Mifsud v Chief Commissioner of Police

[2017] VMC 5

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

Criminal Division

Case No. G10965282

Joshua Mifsud	Applicant
v
Chief Commissioner of Police	Respondent

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	6 MARCH 2017
DATE OF DECISION:	9 MARCH 2017
CASE MAY BE CITED AS:	MIFSUD v CHIEF COMMISSIONER OF POLICE
MEDIUM NEUTRAL CITATION:	[2017] VMC005

REASONS FOR DECISION

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Catchwords: s 189 Firearms Act 1996 – application to be deemed a non-prohibited person – factors to consider.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Verhoeven	Verhoeven & Curtain
For the Respondent	SC Webster

HIS HONOUR:

1. Mr Mifsud, who is 23 years of age, makes application pursuant to S 189(1) of the Firearms Act 1996 to be deemed not to be a prohibited person for the purposes of obtaining a firearms licence.

2. He is deemed to be a prohibited person by virtue of S 3 (1)(d)(iii) of the definition of ‘prohibited person’ in the Firearms Act in that in the previous 12 months he pleaded guilty to committing indictable offences.

3. The Chief Commissioner opposes his application on the basis that he is not a ‘fit and proper person’ to hold a firearms licence.

4. In his application dated 8 September 2016, he stated that the purpose of making the application was because; ‘I am a keen hunter and require firearms licence for this purpose’. The matter proceeded as a contested hearing on 6 March 2017.

5. The evidence revealed that on 8 July 2016, Mr Mifsud pleaded guilty to the following ‘rolled up’ charges contrary to the Crimes Act; intentionally destroy property, possess explosive substance without excuse and without approval he manufactured unauthorised explosives. He was placed on a without conviction Good Behaviour Bond for a period of 12 months with a compensation order in an amount of $475 with a stay on payment to 5 February 2017.

6. The summary of the offending was read and accepted by him as being the summary read at court on 8 July to which he pleaded guilty. He acknowledged that on 9 March 2016, he and others drove to the address of John Mulder, who he was previously friends with, and had in his possession an improvised explosive device which was manufactured by him by wrapping a large number of sparklers in foil and electrical tape in several layers into which he then inserted a sparkler and lit the device. Apparently the device would not fit in Mr Mulder’s letterbox so he gave the device to his co-accused and directed him to put it in the letterbox of Joe Kovacevic, who lived a few doors up the street and who was unknown to the accused. The device exploded causing the letterbox to blow up which resulted in bricks being catapulted onto the road, nature strip and front yard of the premises. The accused then fled the scene. Apparently, children of the victim who were asleep at the time of the explosion have since suffered fear and anxiety. The damage caused was estimated at $950.

7. On 17 March 2016, unknown offenders believed to be the same associates of the accused and co-accused attended at another address of a former friend of the accused with an improvised explosive device manufactured by Mr Mifsud which exploded in the front yard of the victim’s property.

8. On 26 March 2016, unknown offenders believed to be the same associates of the accused and co-accused attended another address, the victim being a former friend of the accused, armed with an improvised explosive device manufactured by Mr Mifsud, which was inserted into the victim’s letterbox which exploded causing minor damage. In his record of interview, Mr Mifsud admitted making all 3 devices but stated he was only present during the first incident.

9. Mr Mifsud gave evidence that he made his application to be deemed not to be a prohibited person for the purposes of hunting and that at the time it would have also assisted him in obtaining ongoing employment as a slaughterman. He produced an unsigned letter dated 23 April 2016, from James and Renee de Vent, owners and managers of an on-site butchery business indicating that he had worked for them on average 8 days a month as a shooter and butchers assistant and that as a consequence of him having his firearms taken they have not been able to offer him work.

10. Mr Mifsud told the court that he is restricted in the type of employment he can perform because he suffers from significant burns to his leg which occurred in a motorbike accident a number of years ago. He told the court that he is currently unemployed and was previously a member of the Traralgon Rifle Club.

11. The evidence of Mr Mifsud and DSC Kelly indicated that since his court attendance on 8 July 2016, he had an interaction with police in November 2016 as a result of throwing litter from a moving vehicle. During that interaction he admitted he had been smoking cannabis during the day and that was the reason he was not driving his own vehicle. He also told DSC Kelly that the $1000 cash he had in his possession was the balance remaining after selling and buying motor vehicles and that he was intending to use some of it to purchase cannabis. He told DSC Kelly that his habit cost $260-$280 per week. No charges were filed following this interaction but he was sent an infringement penalty notice for littering.

Analysis

12. There appears to be little Victorian authority on the application of S 189 of the Firearms Act. I could only locate two relevant Victorian decisions, that being; Pickford v Chief Commissioner of Police [2002] VSC 435 and Clark v Chief Commissioner of Police [2010] VSC 144. I was not referred to any authorities by Mr Verhoeven, who appeared on behalf of Mr Mifsud or the Prosecutor, SC Webster.

13. I did locate a number of Western Australian decisions including; Minitti v Commissioner of Police [2010] WASC 198, Tavelli v Johnson 25 November 1996 WASC – (Unreported) and Wignall v Commissioner of Police [2006] WASAT 206, which provide some guidance, noting that Western Australia has a statutory requirement that the applicant be a ‘fit and proper person’ to hold a gun licence.

14. In Pickford, Nettle J stated that the purpose of S 189 was to enable a person to be relieved of the consequences of being a prohibited person when, viewed objectively, the circumstances which gave rise to that status, or developments since, or both in combination, impel the conclusion that it is not appropriate or desirable that the person be afflicted with the consequences of being a prohibited person. In that case, Mr Pickford was a prohibited person by virtue of being subject to an Intervention Order made by the Magistrates Court of Tasmania on 17 November 2000. His application to be deemed not to be a prohibited person was on the basis that he was employed as an animal control-local laws officer which required the use of firearms and he also wished to continue to participate in his chosen sports being; hunting, collecting and competing with both long arms and pistols. Additionally, as a hobby he also wrote articles for an American newspaper on aspects of fishing, camping and shooting in Australia based on his own personal experiences. He also indicated that he was a firearms instructor for both the Australian Protective Service and Federal Police Pistol Club.

15. The Court granted his application on the basis that; firearms were not involved in the circumstances which led to the making of the intervention order, his record was exemplary, he had a genuine and not unhealthy interest in firearms, substantial legitimate reasons for wanting to hold firearm licenses, and, most importantly, the Chief Commissioner did not oppose the application.

16. S 189 gives little guidance on the factors that should be taken into account when considering an application by a person to be deemed to be a non-prohibited person. However, after considering the purposes of the Act as set out in S 1, which is; ‘to establish a system of licensing and regulating the possession, carriage and use, acquisition and disposal of firearms to ensure public safety and peace, it necessarily follows that the general character and past behaviour of the applicant for a firearms licence and the purpose for which they seek to have a licence are important factors to consider.

17. The Western Australian Firearms Act 1973 requires a person to demonstrate that they are a ‘fit and proper person’ in order to hold a firearms licence. Whilst this is not a statutory requirement in Victoria, in my opinion, the same considerations should apply.

18. The Western Australian decisions to which I have referred noted that considerations should include; the nature, seriousness and circumstances of past criminal behaviour; whether that offending involved the use of firearms or weapons; whether a sufficient period of time has elapsed since the criminal behaviour occurred; whether the person demonstrated genuine remorse for the past conduct and the person’s general character including, age, family dynamics, work situation and any character references provided.

19. After taking these factors into account, I make the following conclusions:

a.    Notwithstanding the sanction, the criminal offending committed by Mr Mifsud in March 2016 was serious, involved preparation and planning, occurred on three occasions and had the potential to harm others;

b.    I do not accept as genuine the explanation given by Mr Mifsud that the incidents were only ‘pranks’ as each target had a recent ‘falling out’ with him;

c.    His criminal behaviour in March 2016 undoubtedly constituted a threat to public safety and peace;

d.    I do not accept his assertion that the primary purpose in obtaining a gun licence is for the purpose of employment. He did not refer to this as a reason in his written application dated 8 September 2016, the letter tendered from his former employer is dated 24 April 2016, some 4 ½ months before he lodged his application, the letter is unsigned and he told the court that he only worked for the on-site butchery for a limited period and on a trial basis. Furthermore, there is no evidence that this job remains available to him if he obtains a gun licence;

e.    There was a lack of character evidence presented to the court;

f.   Mr Mifsud’s demeanour before the court did not indicate that he is remorseful for his criminal behaviour neither has his failure to pay restitution to the victim as ordered on 8 July 2016 and payable by 5 February 2017;

g.    His admission to DSC Kelly and to the court that he is a regular and heavy user of Cannabis is also of concern considering the nature of the application before the court;

h.    The offending occurred 12 months ago. I do not consider that sufficient time has elapsed since he committed the criminal acts to satisfy me that he would not pose a risk to public safety if he was granted a licence under the Act.

After considering all these matters, I do not consider that it is appropriate at this time to grant the application by Mr Mifsud to be deemed a non-prohibited person pursuant to S 189 of the Act in order for him to obtain a firearm licence.