NICKELS and COMMISSIONER OF POLICE
[2010] WASAT 19
•12 FEBRUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: NICKELS and COMMISSIONER OF POLICE [2010] WASAT 19
MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MR T CAREY (MEMBER)
HEARD: 2 DECEMBER 2009
DELIVERED : 12 FEBRUARY 2010
FILE NO/S: CC 1255 of 2009
BETWEEN: KELLY ANNE NICKELS
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm licence under Firearms Act 1973 (WA) - Previous convictions - Whether applicant a 'fit and proper person' to hold a firearm licence
Legislation:
Firearms Act 1973 (WA), s 11, s 20(1)(a)(iii), s 22(2), s 23(9)(a)
Liquor Control Act 1988 (WA)
Sentencing Act 1995 (WA), s 106
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Weapons Act 1999 (WA), s 6(1)(b)
Result:
Application upheld
Commissioner's revocation decision set aside
Commissioner to reinstate licence
Category: B
Representation:
Counsel:
Applicant: Mr M Owens
Respondent: Sergeant S Bagley
Solicitors:
Applicant: Max Owens & Co
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Anderson and Commissioner of Police [2008] WASAT 75
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:
Summary of Tribunal's decision
Ms Nickels' firearm licence was revoked by the Commissioner's delegate in May 2009, on the basis that Ms Nickels was not a fit and proper person to hold a licence because she had a number of convictions, including some for acts of violence and some under the Firearms Act 1973 (WA), and because of her relationship with a member of the Rebels motorcycle gang. In the course of the hearing of the review, the Commissioner withdrew his reliance on the latter consideration.
The Tribunal considered the nature and circumstances of Ms Nickels' prior convictions. Although some of the convictions were relevant to the question whether Ms Nickels was a fit and proper person to hold a licence, the convictions did not preclude the conclusion that Ms Nickels was a fit and proper person. The Tribunal found that the commission of the firearms offences was the result of Ms Nickels' ignorance of the legal requirements for the storage of firearms and a lax approach to compliance with the requirements of the Firearms Act 1973 (WA), rather than any deliberate flouting of the requirements, and Ms Nickels had since taken measures to comply with the requirements. The most recent offence of violence was committed in 2006. After hearing Ms Nickels' evidence, the Tribunal was satisfied that Ms Nickels was genuinely remorseful for her previous offending, and that she had demonstrated a change in her character since undertaking an anger management course in 2006. Character references relied on by Ms Nickels also provided some support for this conclusion.
The Tribunal concluded that the correct and preferable decision was to set aside the revocation decision and order the reinstatement of Ms Nickels' licence.
Introduction
Until May 2009, Ms Kelly Anne Nickels held a firearm licence under the Firearms Act 1973 (WA) (the Act) in respect of two firearms, a Winchester lever repeater 0.357 calibre rifle and a Stirling bolt repeater 0.22 calibre rifle (the rifles). She has held a firearm licence since 1995 or 1996.
Since 1992, Ms Nickels has been the de facto partner of Mr Peter Michael Johnston, who is the state president of the Rebels motorcycle gang (Rebels). We were told that Mr Johnston has a criminal record consisting of drug, firearm and violencerelated offences for which he has received terms of imprisonment, most recently in 2004 for an offence committed in 1999 or 2000.
Ms Nickels and Mr Johnston have three children. Mr Johnston also has three children from previous relationships, for whom Ms Nickels has adopted a step-mother role.
Since the commencement of her relationship with Mr Johnston, Ms Nickels has lived with him on a farm near Busselton (the farm). Also on the farm, and approximately 30 metres away from the house where Ms Nickels and Mr Johnston reside, is the clubhouse for the Rebels.
On 23 April 2009, police executed a search warrant at the farm, pursuant to the provisions of the Liquor Control Act 1988 (WA). In the course of that search, police located the rifles sitting inside a gun safe which was not locked. The key to the gun safe was sitting in the lock. In addition, the gun safe was not fastened to the wall or the floor, as is required by the Act. Ammunition for the rifles was sitting in the unlocked gun safe. Ms Nickels was charged with two counts of failing to ensure the safekeeping of the rifles and the ammunition, contrary to s 23(9)(a) of the Act (the firearms offences).
In the course of the search, the police also found a flick knife, and a sword concealed in a cane. Ms Nickels was charged with two counts of possessing a prohibited weapon contrary to s 6(1)(b) of the Weapons Act 1999 (WA) (the weapons offences).
Ms Nickels pleaded guilty to these four charges in the Busselton Magistrates Court on 19 May 2009. In respect of all of the charges, Ms Nickels was released on a conditional release order for a period of six months to be of good behaviour. In the course of sentencing, the prosecution sought that an order be made by the Court revoking Ms Nickels' firearm licence under s 106 of the Sentencing Act 1995 (WA). The learned Magistrate refused to make that order on the basis that Ms Nickels had no previous convictions for firearms offences and that she had had the rifles for some time without any concern being expressed by the police.
By letter dated 28 April 2009, which was not served on Ms Nickels until 30 May 2009, a delegate of the Commissioner of Police decided to revoke Ms Nickels' firearm licence. The basis for that decision was the delegate's opinion that Ms Nickels was not a fit and proper person to hold a licence under the Act having regard to her criminal history, and to information held by the police alleging Ms Nickels' association with a member of the Rebels, namely her de facto relationship with Mr Johnston. In addition to the firearms offences and the weapons offences, Ms Nickels' criminal history comprised convictions in 2001 and 2006 for assaults on police, threats to injure or harm and obstructing police, and charges brought in 2002 (which were later withdrawn) for threatening words, and possessing cocaine and amphetamines.
Ms Nickels seeks a review of the delegate's decision to revoke her licence, pursuant to s 22(2) of the Act.
These reasons for decision deal with the following issues:
1)The issues in dispute on the review;
2)The basis for the Commissioner's contention that Ms Nickels is not a fit and proper person to hold a firearm licence;
3)The relevance of Ms Nickels' prior convictions to the fit and proper person test in s 11(1)(c) of the Act; and
4)Whether Ms Nickels is a fit and proper person to hold a firearm licence notwithstanding her prior convictions.
The issues in dispute on the review
The decision to revoke Ms Nickels' licence was made under s 20(1)(a)(iii) of the Act. That section permits the Commissioner to revoke a firearm licence where the Commissioner is satisfied that the holder of the licence could not be issued with it if he or she was then applying for it, by virtue of s 11 of the Act. Section 11 prohibits the Commissioner from issuing a licence if the Commissioner is of the opinion that to do so would be contrary to s 11A or regulations made under s 11B or s 11C, 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.
Under s 11A of the Act, the Commissioner cannot issue a licence if, in the Commissioner's opinion, the applicant for the licence has not been shown to have a genuine reason for acquiring or possessing the firearm for which the licence is sought. Ms Nickels' reason for wanting to possess the rifles is that she needs the rifles to control vermin, including kangaroos, pigs and crows, which eat the turf and grapes which are grown on the farm. It was not disputed at the hearing that Ms Nickels had a genuine reason for seeking to possess the rifles.
In the course of the review, the Commissioner initially sought to rely on a further ground for the revocation of Ms Nickels' licence, in addition to the ground that she is not a fit and proper person to hold a firearm licence. That additional ground was that it was not desirable in the interests of public safety that Ms Nickels be allowed to continue to hold a firearm licence. In support of this ground, the Commissioner relied on the firearm offences, and on Ms Nickels' relationship with Mr Johnston, his membership of the Rebels, and the fact that the Rebels' clubhouse is on the farm.
However, in his closing submissions, Sergeant Bagley, who appeared for the Commissioner, acknowledged that he had not produced any evidence which would support a finding by the Tribunal that the Rebels posed a risk to public safety. In the absence of such evidence, Sergeant Bagley expressly disavowed any reliance on public safety as a ground for the revocation.
Accordingly, the review falls to be determined having regard to the question whether Ms Nickels is a fit and proper person to hold a firearm licence.
Our review of the decision of the Commissioner's delegate to revoke Ms Nickels' firearm licence is governed by, amongst other things, s 27 and s 29 of the State Administrative Tribunal Act 2004 (WA). The review is by way of a hearing de novo and is not confined to the matters which were before the Commissioner's delegate. The Tribunal may inform itself as it sees fit and is not bound by the rules of evidence. We have before us all of the material which was before the Commissioner's delegate. In addition, Ms Nickels provided a written statement, gave evidence in person and was crossexamined. Ms Nickels also relied on four written references attesting to her good character.
The purpose of the review is to produce the correct and preferable decision at the time of the review. In conducting the review, the Tribunal has functions and discretions corresponding to those of the Commissioner's delegate. The Tribunal may affirm the decision being reviewed, vary that decision, or set it aside and either substitute its own decision or send the matter back to the decisionmaker for reconsideration.
Given that the purpose of the review is to reach the correct and preferable decision, 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 at [282].
The basis for the Commissioner's contention that Ms Nickels is not a fit and proper person to hold a firearm licence
As we have noted, the delegate's decision that Ms Nickels was not a fit and proper person was based in part on her association with Mr Johnston and with the Rebels. However, the Commissioner did not seek to put before the Tribunal any evidence in relation to the Rebels, or any evidence to suggest that Ms Nickels herself was closely associated with the Rebels, or under the influence of any member of the Rebels.
In his submissions, Sergeant Bagley made clear that in contending that Ms Nickels was not a fit and proper person to hold a firearm licence, the Commissioner did not place any reliance on Ms Nickels' association with Mr Johnston and with the Rebels. That concession was properly made. In the absence of any evidence to suggest that Ms Nickels herself was closely associated with the Rebels, or under the influence of any member of the Rebels, no proper basis would have existed to support the contention that merely by virtue of her relationship with Mr Johnston, and his association with the Rebels, Ms Nickels is not a fit and proper person to hold a firearm licence: Anderson and Commissioner of Police [2008] WASAT 75 at [164], [168] [169].
Accordingly, the sole basis for the Commissioner's contention that Ms Nickels was not a fit and proper person to hold a licence was her prior convictions.
The relevance of Ms Nickels' prior convictions to the fit and proper person test in s 11(1)(c) of the Firearms Act
Section 11(3) of the Act provides guidance as to when the Commissioner will have sufficient grounds for forming an opinion that a person is not fit and proper person to hold a firearm licence. One of those grounds is that the Commissioner is satisfied that within the period of five years before the person applies for the licence, the person was convicted of an offence involving assault with a weapon, an offence involving violence or any offence against the Act: s 11(3)(a)(i), s 11(3)(a)(ii) and s 11(3)(a)(iii).
However, 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: s 11(6) of the Act.
Prior offences would be relevant if, for example, they occurred while the person was the holder of a licence under the Act. Even if the offences were not committed while the person was the holder of a licence under the 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 7 9 (Wheeler J), referred to in Wignall at [297].
A copy of Ms Nickels' criminal record was produced to the Tribunal. Leaving to one side some traffic convictions which were not relied upon by the Commissioner, Ms Nickels' criminal history discloses convictions for:
1)the firearms offences (two counts) and weapons offences (two counts) date of offences 23 April 2009, conviction recorded 19 May 2009;
2)assaulting a public officer (two counts) date of offence 6 February 2006, conviction recorded 31 October 2006;
3)obstructing public officers (one count) date of offence 6 February 2006, conviction recorded 31 October 2006;
4)refusing to supply or providing false name and address (one count) date of offence 6 February 2006, conviction recorded 31 October 2006;
5)threatening to injure, endanger or harm any person (one count) - date of offence 11 February 2006, conviction recorded 10 October 2006;
6)refusing to supply or providing false name and address (one count) – date of offence 20 July 2002, conviction recorded 21 January 2003; and
7)assaulting a public officer (three counts) date of offence 22 March 2001, conviction recorded 22 May 2001;
Ms Nickels' criminal history confirms the withdrawal of charges of amphetamine possession, cocaine possession and threatening words in 2002, and the Commissioner did not place any reliance on those charges in the review.
We have considered the relevance of each of Ms Nickels' convictions below.
The firearms offences
It is apparent from s 11(3) of the Act that the existence of convictions of the kind described in that subsection will be relevant to whether a person is a fit and proper person to hold a licence under the Act. Ms Nickels' convictions in May 2009 for the firearms offences are offences of that kind: s 11(3)(a)(iii) of the Act.
The firearms offences are not the worst kind of offences which may be committed under the Act. Ms Nickels admitted that the rifles and ammunition were sitting in an unlocked gun safe. However, in her statement of evidence, she stated that she had used one of the rifles the day before and although she had not locked the safe afterwards, she had not left the house since returning the gun to the safe. Ms Nickels stated that had she left the house, she would have locked the gun safe and taken the keys with her. We note that the learned magistrate accepted Ms Nickels' explanation for the firearms offences.
In her evidence before us, Ms Nickels said that she was not aware of the requirement to bolt the gun safe to the ground or the wall, or of the requirement to keep ammunition separate from firearms. She told us that her home was raided by police a couple of years earlier when the gun safe was in the same condition, and the ammunition was stored in the gun safe with the rifles, yet the police said nothing about either matter.
The secure storage of firearms and ammunition is a very important aspect of the responsibilities of the holder of a firearm licence. However, the evidence before us in relation to the circumstances of the commission of these offences suggested that the nature of these offences should not be regarded as especially serious in the context of the decision whether Ms Nickels is a fit and proper person to hold a licence.
The maximum penalty for an offence under s 23(9)(a) of the Act, and the penalty imposed by the Magistrate in respect of the firearms offences, also support this conclusion.
We accept that the firearms offences resulted from ignorance of the requirements of the Act rather than any deliberate intention to flout its requirements. As a result of her convictions for the firearms offences, Ms Nickels is now aware of her obligations with respect to the secure storage of the rifles and ammunition. She told us that she has since taken steps to address both issues. Ms Nickels said that police came to her home again in the latter half of 2009, and she invited them to look at the gun safe and they were happy with it. We accept that Ms Nickels is committed to complying with the requirements of the Act for the secure storage of the rifles and ammunition in the future.
The weapons offences
The Commissioner submitted that the weapons offences are closely related to the firearms offences, and reflected a 'course of conduct' which we understood to mean a course of non-compliance with legislation regulating the possession of weapons, including firearms.
We accept that the nature of the weapons offences is such that they are closely related to offences under the Act and are therefore relevant to whether Ms Nickels is a fit and proper person to hold a firearm licence.
Ms Nickels told the learned Magistrate in the sentencing hearing that the flick knife had been seized by the police during a raid once before and later returned to her. She said that she had forgotten that she had the cane encasing the sword and that it had been sitting in the safe for some years. The learned Magistrate accepted Ms Nickels' explanation for her possession of the weapons. Having regard to the circumstances, we do not consider that the weapons offences, by their nature, should be regarded as particularly serious offences in the context of the decision as to whether Ms Nickels is a fit and proper person to hold a firearm licence.
The penalty imposed by the learned Magistrate, having regard to the substantial maximum penalties available under the Weapons Act 1999 (WA), also supports the conclusion that the weapons offences are not, by their nature, particularly serious examples of the offence of possessing a prohibited weapon.
The firearms offences and weapons offences were the first offences of this kind committed by Ms Nickels. Those offences were quite different in nature to Ms Nickels' earlier offences. Accordingly, we do not consider that the weapons offences, viewed together with the firearms offences, are indicative of a course of non-compliance with legislation regulating the possession of weapons, including firearms, so as to reflect particularly adversely on Ms Nickels' fitness to hold a licence.
The offences committed on 6 February 2002 and 11 February 2002 - assaulting a public officer (two counts), obstructing public officers, refusing to provide her name and address and threat to injure, endanger or harm any person
The statements of material facts in relation to the offences committed on 6 February 2006 indicate that Ms Nickels' car was stopped because she was not wearing a seatbelt. The police requested that she produce her driver's licence, but she said she did not have one with her. Ms Nickels then refused three requests to give her name and address. When the police informed her that she was under arrest for failing to provide her name and address, and grabbed her wrists to apprehend her, Ms Nickels started to struggle violently. She kicked out several times and struck one of the officers twice. She then bit the other officer on the leg. Shortly afterwards, when another officer attempted to place her in a police van, Ms Nickels began to struggle violently and kicked at the officer several times, striking him in the arm, shoulder and head. She was charged, and subsequently pleaded guilty, to two counts of assaulting a public officer and one count of obstructing police officers, in addition to the charge of failing to provide her name and address.
Ms Nickels gave evidence in relation to these events. She said that the police claimed that she was not wearing a seatbelt when, in fact, she was. She did not respond to the requests that she provide her name and address because the police officers were well aware of who she was. Ms Nickels said she was upset about the prospect of receiving a fine for not wearing a seatbelt and started walking away. As she did so, she was grabbed by a male police officer and thrown to the ground. She said that she asked the police to desist, because she had her daughter with her in the car. She acknowledged resisting both police officers and 'struggling energetically'.
As for the offence committed on 11 February 2006 of making a threat to injure, endanger or harm any person, the statement of material facts indicates that on that day, Ms Nickels received an infringement notice for speeding. Approximately one minute later, Ms Nickels' car was stopped in a different location, this time for failing to indicate. Ms Nickels got out of her car in an agitated state and made threats directed to the officer as to what she would do to him and to his wife.
Ms Nickels also gave evidence in relation to this offence. She said that she had been stopped by police and given a speeding infringement. She then drove off and was immediately stopped again by the same police for failing to indicate. Her evidence was that she had used her indicator, that she believed the police did not see her do so, and that she had asked the officer how he would like it if she started harassing him and his wife. Ms Nickels evidence was that in making this remark, she was referring to her arrest the week before. However, Ms Nickels acknowledged in her evidence that the Magistrate believed the police officer's version of events and stated that 'I have, of course, accepted my conviction'.
The two assault convictions recorded on 31 October 2006 are offences of the kind described in s 11(3)(a)(ii) of the Act and are clearly relevant to the question whether Ms Nickels is a fit and proper person to hold a firearm licence. The threat to injure, endanger or harm any person, while not directly involving violence nevertheless involved the threat of violence and in our view is also relevant to the question of Ms Nickels' fitness to hold a firearm licence. The offences of obstructing police officers and refusing to provide her name and address are in our view of marginal relevance, at best, to the question of Ms Nickels' fitness hold a firearm licence and warrant little weight in our overall assessment.
The offence committed on 20 July 2002 for providing a false name and address
The Commissioner placed some reliance upon this conviction. According to the statement of material facts in relation to this offence, Ms Nickels' car was stopped for her failure to wear a seatbelt. Ms Nickels initially refused to give the police her name and address on the basis that the officers knew her. Upon being told by another officer that the police were from Perth (and therefore not local to the area), she gave a name which was obviously false.
Although this offence was committed outside the five year period prior to the revocation of Ms Nickels' licence, it may be taken into account in determining whether Ms Nickels is a fit and proper person: s 11(6)(a) of the Act. However, the offence was committed over seven years ago, and is not an offence of the kind described in s 11(3) of the Act. The nature of the offence is such that it is of marginal relevance to the question of Ms Nickels' fitness to hold a licence, and warrants little weight in our overall assessment.
The offences committed on 22 March 2001 of assaulting a public officer (three counts)
These convictions are for offences involving violence. No information was provided by the Commissioner in relation to the circumstances of these offences, but Ms Nickels did address them in her statement of evidence. Ms Nickels said that several police officers, who were armed, came to her home early in the morning. The police went into her children's bedrooms and pointed guns at them. Ms Nickels was separated and required to remain in her bedroom while police were searching the house. After several hours, a struggle occurred between her and a female police officer. Ms Nickels said the struggle commenced when the officer misconstrued her action in reaching across for medication on a table. According to Ms Nickels, the police officer called for assistance and another police officer came in and restrained her, 'although I was resisting being restrained'.
Although these offences were committed outside the five year period prior to the revocation of Ms Nickels' licence, they may be taken into account in determining whether Ms Nickels is a fit and proper person: s 11(6)(a) of the Act. These were clearly offences of the kind described in s 11(3) of the Act. The relevance of these offences to Ms Nickels' present fitness to hold a licence is substantially diminished by the passage of time since the offences were committed. Nevertheless, given that these offences were similar in kind to the assaults committed by Ms Nickels in 2006, we are of the view that they continue to be relevant to the question of Ms Nickels' present fitness.
Conclusion in relation to the relevance of the offences to Ms Nickels' fitness to hold a licence
Although under s 11(3) of the Act the firearms offences and weapons offences provide a sufficient basis upon which to form an opinion that Ms Nickels is not a fit and proper person to hold a firearm licence, the Act does not mandate that conclusion: s 11(5). However, having regard to the facts concerning the commission of the firearms and weapons offences, we have reached the view that these offences, considered in isolation, do not warrant the conclusion that Ms Nickels is not a fit and proper person to hold a firearm licence.
Sergeant Bagley submitted that the commission of the firearms offences in 2009 'tipped the balance' against her fitness to hold a firearm licence. We are unable to accept this submission given our views about the degree of seriousness of these offences. In addition, the firearms and weapons offences are so different in nature from Ms Nickels' earlier offences that we do not consider that their commission establishes a course of conduct which reflects particularly adversely on her character.
Of greatest concern in considering Ms Nickels' fitness to hold a firearm licence are her 2006 offences of assault and threatening to injure, endanger or harm, and her 2001 offences for assaulting public officers. The nature of those offences would have provided a basis for the conclusion that Ms Nickels was not a fit and proper person to hold a firearm licence at the time those offences were committed. However, Ms Nickels' firearm licence was not revoked after her convictions in either 2001 or in 2006. Moreover, given that firearm licences have a duration of 12 months, Ms Nickels' licence must have been renewed on a number of occasions since the commission of these offences. Sergeant Bagley submitted that because of the large number of firearm licences held in Western Australia, it was not possible for the Commissioner to conduct a probity check on licence holders when they sought to renew their licences. Nevertheless, if offences of the kind committed by Ms Nickels in 2001 and 2006 are considered by the Commissioner to be sufficiently serious to call into question her fitness to hold a licence, it is a little surprising that her conviction for those offences did not trigger a review of her fitness in either 2001 or in 2006.
Had nothing in Ms Nickels' character or circumstances changed since 2006, there would have been a stronger argument about her fitness to hold a firearm licence. However, for the reasons outlined below, we are satisfied that there has been a sufficient change in Ms Nickels' character since 2006 to support the conclusion that she is now a fit and proper person to hold a firearm licence.
Whether Ms Nickels is a fit and proper person to hold a firearm licence notwithstanding her prior convictions
Even if a sufficient ground exists under s 11(3) for forming the opinion that a person is not a fit and proper person to hold a firearm licence, the Commissioner may nevertheless form a contrary opinion: s 11(5) of the Act.
In Tavelli at 7 9, Justice Wheeler referred to some factors which may indicate that a person is a fit and proper person to hold a licence, notwithstanding prior convictions. Those factors were:
•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.
Having taken these considerations into account, we have reached the following conclusions.
Leaving to one side the firearms and weapons offences, it is now approximately four years since the last of Ms Nickels' prior offences were committed. The Commissioner's case was that not enough time has passed to determine whether Ms Nickels' character has changed. Four years is a reasonable period of time, although in the context of the s 11(3) of the Act, which refers to offences within a five year period, it is not a substantial period.
More important than the lapse of time itself is the fact that Ms Nickels' criminal conduct since 2006 has not involved any offences involving conflict of any kind with the police. Her criminal history arose from situations of conflict with the police in 2001, 2002 and 2006. Since then, there has been no similar offending.
Nothing in Ms Nickels' criminal history, or in the evidence before us, suggested that she has ever displayed an aggressive or violent disposition towards any person or group, apart from police officers.
We had the opportunity to see Ms Nickels give evidence and in particular to consider her answers in crossexamination. She gave her evidence in a forthright and open manner. She was quite open about the circumstances of her prior convictions and sought to explain the circumstances of the commission of those offences. On some occasions, her explanations sought to exculpate her own inappropriate conduct. Nevertheless, we formed the view that Ms Nickels is remorseful for her past conduct.
It is clear that there was, for some years, an uneasy relationship between Ms Nickels and the police. It is also plain that, on the occasions giving rise to the charges founding the 2001 and 2006 convictions in particular, she acted inappropriately.
In giving her evidence, however, Ms Nickels demonstrated insight into her offending. Ms Nickels stated, under crossexamination, that as part of her sentence for the offences of assaulting public officers in 2006, she was ordered to complete an anger management course and that she completed a course of several weeks' duration. She said that the course taught her how to deal with situations in which she used to get angry. She agreed that in the past, her contact with police had made her angry, but told us that she was 'over it now'.
It appears to us that Ms Nickels has come to appreciate the reasons for her prior conflict with police, and as a result of her participation in the anger management course, she now has greater control over her anger.
Ms Nickels told us that she has learned that 'if I treat them [that is, the police] fairly they treat me fairly' and she can see that 'they're there to do their job'. Ms Nickels' change in attitude appears to have been demonstrated by her conduct. Ms Nickels told us that she had been pulled up by police a couple of times in the months prior to the review hearing and those occasions had been incidentfree. As Sergeant Bagley acknowledged in his submissions, Ms Nickels' relationship with Mr Johnston means that she will receive police attention. The fact that Ms Nickels has not committed any offences arising from her interaction with the police since 2006 therefore lends support to the conclusion that there has been a change in her character.
The four written references tendered on Ms Nickels' behalf emphasise her good standing in the local community in Busselton. She was described by one referee as 'a hardworking and reliable person who is an asset to our community' and by another as a 'good community member'. However, none of the references contained any indication that the referees were aware of Ms Nickels' criminal history. For that reason, we do not give the references as much weight as we otherwise might have given them. Nevertheless, they do support the conclusion that Ms Nickels makes a contribution to her local community and is held in high regard in her community. To that extent, the references support the conclusion that Ms Nickels' character is now such that she is a fit and proper person to hold a firearm licence.
Conclusion
For the reasons set out above, we conclude that the decision of the Commissioner's delegate should be set aside. The effect of doing so should be that Ms Nickels' licence is reinstated. For the avoidance of any doubt, however, we make an order expressly confirming that Ms Nickels' licence is to be reinstated.
Counsel for Ms Nickels raised a number of alternative arguments in support of Ms Nickels' application to reinstate her licence. Those arguments relied upon the refusal of the learned sentencing magistrate to revoke Ms Nickels' licence under s 106 of the Sentencing Act 1995 (WA) following her convictions for the firearms offences and weapons offences in 2009. It was submitted that the delegate's decision to revoke Ms Nickels' licence should be set aside having regard to either the principles of res judicata or issue estoppel, or on the basis that it was an abuse of process because it constituted a collateral challenge to the decision of the magistrate. In view of our conclusion that Ms Nickels is now a fit and proper person to hold a firearm licence, it is unnecessary for us to deal with these alternative arguments.
Orders
For the reasons given above, we make the following orders:
1.The application for review is upheld.
2.The decision of the delegate of the Commissioner of Police to revoke Ms Nickels' firearm licence (No 3291330) is set aside.
3.Ms Nickels' firearm licence (No 3291330) is reinstated.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J PRITCHARD, DEPUTY PRESIDENT
7
2
5