill horses and donkeys at ranges of 200-500 metres (218.72-546.8 yards);[71]
g)over-penetration is a risk for the .270 rifle, the .300 rifle and the .338 rifle;[72]
h)he disagreed that the risk of overpenetration is higher with the .338 rifle than the .300 rifle;[73]
i)the .338 rifle cartridge was developed as a highpowered long-range cartridge for military snipers;[74]
j)all rifles cost money to shoot and shooting is an expensive sport;[75]
k)the more powerful rifles can shoot further;[76] and
l)he agreed that on very large properties that, in the absence of suitable topographic features, the projectile can fall to earth without the possibility of impacting other animals and humans;[77]

The expert witnesses

[70] ts 82, 3 March 2022.

[71] ts 82, 3 March 2022.

[72] ts 83, 3 March 2022.

[73] ts 83, 3 March 2022.

[74] ts 84, 3 March 2022.

[75] ts 84, 3 March 2022.

[76] ts 85, 3 March 2022.

[77] ts 85, 3 March 2022.

Each expert prepared a witness statement, and these witness statements were in evidence before the Tribunal.[78]
[78] Exhibit 1 at pages 83-107 (Mr Butcher), pages 108-133 (Sergeant Tilt) and pages 134-194 (Mr Crook).
A Joint Statement of Expert Witnesses dated 21 September 2021, which was prepared following a conferral of the expert witnesses, was in evidence before the Tribunal.[79]
[79] Exhibit 1 at pages 195-201.
Following the expert conferral, Mr Crook raised an issue in respect of property suitability. Mr Crook was concerned that the issue of property suitability was raised at the conferral when it was not a reason for refusing the applicant's application to license the .300 rifle. Mr Crook then provided some additional information about the suitability of Ella Valla Station[80] and, to a much lesser extent, Eudamullah Station. That information included the following:
a)Eudamullah Station is 186,435 hectares;
b)the topography appears to be quite flat with no heavy growth old vegetation that could cause issues as far as impeding sight lines, deflecting projectiles; and
c)from photos downloaded of Eudamullah Station, there seem to be numerous opportunities for the applicant to take shots of 500 metres or more.[81]
[80] The information in respect of Ella Valla Station is no longer relevant because the applicant withdrew his reliance on the property letter in respect of that station.
[81] Exhibit 1 at pages 182-187, 190-194.
Subsequent to the Hearing, Mr Crook provided an additional report to the Tribunal concerning the reloading/handloading of ammunition (the process of recycling spent cartridge cases).[82] In that report, Mr Crook expressed the following opinion:
If we look only at component costs (cartridge case, projectile, primer and power) handloading can often produce rounds at about half the price of good quality factory ammunition. However, current shortages of components, due to the effect of COVID on supply chains and ammunition factory workforces are causing this equation to change and component costs are rising. It is to be expected that factory rounds imported after the current stock on hand is depleted will be much more expensive-and there may be some price gouging.
Looking at the .338 Lapua Magnum cartridge, we would normally have expected the cost of handloading components to run at about 50% of the cost of factory loads. However, at the moment, factory loads (from stock on hand) are costing at least $8 a round, while component costs (case, projectiles, powder, primer) are running at much higher figures because of higher turnover.
Regardless of the price of components, handloading is a relatively complex and time-consuming activity-particularly for someone engaged in long range shooting. If we factored a labour cost per hour into the equation, handloaded cartridges would definitely be more expensive that (sic) factory ones.
[82] Exhibit 3.
Mr Crook then set out his comparison of the costs of factory ammunition and reloading for a .338 rifle which is summarised in the table below:

Premium grade

Average grade

Low grade

Factory ammunition

$1,680/100

$1,000/100

$800/100

Reloading

(cartridge cases, projectiles, primers, powder and estimated time)

$1,302.07/100

$555.57/100

No comparison provided.

A report from Mr Leonard Steel was provided to the Tribunal.[83] However, Mr Steel did not give evidence at the Hearing. Accordingly, I attach little weight to his report.
[83] Exhibit 1 at page 31.
The Tribunal appreciates the assistance provided by the expert witnesses in this matter.

Review jurisdiction of the Tribunal

This application falls within the Tribunal's review jurisdiction under the Firearms Act and the State AdministrativeTribunal Act 2004 (WA) (SAT Act).[84]
[84] 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.[85]
[85] SAT Act, s 27(1) and s 27(2).
The Tribunal does not determine the validity or otherwise of the reviewable decision.[86]
[86] 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.[87] This means that the Tribunal may take into account matters which were not before the respondent and, in particular, matters in relation to which the Tribunal had the benefit of expert evidence.
[87] 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.[88] Accordingly, the Tribunal stands in the shoes of the Commissioner of Police (Commissioner) to make the correct or preferable decision.[89]
[88] SAT Act, s 29.
[89] 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.[90]
[90] 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 firearm licence, but rather at serving the protective purpose of the Firearms Act in the public interest.[91]
[91] Coumbe v Whittaker [1999] WASCA 151 at [10], [13] and [14] per McKechnie J.
An applicant for a firearm licence bears a practical onus to satisfy the Tribunal that the requirements of s 11 of the Firearms Act have been met.[92]
[92] 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.[93]

Legislative framework

[93] SAT Act, s 29(3).

The Firearms Act is '[a]n Act to make provision for the control and regulation of firearms and ammunition' and 'the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition'.
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.[94]
[94]McGee v Chitty [2011] WASCA 125 per Mazza JA at [31]
Under the Firearms Act, it is an offence for a person to carry or use a firearm.[95] 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.[96] Second, where the person is exempt from the requirement to hold a licence.[97]
[95] Firearms Act, s 23(3).
[96] Firearms Act, s 23(3).
[97] 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' (firearm licence) which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that firearm licence, and ammunition for that firearm.[98]
[98] Firearms Act, s 16(1)(a).
There are a number of provisions which prohibit or restrict the grant of a firearm licence under the Firearms Act. Having regard to those provisions, the prerequisites for the issue of a firearm licence to an applicant are:
a)the applicant must be aged 18 years or over;[99]
b)the applicant must be a fit and proper person to hold the firearm licence; [100]
c)the issue of the firearm licence must not be undesirable in the interests of public safety; [101]
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 is not otherwise prevented from holding a licence under the Firearms Regulations;[102]
e)the applicant must have complied with the requirements relating to photographs, statements, inspection of storage facilities and provision of information;[103]
f)the applicant must have successfully completed any courses of training required by the Firearms Regulations; [104] and
g)the firearm to which the application relates must be safe and serviceable[105] and be capable of complying with the prescribed safety standards and tests applicable thereto.[106]
[99] Firearms Act, s 10.
[100] Firearms Act, s 11(1)(c), (2), (3), (5)-(6).
[101] Firearms Act, s 11(1)(b).
[102] Firearms Act, s 11(1)(a), s 11A, s 11B and s 11C.
[103] Firearms Act, s 11(7) and (8).
[104] Firearms Act, s 10A.
[105] Firearms Act, s 12.
[106] Firearms Act, s 18(5) and Firearms Regulations, reg 24.
Section 11 of the Firearms Act relevantly provides:
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that -
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C; or
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
Section 11(1) of the Firearms Act acts as a prohibition on the grant of an approval or permit or the issue of a licence under the Firearms Act if the Commissioner is of the opinion that to do so would be contrary to, inter alia, s 11A.
Section 11A of the Firearms Act relevantly provides:
(1)An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.
(2)A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if
(a)it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club; or
(b)it is for use by the person as a member of an organisation approved under this paragraph; or
(c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting; or
(d)it is required by the person in the course of the person's occupation; or
(da)in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act; or
(e)it is to form part of a genuine firearm collection or genuine ammunition collection; or
(f)it is for another approved purpose.
(3)A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified.
Section 11B of the Firearms Act provides:
(1)The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category.
(2)The regulations may make provision as to the circumstances in which a person can or cannot be considered to have a genuine need to acquire or possess a firearm or ammunition of a particular category.
Section 11C of the Firearms Act provides:
The regulations may restrict the grant, issue, or renewal of licences, permits, or approvals under this Act.

The principles in Kashani

In Kashani, her Honour Justice Jenkins considered the operation of s 11A and s 11B of the Firearms Act. The principles to be drawn from the decision in Kashani are summarised below:
a)the terms 'genuine reason' and 'genuine need' in s 11A and s 11B do not have their ordinary meanings;[107]
[107] Kashani at [34].
b)section 11A(1) says that an applicant must have a 'genuine reason' for acquiring the firearm and s 11A(2) and s 11A(3) set out what the genuine reasons are for the purpose of s 11A(1);[108]
[108] Kashani at [34] and [64].
c)although s 11B speaks of a 'genuine need' for a firearm, the Firearms Regulations equate 'genuine need' for the purpose of that section with a need for a firearm of a more powerful firearm category, as opposed to a less powerful one;[109]
[109] Kashani at [34].
d)when a decision-maker considers whether an applicant has met the genuine reason criteria in s 11A, the decision-maker may consider a factor which would also be relevant to whether the applicant has a need, in ordinary terms, for the firearm, if s 11A permits or requires them to take such a factor into consideration, regardless of whether such a consideration would ordinarily be relevant, absent the statutory provisions;
e)there is an overlap between s 11A(1) and s 11A(2) in that the former subsection specifies the criterion for grant of a licence under s 11A, whereas the latter subsection then states the reasons, one of which must be satisfied in order for an applicant to meet the criterion in s 11A(1);[110]
f)the reason in s 11A(2) put forward by an applicant must exist in fact;[111]
g)if an applicant intends to rely on the genuine reason specified in s 11A(2)(c), then the applicant must establish not only that a landowner has given written permission for hunting or shooting on his or her land but also that the applicant is going to use the firearm in hunting or shooting of a recreational nature on such land; whether there are animals on the land which are likely to be hunted; whether the applicant would hunt the animals with a firearm; and whether the firearm was suitable for hunting;[112]
h)section 11A(3) specifies another requirement in order to satisfy s 11A(1), namely that an applicant must satisfy the Commissioner that 'the particular kind of firearm … can be reasonably justified';'[113]
i) the phrase 'can be reasonably justified' requires an applicant to satisfy the Commissioner that, objectively, there are sensible, adequate grounds for the applicant to possess the particular kind of firearm the subject of the application;[114]
j)section 11A(3) is in very broad terms and permits the relevant decision-maker to take into account any consideration which could rationally affect an assessment as to whether the firearm the subject of the application is reasonably justified;[115]
k)relevant factors including matters personal to the applicant, matters relevant to the public and matters relating to the particular kind of firearm the subject of the application;[116]
l)the fact that an applicant is licensed to possess other firearms and the characteristics of those firearms are matters personal to the applicant;[117] and
m)a person would not have a genuine reason for acquiring a firearm where the purpose for which the firearm was required was already catered for by another firearm or firearms.[118]
[110] Kashani at [36].
[111] Kashani at [38].
[112] Kashani at [39].
[113] Kashani at [40].
[114] Kashani at [42].
[115] Kashani at [45].
[116] Kashani at [44].
[117] Kashani at [44].
[118] Kashani at [63].
There have been two published decisions of the Tribunal since the decision in Kashani.
In Bent and Commissioner of Police [2011] WASAT 143 (Bent), Mr Bent sought to license an additional .338 rifle in circumstances where he was licensed to hold eight other firearms. Mr Bent argued that the .338 rifle was justified on the basis of his need to shoot over longer distances of between 600 metres and 1.5 kilometres for hunting and target shooting. The Tribunal was not satisfied that the .338 rifle was reasonably justified because the existing firearms for which Mr Bent was licensed were adequate for hunting and target shooting.[119] Further, Mr Bent failed to satisfy the Tribunal that the use of the .338 rifle could be reasonably justified given the nature and characteristics of the land on which he intended to use it.[120]
[119] Bent at [53]-[59].
[120] Bent at [56].
In Castaldini and Commissioner of Police [2013] WASAT 150 (Castaldini), Mr Castledini sought to license two additional .357 calibre lever repeater rifles which were similar to two other rifles out of the 18 firearms he was already licensed to possess and carry. The Tribunal was satisfied that the evidence disclosed a number of different physical characteristics between the new firearms and the older firearms to reasonably justify the addition of one of the new firearms to Mr Castaldini's existing licence.[121] However, the Tribunal was not satisfied that the additional firearms were reasonably justified on the basis that Mr Castaldini wished to have the two new firearms as 'backup' given that he had older firearms for that purpose.[122] Mr Castledini had also sought to justify the additional firearms on the basis that it would enable his son, who did not have a firearm licence, to access one of those firearms. The Tribunal stated that 'such a motivation would not constitute a permitted ground of genuine reason under s 11A(2) of the [Firearms] Act, much less satisfy the reasonable justification tests under s 11A(3), particularly having regard to the object of the Act to limit firearms in the community'.[123]
[121] Castaldini at [21] and [30].
[122] Castaldini at [31] and [36].
[123] Castaldini at [32]

In Bergmann and Commissioner of Police [2009] WASAT 233 (Bergmann), a decision which preceded Kashani, Mr Bergmann sought to license a .357 handgun which he said he needed to protect himself against attacks by crocodiles and to kill sharks that become entangled in his fishing nets. The evidence before the Tribunal was that a .308 rifle was the minimum calibre required for the killing of a crocodile and the Tribunal was of the opinion that Mr Bergmann had failed to show that the .357 handgun was reasonably justified.[124]

Examination of the issues

Does the applicant have a genuine reason within s 11A(2) of the Firearms Act?

[124] Bergmann at [40].

The first issue for the Tribunal is whether the applicant has been shown to have a genuine reason for acquiring or possessing a firearm within s 11A(2) of the Firearms Act.
The applicant relied on the following property letters:
a)a property letter from Mr David Hebiton dated 2 September 2020 for shooting on Carramar Farm in Three Springs, a property 2,500 acres (1,011.7 hectares) in size, with a .22 rifle, a .22/250 rifle and a .300 rifle to cull vermin listed as foxes and rabbits and 'all vermon (sic)';[125]
b)a property letter from Mr Shane Aylmore dated 14 October 2020 for shooting on Ella Valla Station, a property 286,000 hectares in size, with a .300 rifle to cull vermin listed as rabbits, foxes, cats, goats, dogs, cattle and horses;[126] and
c)a property letter from Mr Shane Aylmore dated 9 September 2021 for shooting on Eudamullah Station in Carnarvon, a property186,435 hectares in size, with a .300 rifle to cull vermin listed as rabbits, cats, foxes, dogs, goats, cattle, donkeys, horses and camels.[127]
[125] Exhibit 1 at page 48.
[126] Exhibit 1 at page 49.
[127] Exhibit 2.
Each of the property letters referred to in [52] above state '[t]his permission is granted whilst I remain Owner/Manager of the above-mentioned property or the permission is otherwise withdrawn'.
After the Hearing, the Tribunal received information that the pastoral lease for Ella Valla Station had been transferred to another person in January 2022. The applicant subsequently confirmed the change of ownership of the pastoral lease and that hunting would not continue on Ella Valla Station.[128] He also informed the Tribunal that he was not aware of the change in ownership of the pastoral lease until May 2022. The consequence of the change of ownership was that the permission for hunting and shooting on Ella Valla Station was no longer in force.
[128] Exhibit 4.
At the directions hearing on 24 May 2022, the Tribunal gave the applicant an opportunity to obtain a further property letter or letters. The applicant provided two additional property letters to the Tribunal. However, only one of these property letters was acceptable to the respondent. The applicant withdrew his reliance on the property letter in respect of Ella Valla Station. Instead, the applicant sought to rely on a property letter from Mr Damien McKeough dated 19 May 2022 for shooting on Carey Downs in Gascoyne River, a property 179,000 hectares in size, with a .300 rifle to cull vermin listed as dogs, horses, donkeys and cattle.[129]
[129] Attachment 1 to Exhibit 4.
At the Hearing, the respondent made it clear that the genuine reason issue in respect of s 11A(2) of the Firearms Act was not in contention between the parties.[130]
[130] ts 10, 3 March 2022.
I am satisfied on the evidence and find that the applicant intends to use the .300 rifle in hunting of a recreational nature on land the owners of which have given written permission for that hunting and, therefore, the applicant has a genuine reason for acquiring or possessing the .300 rifle within s 11A(2)(c) of the Firearms Act. This is for the reasons which follow.
First, the applicant has consistently maintained from the time he lodged his application to license the .300 rifle that he wants to use that rifle to kill vermin which he described initially as scrub bulls, feral horses and donkeys etc.[131] Subsequently, the applicant clarified that he proposed using the .300 rifle to shoot donkeys, horses and feral dogs at a range of 500 yards[132] (457.2 metres).
[131] Exhibit 1 at page 50.
[132] Exhibit 1 at pages 27 and 197.
Second, the applicant provided the Tribunal with four property letters by which the owners or managers of those properties have granted him permission to hunt the vermin specified therein on those properties (although the applicant subsequently withdrew reliance on the property letter in respect of Ella Valla Station). The specified vermin include dogs, cattle, horses and donkeys.
Third, the applicant has previously provided property letters to the Western Australia Police Force in respect of other firearms which date back to 2014 and which give him permission to hunt vermin on those properties.[133]
[133] Exhibit 1 at pages 74-75.
Fourth, the applicant is an avid hunter:
a)he has been shooting since the age of 10 and is now 45;[134]
b)he is an experienced hunter;[135]
c)he does a lot of shooting;[136]
d)he gets invited on hunting trips;
e)the .300 rifle is not going to be shot at just two stations but would be used over vast areas, whether it is Northern Territory or Western Australia (Gascoyne, Pilbara, east Broome);[137] and
f)he currently has 12 firearms of different calibres and uses some of those firearms to shoot rabbits, wild pigs, foxes, cats and goats.[138]
[134] ts 28, 3 March 2022; and applicant's Closing Submissions at para 2.
[135] Applicant's Closing Submissions at para 9.
[136] ts 20, 3 March 2022.
[137] ts 20, 25-26, 3 March 2022.
[138] Applicant's Closing Submissions at para 3.
Fifth, the experts all agreed that the .300 rifle which the applicant proposes to use to hunt vermin on the properties is suitable for that purpose.[139]

Can the .300 rifle be reasonably justified within s 11A(3) of the Firearms Act?

[139] Exhibit 1 at page 198.

The second issue for the Tribunal is whether the .300 rifle can be reasonably justified within s 11A(3) of the Firearms Act. If the Tribunal is not satisfied that the .300 rifle is reasonably justified, then the applicant does not have a genuine reason.
The applicant is licensed to possess 12 other firearms and, consistently with the decision in Kashani, the characteristics of those firearms are matters personal to the applicant and may be taken into account by the Tribunal in making a decision about whether or not the .300 rifle is reasonably justified.[140]
[140] Kashani at [44].
In this case, it is not necessary to consider all 12 firearms since it is not in dispute that only two of the applicant's 12 firearms are relevant to this application, namely the .270 rifle and the .338 rifle.
The experts all agreed that ammunition for the .270 rifle is not adequate to shoot vermin such as donkeys at distances of 300-500 yards (274.32457.2 metres) and the .270 rifle is only suitable to shoot large animals to a maximum distance of 200-300 yards (182.88274.32 metres) due to the inherent accuracy limitations of this firearm's design.[141]
[141] Exhibit 1 at pages 115, 118, 140, 142 and 198.
I accept their evidence and find that the .270 rifle is not suitable for the purpose proposed by the applicant because the range of the .270 rifle does not extend to 500 yards (457.2 metres). Accordingly, it is not necessary to give any further consideration to the suitability of the applicant's .270 rifle.
The applicant gave evidence that he had used his .338 rifle to shoot scrub bulls, donkeys and horses on Ella Valla Station at a range of 700800 metres[142] (765.5- 874.89 yards).
[142] Exhibit 1 at pages 17, 18 and 27.
The experts all agreed that ammunition for the .300 rifle and the .338 rifle is adequate to shoot donkeys at distances of 300-500 yards[143] (274.32-457.2 metres). I accept their evidence and find accordingly.
[143] Exhibit 1 at pages 88, 113, 115, 117, 141-142, 152-154 and 198.
It is necessary, therefore, to consider the grounds advanced by the applicant as to why the .338 rifle is not suitable for hunting at distances of 500 yards (457.2 metres).

Cost of ammunition

The first ground on which the applicant sought to justify the .300 rifle was that the ammunition for the .338 rifle is more expensive than the .300 rifle and, therefore, it is not economically feasible to use the .338 rifle to shoot vermin smaller than camels[144] (ground 1).
[144] Applicant's Closing Submissions at para 18.
The applicant gave evidence that the rounds of ammunition cost $8.50 each (new, wholesale including GST) for the .338 rifle, compared with approximately $2.12 each (new, wholesale including GST) for the .300 rifle rounds.[145]
[145] Exhibit 1 at page 33; ts 15, 28-29, 3 March 2022; and applicant's Closing Submissions at para 18.
In an email from Morgan Raymond of Raytrade to the applicant dated 10 November 2020, the retail cost of ammunition was stated as being $3.50 per round for the .300 rifle and $18 per round for the .338 rifle.[146] The applicant later clarified that the price of $18 per round was for a ballistic tip projectile which he does not use.[147]
[146] Exhibit 1 at page 12.
[147] ts, 28, 3 March 2022.
In his statement, Sergeant Tilt said that in March 2021 he conducted a dip-sample of retail ammunition prices and that the average price of hunting ammunition was $7.00 per round for the .338 rifle and $3.50 per round for the .300 rifle.[148]
[148] Exhibit 1 at page 117.
I accept the evidence of the applicant in respect of the wholesale price of ammunition as his evidence was not contested.
I prefer the evidence of Sergeant Tilt to the evidence of Mr Raymond in respect of the retail price of ammunition since Sergeant Tilt's pricing is more recent than that of Mr Raymond and his evidence was not contested. Further, Mr Raymond's price of $18 per round for the .338 rifle related to a ballistic tip projectile which the applicant does not use.
The experts all agreed that the cost of the ammunition for the .338 rifle is about twice the cost of the ammunition for the .300 rifle.[149] I accept their evidence.
[149] Exhibit 1 at page 198.
The experts disagreed about whether or not the cost of ammunition was a relevant factor when determining reasonable justification to possess a firearm. Mr Crook was of the view that cost effectiveness is a valid consideration in any sporting or professional shooting endeavour. Mr Butcher was of the view that ammunition should be selected on the best performance on animals, not cost, and that this was especially so with sporting or amateur shooters as they have no obligation to kill large numbers of animals. Sergeant Tilt was of the view that the legislation does not include 'cheaper ammo' as a genuine reason to license a firearm and licensing additional firearms simply because the new one is cheaper does not align with community expectations.[150]
[150] Exhibit 1 at page 199.
As outlined above, Mr Crook provided a report to the Tribunal about reloading ammunition. I accept the evidence of Mr Crook in respect of the costs of reloading ammunition subject to one qualification. I do not accept that it is appropriate to include in the cost of reloading ammunition what is described as 'Estimated Time' but is in fact labour costs of $300 per 100 rounds for premium grade ammunition (two hours) and $150 per 100 rounds for average grade ammunition (one hour). This is because this is not a cost incurred by the shooter. Consequently, I do not agree with the opinion Mr Crook expressed in his report that the cost of reloading is not, currently, significantly less than the cost of purchasing factory ammunition.[151]
[151] Exhibit 3.
I am not satisfied on the evidence to which I have referred that ground 1 provides reasonable justification for the .300 rifle. This is for the following reasons:
First, the arrangement by which a recreational hunter shoots vermin on another landowner's property is a mutually beneficial arrangement. The recreational hunter is able to engage in hunting and the landowner has vermin culled at no cost to the landowner. However, as the respondent has contended, a recreational hunter such as the applicant is under no obligation to engage in hunting on the landowner's property or to shoot a specific number of animals.
Second, an activity which is undertaken for recreational purposes is something done for enjoyment. One of the factors which bears upon a person's ability to undertake an activity on a recreational basis is having the financial means to undertake the activity, or purchase the equipment required to undertake the activity. If a recreational hunter such as the applicant is licensed to carry and possess a particular firearm, then he or she expects to pay for the ammunition applicable to that firearm. In other words, there is a price to pay for engaging in hunting of a recreational nature and that price includes the cost of the ammunition.
Third, all of the witnesses agreed that shooting is an expensive hobby. The applicant stated that he paid $5,000 for the .300 rifle[152] and Mr Crook stated that a .338 rifle costs upwards of $8,000 plus another $5,000 for a premium quality rifle scope, bipod and other ancillary equipment.[153] In my view, the cost of ammunition for the .338 rifle is not excessive when compared to the cost of the firearm itself and other equipment associated with the use of that firearm.
[152] ts 24, 3 March 2022.
[153] Exhibit 3.
Fourth, the price of ammunition for the .338 rifle is not significantly more than the price of ammunition for the .300 rifle.
Fifth, if a recreational hunter finds that the ammunition is too costly for a particular firearm, then he or she may, as the applicant has done, opt to reload his or her own ammunition as this is less expensive than purchasing ammunition at factory prices.
Sixth, the applicant has had a licence in respect of the .338 rifle for eight or nine years. There is no evidence to suggest that the applicant has ceased using the .338 rifle for hunting because the ammunition is too costly compared to his other firearms. In fact, the applicant gave evidence that he had successfully used the .338 rifle to shoot scrub bulls, donkeys and horses at Ella Vella Station.[154] Further, there was no evidence that the applicant intended to surrender the .338 rifle in favour of the .300 rifle.
[154] Exhibit 1 at pages 17, 18 and 27.
Seventh, I agree with Mr Butcher that ammunition should be selected on the basis of performance on animals rather than cost since the experts all agreed that 'humane killing' of animals is a relevant consideration.[155]

Cost of barrel replacement

[155] Exhibit 1 at page 198.

The second ground on which the applicant sought to justify the .300 rifle is that the .338 rifle uses slow burning powder to reach long distances, which erodes the barrel more quickly, requiring replacement of the barrel at significant cost and, therefore, it is not economically feasible to use the .338 rifle to shoot vermin smaller than camels[156] (ground 2).
[156] Applicant's Closing Submissions at para 18.
The applicant gave evidence that the cost of a new barrel for the .338 rifle is $2,150 including GST.[157] Mr Butcher gave evidence that the cost of a new barrel varies between $900 and $2,150.[158] I accept the evidence of the applicant and Mr Butcher that the maximum cost of a new barrel for the .338 rifle is $2,150.00 including GST.
[157] ts 15, 3 March 2022.
[158] ts 59-60 and ts 64-66, March 2022.
In his statement, Mr Butcher stated that:
a)slow burning powders have a lower level of energy for weight compared to fast burning powers, with a correspondingly lower amount of heat;
b)a barrel on a .338 rifle should last between 1,500 and 4,000 rounds;
c)poor cleaning and multiple rapid shots decrease barrel life;
d)excessive heating of the barrel causes rapid erosion of the throat of the barrel;
e)if a .338 rifle barrel is assumed to last only 2,000 rounds with ammunition at the stated cost ($18.00 per round) then total ammunition cost is $36,000; and
f)the replacement cost of the barrel is insignificant compared to the costs of the ammunition that is required to ruin a barrel.[159]
[159] Exhibit 1 at page 91.
In his statement, Sergeant Tilt said that 'all centrefire rifle barrels can wear out after prolonged use and are generally expensive to replace regardless of the cartridge they shoot'. He also said that barrel wear is 'principally due to erosion in the first 10 centimetres adjacent to the chamber caused by heat and pressure from the ammunition being fired'.[160]
[160] Exhibit 1 at page 118.
I accept the evidence of Mr Butcher and Sergeant Tilt in respect of barrel replacement because their evidence was not contested.
I am not satisfied on the evidence to which I have referred that ground 2 provides reasonable justification for the .300 rifle. This is for the following reasons:
First, as explained in [81] above, the applicant is a recreational hunter and is under no obligation to engage in hunting on the landowner's property or to shoot a specific number of animals.
Second, as explained in [82] above, if a recreational hunter such as the applicant is licensed to carry and possess a particular firearm, then he or she expects to pay for barrel replacement. In other words, there is a price to pay for engaging in hunting of a recreational nature and that price includes the cost of barrel replacement.
Third, as explained in [83], the cost of barrel replacement is not excessive when compared to the cost of the firearm itself, the cost of other equipment associated with the use of that firearm and the cost of ammunition necessary to wear out the barrel.
Fourth, all centrefire rifle barrels wear out after prolonged use and are expensive to replace.
Fifth, a recreational hunter may take steps to mitigate the factors which Mr Butcher identified as decreasing barrel life.
Sixth, there is no evidence to suggest that the applicant no longer uses the .338 rifle for hunting, or that he intends to surrender that rifle, because of the cost of barrel replacement.

Energy and over-penetration

The third ground on which the applicant sought to justify the .300 rifle is that the .338 rifle has too much energy and there is a greater risk of over-penetration with a .338 rifle when compared to the .330 rifle[161] (ground 3).
[161] Applicant's Closing Submissions at paras 15-17.
Over-penetration occurs in recreational hunting when a bullet is not stopped by the animal which is the intended target as a result of the bullet missing the animal or passing through the animal.
There were a number of different opinions expressed during the Hearing in respect of the risk of over-penetration.
The applicant gave evidence that he considered that there was a higher risk of over-penetration with the .338 rifle compared to the .270 rifle and the .300 rifle.[162]
[162] ts 20, 3 March 2022.
In his statement, Mr Crook said that he would be wary of using a .338 rifle at a range of 500 metres because of its power and the significant risk of over-penetration.[163]
[163] Exhibit 1 at pages 141-142.
Mr Crook gave evidence that he did not see a problem with overpenetration with the .300 rifle because you would have enough velocity for expansion, depending on the musculature of the animal[164] but that you would get over-penetration with a .338 rifle.[165]
[164] ts 47, 3 March 2022.
[165] ts 47-48, 3 March 2022.
In his statement, Mr Butcher said that the .338 rifle has sufficient energy to kill horses, donkeys and camels at longer ranges if proper bullets are used and shot placement is correct.[166]
[166] Exhibit 1 at page 88.
Mr Butcher gave evidence that all firearms pose a risk of overpenetration and that this risk can be mitigated by choosing the right kind of ammunition for the animal and the distance, by using terrain to generate a backup and by taking care as to shot placement.[167]
[167] Respondent's Closing Submissions at para 14.

In his statement, Sergeant Tilt said that he agreed with the applicant's comment that the .338 rifle has more energy than the .300 rifle. However, he added that he was of the view 'that more energy delivered by a bullet will likely result in a more humane kill, which is a desirable outcome'.[168]
[168] Exhibit 1 at pages 115-116.
Sergeant Tilt also said in his statement that the danger of overpenetration is mitigated by the shooter ensuring he or she has suitable terrain behind the target to act as a backstop before he or she squeezes the trigger and, if a suitable backstop is not present, then the shooter should not squeeze the trigger.[169]
[169] Exhibit 1 at pages 116-117.
Sergeant Tilt gave evidence that over-penetration is a risk for the .270 rifle, the .300 rifle and the .338 rifle[170] and he disagreed that the risk of over-penetration is higher with the .338 rifle than the .300 rifle.[171]
[170] ts 83, 3 March 2022.
[171] ts 83, 3 March 2022.
Mr Crook gave evidence that he did not agree that looking at what is behind the shot always mitigates the risk of over-penetration because the animal may move before the bullet hits the animal.[172]
[172] ts 44-45, 3 March 2022.
The applicant and each of the experts agreed that responsible shooters comply with rule 4 of the IFS Rules. That rule says '[b]e sure of your target, backstop and beyond'.[173]
[173] Exhibit 1 at page 116.
I prefer the evidence of Mr Butcher and Sergeant Tilt over the evidence of the applicant and Mr Crook. This is because the evidence of the applicant and Mr Crook was contrary to rule 4 of the IFS Rules and, therefore, the obligations of a hunter in respect of firearms safety.
I am not satisfied on the evidence to which I have referred that ground 3 provides reasonable justification for the .300 rifle. This is for the reasons which follow.
First, all responsible shooters must be aware of their target, backstop and beyond as set out in rule 4 of the IFS Rules. If there is not a suitable backstop, then the shooter should not, as a matter of safety, shoot.
Second, on the basis of the evidence of Mr Butcher and Sergeant Tilt, there is no greater risk of over-penetration with a .338 rifle compared to a .300 rifle.
Third, the risk of over-penetration can be mitigated as explained by Mr Butcher and Sergeant Tilt and, in particular, by compliance with rule 4 of the IFS Rules.

Rifle weight

The applicant gave evidence that weight is a factor in his desire to use the .300 rifle.[174] He stated that the .330 rifle weighs 5 to 6 kilograms and the .338 rifle weighs 8 to 9 kilograms (all kitted up) (ground 4).[175]
[174] ts 16, 3 March 2022.
[175] ts 16-17, 3 March 2022.
I am not satisfied, on the evidence to which I have referred, that ground 4 provides reasonable justification for the .300 rifle. This is for the reasons which follow.
First, there is very little difference between the weight of the .300 rifle and the weight of the .338 rifle.
Second, there is no evidence to suggest that the applicant no longer uses the .338 rifle for hunting, or that he intends to surrender that rifle, because of its weight.

Nature and characteristics of the property upon which it is proposed to shoot

During the course of the expert conferral, an issue arose about whether a particular property letter or location was relevant as to whether a particular firearm was reasonably justified.
It is not necessary for me to decide this issue since the suitability of the properties was not in dispute. However, I nevertheless consider that it may be useful to provide some comment on the issue.
In my view, the nature and characteristics of the land on which an applicant proposes to shoot may be relevant to the question as to whether the particular firearm is reasonably justified, notwithstanding that once a licence is issued for that firearm an applicant is not restricted to a particular property (unless that is a condition imposed on the licensing of the firearm in question).
In Bent, the Tribunal gave careful consideration to one of the properties where Mr Bent proposed to use the .338 rifle including: the size of the property, where the property was located, whether the land was cleared or uncleared, the location of the boundaries of the property, and the proximity of public roads and neighbouring homes. The Tribunal concluded:
… The relative small size of the property, the nature of the topography and location thereof, the proximity of public roads and the potential danger that overshooting or ricocheting of a bullet may hold to neighbouring properties combine to militate against the use of a .338 Lapua Magnum for the purposes suggested by Mr Bent. Mr Bent's inexperience in the ballistics of a very powerful firearm such as the .338 Lapua Magnum is illustrated by his assertion that he knows where a bullet will land. Mr Bent failed to satisfy the Tribunal that the use of the .338 Lapua Magnum can be reasonably justified given the nature and characteristics of the land on which he intends to use it.[176]

Conclusion in respect of whether the .300 rifle can be reasonably justified

[176] Bent at [56].

I am not satisfied that the .300 rifle can be reasonably justified. This is because, for the reasons outlined above, the applicant's .338 rifle is adequate for the applicant's stated purpose of shooting animals at a range of 500 yards.
Since I am not satisfied that the .300 rifle can be reasonably justified, the applicant does not, by virtue of the operation of s 11A(3) of the Firearms Act, have a genuine reason for acquiring or possessing the .300 rifle. It follows that a licence cannot be issued to the applicant for the .300 rifle because of the combined operation of s 11(1)(a) and s 11A(1) of the Firearms Act.

The other prerequisites for the issue of a firearm licence

Given that I am not satisfied that the .300 rifle can be reasonably justified, it is not necessary for me to consider the other prerequisites for the issue of a firearm licence set out in [40] above.

The correct and preferable decision

I have decided that the correct and preferable decision is that the applicant should not be permitted to license the .300 rifle under the Firearms Act. This is for the reasons outlined above.
Accordingly, the decision of the respondent not to license the .300 rifle should be affirmed.

Orders

The Tribunal orders:
1.The decision of the respondent not to license the .300 rifle to the applicant is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
23 AUGUST 2022