McROBERT and COMMISSIONER OF POLICE
[2005] WASAT 204
•12 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: McROBERT and COMMISSIONER OF POLICE [2005] WASAT 204
MEMBER: MR T CAREY (MEMBER)
HEARD: 30 JUNE 2005
DELIVERED : 12 AUGUST 2005
FILE NO/S: CC 2127 of 2005
BETWEEN: PAUL McROBERT
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms - Application to review revocation of licence - Meaning of "fit and proper person" under s 11 Firearms Act 1973 (WA) - Existence of convictions of offences against the Act which are sufficient to from opinion of not fit and proper - Whether matters raised sufficient to come to contrary opinion
Legislation:
Firearms Act 1973 (WA), s 11, s 20, s 22
Result:
Application unsuccessful
Decision affirmed
Category: B
Representation:
Counsel:
Applicant: Mr R Williamson
Respondent: Sgt M Lynch
Solicitors:
Applicant: Williamson & Co
Respondent: Self-represented
Case(s) referred to in decision(s):
Re Jones; Ex parte Commissioner of Police [1999] WASCA 246
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal’s decision
The applicant sought review of a decision to revoke his firearms licence based on a claim that he is a fit and proper person to hold the licence under the Firearms Act 1973 (WA) (the Act), despite the Act providing that where a person has been convicted of firearms offences, as the applicant has, that is sufficient to enable the opinion to be formed that the person is not a fit and proper person. In its decision, the Tribunal analysed the legislation and assessed the applicant's arguments in support of a finding that he is a fit and proper person. The Tribunal found the original decision was correct and should be affirmed.
Introduction
The applicant seeks review under s 22(2) of the Act of a decision by the delegate of the Commissioner made 11 January 2005 to revoke the applicant's firearm licence No 7001388 (decision).
In considering the application, it is necessary to deal with three issues:
1.What does the term "fit and proper person" mean for the purposes of s 11 of the Act?
2.What evidence has been produced and what matters have been raised relevant to determining whether the applicant is a fit and proper person?
3.Taking that evidence and those matters into account, is the applicant a fit and proper person?
What does "fit and proper person" mean?
The decision was made under s 20(1)(a)(iii) of the Act, which provides for revocation of a licence under the Act where the Commissioner is satisfied that the applicant could not be issued the licence if the applicant were applying for it at the time of the decision by reason of s 11.
Section 11(1) provides relevantly:
"11.Exercise of Commissioner's discretion
(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)…;
(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.
(2)Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit, or licence.
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner ¾
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence ¾
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place;
(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
(c)suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.
(4)…….
(4a)…….
(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion.
(6)Subsection (3) does not limit the Commissioner's ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or licence under this Act, to take into account ¾
(a)a conviction or order made outside the period of 5 years referred to in paragraph (a) of that subsection; or
(b)anything else that could have been taken into account if that subsection had not been enacted.
(7)Without limiting the other grounds on which an application may be refused, the Commissioner may refuse an application if satisfied that the applicant has ¾
(a)failed to comply with a regulation providing for the manner in which a photograph of the applicant's face is to be supplied for inclusion on an Extract of Licence;
(b)failed to give the Commissioner, when requested in writing by a member of the Police Force to do so, a statement in the prescribed form as to what the applicant has done, or intends to do, to ensure that any firearms or ammunition in the applicant's possession are stored in accordance with this Act; or
(c)refused to permit a member of the Police Force to inspect the storage facilities limiting for any firearms or ammunition that the applicant would be entitled to possess, when requested in writing by a member of the Police Force to do so.
(8)…"
The applicant, through counsel, submitted that these provisions have as their objective the protection of the public from the negligent use of firearms. In the case of any person who is either the applicant for or holder of a licence, the question is whether the person will be a threat to public safety, which might be manifested in one of two ways. Members of the public might be shot. Alternatively, members of the public might have a firearm pointed at them. This question is to be considered against the applicant's own experiences and propensities. Therefore, it could be reduced in the applicant's case to: "Given what the applicant has been through, is he someone who is so criminally inclined, or stupid as not having learnt from his convictions, that if he were possessed of a firearm, he would contribute to a risk to public safety"? If the answer is "No", it followed that the applicant is a fit and proper person. I will deal under the next heading with the applicant’s experiences relevant to the matter.
In my view, care needs to be taken to avoid interpreting the various components of s 11 too narrowly. As was held in Re Jones; Ex parte Commissioner of Police[1999] WASCA 246, per Parker J, particularly at [18] ‑ [22], all of the sub-sections are in aid of the Commissioner's inquiry (and now the Tribunal's on review) whether or not a person is fit and proper to hold a licence. All matters bearing on the question of fit and proper person in the context of the Act are to be considered, including conduct in breach of the provisions of the Act. I agree with the applicant's submission that the apparently absolute deeming operation of s 11(3) is alleviated by s 11(5) and, possibly, s 11(6)(b). The fact that s 11(3) applies in the circumstances of a case does not represent a complete answer to the contention made here that the applicant is a fit and proper person despite having a conviction against the Act.
Nevertheless, s 11(3) must be read according to its terms, so that in the usual case, where any of the matters referred to as a sufficient ground for forming the opinion that a person is not a fit and proper person arises on the facts, the Commissioner, and the Tribunal standing in the shoes of the Commissioner, will be guided by the negative prescription in s 11(1). Each of the three types of case referred to in s 11(3), and of the four sub-types referred to in s 11(3)(a), is equally capable of supporting an opinion that a person is not a fit and proper person. Thus, the Commissioner may form such an opinion (subject to the capacity of the Commissioner to form the contrary opinion in particular cases pursuant to s 11(5)) based on the commission and conviction of an offence against the Act with the same authority as if it had been formed on the basis of conviction of an offence involving assault with a weapon, or a suspicion based on an intelligence report or other information that the person is a threat to public safety. There is a wide variety of offences against the Act ranging from the more to the less serious, but Parliament has opted to include within s 11(3)(a) all of those offences. Significantly for this case, s 11 itself underlines the importance of the Act's requirements regarding storage of firearms and ammunition by the inclusion, within the s 11(7) cases in which a licence application may be refused, of a mere refusal to permit the police to inspect such storage facilities.
It is against this legislative background that the evidence produced and matters raised regarding the question whether the applicant is a fit and proper person are to be considered. So, what was that evidence and what were those matters?
What evidence was produced and what matters were raised on whether the applicant is a fit and proper person?
On 9 July 2003, the applicant was arrested for stealing. On the same day, the police conducted a search of the applicant's residence, which resulted in a number of charges being laid against the applicant. The charges included four of offences against the Act, which subsequently, on 27 July 2004, were the subject of convictions in the Fremantle Court of Petty Sessions. Those convictions, and the sections of the Act found to have been breached, were as follows:
1.inadequate storage facility (s 23(9)(i));
2.possession of unlicensed ammunition (s 19(1));
3.possession of unlicensed firearm (s 19(1)); and
4.possession of contrivance known as a silencer (s 23(7)).
The respondent's delegate's letter notifying the applicant of the decision advised that the decision was made due to the applicant's firearm offence convictions on 27 July 2004.
In oral evidence, the applicant said he is a 34 year‑old stone mason and that he is employed as leading block-layer by his current employer with whom he has been for five years. He gave evidence of his previous employment history, including as a bouncer or crowd controller over a ten year period, in respect of which he was never charged with assault. He said that he does not smoke cigarettes or cannabis and rarely drinks.
The applicant gave evidence as to the circumstances of his four convictions under the Act, a fifth conviction obtained on the same day for cultivation of prohibited plants and a 1988 Children’s Court conviction upon which he anticipated, correctly, the respondent would rely. Summaries of the applicant's evidence in relation to the convictions under the Act, introduced in each case by the relevant conviction, follow. It is not necessary for me to deal with the other convictions.
•Inadequate storage facility for firearms
The applicant possessed a gun cabinet and separate ammunition locker. The ammunition locker had been damaged by chemicals. His intention was to buy a replacement locker but he was working erratic hours and was finding it difficult to fit in everything. He estimated that the ammunition found in various locations in his house had been there "for perhaps a week". Under cross‑examination, the applicant accepted that he had admitted in a record of interview that the storage inadequacy had existed for a month. He agreed that approximately 1200 rounds of mainly .22 gauge ammunition were found in bags on a wardrobe in the applicant's bedroom and that other ammunition had been left in a draw and on a shelf.
•Possession of unlicensed ammunition
The applicant bought a box of re‑loading gear for $500. Some time after buying the gear, he went through the box and discovered some 9 millimetre ammunition there. He left it on a shelf and forgot about it. Under cross-examination, the applicant said it did not occur to him to hand the ammunition to the police, and that his intention was to give it to someone who was suitably licensed.
•Possession of silencer
(Although the statement of material facts refers to two silencers being found, the applicant was convicted of the possession of only one silencer). The applicant was working in South Australia shooting starlings, and using the silencer for that purpose. At the time, silencers were not illegal in South Australia. When he returned to Western Australia he brought the silencer back in a bag where it remained.
•Possession of prohibited weapon
The firearm in question was a pistol crossbow. The applicant said that he obtained the weapon for parts and that it did not work, as it was missing the bar, string and pin and the stock was shorn off. He was unaware of a change in the law resulting in the pistol crossbow becoming illegal.
The applicant's counsel engaged in what might be described as a mitigation exercise in relation to the applicant's convictions. Generally, it was said, the offences were at the minor end of the scale. The ammunition which was found on the search of the applicant's premises was not capable of immediate use with available firearms, some of the ammunition related to empty cartridge rounds, and its discovery reflected the fact that the items in question are small, mobile and easily left in places they should not be left. The unlicensed ammunition was not left lying close to a firearm which could use them, the silencer offence was "innocuous" and the pistol cross-bow was a "heap of junk" which did not work and only marginally satisfied the legal requirements of the offence. None of the offences by themselves could justify a finding that the applicant was not a fit and proper person, nor could they do so cumulatively.
According to the applicant's case, the circumstances of the offences were "benign" and not suggestive of a propensity to offend. The applicant is not a recidivist and he would not present a threat to public safety if he were returned his firearm licence.
Having set out the relevant evidence and matters raised, I turn now to the primary question of whether the applicant is a fit and proper person for the purposes of holding a licence under the Act.
Is the applicant a fit and proper person?
I am of the opinion that the applicant is not a fit and proper person to hold a firearms licence. As the respondent contended, the circumstances of the applicant's contraventions of the Act indicate a very lax approach when it came to an appreciation and acceptance of the applicant's obligations as a licensee of firearms. The manner in which ammunition was left in various locations in his house might have had serious consequences in the event of a burglary. As stated earlier, the Act pays special regard to the requirements for storage of firearms and ammunition. The licensing provisions do not deal solely with the usage of firearms by licensees, but are also concerned to ensure that firearms and ammunition do not fall into the hands of persons who are not licensed and who might use them for illegal purposes. The applicant has demonstrated scant regard for the legal requirements for storage of ammunition. In addition, the applicant has allowed firearms, ammunition and a silencer to come into, or remain in, his possession when that possession was illegal.
The applicant has failed to persuade me that s 11(5) should operate in the circumstances of his case to warrant the opinion that, despite s 11(3) applying, he is a fit and proper person to hold a licence, by reference either to the nature of the offences themselves or the circumstances in which the offences were committed.
The applicant did not seek to argue that there should be exercised in his favour any residual discretion under s 20(1) in circumstances where a precondition for the exercise of the decision-maker’s power existed.
Finding
The decision of the Commissioner to revoke the applicant's licence was the correct and preferable decision and should be affirmed.
Order
The decision of the Commissioner of Police to revoke the applicant's firearms licence No 7001388 is affirmed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
0
1