O'Dwyer and Commissioner Of Police
[2010] WASAT 85
•18 JUNE 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: O'DWYER and COMMISSIONER OF POLICE [2010] WASAT 85
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 2 JUNE 2010
DELIVERED : 18 JUNE 2010
FILE NO/S: CC 1 of 2010
BETWEEN: BARRY JOHN O'DWYER
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms Refusal to grant licence Genuine reason Fit and proper Relevance of previous convictions Time that must expire before a person can be relicensed after a previous licence had been revoked Public interest Relevance and weight of character references
Legislation:
Firearms Act 1973 (WA), s 11(1), s 11(3), s 11(5)
Misuse of Drugs Act 1981 (WA),
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5), s 31
Result:
The application for review is not successful
The decision of the Commissioner of Police to refuse to issue the firearm's licence is affirmed and the application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr S Bagley (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
O'Dwyer and Commissioner of Police [2008] WASAT 33
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr O'Dwyer sought a review of a decision by a licensing officer, acting under the Firearms Act 1973 (WA), to refuse to issue a firearm's licence for three firearms. Mr O'Dwyer had previously been granted a firearm's licence but it was revoked on the ground of criminal convictions for offences committed on 11 June 2007. He failed in 2008, when he sought a review of the decision, to revoke the licences. He now says that he fully understands the responsibilities as a firearm licensee, he has stopped using cannabis, he has joined a pistol club and he is a fit and proper person to be relicensed.
Mr O'Dwyer contended that the decision of the licensing officer should be set aside, principally for two reasons: firstly, sufficient time has lapsed since the criminal convictions and the resultant revocation of the previous firearms' licence, and secondly, the Commissioner of Police erred by forming the view that Mr O'Dwyer is not a fit and proper person to hold the firearms. He also contended that no other convictions had been recorded since the incidents which led to the revocation of the previous licences. He also pointed out that prior to the convictions giving rise to the revocation, he had an unblemished record.
Mr Simon Bagley, for the Commissioner of Police, explained that the Firearms Act 1973 (WA) authorises the licensing officer to refuse to issue a firearm's licence if he is satisfied that the person applying for the licence is not a fit and proper person to be licensed. The licensing officer accepted in these proceedings that Mr O'Dwyer has a genuine reason to be licensed but formed the opinion that due to the seriousness of his criminal convictions, and Mr O'Dwyer's apparent failure to fully understand the gravity of what he did, insufficient time had elapsed for him to be licensed. Mr Bagley suggested that a period of at least five years should have elapsed before a firearm licence could be issued to Mr O'Dwyer and then only on the condition that no further offences had been committed.
The Tribunal rejected the contentions of Mr O'Dwyer and found that although there are positive indicators that Mr O'Dwyer has mended his life, insufficient time has expired for Mr O'Dwyer to demonstrate that he is a fit and proper person to be licensed. Although the Firearms Act1973 (WA) does not preclude a person from being relicensed after a licence has been revoked, and although the Act does not set a minimum period that has to elapse before a person can be relicensed, the Tribunal formed the opinion that in light of the seriousness and recklessness of the offences committed in 2007, and the ongoing efforts of Mr O'Dwyer to attempt to justify what he had done, insufficient time has elapsed. This view of the Tribunal was enhanced by Mr O'Dwyer's persistent efforts to attempt to rationalise the events of 17 June 2007 and to categorise it as a 'oneoff' transgression. The opposite is true. He had been using and cultivating cannabis at his house for some time, and to combine such a practice with possession of an unlicensed firearm, and other offences under the Act, was a potentially toxic mix.
The Tribunal therefore affirmed the decision of the licensing officer to refuse to grant the licences and dismissed the application.
Issue
Mr O'Dwyer seeks review of a decision of the Commissioner of Police (Commissioner) to refuse to issue a firearm's licence to hold three firearms on grounds that Mr O'Dwyer is not a fit and proper person to hold such licences.
Background
The application for review of the decision was made on 29 December 2009. The first directions hearing took place on 14 January 2010. The hearing was set down for 24 March 2010. At the request of the parties, the matter was referred back on 19 February 2010 to the Commissioner of Police for reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Commissioner affirmed its previous decision and on 1 April 2010 the matter was set down for a hearing on 2 June 2010. Both parties made written submissions and Mr O'Dwyer gave evidence during the hearing. No other witnesses were called, although Mr O'Dwyer submitted several written character references. Mr O'Dwyer was ordered, at the conclusion of the hearing, to produce, by no later than 18 June 2010, the application form he submitted to become a member of the Dongara Pistol Club. Mr O'Dwyer submitted a copy of the application and it had attached a copy of his criminal record. The decision was reserved on 14 June 2010.
Summary of facts
The facts are well set out in the respective submissions and evidence. The Tribunal has taken all of the information and evidence into account before coming to its decision.
The facts can be briefly summarised as follows.
Mr O'Dwyer was first granted a firearm's licence in 1998 although, according to his evidence, he acquired his first rifle in 1985. Nothing turns on these different dates. It is agreed that prior to the incidents of 11 June 2007 he had no criminal record.
On 11 June 2007, police conducted a search of his premises pursuant to the Misuse of Drugs Act 1981 (WA). Mr O'Dwyer was subsequently charged and convicted of a wide range of drugrelated and firearmsrelated offences arising from the search, namely:
•cultivate prohibited plant with intent to sell;
•permit premises to be used for use of drug or plant;
•possess a prohibited drug;
•intent to sell a prohibited drug;
•failure to ensure safekeeping of firearm;
•failure to ensure safekeeping of ammunition;
•possess unlicensed ammunition;
•possess unlicensed firearm; and
•receiving.
On the ground of these convictions, his firearm's licence was revoked.
Mr O'Dwyer sought a review of the decision to revoke his firearm's licence but he was unsuccessful, and the decision to revoke the licence was affirmed by the Tribunal on 13 February 2008 in the matter of O'Dwyer and Commissioner of Police [2008] WASAT 33. The Tribunal observed, as follows, in its conclusion and findings at [50] - [51]:
Despite his own say so, Mr O'Dwyer has not placed before the Tribunal any information to demonstrate how he has changed so as to satisfy the Tribunal that he has insight as to the course of conduct that led to his offending, to ensure there will be no repetition. …
Further, the Tribunal is concerned that Mr O'Dwyer still has little insight in respect to the dangers posed to his children and others by keeping unlocked firearms and ammunition in his family home. …
In October 2009, Mr O'Dwyer applied for a licence to hold the following three firearms intended for use as a professional kangaroo shooter:
| Cat | Description | Make | Serial | Calibre |
| B | Rifle Bolt Repeater | Bruno | 48697 | .243 |
| A | Rifle Bolt Leaver [sic] | Winchester | F704682 | .22 |
| B | Rifle Bolt Leaver [sic] | Marlin | 22053352 | .45/70 |
Mr O'Dwyer explained during the hearing that although he is currently employed full time, he would, once the licence is issued, commence with the application process to undertake commercial hunting of kangaroos. This would be done during weekends for extra income. He submitted letters of authority to hunt on private properties.
The Commissioner accepted that Mr O'Dwyer had demonstrated a genuine reason to be licensed, but the application was refused on grounds that the Commissioner was of the opinion, based on the criminal record of Mr O'Dwyer and the little time that had lapsed since the convictions, that he was not a fit and proper person to be licensed.
Mr O'Dwyer sought a review of the decision on 29 December 2009.
Statutory framework
The Tribunal will briefly summarise the statutory framework within which the review occurs.
The licence to acquire a firearm or to continue to hold a firearm is not a right, but a privilege; hence the regulatory regime imposed by Parliament whereby the obligation is on the applicant to demonstrate why he should be licensed.
The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the licensing officer.
The Tribunal is not limited to the statement of reasons given by the licensing officer (s 27(3) SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made (s 27(1) SAT Act). The objective of the Tribunal is to arrive at the best and preferable decision.
The review hearing is therefore de novo (s 27(1) SAT Act) and is not confined to the matters and information that were before the licensing officer at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the licensing officer (s 29(5) SAT Act).
The discretion of the Tribunal must be exercised within the context of the provisions of the Firearms Act 1973 (WA) (Firearms Act). The question as to whether Mr O'Dwyer is a fit and proper person to hold a firearm's licence must therefore be determined within the framework and objectives of the enabling Act.
Section 11(1) of the Firearms Act provides that the licensing officer, or in this case the Tribunal, cannot grant an approval if the Tribunal is of the opinion that the person is not a fit and proper person to hold a licence.
Section 11(3) of the Firearms Act provides that the licensing officer 'has sufficient grounds for forming an opinion that a person is not fit and proper' to be licensed if, within a five year period before the application, the person was convicted of an offence involving violence. The licensing officer is, however, not limited to take into account only convictions recorded in the last five years (s 11(5) Firearms Act).
Section 11(5) of the Firearms Act provides that, regardless of the provisions of s 11(3), the licensing officer may form an opinion that a person is fit and proper to hold a licence. Section 11(3) and s 11(5) therefore confirm the discretion of the Tribunal to take into account all relevant information before forming an opinion that a person is fit and proper to be licensed.
Contentions of the parties
The submissions of the parties can be summarised as follows.
Mr Bagley contended as follows:
•The convictions that arose from the search of Mr O'Dwyer's house cannot be classified as arising from a 'oneoff' incident. The cultivation of cannabis plants takes time, and Mr O'Dwyer further admitted that he had been in possession of the unlicensed firearm and ammunition for some period of time. He also admitted to cultivating and possessing cannabis and supplying it to friends whenever they visited. A trend of behaviour can therefore be recognised, rather than just a oneoff incident.
•Mr O'Dwyer bought a rifle knowing that it was stolen, or retained possession after he had become aware that it was stolen. Mr O'Dwyer's explanation that he acquired the firearm in the public interest must be rejected.
•None of the character referees acknowledged Mr O'Dwyer's criminal record or the fact that he was using the reference for the purpose of acquiring a firearm licence. The references seem to be of a general nature or aimed at potential employers. Little weight should therefore be attached to the references for the purposes of this proceeding.
•Although the Firearms Act does not specify a minimum period that should elapse before a person can apply again for a licence, the Commissioner would suggest a period of at least five years before serious consideration could be given to re-licensing Mr O'Dwyer. However, even if five years have passed, it does not remove the discretion of the licensing officer to refuse to issue a licence.
•Mr O'Dwyer has been convicted of drug and firearmrelated offences. This must be taken very seriously and he should not be allowed at this stage to be licensed again.
Mr O'Dwyer gave a combination of evidence and submissions. It can be summarised as follows:
•He had no criminal offences prior to 11 June 2007 and none since. The offences committed on 11 June 2007 were the 'one and only' convictions recorded.
•He now realises that he had erred by cultivating, using and supplying cannabis, and has since changed his ways. He is a responsible parent and has not used cannabis since 11 June 2007. He admits, however, that prior to 11 June 2007 he had been using cannabis for many years on a sporadic basis. For about three months prior to 11 June 2007, he used it daily and also cultivated it for use at home by his wife and their friends.
•He has many years experience in the handling and safekeeping of firearms. He has never had any offences under the Firearms Act.
•He bought the unlicensed firearm 'in the public interest' because he knew the people who he bought it from should not be allowed to keep it. If the same situation were to present itself today, he would again buy it so as to ensure the firearm is taken off the streets.
•He has successfully completed a firearm's course and has also been accepted by the Dongara Pistol Club as a member. He fully disclosed his criminal record to the Club.
•He holds a 'Dangerous Goods and Explosives' security card which allows him to transport explosives.
•The character references all support his firearms' application and the referees were aware that their reference was intended for use in a firearm's application.
•In summary, he has a genuine reason to be licensed; he is a fit and proper person to be licensed; and he has learnt from his previous mistakes.
Consideration
The Tribunal is required to determine what the correct and preferable decision is after all the information and evidence regarding Mr O'Dwyer's application have been taken into account. The Tribunal is vested with a discretion that requires it to take into account not only the interests of Mr O'Dwyer but also the interests of the wider public. Maintaining a credible licensing system for firearms is a matter of the highest importance due to the potential danger that firearms hold to society.
It is not disputed that Mr O'Dwyer had not been convicted of a criminal offence prior to 11 June 2007.
The Tribunal, however, rejects Mr O'Dwyer's contention that the events of 11 June 2007 were an isolated or one-off incident. Mr O'Dwyer's own evidence about the events leading to 11 June 2007 erodes any credibility of his contention that it was merely a one-off incident. In fact, during evidence Mr O'Dwyer told the Tribunal the following:
•He had been using cannabis at various intervals since the age of 18.
•In the three months prior to 11 June 2007, he and his wife used cannabis daily. He cultivated two cannabis plants in his backyard and always had the drug available to friends who visited them. According to him, friends could take and use the cannabis, which was kept in a bowl in the house, whenever they wished. All of this happened while his young children were at home.
•He bought an unlicensed firearm from a person in a pub in the public interest, but he never handed it to the police. He was hoping an amnesty would be declared or that he could sell it to the police as part of the buy-back scheme.
•He never told the Magistrates Court what the real reason was for him being in possession of a friend's firearm on 11 June 2007 since 'I was made to plead guilty by my lawyer'.
The Tribunal rejects his contentions and explanation of the events of 11 June 2007. The Tribunal finds that Mr O'Dwyer's explanations are unbelievable, naive and his evidence unreliable. It is clear that he had been involved in the use, production and even supply of cannabis for some time prior to 11 June 2007. He cultivated, used and supplied cannabis in the presence of his children.
The Tribunal also rejects his evidence that he bought an unlicensed firearm in the interest of the public. His attempt to justify his actions is misplaced and demonstrates a serious lack of understanding in the wrongful nature of his action. If, indeed, he had the public interest at heart, he would have handed the firearm immediately to the police, but he did not. He decided to keep it until he was arrested with it. In response to questioning by the Tribunal, Mr O'Dwyer was so convinced by his own evidence that he said he would do the same thing if the situation repeated itself. This demonstrates his lack of insight into what the proper actions are if one is offered an unlicensed rifle for sale.
Mr O'Dwyer's repeated attempts before this Tribunal in his 2008 application, and again now, to revisit the findings of the Magistrates Court following the pleas of guilty he made to the court, further erode his credibility. In fact, the Tribunal is left with the impression that although Mr O'Dwyer says he understands what he did wrong, the opposite is the case. He continues to defend what he did; he seeks to put blame on his legal representative, and it seems as if he fails to fully comprehend how serious and dangerous a mix of cannabis, firearms and ammunition can be.
Although Mr O'Dwyer gave evidence in support of his application, he did not call any witnesses to support his contentions. He did, however, file nine character references but none of them were called to give evidence or to be crossexamined.
The character references speak in glowing terms of Mr O'Dwyer as a loving father, a reliable worker, an honest person, a man of high moral standards, an upstanding citizen and an excellent person working with children. It is not clear if these referees were aware of his prolonged use of cannabis or of his other criminal convictions. If, on the one hand, the referees had not been aware of his cannabis use, the value of the references is severely diminished. If, on the other hand, they had been aware of the cannabis use, questions can be raised about how they could justify such glowing references. In both scenarios, the positive inference that can be drawn from the references for the purposes of these proceedings is limited.
None of the referees refer to Mr O'Dwyer's criminal record or to his application to be licensed to possess firearms. For example, a family member, Mr Brendon O'Dwyer, says that 'any person employing Barry would be happy with his work and commitment'. Mr Brett Darroch says, 'I have no hesitation in recommending him for employment of any sort …'. Mr Richardson says, 'I am sure that he will continue to be a dedicated and upstanding citizen …'. Mr Andrew Gray says, 'I can only give a good recommendation to those who wish to employ him …'. Mr Geoff Henderson speaks about him being a diligent worker, and Ms Andrea Gray says, 'This application has the full support of this family and myself as a responsible local citizen'.
The Tribunal notes that although all the character references speak very positively of Mr O'Dwyer, they refer in general to his role as a parent, an employee and a member of society. While these are important elements to assess Mr O'Dwyer's character and his fitness to be licensed, the referees fail to make mention: (a) of his criminal record, or (b) that his application for firearms' licences is supported.
The Tribunal therefore finds that the references have limited use for the purposes of these proceedings.
It appears from the evidence of Mr O'Dwyer, and from the character references, that Mr O'Dwyer is putting his life together. This is to be welcomed and he is encouraged in his endeavours. He also spoke truthfully to the Tribunal about his cannabis use since the age of 18. He could easily have refrained from disclosing the information. However, the references would add more value to the purposes of these proceedings if referees had expressed that they were aware of his criminal record and that they supported his application for firearms' licences.
The Tribunal must take the public interest and the interest of Mr O'Dwyer into account when coming to a decision. The public interest includes allowing a person to conduct a normal life and to be integrated into society after having received a punishment for an offence. At the same time, the public interest requires that an appropriate period must elapse to ensure that a person has demonstrated that he/she will not reoffend and that he/she is a fit and proper person to be licensed to possess a firearm. The Tribunal is of the view that too little time has lapsed for the public interest to be satisfied that Mr O'Dwyer should be licensed. He is making good progress but, as explained in these reasons, the Tribunal is not satisfied that he fulfils the requirements of the Firearms Act.
After having taken into account all the information available to it, the Tribunal is satisfied that Mr O'Dwyer should not be issued with a licence to possess three firearms on the grounds that he is not a fit and proper person.
The decision of the Commissioner should therefore be affirmed and the application should be dismissed.
Orders
1.The application for review is dismissed.
2.The decision of the Commissioner of Police to refuse to approve a firearm's application by Mr O'Dwyer is affirmed.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
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