O'DWYER and COMMISSIONER OF POLICE - [2008] WASAT 33

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: O'DWYER and COMMISSIONER OF POLICE [2008] WASAT 33

MEMBER: MS J HAWKINS (MEMBER)

HEARD: 21 DECEMBER 2007

DELIVERED : 13 FEBRUARY 2008

FILE NO/S: CC 1523 of 2007

BETWEEN: BARRY JOHN O'DWYER
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Application for review of decision to revoke firearms licence - Criminal convictions - Whether "fit and proper" person - Whether desirable in the interests of public safety - Decision to revoke affirmed

Legislation:

Criminal Code (WA), s 414
Firearms Act 1973 (WA), s 11, s 19(1), s 20, s 22, s 23(9)(a)
Misuse of Drugs Act 1981 (WA)
State Administrative Tribunal Act 2004 (WA), w 27, s 29, s 31

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr AP Skerritt
Respondent: Sergeant M Lynch (Acting as Agent)

Solicitors:

Applicant: O'Connor Lawyers
Respondent: Sergeant M Lynch (Acting as Agent)

Case(s) referred to in decision(s):

Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This is an application for review of a decision by the Commissioner of Police to revoke Mr O'Dwyer's firearms licence. That decision was based on Mr O'Dwyer being charged and later convicted in 2007 for various offences under the Firearms Act 1973 (WA), the Criminal Code (WA) and the Misuse of Drugs Act 1981 (WA).
These convictions followed the police executing a Misuse of Drugs Act 1981 search warrant upon Mr O'Dwyer's family home on 11 June 2007.
As a result of that search, Mr O'Dwyer was charged with a total of 14 offences, eight under the Firearms Act 1973, one under the Criminal Code and five under the Misuse of Drugs Act 1981.
Following being charged with those offences, Mr O'Dwyer was informed his firearms licence would be revoked by letter dated 31 August 2007.
Subsequent to that date, Mr O'Dwyer pleaded guilty to those offences and was convicted.
The issue to be determined in this application was whether Mr O'Dwyer satisfied the provisions of the Firearms Act 1973 to entitle him to retain his firearms licence.
Given the number, nature and recency of offences and a failure to satisfy the Tribunal on the issue of insight and changed circumstances, the decision to revoke Mr O'Dwyer's firearms licence was affirmed.

Background

This is an application by Mr Barry John O'Dwyer (Mr O'Dwyer) for a review of the decision of the Commissioner of Police (Commissioner) to revoke his firearms licence. The application was made pursuant to s 22 of the Firearms Act 1973 (WA) (Firearms Act). Mr O'Dwyer was notified of the decision of the Commissioner to revoke his firearms licence by letter dated 31 August 2007. That letter stated that the basis for the decision to revoke his firearms licence was due to the Commissioner not being satisfied that Mr O'Dwyer was a fit and proper person, due to him facing charges for drug offences and breaches of the Firearms Act. Those charges followed the police executing a search warrant upon Mr O'Dwyer's family home in Mahogany Creek, under the Misuse of Drugs Act 1981 (WA) (MD Act) on 11 June 2007.
The details of the search and the discussions with Mr O'Dwyer were recorded by police on videotape. Along with discovering a quantity of cannabis upon the premises, the police also discovered various firearms and ammunition.
Mr O'Dwyer had been shooting foxes on his property with his neighbour on the evening of 10 June 2007. Mr O'Dwyer's neighbour was licensed to use a .410 rifle. Mr O'Dwyer's neighbour retired for the night and offered his rifle to Mr O'Dwyer to use. Mr O'Dwyer took that rifle and kept trying to shoot foxes from time to time during the night of 10 June 2007 and the early hours of the morning on 11 June 2007.
When the police executed their search warrant at Mr O'Dwyer's home on 11 June 2007, they discovered various firearms and ammunition throughout the house which were not locked away. Some of the firearms were loaded. The police also discovered ammunition throughout the house in an unlocked state. They also discovered firearms in Mr O'Dwyer's home for which he was not licensed to hold. As a result, Mr O'Dwyer was charged with a variety of offences under the Firearms Act and the MD Act and the Criminal Code (WA) (Criminal Code).
Mr O'Dwyer was licensed for the following firearms:
•.22 rifle, bolt repeater ‑ Winchester serial no FT0486;
•.45/70 rifle, bolt repeater ‑ Marlin serial no 22053352;
•.243 rifle, bolt repeater ‑ Brno serial no 48697;
•.22 rifle, single shot ‑ Springfield serial no 394.
Mr O'Dwyer was convicted of eight offences under the Firearms Act and one offence under the Criminal Code on 4 September 2007 in the Magistrates Court. More recently, he was convicted in the District Court and the Magistrates Court for various drug offences under the MD Act.
Mr O'Dwyer maintains that despite those offences, he continues to satisfy the requirements of the Firearms Act to enable him to retain his firearms licence.
The matter was the subject of a hearing on 21 December 2007, following which the decision in the matter was reserved.

Relevant statutory framework

The application is for a review of the decision of the Commissioner to revoke Mr O'Dwyer's firearms licence. Section 22(2) of the Firearms Act enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review of that decision. The relevant provisions of the Firearms Act that apply in this matter are as follows:
•Section 20 of the Firearms Act - invest power of revocation in the Commissioner. Relevantly, it states:
"(1)Where the Commissioner is satisfied -
(a)that a person who is the holder of a licence, permit or approval under this Firearms Act ‑
…
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon."
•Section 11 is concerned with the exercise of the Commissioner's discretion and provides relevantly as follows:
"(1)The Commissioner cannot grant an approval or permit or issue a licence under this Firearms Act to a person if the Commissioner is of the opinion that -
(a) to do so would be contrary to section 11A or regulations under section 11B or 11C;
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence."
Under s 11, the Commissioner can refuse or revoke a licence if it would be contrary to s 11A if the person applying cannot show a genuine reason for holding a firearms licence.
Section 11A(2) sets out the circumstances when a person can show they have a genuine reason for possessing a firearm. It states:
"(2)A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if -
…
(c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;
…"
Section 11A(3) also relevantly provides:
"(3)A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified."
As previously stated, s 11(1) of the Firearms Act allows the Commissioner to not grant a firearms licence if the person is not a fit and proper person to hold the licence. Section 11(3) indicates when the Commissioner has sufficient grounds for forming an opinion that a person is not fit and proper. It states as follows:
"(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner -
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence -
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place;
…"
The relevant provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that apply to a review are s 27 and s 29(1), s 29(2) and s 29(3). Those provisions state as follows:
"27. Nature of the hearing
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision."
"29. Powers of Tribunal on review
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may -
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and -
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate."

The evidence

The evidence constituted the documents filed by each party prior to the hearing, including witness statements and evidence given at the hearing. Evidence at the hearing included two videotape recordings of the police interview with Mr O'Dwyer at his home on 11 June 2007. It also included the oral testimony given at the hearing by the following witnesses:
•Mr O'Dwyer;
•Mrs O'Dwyer;
•Detective Sergeant Glenn Matthew South; and
•Superintendent Graham Castlehow.
As a review hearing, which is a hearing de novo, the Tribunal must come to the correct and preferable decision. It also exercises the same functions and discretions as those exercised by the original decision‑maker who, in this case, is the Commissioner. In such proceedings, no party bears any formal onus to prove any facts, but in some cases, such as under this Firearms Act, an applicant bears a practical onus to prove facts and issues. Further, in exercising the task to come to the correct and preferable decision, the Tribunal may consider all credible, relevant and significant information. It is not bound to consider only that information that conforms with the rules of evidence, but may inform itself as it sees fit. As such, the Tribunal can properly regard evidence produced that may be indirect or hearsay information (see Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [279] - [282].
At the hearing in this matter, the issues in dispute were the following:
1)whether Mr O'Dwyer had a genuine reason for acquiring or possessing a firearm in accordance with s 11A of the Firearms Act;
2)whether Mr O'Dwyer was a fit and proper person to hold a firearms licence; and
3)whether the grant of a firearms licence was not desirable in the interests of public safety.

Findings on issues in dispute

Issue No 1 – does Mr O'Dwyer have a genuine reason for acquiring a firearm pursuant to s 11A of the Firearms Act?

To succeed in this application, Mr O'Dwyer must show he has a genuine reason for acquiring a firearm (see s 20(1)(a)(iii), s 11(1) and s 11A). Section 11A(2) defines what constitutes a genuine reason for acquiring a firearm. The reasons are limited but include the "use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting" (see s 11A(2)(c)).
At the time of his recent offences, Mr O'Dwyer resided at his home in Mahogany Creek. He has lived at this property for approximately eight years. Prior to that, he lived in the country. Mr O'Dwyer uses his firearms for the eradication of vermin on his property, such as foxes. He says he also sometimes shoots foxes etc on property owned by friends and family.
Although his property in Mahogany Creek is approximately 2.5 acres of land, it has a street frontage of 50 metres. Therefore, it is a long, narrow block. Neighbouring properties are only approximately 50 metres away. The fencing between his property and that of his neighbour's is only wire fencing.
In cross-examination, Mr O'Dwyer stated that he and his wife intend to move to the north of the State to obtain a larger property of about 14 acres to 15 acres. Mr O'Dwyer wants to try to be debt free. As a result, he has recently put his property on the market.
The issue of whether Mr O'Dwyer had a genuine reason for using his firearm pursuant to s 11A of the Firearms Act was not stated as an issue in the Commissioner's statement of issues, facts and contentions. At the hearing of this matter, Sergeant Lynch argued that, as Mr O'Dwyer had placed his property on the market for sale, this removed his genuine reason for owning a firearm. Further, it was argued that Mr O'Dwyer's Mahogany Creek property was unsuitable for the use of firearms, given that it is in a location where the lots are only 50 metres wide.
Mr Skerritt, counsel for Mr O'Dwyer, raised concerns that the issue of genuine reason had not been foreshadowed by the Commissioner prior to the hearing. He complained, therefore, that Mr O'Dwyer had been taken by surprise. Despite this, Mr Skerritt did not wish to seek an adjournment, and proceeded. Mr Skerritt submitted that Mr O'Dwyer is a rural maintenance worker, and that it is likely he will continue to work in a rural area. He also submitted that his client would likely return to a more rural setting and would therefore require his firearms licence for the same reasons as he has in the past - for eradication of vermin. He argued that Mr O'Dwyer's Mahogany Creek property was not at present sold, and that he required his firearms to kill the foxes that come upon his property and kill his chickens.
In this case, the Tribunal is satisfied that Mr O'Dwyer does have a genuine reason for possessing a firearm licence. He is a rural maintenance worker and has explained to the satisfaction of the Tribunal that he intends to move to a more rural location in the north of the State. It is likely he will require his firearms for hunting (destroying vermin). At present, he also owns property at which he uses his firearm for hunting foxes. Further, although the Tribunal does have concerns in respect to the use of firearms by Mr O'Dwyer on his current property given its configuration and close proximity to adjoining properties, it was not satisfied, on the information presented, that, despite the configuration of that property, a genuine reason had not been established under s 11A(2)(c) or s 11A(3) of the Firearms Act. In addition, the Firearms Act does not appear to address the issue of the type of property upon which such shooting should occur.

Issue 2 and issue 3 - is Mr O'Dwyer a fit and proper person to hold a firearms licence and is it desirable in the interests of public safety for Mr O'Dwyer to hold a firearms licence?

Essentially, the case made against Mr O'Dwyer was based on his recent convictions under the Firearms Act as a result of the search of his premises on 11 June 2007. Following that search, Mr O'Dwyer was charged with 14 offences, eight under the Firearms Act, one under the Criminal Code and five under the MD Act. Mr O'Dwyer pleaded guilty. A copy of his convictions made on 4 September 2007 under the Firearms Act and the Criminal Code was provided. It showed that on 4 September 2007, Mr O'Dwyer was convicted of four counts of failing to ensure safekeeping of firearm/ammunition (s 23(9)(a) of the Firearms Act), four counts of possessing unlicenced ammunition (s 19(1) of the Firearms Act), and one count of receiving (s 414 of the Criminal Code). In relation to all these offences, a global fine of $1200 was imposed.
Mr O'Dwyer was also recently convicted for offences under the MD Act in the District Court. Due to the recency of those convictions, a copy of his record for those offences was not provided; however, the Tribunal was informed that in relation to the MD Act offences dealt with in the District Court, a fine of $900 was imposed.
Although offences under the MD Act and the Criminal Code were referred to by the Commissioner in the original decision to revoke, it was largely the convictions under the Firearms Act that were relied upon by the Commissioner at the hearing. The Commissioner argued that, despite having held a firearms licence for a significant period, the manner in which Mr O'Dwyer kept ammunition and firearms in his home demonstrated a lax attitude towards safety. In addition, it was submitted for the Commissioner that Mr O'Dwyer had not demonstrated any changed circumstances to warrant a reversal of the decision to revoke his firearms licences.
As a result, the Commissioner maintained that, due to Mr O'Dwyer's recent convictions and his lax attitude towards the safekeeping of firearms and ammunition, he could not satisfy s 11(1)(b) and s 11(1)(c) of the Firearms Act.
The issue of "fit and proper", as it relates to the Firearms Act, was discussed in detail in the matter of Wignall at [295] ‑ [303], where Justice Barker stated as follows:
"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 1966), 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 Firearms 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 Firearms 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;
•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.
What is sufficiently clear on all the authorities cited to the Tribunal, is the fact that just because a person has been convicted of some offence in the past does not necessarily mean that they are not a fit and proper person to be given a licence under a statutory licensing system. The licensing statute in question would need to state quite unequivocally that a person could never be granted a particular type of licence if they had been convicted of an offence or a particular offence before this result would follow.
In relation to the Firearms Act, as we have seen, s 11(3)(a) expressly provides that the Commissioner, and so the Tribunal on review, has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold a firearms licence if satisfied 'that at any time 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;
•of an offence involving violence;
•of any offence against the Firearms Act itself.
Section 11(3)(a), therefore, provides some clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists, although it still leaves the Commissioner with a discretion to regard particular circumstances in which the conviction was made.
As we have seen, in the case of the applicant, none of the defined conviction circumstances applies. This suggests that there needs to be some particular disqualifying factor in the other convictions of the applicant that do not satisfy the conviction circumstances described in s 11(3)(a), before the fact of the convictions on their own should result in the applicant not being considered fit and proper by reason of his prior convictions to hold a firearms licence.
Indeed, it might also reasonably be said that, leaving aside s 11(1)(c) which deals with the fit and proper requirement, most, if not all, of the other criteria set out in the Firearms Act have to do, directly or indirectly, with either the physical or mental capacity of an applicant to handle a firearm responsibly or safely, and or the propensity of a person to use a firearm for an unlawful purpose.
If this is right, as we think it is, it perhaps suggests that the fit and proper purpose requirement should also be interpreted along similar lines and be seen as a catchall requirement that enables an application for a firearms licence to be refused where there remains a concern that the applicant is not be an appropriate person to hold a firearms licence on responsibility or safety grounds or out of concern for the possibility that the firearms might be used for an unlawful purpose, even though none of the other express requirements of the Firearms Act seem to apply in the circumstances."

The Commissioner relied on the videotaped interviews carried out at Mr O'Dwyer's premises on 11 June 2007 (the videotapes). It was explained by Detective Sergeant South that the videotapes were recorded when the police attended Mr O'Dwyer's premises on 11 June 2007 to execute a search warrant in respect to suspected drug offences. He explained, however, that when the police attended upon Mr O'Dwyer's premises, breaches of the Firearms Act were uncovered. The videotapes had been seen by Mr O'Dwyer prior to the hearing, with the agreement of Mr O'Dwyer. The videotapes were also shown, in part, during the hearing. Mr O'Dwyer was given the opportunity to comment upon them.
The evidence revealed the following in respect to the manner in which Mr O'Dwyer kept firearms and ammunition at his family home in Mahogany Creek:
•The police found a .22 Winchester rifle in a walk‑in robe. Within it was found eight rounds of ammunition. (It should be noted that the discovery of this firearm in that state does not appear to have been the subject of any charges under the Firearms Act.)
•Also found within the walk-in robe were shotgun shells and a travel bag containing ammunition.
•There was also a gun safe in the same walk-in robe. Within that gun safe, the police found a .22 Marlin rifle for which Mr O'Dwyer had no licence.
•The gun safe also had, in a separate compartment, a locked box in which ammunition was contained.
•On a kitchen bench, the police found a .410 round;
•In a bookcase in the family room, the police found a .22 round of ammunition;
•In a glass cabinet in a bedroom, further ammunition was found;
•On a dressing table in a bedroom, further ammunition was found;
•On a green table in another room, .22 ammunition was found;
•In another room in Mr O'Dwyer's family home, .243 ammunition and .22 shotgun shells were found in a plastic box.
•A .410 rifle with ammunition was located on a table in the family room area.
The .410 rifle was found on a low table in the family room of Mr O'Dwyer's home. At the time of the police attending and finding the .410 rifle, Mr O'Dwyer's two small children were present in the family room. Mr O'Dwyer's children are three and a half years old and six and a half years old.
The .410 rifle was the firearm that had been loaned to him by his neighbour. There was some dispute as to whether the .410 rifle was loaded when found by the police. The statement of material facts in respect to this offence was provided. It states that the .410 rifle was loaded at the time it was found by the police. At the hearing, Mr O'Dwyer initially disputed that there was a bullet in the .410 rifle when discovered by police. He initially said that before he went to bed, he recalled cracking open the .410 rifle and removing the round of ammunition that was in the chamber, and leaving the rifle and the ammunition on a table in the family room of his home.
The videotapes did not record the actions of Detective Sergeant South when he first discovered the .410 rifle. Detective Sergeant South explained that when he entered the family room, he immediately scanned the room and noticed the .410 rifle on a table. He said it was pointing towards glass doors, to an area where, at the time, other policemen were standing. He immediately went to secure the firearm. His actions in securing the firearm were not, however, recorded on the videotapes. He stated that when he secured the .410 rifle, he discovered it was loaded, and removed the bullet from the firearm.
As previously stated, Mr O'Dwyer initially disputed the .410 rifle was loaded. It was submitted by Mr Skerritt that as these actions were not recorded on the videotapes, little weight could be given to Detective South's evidence that the .410 rifle was loaded at the time of discovery. Despite this submission, I have no reason to disbelieve Detective Sergeant South. He gave his evidence in a clear and forthright manner. Further, I accept the submission by Sergeant Lynch that the police had attended upon the premises not in respect to firearms breaches but in respect to breaches of the MD Act, and therefore, the focus was likely initially to be on the location of drugs. Further, although Mr O'Dwyer initially maintained that he recalled removing the bullet from the .410 rifle, the Tribunal was not satisfied, on cross-examination, that Mr O'Dwyer had a clear recollection of how he left the firearm when he finally went to bed in the early hours of the morning on 11 June 2007. On cross‑examination, Mr O'Dwyer conceded that it was possible that the .410 rifle may have been loaded when he left it and retired to bed. He conceded that, in his tiredness, he may have been careless.
Further, Mr O'Dwyer pleaded guilty to the charge of having in his possession a firearm for which he was not licensed. In the statement of material facts in respect to that offence, it stated that at the time the police found the firearm, it was loaded. Mr O'Dwyer stated that he could not recall whether or not the charges were read to him at the time at which he pleaded guilty, nor could he hear them being read. He was, however, legally represented at that time. Further, I accept Sergeant Lynch's submission, which was not challenged, that if a defendant in a criminal hearing disputes the circumstances set out in the statement of material facts, then a hearing is held to determine those facts before a conviction is entered. That did not occur in this matter. Mr O'Dwyer was legally represented in the Magistrates Court and pleaded guilty to the charge in relation to the unlicensed .410 rifle. The statement of material facts stated that the .410 rifle was loaded when discovered by the police in the family room of Mr O'Dwyer's home. This was corroborated by the evidence given by Detective South.
In all the circumstances, the Tribunal is satisfied that the .410 rifle was loaded when found by police in the family room of Mr O'Dwyer's home.
In respect to the unlicenced .22 Marlin rifle, Mr O'Dwyer suggested that he had bought the rifle at a local hotel a few years earlier. He stated that it was his intention to hand it in during a firearms amnesty. He said that the reason he had bought the firearm was because, at the time, it was being offered for sale to a person he considered to be inappropriate. He felt he was doing a community service by purchasing the firearm and keeping it away from that person. He said he did not realise that a firearms amnesty existed at all times. Mr O'Dwyer was charged, and pleaded guilty to an offence of receiving in respect to this rifle. At the hearing, he suggested that although he suspected the rifle may have been stolen, he did not know this for sure when he purchased it.
In respect to safety issues, Mr O'Dwyer pleaded guilty to various offences under the Firearms Act in relation to the location of ammunition throughout various parts of his home in an unlocked state. He accepted that he had always left ammunition lying around, and was only now aware that it needed to be kept locked away separate to any firearms.
Further, Mr O'Dwyer indicated that he was not concerned that his children would play with guns or ammunition, as he maintained that his children had been told not to do so. He stated that his two small girls were well-behaved children and knew not to touch his guns. Mrs O'Dwyer gave similar evidence. Indeed, when questioned on the issue of safety and his change in attitude to the safekeeping of firearms, Mr O'Dwyer simply maintained that the reason he would now keep his guns and ammunition in a locked safe was to ensure that they could not be stolen. He also indicated that, despite leaving loaded firearms in an unlocked during the early hours of 11 June 2007 in different parts of his home, he was not concerned for his children's safety during that time as his children were asleep for part of that time. He suggested that, as the firearms were in a locked house, they were under his supervision, and he reiterated that his children knew not to touch his firearms.
Superintendent Castlehow had attended during the hearing of the matter. He had issued the letter of revocation to Mr O'Dwyer on review of the evidence that led to Mr O'Dwyer's convictions. He sat through the hearing of the matter with the intended purpose of being asked whether he wished to reconsider his position as envisaged under s 31 of the SAT Act. Having heard the evidence of Mr O'Dwyer, Mrs O'Dwyer and Detective South, Mr Castlehow confirmed that he was not prepared to reconsider his decision. He explained that his main concern in respect to Mr O'Dwyer retaining his firearms licence was the issue of safety. He explained that it was always possible for a decision concerning revocation to be reviewed, but that changed behaviour would need to be demonstrated by Mr O'Dwyer in the intervening time period.
Mr O'Dwyer says that he has now changed his attitude towards guns and drug use. He maintains that he and his wife do not now use cannabis, and that he will always keep his firearms and ammunition locked away. He explained that he grew up with guns in the country, and that firearms and ammunition were rarely locked away. He now realises, however, that things in relation to guns have changed, and the convictions under the Firearms Act and the MD Act has been a wake-up call for him and his family. Again, Mrs O'Dwyer gave similar evidence.
Mr Skerritt argued that the offences were on the lower level of criminality and were not set against a background of criminal enterprise. He pointed to Mr O'Dwyer's candour in respect to these offences and him pleading guilty at the first opportunity. He maintains that Mr O'Dwyer was stupid and now realises the mistakes he has made in respect to those offences, and maintains that there will be no repetition. He argues that those offences must be judged against Mr O'Dwyer's experience of firearms in the country, where attitudes to use and safety of firearms are less strict. As a result of his convictions, he says, Mr O'Dwyer has adjusted his attitude and there is no likelihood of reoccurrence. He submits that prior to these, Mr O'Dwyer's record was unblemished. He also points to the supportive written character references.
The Commissioner relies on Mr O'Dwyer's recent criminal convictions under the Firearms Act and the MD Act to establish that Mr O'Dwyer is not a fit and proper person. Section 11(3)(a)(iii) of the Firearms Act provides that the Commissioner has sufficient grounds for forming an opinion that a person is not a fit and proper person to hold a firearms licence if, at any time within five years before the person applies for a licence, that person is convicted of any offence against the Firearms Act. Section 20(1)(a) of the Firearms Act makes clear that revocation of a licence can occur if, at any time, the person could not, because of s 11 of the Firearms Act, be granted a licence, if that person were then applying for it. The decision of Wignall also suggests that regard can be had to other convictions when considering if a person is fit and proper (see Wignall at [301]).
At the time of revocation (31 August 2007), Mr O'Dwyer was not convicted of an offence under the Firearms Act, but he was so convicted on 4 September 2007. This is a hearing de novo, and therefore, the Tribunal makes the decision afresh. Accordingly, in this case, Mr O'Dwyer, at the time of the hearing of this matter, had been convicted within the last five years of offences under the Firearms Act. He also now has convictions under the MD Act and the Criminal Code.
The overarching object of the Firearms Act is to ensure public safety. In this case, Mr O'Dwyer maintains that he has learnt from the experience of his recent convictions. However, apart from his say so, there is insufficient evidence to support this alleged changed attitude. As stated in the matter of Wignall, true insight and understanding of earlier turpitudes can be given more weight if it can be shown that it is demonstrated by a person's actions as well as their words.
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. He has not indicated that he has undertaken, or intends to undertake, any educational courses to improve his knowledge and understanding of the safe use and keeping of firearms.
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. He accepts that there is a need to keep his firearms and ammunition locked away to ensure they are not easily stolen. The Tribunal is not satisfied that he has a similar concern to ensure that firearms and ammunition are locked away to maintain the safety of his own children and others. This was highlighted by his insistence that, despite a loaded firearm being left by him in his home in an unlocked state, easily accessible to his children, he did not see this as a safety issue for his children as he considers they were well-behaved and would never touch his guns.
Mr O'Dwyer kept loaded firearms in a wardrobe and in his family room. Neither of the rifles were locked away, despite Mr O'Dwyer owning a gun safe. Further, there was ammunition in various parts of his family home, which had carelessly been left in areas easily accessible by his own children and others. He also had in his possession a firearm which was unlicensed.
The offences under the Firearms Act were serious and represented a course of disregard for the law. In addition, Mr O'Dwyer now also has five convictions under the MD Act and one conviction under the Criminal Code.
The Tribunal considers that the number, nature and circumstances of these offences reflect adversely upon any assessment of Mr O'Dwyer being a fit and proper person. Although there were supportive character references, they were not given with the full knowledge of Mr O'Dwyer's convictions, and therefore, can be given little weight.
Accordingly, given:
•the recency of convictions;
•the seriousness of the offences;
•the lack of insight in relation to safety; and
•the lack of relevant character evidence
the Tribunal is not satisfied that, at present, for the purposes of s 11 of the Firearms Act, Mr O'Dwyer is a fit and proper person or that it is in the interests of public safety that he hold a firearms licence.
It may well be that, in the future, Mr O'Dwyer will be in a position to satisfy the requirements of the Firearms Act.
It is for those reasons, therefore, that the application fails.

Orders

The Tribunal makes the following orders:
1.The decision to revoke Mr O'Dwyer's firearms licence be affirmed.
2.The application is dismissed.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER