Minitti v Commissioner of Police
[2010] WASCA 198
•13 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MINITTI -v- COMMISSIONER OF POLICE [2010] WASCA 198
CORAM: PULLIN JA
NEWNES JA
MAZZA J
HEARD: 19 AUGUST 2010
DELIVERED : 13 OCTOBER 2010
FILE NO/S: CACV 130 of 2009
BETWEEN: SALVATORE MINITTI
Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MS J HAWKINS (MEMBER)
Citation :MINNITI and COMMISSIONER OF POLICE [2009] WASAT 223
File No :CC 887 of 2009
Catchwords:
Appeal - Application for leave to appeal - Application for firearms licence - Applicant not to be granted licence if not a fit and proper person - Criminal convictions - Traffic offences - Meaning of fit and proper person - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant: Mr A P Skerritt
Respondent: Ms D P Scaddan
Solicitors:
Appellant: Alana Padmanabham
Respondent: Western Australian Police Service
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127
In Re Davis (1947) 75 CLR 409
Mijatovic v The Legal Practice Complaints Committee [2008] WASCA 115; (2008) WAR 149
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Wignall and Commissioner of Police [2006] WASAT 206
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
PULLIN JA: This is an appeal against the decision of the State Administrative Tribunal (SAT) which was in terms that:
The decision of the delegated officer of the Commissioner of Police dated 25 May 2009 to refuse [the appellant's] application for a firearms licence, is affirmed.
Pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) a party to a proceeding may appeal from a decision of SAT, but only if this court gives leave to appeal. Furthermore, the appeal can only be brought on a question of law: s 105(2).
Before leave will be granted, it is necessary for the appellant to identify a question of law which is relevant to the granting of the relief sought on appeal. The appellant must show that there is a real or significant argument to be put on that question of law to the extent that there is sufficient doubt about it to justify the grant of leave. Moreover, it must be shown that to allow the error to go uncorrected, would impose substantial injustice: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [17].
The appellant held a firearms licence from when he was 18 years of age until the end of 2005 or the beginning of 2006, when it was revoked by the Commissioner of Police. He did not challenge the Commissioner's decision to revoke his licence. Instead, on 18 March 2009, he applied afresh for a firearms licence in respect of three guns, namely a shotgun and two rifles. The commissioner's delegate refused the application, as he did not consider the appellant to be a fit and proper person due to his criminal convictions, which include three serious drug convictions.
The tribunal in its reasons for decision, referred to s 11 of the Firearms Act 1973 (WA) (Act) which provided, inter alia, that the Commissioner cannot issue a licence to a person if the Commissioner is of the opinion that the applicant for the licence is not a fit and proper person to hold the firearm for which the licence is sought.
The appellant was born in 1976, which means that he is now about 34 years of age. In 1995, when he was about 19 years old, he was convicted in the District Court of two cannabis‑related offences. In 2003 when he was about 27, he was convicted of possession of amphetamines with intent to sell or supply. He was sentenced to 2 years' imprisonment and declared to be a drug trafficker. He had six traffic convictions between 1995 to 2007, including convictions which resulted in licence suspensions. One offence involved driving an unlicensed vehicle. The appellant claimed that he had matured considerably since the last drug offence; that he had the support of his family; he was in work; that he had no convictions for any violence or offences under the Act; he had good character references and that he was remorseful for his offending.
Having taken that evidence into account, the tribunal reached the view that the appellant was not a fit and proper person to hold a firearm licence and it said that it reached that conclusion for the following reasons:
Firstly, although Mr Minniti's evidence demonstrated remorse for his offending, he maintains that he did not offend in the manner in respect of which he was convicted, which suggests that he does not have a real acceptance of the circumstances of his offending and which in turn undermines his claims to remorse for his offending. In relation to the cannabis offences, for example, Mr Minniti claimed that he had never used cannabis and he was simply given the cannabis seeds by a friend, that he had no idea what to do with them and he 'just threw them into the ground'. On its own, that explanation lacks credibility. Given that Mr Minniti was convicted for cultivating cannabis with intent to sell or supply and possessing cannabis with intent to sell or supply, Mr Minniti's claims were in our view disingenuous. Similarly, in relation to the amphetamine offence, Mr Minniti claimed that the paraphernalia which was found in his car at the time when the drugs were found by police was not used for the purpose of selling or supplying the amphetamine and that the large quantity of amphetamine was solely for his personal use. Again, we found his explanation disingenuous.
Secondly, Mr Minniti expressed a desire not to reoffend, because he did not want to put his family through the same distress again. That evidence had less persuasive force in view of Mr Minniti's history of offending. Mr Minniti admitted that his family were upset after he committed the cannabis offences, yet he nevertheless proceeded to commit a more serious offence involving amphetamine. In addition, he admitted that in relation to the cannabis offences, he grew the cannabis at his parents' home, although he said they were overseas at the time.
Thirdly, both before and after the drug offences, Mr Minniti had a number of traffic offences. His licence has been suspended four times since 1995 following the loss of demerit points and most recently, in September 2007, he was convicted of an offence of being the driver of an unlicensed vehicle and of speeding. These offences in our view establish a pattern of continued disrespect for the law, which has continued since his conviction for the amphetamine offence.
Fourthly, although the drug offences were committed more than five years ago and therefore outside the period in s 11(3) of the Firearms Act, given the serious nature of the offences and the fact that Mr Minniti's latest offence was more serious than his earlier offending, we do not consider that a sufficient period of time has passed which, combined with demonstrated good character, would enable a conclusion to be drawn that Mr Minniti is now a fit and proper person. In reaching this conclusion, we have taken into account the fact that Mr Minniti lapsed into reoffending with the amphetamine offence some seven years after his cannabis offences. We note that it is not yet four years since the completion of Mr Minniti's sentence in respect of the amphetamine offence. That sentence was a term of imprisonment for two years, although he served one year in prison and one year on parole.
In reaching this conclusion, we have also taken into account the seriousness of the drug offences for which Mr Minniti was convicted. Following his conviction for the amphetamine offence in 2003, Mr Minniti was declared to be a drug trafficker. The effect of that declaration was directed to the confiscation of criminal proceeds. Under the Criminal Property Confiscation Act 2000 (WA), the declaration that he was a drug trafficker permitted the seizure of all of Mr Minniti's property. Nevertheless, the fact that the Parliament has seen fit to permit all of a drug trafficker's property to be seized demonstrates how very seriously the Parliament views drug offences of the kind for which Mr Minniti has been convicted. In our view, the relevance of the fact that Mr Minniti was declared to be a drug trafficker was not the label itself, and the pejorative nature of that label, but rather the offending which lay behind that label and how seriously that offending is viewed by the Parliament and thus by the community as a whole.
Although we commend Mr Minniti on the changes he is making to his life, in respect of which there is no doubt he is being greatly helped by his family, given the nature of the offences included in his criminal history, the repetition of drug offences and traffic convictions, the very serious nature of the drug offences, his continued difficulty accepting the circumstances of the offences and the comparatively short time that has elapsed since completing his last sentence, at present we do not consider Mr Minniti is a fit and proper person to hold a gun licence [19] ‑ [24].
As a result, the tribunal affirmed the decision of the Commissioner's delegate.
The appellant's grounds of appeal are as follows:
Ground 1 -
1.In refusing the Appellants application for a firearms licence, the learned presiding Judge and Member erred in law by failing to apply to the appropriate legal test for a 'fit and proper person' to hold a firearms licence to the Appellant's application.
Ground 2 -
2.The learned presiding Judge and Member erred in law in considering the Appellant's past traffic offences to be a relevant consideration in respect of the Appellant's fitness and propriety to hold a firearms licence.
Ground 3 -
3.The learned presiding Judge and Member erred in law in finding that, despite the passage of six years in which the Appellant did not re‑offend, the Appellant was not a fit and proper person to hold a firearms licence.
Ground 4 -
4.The learned presiding Judge and Member erred in law and law by descending into the arena and making a finding that the Appellant's explanation for past offending lacked credibility, in circumstances when the credibility of the Appellant's explanation for the offending was not put to the Appellant.
Ground 5 - Abandoned
Ground 1
Counsel for the appellant submitted orally that the correct test as to whether a person is a fit and proper person was to ask whether the applicant was 'going to harm themselves or another person through the possession of a licensed firearm or in the exercise of rights associated with holding a firearm licence, or would use it for illegal activity'.
There is nothing which supports such a test. 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] (1955) 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 the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re 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 Tavelli, Wheeler JA observed that prior convictions may be relevant to an application if they represent a course of disregard for the law as to reflect adversely on the character of the person committing them. Tavelli was referred to by SAT in Wignall and Commissioner of Police [2006] WASAT 206 as a case providing guidance to the question as to whether an applicant for a firearms licence was a fit and proper person to hold the licence.
Section 11(3) of the Act states that the Commissioner has sufficient ground for forming an opinion that a person is not a fit and proper person to hold a licence if the Commissioner is satisfied that within the period of five years before the person applies for the licence, the person was convicted of certain offences, but this does not mean that other offences within or without the five year period will not be relevant: Tavelli; Jones.
The Act makes provision for the control and regulation of firearms and ammunition and the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition. See the long title to the Act. It is obvious that the statutory context requires consideration to be given to the interests of public safety. This is a consideration the decision maker is bound to take into account (see s 11(1)(b)). The requirement that the person who is to be granted a firearms licence be a fit and proper person goes arm in arm with the consideration of public safety. The nature and circumstances of the criminal convictions will be a matter for assessment by the tribunal. For an example, see Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.
The tribunal directed itself concerning the meaning of the phrase 'fit and proper person' in the following way:
In Wignall, at [295] to [297], the Tribunal also made a number of observations about the fit and proper person test in the context of the Firearms Act, and referred to observations made by Wheeler J in Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996):
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.
In Tavelli v Johnson (Unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1996), Wheeler J had to deal 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) (SRAC Act). At pages 7 9, Wheeler J, with the caution 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, suggested that some factors relevant to prior convictions can be listed. Wheeler J suggested that convictions will generally be regarded as more serious in the statutory context if:
•they occur in the course of or relate to carrying out of the proposed licensed occupation;
•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;
•they occur while the person is the holder of a licence under the Act;
•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 further suggested, at pages 7 9, that indications that a person may be of good character and a fit and proper person, notwithstanding previous convictions, may be gleaned from the following factors:
•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 their words;
•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;
•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
•a person's character generally since 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.
The appellant's written submissions contended that the tribunal did not apply a proper test because it was submitted:
[T]hat the key elements in respect of the 'fitness and propriety' to hold a firearms licence are specifically … whether or not there is any evidence before a decision‑maker indicating that the appellant will pose a physical risk to others, or himself, through the possession of a firearm and/or whether the appellant will use the firearm to some activity which will pose a risk to the public.
It followed, according to the appellant, that:
The mere fact of a conviction alone is not enough to set aside a person's fitness and propriety.
The appellant then referred to In Re Davis (1947) 75 CLR 409 and Ziems. In both cases the court examined the character, fitness and propriety of a legal practitioner remaining on the roll by going beyond the fact of the conviction and examining what relevance the conviction had to the licensed activity in question. The appellant pointed out that in Ziems' case, the appellant's solicitor was found to be 'still of good fame and character and fit and proper' to be a legal practitioner despite being convicted of manslaughter. Ziems' case does not support the appellant's submission that SAT erred. Ziems' case is merely an example of the importance of determining the relevance of a conviction by reference to the particular applicable statutory context. The issue in that case was whether a conviction for non‑intentional homicide namely, road manslaughter, meant that a legal practitioner was not a fit and proper person to maintain the role of practitioners. The court held that it did not. In Davis, on the other hand, the practitioner was struck off because he had been guilty of breaking, entering and stealing.
It is true that the 'mere fact' of 'a conviction alone' would not be enough to show that the appellant was not a fit and proper person to hold a firearms licence. It is obvious that the type of conviction was a necessary piece of information and the tribunal had that information before it. Experience in the courts shows that the illegal drug trade is often associated with violence and the use of weapons. That being so, evidence that a person has a history of drug dealing is likely to be regarded as relevant to an application for a firearms licence in most cases. The tribunal did not err in relation to the law to be applied in determining whether the appellant was a fit and proper person.
Ground 1 has no merit.
Grounds 2 and 3
Grounds 2 and 3 must be dismissed. Counsel for the appellant when asked by the court whether these two grounds involved complaint about SAT having given too much weight to past traffic offences and not enough weight to the fact that six years passed in which the appellant did not reoffend, said that he agreed that was the point of those two grounds. There is no error of law in a tribunal failing to place 'adequate weight' upon a consideration which it is bound to take into account: Real Estate and Business Supervisory Board v Carey [53]. In addition, SAT was not 'bound' to take into account evidence that the appellant had not reoffended for a passage of six years. Even in relation to considerations which a decision‑maker is bound to take into account, there will be no error of law merely because the decision‑maker fails to take into account a particular piece of evidence relevant to such a consideration: Real Estate and Business Supervisory Board v Carey [53]. Grounds 2 and 3 have no merit.
Ground 4
This ground, shorn of its emotive words, is a complaint about a lack of procedural fairness. The appellant complains that SAT failed to accord the appellant natural justice before finding that his explanation in relation to certain drug convictions lacked credibility. The appellant's explanation given to SAT as it appears from the first paragraph in the passage from SAT's reasons for decision set out above, was that he had 'never used cannabis' and he was simply given the cannabis seeds by a friend, that he had no idea what to do with them and that he 'just threw them into the ground'. It was that explanation which SAT said lacked credibility, given that his convictions were for cultivating cannabis with intent to sell or supply and possessing cannabis with intent to sell or supply. SAT observed that the explanation was 'disingenuous'. Complaint was also made about a breach of natural justice in that SAT concluded that the appellant's explanation that he had a large quantity of amphetamines solely for his own personal use when the evidence was that he was convicted of possession of that large quantity of amphetamines for the purpose of selling or supplying it, was disingenuous.
The appellant referred to Mijatovic v The Legal Practice Complaints Committee [2008] WASCA 115; (2008) WAR 149 [56] ‑ [59] (Buss JA) in support of this ground. In Mijatovic, Buss JA said:
The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the
nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction.
Procedural fairness, in the context of a disciplinary hearing against a professional person who has been charged with misconduct in a professional respect, requires that, before the hearing of the charge, the defendant be given sufficient particulars to enable him or her to consider his or her response, make inquiries and gather evidence, and prepare for the hearing. See Etherton v Public Service Board of New South Wales(1983) 3 NSWLR 297, 301 (Hunt J) and, on appeal, Public Service Board of New South Wales v Etherton (1985) 1 NSWLR 430, 432, 434.
If the prosecutor proposes to submit, or the tribunal before whom the hearing is conducted proposes to find, that the defendant acted fraudulently or dishonestly, then the allegation of fraud or dishonesty, and proper particulars of it, must be given to the defendant with sufficient notice to enable him or her to have a fair opportunity of meeting it.
Similarly, a defendant may be denied procedural fairness if the charge against him or her is altered without any or sufficient notice and a fair opportunity to meet it. If an alteration is sought to be made late in the proceedings, it may not be fair to permit the alteration even if the defendant is given notice of and a fair opportunity to meet it. The tribunal hearing the charge must make a judgment about the fairness of the alteration after having regard to the particular facts and circumstances of the case [56] ‑ [59].
Mijatovic's case does not assist the appellant. In this case, the respondent contended that the appellant had engaged in criminal conduct and evidence of the convictions was provided to SAT. The appellant therefore had notice of the material relied upon and he had a fair opportunity of meeting it. He did not deny his convictions and his explanations, in effect, amounted to a claim that he should not have been convicted. However, the convictions were never appealed so his explanations were disingenuous and lacked credibility. This ground has no merit.
Grounds 1 and 4 do not reveal any arguable error of law and so there is no question of law which would justify the grant of leave.
Ground 2 and 3 raise allegations of error of fact and do not reveal any question of law. As a result, leave to appeal should be refused.
NEWNES JA: I agree with Pullin JA.
MAZZA J: I agree with Pullin JA.
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