LOBLEY and COMMISSIONER OF POLICE

[2005] WASAT 319

LOBLEY and COMMISSIONER OF POLICE [2005] WASAT 319

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 319
Act:	FIREARMS ACT 1973 (WA)
Case No:	CC:2885/2005	Heard:	5 DECEMBER 2005
Coram:	DR B DE VILLIERS (MEMBER)	Delivered:	8/12/05
No of pages:	8	Judgment Part:	1 of 1
Result:	1. Final orders 2. Application for review succeeds
Category:	B
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Parties:	ALAN FREDERICK NICHOLAS LOBLEY COMMISSIONER OF POLICE
Catchwords:	Licensing of firearm ­ Refusal to issue licence ­ Fit and proper ­ Criminal record ­ Spent convictions ­ Incorrect completion of shooting club application form
Legislation:	Firearms Act 1966 (NSW) Firearms Act 1973 (WA), s 11, s 11(1), s 11(1)(c), s 22(2) Spent Convictions Act 1988 (WA), Div 2, Sch 3 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Case References:	Australian Broadcasting Tribunal v Bond & Other (1990) 170 CLR 321 Axiotis v Commissioner of Police, NSW Police [2004] NSWADT 112 Brown, Re; Ex parte Scudds; Re McGuire; Ex parte Steele (1995) 14 WAR 270 Nil
Orders	1. The application for review succeeds.,2. The decision of the licensing officer dated 21 June 2005 is set aside.,3. A licence be issued to Mr Lobley for handgun Heckler and Koch self-loading 9 millimetre (serial number 24072632).

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : LOBLEY and COMMISSIONER OF POLICE [2005] WASAT 319 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 5 DECEMBER 2005 DELIVERED : 8 DECEMBER 2005 FILE NO/S : CC 2885 of 2005 BETWEEN : ALAN FREDERICK NICHOLAS LOBLEY

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Licensing of firearm ­ Refusal to issue licence ­ Fit and proper ­ Criminal record ­ Spent convictions ­ Incorrect completion of shooting club application form

Legislation:

Firearms Act 1966 (NSW)

Firearms Act 1973 (WA), s 11, s 11(1), s 11(1)(c), s 22(2)
Spent Convictions Act 1988 (WA), Div 2, Sch 3
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)

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Result:

1. Final orders

2. Application for review succeeds

Category: B

Representation:

Counsel:

Applicant : Mr RossWilliamson
Respondent : Sergeant Gimbey (as agent)

Solicitors:

Applicant : Williamson & Co
Respondent : N/A

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

Australian Broadcasting Tribunal v Bond & Other (1990) 170 CLR 321
Axiotis v Commissioner of Police, NSW Police [2004] NSWADT 112
Brown, Re; Ex parte Scudds; Re McGuire; Ex parte Steele (1995) 14 WAR 270

Case(s) also cited:

Nil


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary

1 The licensing officer, Mr AT Vidovich, who holds delegated authority on behalf of the Commissioner of Police to consider applications for firearm licences, refused an application by Mr Lobley to be issued a licence. The reason for the decision is that in the opinion of Mr Vidovich, Mr Lobley is not a fit and proper person to hold the licence for handgun Heckler and Koch self­loading 9 millimetre (serial number 24072632).

2 Mr Lobley applied for a review of the decision under s 22(2) of the Firearms Act 1973 (WA) (F Act). Mr Lobley contends that he is a fit and proper person to hold the licence on grounds that his previous criminal record is spent, the offences were committed many years ago, he is completely rehabilitated and even if the previous record were taken into account, none of the convictions, save perhaps one, is of relevance to the firearm application. He further contends that he was under the belief that he was under no legal obligation to disclose his criminal record to the Orange Grove Shooting Association (OGSA) when he completed the application form for membership.

3 The Commissioner of Police contends that Mr Lobley is not fit and proper to be issued a licence for reason of his criminal record and the false information he gave when he applied for membership of the OGSA. The Commissioner of Police further contends that "fit and proper" refers not only to the ability of a person to handle a firearm but also to the honesty and integrity of a person. The misleading information given by Mr Lobley when he said he had no criminal record therefore makes him unfit to hold a licence.

4 The Tribunal found there is insufficient evidence to support the contention that Mr Lobley is not fit and proper to be issued the licence. Although the Tribunal can take account of his criminal record, the offences were committed many years ago and a "spent conviction" certificate has been issued in respect of all the convictions. The F Act does not preclude a licence to be issued if a person has rehabilitated himself. The application for a fit and proper test must take place in the context of the F Act and the Commissioner of Police was unable to demonstrate why the historic convictions or the incorrectly completed form rendered Mr Lobley not fit and proper to be issued the licence.

5 In regard to the incorrectly completed application OGSA form, the Tribunal notes the disputation as to the circumstances in which it was

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completed. The Tribunal is not satisfied that the incorrect completion of the form reflects negatively on the fit and proper state of Mr Lobley to be issued the licence. The explanation Mr Lobley offered is plausible and it appears that a misunderstanding gave rise to the erroneous completion.

6 Orders are therefore made for the decision of the licensing officer to be set aside and for the licence to be issued.

Background

7 Mr Lobley applied for a licence for a self­loading handgun Heckler and Koch 9 millimetre (serial number 24072632) on 21 April 2005. Mr Lobley declared his criminal record to the licensing officer.

8 Mr Lobley was notified on 21 June 2005 that the application had been refused on the basis that, acting under s 11(1)(c) of the Firearms Act 1973 (WA) (F Act), the licensing officer was not satisfied that Mr Lobley was a fit and proper person to hold the licence. The licensing officer explained by letter that the reason for his decision was the "antisocial behaviour" displayed by Mr Lobley as is evident in his criminal record.

9 Since making the decision, additional information has come to the disposal of the Commissioner of Police. The information was put to the State Administrative Tribunal (Tribunal).

10 It appears that Mr Lobley applied on 22 May 2004 to become a member of the Orange Grove Shooting Association (OGSA). On the OGSA application form, Mr Lobley indicated that he had not been convicted of any criminal offence. As a result of the incorrectly completed form and the alleged failure of Mr Lobley to comply with some other requirements of the application process of OGSA, his provisional membership of OGSA was suspended on 26 February 2005. In accordance with the licensing conditions under which OGSA operates, it informed the Firearms Branch on 22 March 2005 that Mr Lobley had "falsified" his application form by declaring that he had no criminal convictions.

11 Mr Frank McGrath, secretary of OGSA, gave evidence to explain the processing of applications and the licensing conditions under which OGSA operates. Mr McGrath referred to the letter dated 4 November 2003 in which the Firearm Branch set out conditions that must be complied with by OGSA in regard to persons applying for membership for the use of handguns.

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12 Mr McGrath acknowledged that although there was no legal requirement for an applicant to disclose a criminal record to OGSA, the club rules require a person to be of good character to become a member. However, Mr McGrath noted that although it may be required from new applicants to provide a police clearance certificate, there is nothing in the conditions set out by the Firearms Branch that obliges an applicant to disclose a criminal record when filling out the application form.

13 Mr Gimbey, counsel for the Commissioner of Police, contended that the failure of Mr Lobley to disclose his criminal record to OGSA is serious enough for the Tribunal to be of the opinion that Mr Lobley is not a fit and proper person to be licensed. Mr Gimbey referred the Tribunal to the matter Axiotis v Commissioner of Police, NSW Police [2004] NSWADT 112 (8 June 2004) in which the issue of deliberate falsification of a safety training certificate was considered. In the matter, Molony P held that fit and proper refers to "honesty", "knowledge" and "ability". According to Mr Gimbey, the falsified form reflects on the honesty and character of Mr Lobley and, read with his criminal record, makes him unfit to be issued the licence. Mr Gimbey acknowledged that in the Axiotis v Commissioner of Police, NSW Police matter, the applicant had falsified a safety training certificate which is required under the Firearms Act 1996 and Regulations of New South Wales. This contrasts Axiotis v Commissioner of Police, NSW Police from the current application where a membership form of a club had to be completed.

14 Mr Lobley explained in evidence that he acted in good faith when he completed the OGSA form. He contends that he had been told, while he was completing the form in the presence of other members of the club, that there was no need to disclose his criminal record and, in any event, he received a "spent conviction" certificate shortly after the completion of the form (on 12 July 2004) which vindicates his understanding that there was no need to disclose his criminal record.

15 In regard to his criminal record, Mr Lobley gave evidence that these events happened many years ago, that he is completely rehabilitated, that he has had no recent offences and that he is a good member of society. He submitted character references.

Review function

16 Mr Lobley brought the application under s 22(2) of the F Act. The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the licensing officer. The Tribunal is not limited to

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the statement of reasons given by the licensing officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made (s 27(1) of the SAT Act). The review hearing is de novo (s 27(1) of the SAT Act). The decision of the Tribunal is regarded as a decision of the licensing officer (s 29(5) of the SAT Act).

17 The powers of the Tribunal according to s 29(3) of the SAT Act are to:

• affirm the decision; or

• vary the decision; or

• set aside the decision, and

to make appropriate orders.

18 In acting as the licensing officer, the Tribunal's discretion is set out in s 11(1) of the F Act which reads as follows:

"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 …

(c) the person is not a fit and proper person to hold the approval, permit or licence."

Consideration

19 In considering the application, the Tribunal has taken into account the written and oral evidence, character references, the exchange of correspondence and submissions made by the parties.

20 The F Act clothes the Tribunal with the discretion to take into account information that is relevant and applicable to the specific application under consideration to determine if the licence should be issued. The discretion of the Tribunal has to be exercised within the framework of the F Act and in particular against the provisions of s 11. The discretion of the Tribunal is by its nature subjective but it must be guided by all relevant information at its disposal.

21 This has been confirmed by the Supreme Court of Western Australia in Brown, Re; Ex parte Scudds; Re McGuire; Ex parte Steele (1995) 14 WAR 270 where the court held that "the grant of a licence under the Firearms Act 1973 WA, s 22, is discretionary … " (own emphasis).

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22 The F Act does not define what is meant by "fit and proper" and it is left for the Tribunal to form an opinion on the basis of the information and the aims and objectives of the F Act. This is consistent with the observation by Chief Justice Mason in Australian Broadcasting Tribunal v Bond & Other(1990) 170 CLR 321 at 380:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

23 Council for the Commissioner based the refusal to issue the licence on two grounds, namely, Mr Lobley's criminal record and the incorrect completion of the OGSA form.

24 Although Mr Lobley has an extensive criminal record spanning several years, the Tribunal makes three observations. Firstly, the last conviction was on 22 June 1994 ­ more than 11 years ago. It appears that Mr Lobley is rehabilitated and that he has mended his ways. Secondly, most of the offences were of a minor nature. Although the offences show a disregard for the law, account must be taken that they were committed more than a decade ago. Thirdly, a spent conviction certificate was issued on 12 July 2004 for all the previous convictions. Although the Tribunal may take into consideration spent convictions (Div 2, Sch 3 of the Spent Convictions Act 1988 (WA)) when considering the application, I am not satisfied that the previous convictions impact negatively on the fitness and propriety of Mr Lobley to hold the licence.

25 In regard to the incorrectly completed form, Mr Lobley gave detailed evidence as to why he recorded the words "do not have" a criminal record. It is plausible that Mr Lobley acted on the advice he received from a club member/s or on the belief that the convictions had been recoded so long ago that there was no need to report on it. Counsel for Mr Lobley also pointed out that there was no statutory obligation on Mr Lobley to disclose the criminal record. The Tribunal is not satisfied that the incorrectly completed form is of such a serious nature that it reflects negatively on Mr Lobley being a fit and proper person to be issued the licence.

26 The Tribunal also notes the character references that were submitted on behalf of Mr Lobley. Although the persons were not available to give

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evidence, the references speak of a person who is rehabilitated, trustworthy and reliable. This is illustrated by the current captain of the practical pistol section of the Jarrahdale Sporting Shooters Club, Mr Jack Brewis, when he observes that Mr Lobley is a "gain" for their club.

Finding

27 The Tribunal finds for the reasons set out above that there is insufficient information to form the opinion that Mr Lobley is not a fit and proper person to hold the licence.

28 The application for review should therefore succeed, the decision of the licensing officer should be set aside and the licence should be issued.

Orders

1. The application for review succeeds.

2. The decision of the licensing officer dated 21 June 2005 is set aside.

3. A licence be issued to Mr Lobley for handgun Heckler and Koch self­loading 9 millimetre (serial number 24072632).

I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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DR B DE VILLIERS, MEMBER