PENKETH and COMMISSIONER OF POLICE
[2009] WASAT 174
•9 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: PENKETH and COMMISSIONER OF POLICE [2009] WASAT 174
MEMBER: MR T CAREY (MEMBER)
HEARD: 3 JULY 2009
DELIVERED : 9 SEPTEMBER 2009
FILE NO/S: CC 50 of 2009
BETWEEN: JAMES PENKETH
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm and ammunition collectors licences under Firearms Act 1973 (WA) Licenses revoked because of charges upon which applicant subsequently convicted - Whether applicant a fit and proper person Possession and cultivation of cannabis Possession of unlicensed firearms Failure to ensure safekeeping of firearms and ammunition Ameliorating factors Multiple offences Applicant's experience with firearms and as captain of rifle club
Legislation:
Firearms Act 1973 (WA), s 11, s 11(3), s 20(1)(a)(iii), s 22(2)
State Administrative Tribunal Act 2004 (WA), s 9, s 32
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr AP Skerritt
Respondent: Sgt S Bagley (Acting as Agent)
Solicitors:
Applicant: O'Connor Lawyers
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996)
Wignall and Commissioner of Police [2006] WASAT 206
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant's firearm and ammunition collectors licences were revoked by reason of a number of charges arising from the execution of a search warrant which disclosed the presence of cannabis and a hydroponic system for its cultivation, unlicensed firearms and firearms and ammunition stored otherwise than in accordance with the legal requirements. The applicant was subsequently convicted on all charges.
The applicant sought review of the revocation decision on a number of grounds, including his previous good record, a number of factors relied upon to ameliorate the seriousness of the convictions, and the unlikelihood of re‑offending.
The Tribunal referred to the provisions of the Firearms Act 1973 (WA) of relevance, under which the requisite opinion that a person is not a fit and proper person may be formed where within five years previously, the person has been convicted of any offence under the Act. It observed that a discretion exists even where this is the case.
The Tribunal considered the circumstances of the commission of the offences against the principles applying to the significance of past convictions in a determination of whether or not the applicant should be regarded as a fit and proper person. It found that the offences were not ones which should have been entertained by a licensee under the Firearms Act, and particularly by someone who has held the position that the applicant had of captain of a rifle club for a number of years. Despite his indications of intent to not re-offend in the future, the Tribunal considered that further time needed to elapse before any exercise of the discretion favourable to the applicant could occur.
The application for review was refused and the revocation decision was affirmed.
Introduction
Mr Penketh (applicant) seeks review under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) of a decision of a delegate of the Commissioner of Police (respondent) made on 30 November 2008 to revoke the respondent's firearm licence and ammunition collector licence (decision).
In the letter giving the applicant notice of the decision, reference was made to the results of execution of a search warrant at the applicant's dwelling on 24 November 2008, when a number of items were located, including a number of unlicensed firearms, a hydroponic growing system for the growing of cannabis plants, and a large quantity of cannabis and cannabis seedlings. The letter made reference to the applicant's prosecution for:
•possession of a prohibited drug;
•cultivation of a prohibited drug;
•two charges of possession of an unlicensed firearm; and
•two charges of failure to ensure safekeeping of firearm/ammunition.
Subsequently, the applicant pleaded guilty to, and was convicted on each of the charges. He received a spent conviction in respect of each charge and a global penalty by way of a $2,000 fine.
According to the letter to the applicant, the revocation was in accordance with s 20(1)(a)(iii) of the Firearms Act in that a licence could not, because of s 11 of the Firearms Act, be issued were the applicant then applying for it.
Issue
The issue for the Tribunal is whether the applicant is a fit and proper person to hold a firearm and ammunition collector's licence as required under s 11(1)(c) of the Firearms Act.
In order to deal with the issue that I must determine, I will:
•summarise each parties' substantial position as contended for before me;
•set out the relevant provisions of the Firearms Act;
•refer briefly to some relevant factual material concerning the applicant;
•refer to the circumstances of the applicant's convictions, and points in mitigation relied upon by him, for, respectively, the drug and firearm offences;
•set out my consideration leading to the ultimate decision.
Summaries of respective parties' positions
The respondent submitted that, by reason of all the facts, but in particular the applicant's recent prosecutions for an offence involving the hydroponic cultivation of cannabis and possession of unlicensed firearms, the applicant has engaged in a course of conduct which is contrary to community expectations of the type of person who should qualify to hold a licence under the Firearms Act. The convictions against the applicant fall within those deemed by s 11(3) of the Firearms Act as comprising sufficient ground for the respondent to form an opinion that the applicant is not a fit and proper person, and there were no sufficient discretionary factors to allow the Tribunal to reach a contrary conclusion.
The applicant emphasised his otherwise exemplary record, particularly in relation to his extensive history of firearms possession and use; a relatively low degree of criminality associated with his recent offending conduct; and indications that there was no likelihood of any re‑offending as justification for the conclusion that the applicant should be regarded as a fit and proper person and therefore eligible for retention of his licences under the Firearms Act.
Relevant statutory scheme
The decision was made under s 20(1)(a)(iii) of the Firearms Act. That provision is to the following effect:
20. Revocation etc.
(1)Where the Commissioner is satisfied ‑
(a)that a person who is the holder of a licence, permit or approval under this 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 …
Section 11 of the Firearms Act states relevantly:
11. Exercise of Commissioner’s discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that -
…
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
…
(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 -
…
(iii)the person was convicted of any offence against this Act;
…
(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion.
Background facts relating to the applicant
The applicant is 40 years of age. He is a qualified tradesman, having worked for many years in the same saw sharpening business. Towards the end of 2006, he sustained a severe thumb injury which required major surgery to repair the bone, knuckle and cartilage. In addition, since the initial surgery, he has had two further major operations.
The applicant's firearms history dates back to 1997 when he was issued with his first licence. He has been a member of the Armadale‑Byford Rifle Club since obtaining his licence, and in July 1998, was elected captain of the club, a position he retained until resigning upon being charged with the criminal offences in late 2008. He says that he is heavily involved in the club, which is practically his only form of recreation. His firearm licence supports his possession of some 13 firearms.
I will now turn to his convictions, commencing with the possession of prohibited drugs and equipment for its cultivation.
Drug offences
On 13 January 2009, the applicant was convicted on one charge of cultivating a prohibited plant and one count of possession of a prohibited drug (cannabis). The applicant pleaded guilty to both charges. The quantity of the cannabis found was significant. Harvested cannabis found in locked sheds at the rear of the applicant’s property had a total weight of over 1,200 grams, which is of a scale which carries a presumption of an intent to supply, although the prosecution accepted there was no such intention in this case. The applicant told the police that he froze most of the cannabis to spread it out over time. In addition, a hydroponics system was located containing four mature cannabis plants. On this being discovered, the applicant advised the police that there were 30 juvenile plants in another enclosure, his stated intention being that when they had grown large enough he would pick a small number of the best plants to transfer into the hydroponics area and dispose of the remaining plants.
As part of the submission before the Magistrate in support of a spent conviction, and certainly as part of his submissions before this Tribunal, the applicant relied upon the somewhat unusual circumstances of his cannabis cultivation and consumption, which were said to show an absence of 'criminality'.
In his evidence at the hearing, the applicant admitted to occasional cannabis use between the ages of 18 to 20 or 21. Although he said that he 'stopped' using cannabis then, he admitted that he 'probably' had 'an occasional smoke' at a party, up until the time that he sustained the injury to his thumb.
Subsequent to his thumb injury, the applicant said that he was in considerable pain. However, he found that he was unable to take (legal) painkillers, on account of the serious side effects of even the mildest painkillers. They included nausea and vomiting, double vision and 'wooziness'. He said that his doctor had advised there was nothing he could do if the applicant could not take painkillers. His work was being affected.
The applicant resorted to cannabis as the only thing that he could use to relieve the pain without experiencing discomfort. He grew his own cannabis, and said he would not supply it to anyone else. He smoked four or five joints sitting outside at home. The cannabis numbed the pain and allowed him to sleep.
The applicant said that he had not used cannabis since the police raid. He gave evidence as to testing by Clinipath, which initially (on 2 December 2008), recorded a very high reading consistent with his then recent use but which abated (by 10 March 2009) to zero. He contacted a drug rehabilitation clinic which, upon being informed of the reason for his drug use, advised that he was not a problematic case and that he should simply resist the temptation and put up with the pain.
The applicant said that since his last surgery and period off work (to 14 January 2009), his thumb has improved. It no longer locks in position. He is 'going well now', apparently without any form of pain relief.
The applicant accepts that he should never have resorted to illicit drugs regardless of his perceived need of them. He says that he now has a greater insight into why using cannabis is a bad thing, and that he will never have any involvement in drugs again.
Firearm offences
On 13 January 2009, the applicant pleaded guilty to two counts of failing to ensure the safekeeping of firearm/ammunition and two counts of possessing unlicensed firearms. The first of each of the fail to ensure safekeeping and possession of unlicensed firearm offences arose from the discovery of five unlicensed firearms inside a locked storeroom inside the locked main shed, but not in an approved facility. The second unlicensed firearm possession charge concerned five unlicensed handguns found in a firearms cabinet in the shed. The second fail to ensure safekeeping offence concerned a quantity of new ammunition varying in calibre within the locked storeroom but not in an approved storage facility, and a further quantity of varying calibre stored inside containers and a toolbox underneath a workbench within the main locked shed but outside the storeroom, again not in an approved storage facility.
The circumstances of the firearm offences, as portrayed by the applicant, were that in about early November 2001, another shooter known to the applicant by the name 'Mortzy' asked him to mind his rifles for him as he was heading up north to work. Mortzy said that he was living with his mother and was worried about the security of his firearms. The applicant agreed to the request, according to him, because the firearms would be safer in his custody than being left at Mortzy's house with his mother.
Not having the room in his safe to store Mortzy's guns, the applicant stored them in a lockable gun room inside a locked shed. This facility was further protected by three large dogs which live in the fenced backyard surrounding the shed.
The firearms discovered on execution of the search warrant were said to include examples that had been altered, serial numbers defaced, a restricted self‑loading rifle and a machine gun, which is a prohibited firearm. Some were said to have been stolen. The applicant said that the firearms in question were part of the cache belonging to Mortzy. He said that they were delivered in gun bags and poly tubing and he did not check them when he stored them. I will return to this aspect in my consideration below.
The other unlicensed firearms found by the police had been accumulated from family members and members of the rifle club. In relation to those unlicensed firearms, the applicant said that he had meant to license some of them and dispose of the others but had not got around to it. One example was a family heirloom, a .455 Webley-Enfield revolver that a family member had brought back from the war. All these firearms were stored securely in the applicant's safe.
The applicant has expressed remorse, both in his written statement and oral evidence before me. He says that he should never had agreed to mind Mortzy's firearms and that he should have advised him to take them to a gun dealer or a police station. He said that it was the first time that he had been asked by anybody to look after their firearms and that he would not do so again. Because of the condition of some of the firearms, he now understands why he may have been asked to mind them and that he had been too trusting of Mortzy. He says that he has a greater insight into the need for firearms laws.
The applicant describes the events leading to his being charged as 'life‑changing'. By reason of his increased insight and his experiences, he says that he can guarantee that he will not re‑offend in any way. He says that he has firmly resolved to comply with the law and make sure he doesn't take shortcuts in relation to firearm security.
Consideration
As the authorities in this area make clear, a person's previous offending behaviour will generally be a relevant factor in determining whether he or she is of good character or a fit and proper person for the purposes of a licensing regime such as that under the Firearms Act. An instructive authority in that regard is Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996) (Tavelli). As that decision makes clear, the 'fit and proper person' formula allows the widest scope for the exercise of the discretion of the decision‑maker. It is to be exercised in the light of the applicable statutory framework, with the fitness and propriety of the person to hold the particular licence in question being the relevant question. Prior convictions might be regarded as more or less significant depending on a variety of matters, including their age, whether they relate to the licence under consideration and whether they reflect particularly on the character of the putative licensee. In relation to the latter, insight and remorse, actions taken to militate against the future repetition of the offences, and other indicators that the licensee has reformed his or her character can be factors which go in favour of the grant of the licence.
Sergeant Bagley, who appeared for the respondent at the hearing, commenced his closing submission with:
The applicant should be held accountable for his actions.
This submission has much force. At the same time, it is necessary to have regard to any ameliorating factors, in the light of the authorities such as Tavelli.
The offences are still recent, having been disclosed in November 2008. They included four offences against the Firearms Act. The consequence of this is twofold: a sufficient ground for the respondent or his delegate to form an opinion that the applicant is not a fit and proper person is established by reason of s 11(3)(a)(iii) of the Firearms Act, and the offences relate directly to the licence under consideration. Further, it cannot be doubted that the cultivation and use of illegal drugs is antithetical to the preferred characteristics of the holder of a firearm licence. The drug and firearm offences were committed simultaneously.
As I have indicated, the respondent sought to raise a number of aggravating circumstances in relation to the applicant's possession of Mortzy's firearms, including that they had been altered and had serial numbers removed; they were restricted or prohibited; and some may have been stolen. However, as I indicated at the hearing, none of these circumstances was pressed in the criminal proceedings against the applicant, and in particular, no reliance was placed upon them to oppose the application for spent convictions. Further, no evidence was produced to support them, as distinct from the assertions made in the respondent's statement of issues, facts and contentions. In those circumstances, save for one qualification, I have had no regard to them. The qualification is that the number and variety of the alleged aggravating circumstances underlines the importance which any holder of a firearm licence should place upon his obligation to ensure that he takes into his custody only those firearms which he is licensed to possess. In a sense, where the licensee strays outside what should have been such an obvious limitation, the potential exists for him to be met with the sins of the extraneous firearms, whatever they may be.
Earlier in these reasons, I summarised the principal factors relied upon by the applicant as matters going to the undisputed discretion which this Tribunal, standing in the shoes of the respondent, has to allow the applicant to retain his licences. They included relative lack of criminality when the circumstances of the offences were considered, insight and remorse on the part of the applicant, and the unlikelihood of any repetition of the offences. A submission late in closing submissions that the Firearms Act did not apply to the storage of the unlicensed firearms is somewhat more problematic, given the convictions which were recorded against the applicant. In any event, it is the substantial merits of the matter with which I am concerned: s 9 and s 32 of the State Administrative Tribunal Act 2004 (WA).
The difficulty I have with the applicant's position is that his actions were not the actions that a reasonable person with more than the most superficial understanding of the obligations of a licensee under the Firearms Act should have entertained. Moreover, it is not a single offence which impacts upon his suitability to hold the licences under the Firearms Act, but several. There was his drug cultivation and use; acceding to the request to look after someone else's firearms which he had no right to possess, and storing those firearms otherwise than in accordance with the legislative requirements; allowing his possession of his own unlicensed handguns to continue; and keeping ammunition otherwise than in accordance with the law. The various requirements imposed upon licensees under the Firearms Act, honoured by the applicant in the breach, are not optional, nor are they time-based.
I have taken each of the ameliorating factors urged upon me by the applicant's counsel into account. They include the applicant's injury and inability to obtain relief through legal painkillers; his misguided altruism in agreeing to look after someone else's firearms; and that the failure to comply with the safe-keeping requirements needed to be considered against the actual security applying to the storage of the firearms and ammunition in question, which, to use counsel's words, meant that they were 'the most secure insecure firearms in the State'. A large number of character references produced in this proceeding attest to the esteem with which the applicant is held by his referees, the acute sense of shame and embarrassment felt by the applicant as a result of his conduct, and the belief of the referees that the applicant's undertaking to comply strictly with the law relating to firearms and to never again become involved with illicit drugs is genuine.
I also note that the applicant was successful before the magistrate in securing spent convictions in relation to both the firearm and drug offences. In order to achieve that result, it was necessary that his Honour be satisfied that the applicant was of previous good character and was not likely to commit further offences of a similar nature. The magistrate commented as part of his reasoning in granting the spent conviction orders:
The issue of a spent conviction as I say is difficult because of the amount of cannabis involved here, the firearms, that type of thing, but when looked at I think there are quite a few mitigatory matters here. Certainly the offences are not trivial, but you are of good character. Now the question is whether you are unlikely to commit such an offence again. It's difficult to say, but let's hope that as a result of having appeared in court, the embarrassment that it has caused you, it may well have reinforced you [sic] the need to comply with the law and hopefully it will be your first and last time in court.
… In all of the circumstances I believe this is a fairly unusual case, a highly unusual case. I wouldn't normally entertain spent convictions, but in your case I am prepared to do so.
Although I have had regard to his Honour's reasoning in coming to the conclusion he did, there are differences between the considerations for the grant of a spent conviction and those going to an assessment of whether a person qualifies for a licence as a fit and proper person. For instance, I am required to have regard to s 11(3)(a) of the Firearms Act, which is not something which his Honour was required to take into account. This provision was the subject of the following observation by the Tribunal, comprising a panel which included the former President, in Wignall and Commissioner of Police [2006] WASAT 206 at [300]:
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.
I note the applicant's expressions of remorse, embarrassment and resolutions for the future, which I have little doubt are genuine. However, without wishing in any way to denigrate them, it might be said that such expressions will always be a necessary element of any application such as this. The more remarkable feature of this case is the fact that a person with the history of the applicant in firearms finds himself in his position. The applicant has been an active member of a rifle club since 1997 and captain of the club since 1998. He, of all people, should have been aware of the inappropriateness of his behaviour and risk that it posed to his licences. It would appear that the insight he says he now has into 'the need for firearms law and … why using cannabis is a bad thing' arose from his being charged and convicted with the various offences. That the applicant's life experience in general, and his experience as a member and captain of a rifle club for a number of years in particular, did not provide him with that insight prior to being charged is a most troubling feature of the case. In my view, it disallows a blithe acceptance of the applicant's undertakings as to the future, however sincere.
The applicant relied upon the High Court decision in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 (Ziems), in which the appellant, a barrister, was successful in overturning his deregistration on the basis of a conviction and imprisonment for manslaughter, that decision being substituted by the requirement that his registration remain suspended for the remainder of his term. Two important factors in the reasoning of the majority in Ziems were that the conviction (which arose from a motor vehicle accident when the appellant was driving) was not in connection with nor of significance to any professional function of the appellant as a barrister, and the preparedness of two members of the majority to undertake a critical analysis of the appellant's criminal trial, leading to the conclusions of Fullager J (Ziems at 296) that the conviction 'was deprived, for present purposes, of practical significance', and of Taylor J (Ziems at 308) that 'the fact of the appellant's conviction, as a factor for consideration, loses a great deal of weight'. Neither factor applies in this case. The applicant's convictions relate very directly to his rights and obligations as the holder of licences under the Firearms Act, whilst there is no suggestion in this case that the applicant's convictions are tainted in some way, as Fullager J and Taylor J regarded the conviction against Mr Ziems to be.
For the reasons I have expressed, I consider that insufficient time has passed to enable a sensible assessment of whether the applicant has truly learnt from his past serious errors as he says he has, so as to permit the discretion available under the Firearms Act in his favour. My conclusion, therefore, is that the decision of the respondent's delegate represents the correct and preferable decision and should be affirmed. It may be that a further period of a year or 18 months' good behaviour will form the basis for the exercise of the discretion residing in the respondent favourable to the applicant on any future application for the licences in question, although this would of course be a matter for determination at that time.
Orders
The Tribunal orders that:
1.The application for review is refused.
2.The decision of the respondent's delegate on 30 November 2008 to revoke the applicant's firearm licence No 3416999 and ammunition collector licence No 8901188 is affirmed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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