LUDGATE and COMMISSIONER OF POLICE - [2013] WASAT 151

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: LUDGATE and COMMISSIONER OF POLICE [2013] WASAT 151

MEMBER: MS L WARD (MEMBER)

HEARD: 4 SEPTEMBER 2013

DELIVERED : 5 SEPTEMBER 2013

PUBLISHED : 12 SEPTEMBER 2013

FILE NO/S: CC 843 of 2013

BETWEEN: JAMES LUDGATE
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence under Firearms Act 1973 (WA) - Revocation - Previous convictions - Most serious offending - isolated incident - Whether applicant is now a fit and proper person to hold a firearm licence

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 143, s 171(2)
Firearms Act 1973 (WA), s 11, s 11(1)(c), s 11A, s 11B, s 11C, s 20(1)(a)(iii), s 22(2),
Road Traffic Act 1974 (WA)
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Trivunal Act 2004 (WA), s 27(3), s 27(1), s 29(1), s 29(5)

Result:

The application for review is successful

Summary of Tribunal's decision:

The applicant's (Mr James Ludgate) firearm licence was revoked by the Commissioner's delegate in May 2013, on the basis that the applicant was not a fit and proper person to hold a licence because he had been convicted on 22 January 2013 in the District Court on his guilty plea of an 'attempt to pervert the course of justice'. He was then sentenced to a term of 10 months in prison. The conviction related to events which occurred on 27 and 28 August 2011. In essence, those events involved the applicant driving to Perth from his farm in York while he was a disqualified driver and lying to police about this fact and involving two others in his deceit. The car was also involved in an accident with a stationary vehicle. The applicant was also convicted of certain offences in relation to the car accident. At the hearing on 4 September 2013 the Commissioner's delegate sought to also rely on the applicant's previous traffic convictions.
The Tribunal considered the nature and circumstances of the applicant's prior convictions. Although the convictions were relevant to the question whether the applicant was a fit and proper person to hold a licence, the convictions did not preclude the conclusion that the applicant was a fit and proper person. The Tribunal considered various matters which it regarded as impacting upon whether the applicant should now be regarded as a fit and proper person for the relevant purpose.
After hearing the applicant's evidence, the Tribunal was satisfied that he was genuinely remorseful for his previous offending and that the events of 27 and 28 August 2011 were isolated incidents for which the applicant had paid a very high price, by being imprisoned. The applicant's referees describe him as a young man of impeccable character, with the exception of the events of 27 and 28 August 2011.
The Tribunal set aside the delegate's decision and ordered the issue of the licence in relation to the two firearms as set out below.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Senior Constable S Bagley (Acting as Agent)

Solicitors:

Applicant: Self-represented
Respondent: Commissioner of Police

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

Jeffries and Commissioner of Police [2011] WASAT 145
Minitti v Commissioner of Police [2010] WASCA 198
Nickels and Commissioner of Police [2010] WASAT 19
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 5 September 2013 the Tribunal delivered its decision and reasons for decision. At that time the Tribunal indicated that the reasons for decision would be published. The Tribunal's reasons for its decision follow below:
On 31 May 2013 a delegate of the Commissioner of Police (Commissioner), under the Firearms Act 1973 (WA) (Firearms Act), revoked the firearm licence of Mr James Ludgate (applicant). The revocation was served on the applicant on 18 June 2013.
Before this Tribunal the applicant seeks a review of the decision of the delegate of the Commissioner under the Firearms Act revoking his firearm licence.
The revocation decision was made under s 20(1)(a)(iii) of the Firearms Act on the basis that the applicant was not a fit and proper person under s 11(1)(c) of the Firearms Act to have a firearm licence, due to his being convicted on 22 January 2013 in the District Court on his guilty plea of an 'attempt to pervert the course of justice'; that offence being contrary to s 143 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and having a maximum penalty of seven years imprisonment. The applicant was sentenced to a term of 10 months imprisonment. The conviction related to events which occurred on 27 and 28 August 2011, and which are set out in greater detail below.

Background

The applicant was born in 1981, making him now about 32 years old. With the exception of five or so years spent at boarding school in Perth, the applicant has lived and worked on his family farm in the Shire of York. The farm is about 3700 hectares in total. The land is actually spread over two properties which are about 30 kilometres apart.
In 1999, when the applicant was 18 years old, he was disqualified from driving a motor vehicle for four months due to having a blood alcohol level in excess of 0.08%. At the hearing the applicant said that this offending occurred when he was very young and while he was at the Dowerin Field Days, an annual agricultural machinery expo held in Western Australia.
Then three years later, in 2002, when the applicant was 21 years old, he was fined and lost five demerit points for having a blood alcohol level in excess of 0.05%. At the hearing the applicant said that the offence occurred in Perth following the funeral of his boarding school housemaster, who died suddenly. He described the housemaster as having been an inspirational person in his life.
According to the applicant, he has held a firearm licence for about 11 years, which would mean that he first obtained his licence sometime in 2002.
On 30 January 2003, the applicant's motor vehicle licence was suspended for three months due to his loss of demerit points.
Then some seven years later, on 6 December 2010, when the applicant was 29 years old, he was disqualified from driving a motor vehicle for 10 months and fined, due to having a blood alcohol level in excess of 0.08%. The date of this offence was 23 October 2010. The applicant said at the hearing that the circumstances surrounding this offence were that he had been drinking with friends following the christening of his friend's son. The applicant then drove home so that he could attend to work on his farm the next day.

Events of 27 and 28 August 2011 (August 2011 events)

The applicant's motor vehicle licence suspension was due to be lifted on 6 October 2011. However, on Saturday 27 August 2011 before the suspension was lifted, the applicant drove to Perth in a Mercedes Benz (Mercedes) motor vehicle belonging to his brother in law.
At the hearing the applicant said that he drove the Mercedes because he mistakenly believed that his motor vehicle licence suspension commenced on the date of the offence, namely 23 October 2010, and that therefore, the 10 months was up on 23 August 2011. However, the applicant was quick to acknowledge to the Tribunal that his mistake was no excuse for him breaking the law.
Based on the Commissioner's various statements of material facts, which form part of Exhibit 1, and the applicant's evidence, the relevant events of 27 and 28 August 2011 are set out below.
On the afternoon of Saturday 27 August 2011 the applicant drove the Mercedes from his farm near York to Perth. The applicant told the Tribunal that the purpose of the visit to Perth was so that he could run in the City to Surf Fun Run on Sunday 28 August 2011. On 28 August 2011, the applicant denied to police that he was driving the Mercedes while under suspension. However, later, on 16 October 2011, the applicant made full admissions in a voluntary police 'Report Of Incident'. As a result, the applicant was later charged with 'No authority to drive' contrary to the Road Traffic Act1974 (WA) (RT Act). The applicant pleaded guilty to this charge, and on 24 May 2013 was disqualified from driving for nine months and fined $400.
On the evening of 27 August 2011, the applicant socialised with friends in Subiaco. The applicant told the Tribunal that he was not drinking during that evening. This was not challenged by the police and there is no evidence to the contrary before the Tribunal. The applicant then drove the Mercedes from Subiaco to where he was staying in Victoria Avenue, Dalkeith. At about 5.30 am on Sunday 28 August 2011, the Mercedes was reported to have crashed into a stationary vehicle on Viking Road, Dalkeith. Both vehicles were written off as a result of the damage caused to them. As a result of this incident the applicant was charged with two offences under the RT Act namely, being a driver failing to stop, property damage, and failing to report an incident in which property was damaged. The applicant pleaded not guilty to these two charges on the basis that he claimed that he was not the driver of the Mercedes at the time of the accident. However, the applicant was convicted on 24 May 2013 following a hearing in Perth Magistrates Court. Fines of $300 and $250 were imposed in relation to these two offences respectively.
Then at about 5.50 am on Sunday 28 August 2011 the applicant reported his brother in law's Mercedes as having been stolen. The applicant called the police and claimed that the Mercedes had been stolen sometime between 6.30 pm on 27 August 2011 and 5.50 am on 28 August 2011. The applicant told police a number of details including that he still had the keys to the Mercedes and that there was no broken glass. Some months later, the applicant was charged with creating a false belief that the Mercedes was stolen contrary to s 171(2) of the Criminal Code. The applicant pleaded not guilty to this charge on the basis that he claimed that he was not the driver of the Mercedes at the time of the accident. However, on 24 May 2013, the applicant was convicted following a hearing in Perth Magistrates Court. A fine of $2,000 was imposed in relation to this offence.
Later, on 28 August 2011, the applicant provided a written statement to police stating that a friend drove him from York to Perth and that he was in the house in Victoria Avenue from about 10.30 pm on Saturday 27 August 2011. The applicant stated that he did not drive the Mercedes on either 27 or 28 August 2011.
Then on 16 October 2011, the applicant made full admissions to the police that he had provided false information and a false statement to them, and he had arranged for a friend to provide false information, and supported false information provided by his mother to police in an attempt to prevent a prosecution for the charge of 'No Authority to Drive Suspended'. He told the Tribunal that he felt relieved when he told the truth about the events of 27 and 28 August 2011. The applicant was charged on 31 January 2012 with an 'Attempt to Pervert the Course of Justice' (APCJ charge) contrary to s 143 of the Criminal Code. At the hearing, the applicant said that he panicked when he spoke to police officers on 28 August 2011 because the Mercedes had several sets of keys in it which provided access to the office of his brother in law. The applicant accepts completely that he did the wrong thing in relation to his dealings with the police.
The applicant was charged with all five offences on 31 January 2012. The applicant pleaded guilty to the APCJ charge in the District Court. A sentence of 10 months imprisonment was imposed on the applicant commencing on 22 January 2013. The applicant spent five months in prison and he is currently serving a five month parole period. The applicant's parole conditions include that he is not to drink alcohol or enter a licensed premises. The applicant has also attended alcohol counselling sessions as part of his parole conditions.

Revocation of firearm licence

The applicant seeks review under s 22(2) of the Firearms Act of a decision the delegate of the Commissioner made on 31 May 2013 to revoke his firearm licence No 4223442 relating to two firearms, namely:
•a .310 rifle single shot BSA serial No 29605; and
•a .22 rifle single shot Winchester serial No CT16719.
The Commissioner revoked the applicant's licence as the Commissioner found that the applicant was not a fit and proper person to hold a licence under s 11(1)(c) of the Firearms Act after considering his recent conviction for the APCJ charge.
The applicant's firearm licence expires on 7 April 2014.

Application for review before the Tribunal

The application for review before the Tribunal is the application for review of the decision to revoke the applicant's firearm licence.
That application was lodged with the Tribunal on 4 July 2013. A directions hearing was held in the Tribunal on 18 July 2013 and the matter was programmed through to a final hearing on 4 September 2013.
The Commissioner provided a statement of issues, facts and contentions (Commissioner's statement) and supporting documents on 12 August 2013 (Exhibit 1). The Tribunal notes that the Commissioner's statement refers only to the five convictions arising from the events of 27 and 28 August 2011. No reference is made to the applicant's previous traffic convictions in the Commissioner's statement. The documents from the Commissioner included the applicant's court outcome history, both criminal and traffic, statements of material facts relied on in the criminal courts, and the revocation letter.
On 2 September 2013, the applicant filed a statement of issues, facts and contentions (applicant's statement) as ordered by the Tribunal and provided supporting documents (Exhibit 2). The applicant's supporting documents were all in the form of written character references. The references come from a variety of people and were prepared in relation to these proceedings or in relation to the previous criminal proceedings. All referees appear to be fully aware of the applicant's offending.

References prepared for these proceedings

The references prepared for these proceedings include references from the chair of a publicly listed company who has known the applicant all of his life, and attests to his good character, and to him being a hard worker and a supporter of local community groups and charities. A neighbouring farmer also attests to the applicant's energy and enthusiasm for both farming and the well being of the community. The applicant is described as an active member of the local volunteer bush fire brigade, and he is a member of the Committee of the York Football Club. A local agronomist describes the applicant as:
Honest, and given the recent circumstances he has found himself in, he has conducted himself with humility and dignity that is a solid trait of his character … allowing him all necessary tools … to taking over the full control of the family farm.
An international grain marketer also vouches for the applicant's good character, his charitable fundraising and his passion for farming. The farm accountant of 15 years also attests to the applicant's good character and he describes the applicant as 'a responsible young man and an extremely gentle and mild mannered young man who shows respect for others'. Another neighbouring farmer wrote of the applicant as being, 'very sincere, honest and fun loving without a malicious bone in his body'. An undated reference from the Kids Cancer Project refers to the applicant raising over $25,000 from a single fund raising bike ride from York to Princess Margaret Hospital. A reference from the applicant's father, Mr Lance Ludgate (Mr Ludgate) is also included. Mr Ludgate states that:
His previous convictions came from one bad event, which was completely out of character. James has more than paid his penalty for this and I know it will never happen again as James is very remorseful.
References prepared for criminal proceedings
In addition, the applicant provided copies of the 17 references which appear to have been prepared for the criminal proceedings. All of these references speak of the applicant as being a respected and active member of the local community. All of the references express similar positive sentiments reflecting the particular writer's belief that the applicant is a person of good character and that the incidents of 27 and 28 August 2011 were 'isolated', 'a one off', and 'totally out of his otherwise good character'.

Hearing

The final hearing took place on 4 September 2013. The applicant appeared in person, and his father, Mr Ludgate, also attended the hearing.
Both Mr Ludgate and the applicant gave evidence in chief. They were both crossexamined by the Commissioner's representative. Both parties also gave brief opening and closing submissions.

Role of the Tribunal in review proceedings

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 delegated officer pursuant to the Firearms Act. The Tribunal is not limited to the statement of reasons given by the delegated 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 delegated officer at the time when the decision was made (s 27(1) of the SAT Act). In this case the Tribunal has all of the material which was before the Commissioner. The Tribunal also has additional evidence before it, as set out above, in the form of evidence from the applicant and his father together with the numerous supportive character references.
As the Tribunal considers the applicant's application de novo, which means that the Tribunal is said to be 'standing in the shoes of the Commissioner', with all of his powers under the Firearms Act, the decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
The purpose of the review is to produce the correct and preferable decision at the time of the review. Accordingly, no party bears any formal onus to prove any facts, but an applicant for a firearm licence, or a person seeking a review of a decision to revoke a licence, bears a practical onus to satisfy the Tribunal that the requirements of s 11 of the Firearms Act have been met: see Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [282] and Nickels and Commissioner of Police [2010] WASAT 19 (Nickels) at [22].

Commissioner's contentions

The Tribunal notes that the attempt to pervert justice charge was the only basis for the revocation on 31 May 2013.
The basis for the Commissioner's contention that the applicant is not a fit and proper person to hold a licence has now altered since the revocation letter. The Commissioner now relies on all of the nine criminal and traffic convictions outlined above and listed in Exhibit 1. These convictions may be summarised as:
•RT Act offences – three alcohol related, one traffic demerit suspension.
•Five convictions arising from the events of 27 and 28 August 2011.
As the Tribunal hears the matter de novo it is required to consider all of the material now before it. The Tribunal also notes that the Commissioner submits that the outcomes of the four matters determined in the Magistrate's Court on 24 May 2013 were not known to the police as of 31 May 2013 when the revocation decision was made. The Tribunal accepts this contention.
The Commissioner acknowledged in closing submissions that while the individual convictions may not be sufficient for a finding of 'not fit and proper', when considered together, the offences tended to show a course of disregard for the law so as to adversely reflect on the character of the person committing them.

The Commissioner also submitted, in effect, that given that the most recent offence occurred on 28 August 2011, that insufficient time had passed in order to reflect a change in the applicant's character.

Applicant's contentions

The applicant relevantly submits that as of today he is a fit and proper person to hold a licence under the Firearms Act despite his convictions because:
•apart from the August 2011 events, he is an otherwise exemplary person as evidenced by his character references;
•his offending happened two years ago away from firearms and his farming property and it involved no threat or actual violence; and
•during his sentencing in the District Court he was credited with showing genuine remorse over and above a fast tracked plea of guilty.
The applicant also submitted that the events of 27 and 28 August 2011 which gave rise to five of the convictions were one off and isolated events, which he is not going to repeat.

Issue

The issue for the Tribunal is whether it can be satisfied, on the basis that it is the correct and preferable decision to make, that the applicant is not a fit and proper person within s 11 of the Firearms Act to hold the firearm licence sought by him, having regard to the nine convictions on which the Commissioner now relies.

The relevance of prior convictions to the fit and proper person test in s 11(1)(c) of the Firearms Act

Section 11 of the Firearms Act prohibits the Commissioner from issuing a licence if the Commissioner is of the opinion that to do so would be contrary to s 11A of the Firearms Act or to the regulations made under s 11B or s 11C of the Firearms Act, or it is not desirable in the interests of public safety, or the person is not a fit and proper person to hold the licence.
In this case, there is no suggestion that the applicant does not have a genuine need for a firearm licence or that it is not desirable in the interests of public safety for him to retain his firearm licence. The Commissioner accepts that the applicant does have a genuine need for the firearms and that there are no public safety concerns. As set out above, the only issue before the Tribunal is whether or not the applicant is a fit and proper person to hold a firearm licence.
Section 11(3) of the Firearms Act provides that the Commissioner will have sufficient grounds for forming an opinion that a person is not a fit and proper person to hold a firearm licence where certain circumstances have arisen in the previous five years. These circumstances include assault with a weapon, offences involving violence, offences against the Firearms Act or having a violence restraining order (VRO) made against them. However, none of those circumstances apply in the applicant's case. That is, the applicant has not been convicted of any such offences nor been subject of a VRO either in the past five years or at any time in his life.
Under s 11(6) of the Firearms Act the Commissioner may also take into account a conviction recorded outside the previous five year period, and anything else that could have been taken into account if s 11(3) had not been enacted.
It is well established that prior offences would be relevant if, for example, they occurred while the person was the holder of a licence under the Firearms Act. In the applicant's case, according to his court outcome history criminal and traffic (Exhibit 1), this would include all offences, bar his first drink driving offence in 1999.
Even if the offences were not committed while the person was the holder of a licence under the Firearms Act, prior offences may also be relevant if they are serious, either in themselves or as representing a course of disregard for the law. In either case, the prior convictions would reflect particularly adversely on the character of the person who committed them: see Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) at 8 9, Wheeler J, referred to in Wignall at [297] and Jeffries and Commissioner of Police [2011] WASAT 145 (Jeffries) at [31].
Interestingly in Nickels the Commissioner did not rely on Ms Nickels' traffic convictions. In this case however, the Commissioner now relies on the applicant's traffic convictions, as he is entitled to do.
In relation to the meaning of 'fit and proper' the Tribunal notes that in the Court of Appeal in Minitti v Commissioner of Police [2010] WASCA 198 (Minitti) stated at [11] that:
… The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] [1995] HCA 28; (1995) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in light of the statutory framework: Tavelli; Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348. …
In addition to the documents filed by the parties, this Tribunal has had the benefit of both the applicant's and Mr Ludgate's oral evidence. The applicant and Mr Ludgate both gave evidence before the Tribunal in a forthright and credible manner. The applicant acknowledged and explained his previous conduct and his personal circumstances. The applicant has accepted his punishment of 10 months imprisonment for his conviction of APCJ. Given the applicant's fast track guilty plea, his imprisonment, his antecedents and the fact that no appeal against his sentence was lodged, this is all evidence to which the Tribunal attaches great weight to, as an indication of his remorse for his actions on 27 and 28 August 2011.
The applicant showed slightly less remorse for his three convictions in the Magistrates Court on 24 May 2013, which he contested. These convictions arose out of the same events on 27 and 28 August 2011. The applicant pleaded not guilty to three of the offences and was convicted after a hearing of several days in length. He pleaded guilty to the no authority to drive charge. The applicant said that he had considered appealing the convictions, however he had decided not to, for financial reasons.
The Tribunal notes however that the penalties imposed by the Magistrates Court for the four convictions on 24 May 2013, while clearly relevant, were at the lower end of the scale when compared to the maximum summary conviction penalties. For example, the summary conviction penalty for creating a false belief contrary to s 171(2) of the Criminal Code is imprisonment for 12 months and a fine of $12,000. The applicant was however fined $2,000 placing his conduct firmly at the lower end of the range. A driver failing to stop attracts a maximum fine of $1,500 and the applicant was fined $300.

Is the applicant a fit and proper person to hold a firearm licence notwithstanding his prior convictions?

As set out by the Tribunal in Wignall at [295]:
The question of what personal misconduct disqualifies a person from being considered 'fit and proper' to hold a licence has been considered in a number of statutory contexts, most often in a vocational regulation context. There are many persons who must hold a licence to work. These cases provide some guidance as to how the 'fit and proper' factor is to be interpreted in this particular case, although they are not in any way determinative of the issue.
One such relevant case is Tavelli. Both parties referred to Tavelli in their submissions. Wheeler J in Tavelli dealt with the relevance of prior convictions in deciding whether or not a person was 'fit and proper' to be licensed as a security agent under the Security and Related Activities (Control) Act 1996 (WA) (see: Wignall at [296]).
In relation to the expression 'fit and proper', Wheeler J stated in Tavelli at 7:
It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework. … .
Wheeler J stated at 7 8 in Tavelli that:
… Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to carrying out of the proposed licensed occupation;
(2)they are offences of dishonesty, broadly understood. This is because, at least in the case of the security agents legislation, the Act is concerned with the integrity of the gathering and presenting of material in Court, and that material may be suspect, where the character of the agent suggests dishonesty;
(3)they occur while the person is the holder of a licence under the Act;
(4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
Wheeler J went on to consider in Tavelli at 8 9 some factors which may indicate that a person is a fit and proper person to hold a licence, notwithstanding prior convictions. Those factors were:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. … . The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2)if the offences were committed a substantial time ago. [One] would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors …;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; [and]
(4)a person's character generally since his commission of the offences[,] including his lack of offending, age, family support, paid and voluntary work and character references. Character references, however, will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
Having considered the above factors in Tavelli, the Tribunal has reached the following conclusions.
The offences did not occur in the course of, or relate to, carrying out of the proposed licensed occupation. The applicant's offending did not involve offences against the Firearms Act or the use of firearms.
The Tribunal has had the advantage of both the applicant's and Mr Ludgate's evidence. Neither Mr Ludgate nor the applicant tried to play down the events of August 2011. It is clear to the Tribunal that the applicant is remorseful for his past conduct, both in relation to his driving record and also the events of August 2011.
In relation to the passage of time, it is now just over two years since the applicant offended in August 2011. The Commissioner submitted that this period of time was not sufficient to determine whether the applicant's character had changed. In the Tribunal's view, while two years is a reasonable period of time, in the context of the Firearms Act, which refers to offences within a five year period, it is not a substantial period.
Further, and more importantly, the Tribunal accepts that the events of 27 and 28 August 2011 were isolated and one off events. It accepts that they were completely out of the applicant's character. This is borne out by the references provided, the oral evidence before the Tribunal and by the applicant's criminal record. Prior to the events of August 2011, he had no criminal convictions, aside from four traffic offences.
Having accepted that the events of August 2011 were isolated and a one off, in the Tribunal's view, it follows that less reliance ought to be placed on the length of time since the offending and also on whether or not the applicant's criminal and traffic history represents a course of disregard for the law so as to reflect adversely on the applicant's character.
The overwhelming view the Tribunal has of the applicant, is one of a young man who did the wrong thing in August 2011, and who acknowledged the most serious aspects of his wrong doing by pleading guilty and who has paid a very high price for that wrongdoing by being imprisoned. At no point since making voluntary admissions to the police in October 2011 has the applicant shied away from his conduct in relation to the APCJ charge. It is a very serious charge to be convicted of, as it goes to the heart of the justice system, and the applicant accepts this, as he should. It is an offence involving dishonesty when dealing with police and he involved two other people in his deceit. The applicant has to live with the conviction, his imprisonment and the fact of his conduct in August 2011. The applicant accepts these facts and accepted his punishment in relation to all five charges arising from the events of August 2011. In giving his evidence the applicant demonstrated insight into his past offending and this is reflected in his good conduct since August 2011.
Turning now to the applicant's traffic offences, having listened carefully to his explanations into the circumstances surrounding each of the drink driving offences, and the loss of demerit points, the Tribunal is of the view that they are not at the more serious end of the scale. The applicant did not seek to diminish or excuse his traffic offences in any way. However, the Tribunal does note that the applicant resides about 30 kilometres from the local town where he does business, plays sport, and socialises. The applicant also says that he travels on a daily basis between his two farming properties which are about 30 kilometres apart. As part of the applicant's parole conditions, he has met with an alcohol counsellor on two occasions. The applicant says that he now understands the importance of keeping track of the amount he is drinking and the timing of his drinks. The applicant is not currently drinking alcohol and he describes himself as feeling fitter than ever before. Further, the Tribunal notes that on the evidence before it, there is no suggestion that the applicant was drinking alcohol during the events of August 2011. The applicant is a person who, by virtue of where he lives and works, does a lot of driving. The applicant is now fully aware of his responsibilities in relation to alcohol and driving and the Tribunal accepts that since October 2010, when he was last charged with 'Driving Under the Influence', he has been much more vigilant in this regard.
Having considered the applicant's explanation in relation to each of his criminal and traffic offences, both individually, and all of the offences cumulatively, in the Tribunal's view they do not represent a course of disregard for the law so as to reflect adversely on the applicant's character. Further, the applicant had never been involved in any acts of violence or Firearms Act offences.
The applicant is a person who reportedly received a youth citizenship prize while at boarding school. The applicant is an active participant in professional farming organisations, local sporting organisations and he is a charity worker. The applicant is obviously a very well respected young man in a wide range of circles, both within his local community and beyond. His father told the Tribunal that the applicant is being fast tracked towards taking over the running of the family farm completely. This in itself is a huge personal and financial responsibility. The applicant expressed his remorse for his past conduct and his commitment to not reoffend.
The numerous character references, the applicant's evidence and Mr Ludgate's evidence and the applicant's lack of offending since August 2011, all support the conclusion that the applicant's character is now, as of the time of decision, such that he is a fit and proper person to hold a firearm licence.
After hearing the applicant's evidence, the Tribunal is satisfied that the applicant was genuinely remorseful for the events of August 2011 and his driving offences record.
The Tribunal concluded that the applicant's offending on 27 and 28 August 2011 was a one off and an isolated offence arising from an otherwise unblemished criminal history. The Tribunal is satisfied that the applicant has the credentials as a fit and proper person to hold a firearm licence.
The Tribunal sets aside the Commissioner's decision and orders the issue of the licence in relation to two firearms as set out below.

Conclusion

For the reasons set out above, the decision of the Commissioner's delegate to revoke the applicant's firearm licence should be set aside.
The applicant is conscious of his need to satisfy his parole conditions and the Tribunal suggests that the applicant consider conveying the outcome of this decision to his parole officer as soon as possible.

Orders

Accordingly, the Tribunal orders as follows:
1.    The application for review is granted.
2.    The decision of the delegate of the Commissioner of Police to revoke the applicant's firearm licence in relation to two firearms is set aside.
3.    The Commissioner of Police shall, as soon as possible, issue the firearm licence No 4223442 in relation to the applicant's two firearms, namely:
•a .310 rifle single shot BSA serial No 29605; and
•a .22 rifle single shot Winchester serial No CT16719.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L WARD, MEMBER