McEWAN and COMMISSIONER OF POLICE

[2007] WASAT 138

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   McEWAN and COMMISSIONER OF POLICE [2007] WASAT 138

MEMBER:   MR T CAREY (MEMBER)

HEARD:   20 MARCH 2007

DELIVERED          :   31 MAY 2007

FILE NO/S:   CC 98 of 2007

BETWEEN:   STUART ALEXANDER McEWAN

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms licence - Fit and proper person - Whether issue of licence desirable in interests of public safety - Genuine reason for acquiring or possessing firearm - Licence subject to conditions

Legislation:

Firearms Act 1973 (WA), s 11(1), s 11(1)(a), s 11(1)(b), s 11(1)(c), s 11A, s 11A(2), s 11A(2)(c), s 11A(2)(d), s 18(8), s 22(2)

Result:

Application dismissed
Decision of the respondent affirmed

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Sergeant Bolitho (Acting as Agent)

Solicitors:

Applicant:     Self-represented

Respondent:     Commissioner of Police

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant sought review of a decision not to issue him with a firearms licence.  The applicant was convicted in 2005 of serious firearm offences committed while he was intoxicated.  The applicant claimed that he was now alcohol‑free and proposed that his licence be subject to conditions.

2. The application was opposed on a number of grounds.  The respondent disputed the alcohol‑free assertion, and suggested that further time was necessary before the applicant should be regarded a fit and proper person and, in the interests of public safety, allowed another licence.  The respondent also contended against the applicant having a genuine reason to have any firearm as the legislation required.  Finally, the respondent submitted that it was not appropriate to impose conditions on firearms licences.

3. The Tribunal said that in balancing the competing considerations the welfare and safety of the public is the overriding consideration.  It accepted that the applicant had been alcohol‑free since the offences, but given the gravity of the offences, insufficient time had elapsed to safely predict that the applicant's character had permanently reformed and that public safety would not be put at risk by issuing him with a licence.

4. The Tribunal found that the applicant had established the existence of a genuine reason based on one of the statutory grounds.  It rejected the proposal for attachment of conditions to a firearms licence.

Introduction

1. This is an application under s 22(2) Firearms Act 1973 (Act) for review of a decision of a delegate of the Commissioner of Police (Commissioner) made 15 December 2006 and notified on 3 January 2007 to refuse the applicant's application for a firearms licence for a Stirling .22 rifle bolt repeater and a Lithgow .303 rifle bolt repeater (decision). The decision was made under s 18(8) and s 11(1) of the Act. Section 11(1) provides that the Commissioner cannot issue a licence under the Act to a person if the Commissioner is of various opinions. According to the Commission's delegate's letter notifying the applicant of the decision, the delegate was of the opinion that the applicant was not a fit and proper person to hold the licence applied for, due to antisocial and criminal behaviour that displayed a continued course of conduct resulting in a number of convictions. Before the Tribunal, the Commissioner added the other two alternatives under s 11(1) that the issue of the licence would be contrary to s 11A of the Act and would not be desirable in the interests of public safety. Section 11A requires an applicant for a licence to demonstrate a genuine reason for acquiring or possessing any firearm for which the licence is sought.

2. The applicant's convictions were recorded in 1997 (a spent conviction), 2002 and 2005.  The 2002 convictions were for possession of cannabis and amphetamines, and harassment, for which the applicant was fined $350 in total.  It is his 2005 convictions which are of principal concern.  They were for carrying a firearm whilst under the influence of alcohol, firearm use on land without consent and going armed so as to cause fear.  The applicant was sentenced to a 12 month community based supervision order (CBO) and his firearms licence was cancelled for 12 months.  The circumstances of the offences were that in March 2005 the applicant was at a mining centre camp site with other people and consumed 12 large bottles of beer before retrieving his firearm from his vehicle.  He loaded the rifle and fired it in the air, yelling "are you awake now?"  He then went into his vehicle and drove to a nearby lake at a point opposite where a group from the camp site had been setting up fireworks.  He shone a spotlight onto the group and fired a second round to the left and a third round to the right of the group, the round both times embedding in a dirt bank behind the group.  Both in his interview with police three days after the incidents and in evidence to this Tribunal, the applicant said he could not recall what he had done due to the amount of alcohol he had consumed.

3. In his application filed on 18 January 2007, the applicant sought an order, in effect, that he be re‑issued with a firearms licence on conditions that he remain alcohol free in respect of which he be subject to a random breath testing regime, and the licence operate only in the Shires of Dundas and Esperance.

4. The Commissioner opposed the application on two broad grounds. It claimed that the applicant had failed to demonstrate that he was a fit and proper person to hold the licence and that for him to hold a licence would not be contrary to the interests of public safety (as required by s 11(1)(b) and s 11(1)(c) of the Act). Second, it argued that the applicant had not demonstrated a genuine reason for acquiring or possessing any firearm for which the licence was sought (as required by s 11(1)(a) and s 11A). The Commissioner also contended that it was not possible or reasonable for conditions to be imposed on a licence, or at least not the conditions that the applicant had proposed.

Fit and proper person/public safety

1. The Commissioner's primary position may be shortly stated, namely, that the applicant's apparent disregard for the law, and the danger to the public which his illegal conduct represented, indicate that he is not a fit and proper person to hold a firearms licence, and that it is not desirable in the interest of public safety for the applicant to be granted a licence.

2. The applicant was contrite in relation to his criminal conduct.  He described the firearms offences as a mistake, which they undoubtedly were, and that he was shocked when he learnt of his behaviour.  He asserted that all his criminal conduct has occurred at times when he was under the influence of alcohol and that immediately after learning of his conduct involving the misuse of firearms, he engaged in a personal re‑assessment including a commitment to totally abstain from alcohol.  Until then, he had drunk daily, in part due to pain in his back suffered as a result of a work injury.  According to the applicant, he has not drunk alcohol since the commission of the offences and will remain alcohol‑free.  Three written references and a psychological intervention report dated 11 August 2006 submitted with the application for issue of the licence support the alcohol‑free assertion.

3. Whilst the Tribunal is prepared to accept the applicant's word that he has not drunk any alcohol since March 2005, and that all his criminal conduct has been alcohol-related – certainly the very serious firearms offences were – the question is whether the community can be expected to rely on his word that he will not fall back into past habits.  The Tribunal must have regard to the extremely serious lapses in the applicant's conduct a little more than two years ago, when it was fortunate that someone was not injured or killed as a result of the applicant combining alcohol abuse with access to a firearm.  Time will tell whether the applicant's change of heart is enduring; the question is how much time is necessary to instil in a decision maker or adjudicator a sufficient degree of confidence to be able to safely predict that his character is truly reformed and no longer problematic?  A balancing of considerations is necessary.  However, the welfare and safety of the public will always be the overriding consideration.

4. In my view, the time which has transpired since the March 2005 offences and the August 2005 convictions is still too short to be able to make such a prediction.  The Tribunal's impression of the applicant is that he is a "rough diamond" type who has genuinely acknowledged and faced up to his past failures and adopted a credo with which he feels comfortable aimed at ensuring that he no longer engages in criminal or antisocial behaviour.  However, excluding the period of the CBO, there have been only some nine months since his conviction when the credo has been tested in isolation.  Given the gravity of the conduct which brought his character into disrepute, it seems to me that perhaps a similar, if not longer, period is required to pass before a permanent reformation of character could be safely predicted.  It is not necessary to comment on the respondent's representative's view that five years in total will be necessary for that purpose.  The application will be refused on this basis.

Genuine reason

1. Of the seven possible conditions where a genuine reason can arise under s 11A(2), the applicant submitted that two applied: par (c) – 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, and (d) – required in the course of the person's occupation. Because, in the Tribunal's assessment, the Commissioner gave insufficient notice of its intention to argue a lack of genuine reason, the applicant was given the opportunity to file, after the hearing, evidence going to the question of any owner's permission under s 11A(2)(c), and he filed four letters from owners indicating such permission, one of which was from his father. The applicant gave oral evidence of his past firearms use for recreation and for what might be regarded as associated purposes, namely, of culling feral animal populations and for meat. Neither the intention to use firearms for these purposes, nor the letters of authority from the four owners, was the subject of challenge. I am satisfied that if his licence was returned, the applicant would use any firearm pursuant to the licence for the purpose described in s 11A(2)(c), and therefore, that the applicant has established a genuine reason for a firearm.

2. The question of whether the applicant requires firearms in the course of his occupation is more problematic.  Prior to his injury, the applicant worked as a driller and stockman, for which he used his firearms often.  He can no longer perform those occupations and the occupations that are open to him are limited.  He said he had previously worked as a dogger, and would like to do so again.  In order to do so, he would need to become registered with the Agricultural Protection Board, which body has recently introduced a new training regime which includes firearms training.  The applicant said that he has been informed that he will not be enrolled in the course if he does not have a firearms licence.  It seems to me that this requirement, affecting the applicant's ability to undertake a course which, if he completes it, would allow him to engage in the occupation of dogging, is one step removed from a requirement "in the course of the person's occupation".  However, given my finding on the recreational condition, it is not necessary for me to express a final view.

Conditions attaching to licence

1. There was some debate at the hearing as to whether conditions limiting use have ever been, and could ever be, attached to firearms licences.  Counsel for the Commissioner submitted that such conditions are "never" attached.  Whether or not that is correct, in my view, the conditions which the applicant proposed are not appropriate.  No doubt the suggestion was well intentioned as subjecting the applicant to a high degree of scrutiny and automatic licence cancellation if he failed either a random breath test or the geographic limitation.  However, both conditions would require an inordinate allocation of scarce police resources to have any effect, particularly where there is no ready identifier of the conditions on a licence.  It is better, in my view, to administer the system regulating the use of firearms by issuing unconditional licences only to those who have demonstrated their suitability in accordance with the Act.

Conclusion

1. The application will be dismissed on the basis that the applicant is not a fit and proper person to hold the licence, the issue of a firearms licence to the applicant is not desirable in the interests of public safety.  If, after a suitable further period of alcohol abstinence and good behaviour, the applicant were minded to re‑apply for a licence, the result may well be different.

Order

1.The application is dismissed.

2.The decision of the Commissioner of Police to refuse to issue a firearms licence to the applicant is affirmed.

I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER