Penketh v Commissioner of Police
[2010] WASC 254
•17 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PENKETH -v- COMMISSIONER OF POLICE [2010] WASC 254
CORAM: SIMMONDS J
HEARD: 13 AUGUST 2010
DELIVERED : 17 SEPTEMBER 2010
FILE NO/S: GDA 9 of 2009
BETWEEN: JAMES PENKETH
Applicant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR T CAREY (MEMBER)
Citation :PENKETH AND COMMISSIONER OF POLICE [2009] WASAT 174
Catchwords:
Licences under the Firearms Act 1973 (WA) - Appeal against a decision of the State Administrative Tribunal to refuse an application to review and to affirm the decision of the Commissioner of Police to revoke the licences - Whether the Tribunal failed to apply the appropriate legal test for 'fit and proper person' under the Firearms Act s 11(1)(c) - What is the appropriate legal test in a case involving prior convictions under both the Firearms Act and drugs legislation where there are ameliorating factors accepted by the Tribunal - Whether the Tribunal erred in law in finding a very direct relation between the prior convictions and the offender's rights and obligations as a licence holder under the Firearms Act - Whether the Tribunal erred in law in relation to its findings concerning any risk of re-offending - Whether Tribunal approached revocation as a punishment for prior offending
Principles governing the grant of leave to appeal under s 105(1) of the State Administrative Tribunal Act 2004 (WA) - What constitutes a question of law under s 105(2) of the SAT Act
Legislation:
Agents Licensing Act 1954 (WA), s 4
Firearms Act 1973 (WA), s 11, s 16, s 20, s 22, s 23
Firearms Regulations 1974 (WA), reg 11A, Sch 4
Misuse of Drugs Act 1981 (WA), s 11, sch V
Sentencing Act 1995 (WA), s 45, s 106
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 105
Result:
Application for leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr A P Skerritt
Respondent: Ms C L Conley
Solicitors:
Applicant: Alana Padmanabham
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Binns v Gardiner [2004] WASCA 275
Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; (1966) 67 SR (NSW) 448
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431
Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Kotowicz v Law Society of New South Wales (Unreported, NSWCA, 7 August 1987)
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 31 ALR 666
Penketh and Commissioner of Police [2009] WASAT 174
Re Bennett‑Borlase; Ex parte Commissioner of Police (Unreported, WASCA, Library No 970332, 20 June 1997)
Re Jones; Ex parte Commissioner of Police [1999] WASCA 246
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Schamotta v The Queen [2002] WASCA 262
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110
Wignall and Commissioner of Police [2006] WASAT 206
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
SIMMONDS J:
Introduction
This is an application for leave to appeal and the appeal against a decision of the State Administrative Tribunal (SAT). The SAT decision was Penketh and Commissioner of Police [2009] WASAT 174 (Member Carey). Member Carey's decision in Penketh was to refuse an application for review of a decision of the Commissioner of Police and to affirm that decision. The Commissioner's decision had been to revoke the two licences, a firearms licence and an ammunition collector's licence, which the appellant had held under the Firearms Act 1973 (WA) (Firearms Act).
These proceedings are brought under State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(3)(b), read with (1) and (2). The combined effect of those provisions is that an appeal lies from a decision, like that in Penketh, but only with the leave of the court 'on a question of law'. On 2 March 2010 Jenkins J ordered that the application for leave to appeal be heard at the same time as the appeal.
The requirement that the appeal be 'on a question of law' (s 105(2)) is described in Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [51] ‑ [53] (Owen JA; Buss & Newnes JJA agreeing) as follows:
Unless the Tribunal's decision has the effect of depriving a person of the person's capacity to pursue his vocation lawfully, an appeal may only be brought on a question of law: s 105(2) SAT Act. An appeal on a question of law is narrower than an appeal which merely 'involves' a question of law: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 ; (2007) 33 WAR 361 [53]. An appeal involving a mixed question of law and fact is not an appeal on a question of law within the meaning of s 105(2) of the SAT Act: Paridis [53].
Given that appeals from the Tribunal are limited to questions of law, it is essential that errors of law be distinguished from errors of fact. The Tribunal does not commit an error of law simply because it finds facts incorrectly or upon a doubtful basis: Waterford v Commonwealth (1987) 163 CLR 54 at 77. Similarly, the Tribunal does not commit an error of law if its decision is against the evidence or against the weight of the evidence: Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410. The Tribunal will err in law, however, if it makes an ultimate finding of fact for which there is no material before the Tribunal upon which that finding could be based: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321, 355‑356.
A ground of appeal which alleges that the Tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24, 39–40. A Tribunal will not err in law, however, merely because it fails to take into account a particular piece of evidence which is relevant to a consideration which it is bound to take account: Xie Mian Shen v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 9 August 1995), 15‑16. Similarly, a Tribunal will not err in law merely because it fails to place 'adequate weight' upon a consideration which it is bound to take into account: Peko‑Wallsend (41)
The appellant's appeal notice dated 9 October 2009 assigned three grounds of appeal, while his appellant's case dated 13 May 2010 assigned four. The respondent's answer dated 6 August '2008' [sic] treats those four as the grounds of appeal, and therefore so do I. However, I will have occasion to return to the change in the grounds of appeal.
Finally, in dealing with an appeal, the court is given the powers in the SAT Act s 105(9), which reads as follows:
(9)The court dealing with the appeal may ‑
(a)affirm, vary, or set aside the decision of the Tribunal;
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
This appeal raises the question of whether the SAT erred in law in its decision in Penketh to affirm the revocation of licences under the Firearms Act, in circumstances where the holder of the licences had been convicted of certain offences, both under the Firearms Act and under drugs legislation, but where he had adduced substantial evidence in amelioration of his position, evidence which was accepted by the SAT.
I turn now to the background to the decision in Penketh, before turning to the grounds of appeal against that decision.
Background to the decision in Penketh: the offending and its amelioration
The appellant was born on 7 June 1969.
He had first obtained a firearm licence in 1997, and the revoked firearm licence was in respect of 13 specified firearms (see Firearms Act s 16(1)(a)).
He had first obtained an ammunition collector's licence in 2004. I had no further information about its coverage (see Firearms Act s 16(1)(h)).
The appellant had been an active member of a rifle club since 1997, and had been Captain of the club since July 1998 until he voluntarily resigned that position after being charged with the six offences, two drugs offences and four offences under the Firearms Act, for which he was subsequently convicted on his pleas of guilty. In his sentencing he received spent convictions orders in respect of these convictions.
The background to the drugs offences lay in severe work-related injuries the appellant suffered about 14 months before his convictions.
The appellant was a qualified tradesman who had worked in a saw sharpening business for several years. Towards the end of 2006 he suffered a severe injury to his left thumb. This injury required major surgery to repair the bone, knuckle and cartilage. The appellant subsequently underwent two further major operations to repair his thumb. The condition of the appellant and his response to it were described in Penketh [22] and [23] as follows:
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.
On 24 November 2008 police raided the appellant's home. There they found harvested cannabis with a total weight of over 1,200 g in locked sheds at the back of the appellant's property. The police also found a hydroponics system containing four mature cannabis plants. When the police made that discovery, the appellant told them that there were 30 juvenile plants in another enclosure. He explained that his intention was, when they had grown large enough, to pick a small number of the best plants to transfer into the hydroponics area, and to dispose of the remaining plants.
The appellant's subsequent approach to the pain he was suffering and his attitude to the use of illicit drugs were described in Penketh as follows:
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 [24] ‑ [26].
On 13 January 2009 the appellant was convicted on his pleas of guilty in the Magistrates Court to the two drugs charges that resulted from the police raid: one charge of cultivating a prohibited plant and one count of possession of a prohibited drug (cannabis). Notwithstanding the quantity of cannabis police found in their raid (see Misuse of Drugs Act 1981 (WA) s 11(a) read with sch V), the prosecution accepted there was no intention to sell or supply. He was sentenced on the same day.
I turn now to the background to the offences under the Firearms Act.
In November 2008 (the reference to '2001' in Penketh [28] I consider to be a slip, on the evidence before Member Carey; the parties made nothing of it before me) M, another shooter the appellant knew, asked him to mind M's rifles as he was heading up north to work. M indicated he was worried about the security of those firearms at M's home, and the appellant agreed to store them as in his view they would be safer in his custody than being at M's home. The way in which the appellant stored them is described in Penketh [29] as follows:
Not having the room in his safe to store [M'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 police in their raid of 24 November 2008 found M's firearms, which, the prosecution alleged, included a number that had been altered, ones whose serial numbers had been defaced, a restricted self-loading rifle and a machine gun, which is a prohibited firearm. Some of the firearms were alleged to have been stolen. However, Member Carey noted that none of those alleged circumstances were pressed in the criminal proceedings that resulted from what the police had found, and no evidence was produced to support them. Member Carey stated he would have no regard to those alleged circumstances, with one 'qualification', which was
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 [38].
The police in their raid of 24 November 2008 also found 'other unlicensed firearms', described in Penketh [31] as ones which
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.
On 13 January 2009 the appellant pleaded guilty to three firearms counts and one ammunition count. The firearms counts were one of failure to ensure the safekeeping of firearms that were inside a locked storeroom inside the locked main shed but not in an approved facility (apparently, M's firearms); and two of the possession of unlicensed firearms, one count in respect of those firearms and one count in respect of the unlicensed firearms found in a firearms cabinet in the shed (apparently, the firearms which the appellant had meant to bring within his firearms licence but had not, and which he had stored in his safe).
In the raid of 24 November 2008 the police apparently also found ammunition of varying sorts which was not stored in an approved facility. This led to the ammunition count, the facts of which were described in Penketh as the failure
to ensure safekeeping … [of] … 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 container and a toolbox underneath a workbench within the main locked shed but outside the storeroom, again not in an approved facility [27].
The appellant's attitude to the firearms and ammunition offences is described in Penketh as follows:
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 [M'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 [M]. 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 [32] ‑ [33].
Member Carey noted the 'ameliorating factors' put to him (Penketh [41]), including 'his otherwise exemplary record, particularly in relation to his extensive history of firearms possession and use' [13] and the 'relative lack of criminality' associated with both the drugs and the firearms offending 'when the circumstances of the offending were considered' [39]. He also noted that spent conviction orders were made in respect of the convictions for that offending. He said this as to those matters [41] ‑ [42]:
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.'
Background: the review jurisdiction of the SAT in Penketh
On 30 November 2008, a delegate of the Commissioner of Police revoked the appellant's firearms licence and his ammunition collector's licence. It should be noted that decision occurred shortly after the police raid of 24 November 2008, but before the appellant pleaded guilty to the charges that I have described.
The Firearms Act s 22(2) gave the appellant a right to apply to the SAT for review of that decision. The appellant's exercise of that right brought the decision within the 'review jurisdiction' of the SAT (SAT Act s 17(1)), and it was not contended before me that the Firearms Act modified the operation of the SAT Act in relation to that decision (see SAT Act s 18(2)).
The nature of the hearing by the SAT in the exercise of its review jurisdiction is set out so far as is material for my purposes in the SAT Act s 27 as follows:
(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.
It was not in contest that the framework to the decision in Penketh from the Firearms Act comprised principally s 20(1)(a)(iii) and s 11(1)(b) and (c), s 11(2), s 11(3), s 11(4), s 11(5) and s 11(6). These were in force at the time of the decision in Penketh as follows:
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 ‑
(i)…;
(ii)…; or
(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 …
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 ‑
(a)…;
(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.
(2)Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an 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 ‑
(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;
(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
(c)suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.
(4)In subsection (3) ‑
violence restraining order means a judicial order imposing on the person against whom the order is made restraints on the person's lawful activities and behaviour to prevent the person ‑
(a)committing an offence against the person under Part V of The Criminal Code, other than Chapters XXXIV and XXXV; or
(b)behaving in a manner that could reasonably be expected to cause fear that the person will commit such an offence,
or a similar order made under the laws of any place other than this State.
(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.
(6)Subsection (3) does not limit the Commissioner's ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or licence under this Act, to take into account ‑
(a)a conviction or order made outside the period of 5 years referred to in paragraph (a) of that subsection; or
(b)anything else that could have been taken into account if that subsection had not been enacted.
…
On 9 September 2009 Member Carey's decision in Penketh was delivered. That decision followed a hearing on 3 July 2009. That is, both occurred after the appellant had pleaded guilty to and been sentenced for the drugs and the firearms offences.
The basis for the decision in Penketh is summarised in [4] as follows:
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.
Member Carey said this at [40] as to his conclusion notwithstanding the ameliorating factors which the appellant had put to him:
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.
Further at [44] he said:
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.
Member Carey said this at [43] in respect of the making of the magistrate's spent conviction orders:
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.'
Member Carey said this by way of conclusion to his assessment of the appellant's position:
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 [46].
The grounds of appeal
The four grounds of appeal on which the hearing before me was conducted were the following:
1.In refusing the Appellant's application for a firearms licence, the learned Member erred in law by failing to apply to [sic] the appropriate legal test for a 'fit and proper person' to hold a firearms licence to the Appellant's application and subsequently erred in finding the Appellant was not a fit and proper person to hold a firearms licence.
2.The learned presiding Member erred in law in finding that the Appellant's convictions related directly to his rights and obligation as the holder of a firearms licence and consequently made him not a 'fit and proper' person to hold a firearms licence.
3.The learned presiding Member erred in law in finding that, in the absence of any evidence that the Appellant was at risk of re‑offending, the Appellant posed some risk of re‑offending or presenting a risk to the public through the holding of a firearms licence.
4.The learned presiding Member erred in law in effectively disqualifying the Appellant from holding a firearms licence as a further punishment associated with the convictions leading to the revocation of the Appellant's firearms licence.
I turn now to deal with each of the grounds of appeal. It will be seen that there is a considerable degree of overlap between some of them.
Ground 1: failure to apply the appropriate legal test for a 'fit and proper person'
It was not in contest that, if Member Carey had failed to apply the appropriate legal test for 'fit and proper person' in Firearms Act s 11(1)(c), he would have committed an error of law within SAT Act s 105(2).
The following propositions for determining that test were not in contest before me and are established on the authorities on the Firearms Act or appear in the plain language of the Firearms Act.
The expression 'fit and proper person' in legislation like the Firearms Act 'takes its meaning from its context and from the activities in which the person is or will be engaged pursuant to a licence and from the ends to be served by those activities': ReJones; Ex parte Commissioner of Police [1999] WASCA 246 [18] (Parker J; White & Steytler JJ agreeing), referring to Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380 (Toohey & Gaudron JJ). In Bond (380) it was said that:
The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
The concept of a fit and proper person is 'nevertheless … not to be narrowly construed or confined': Jones [18], referring to Bond (348) (Mason CJ).
The context includes at the least Firearms Act s 11(2), (3), (4), (5) and (6): Jones [18].
That context makes it clear that a conviction for 'any of the stipulated types of offence' within s 11(3), 'including any offence against the Act, is in itself and without more a sufficient ground in law for forming an opinion that a person is not a fit and proper person': Jones [22] (emphases in the original). At the same time, notwithstanding there is such a ground, the contrary opinion, that a person is a fit and proper person, 'may' be formed: s 11(5). Further, it is clear that offences the subject of convictions not of the types stipulated in s 11(3) may be relevant to a determination whether a person may be accepted to be a fit and proper person for the purposes of the Act: those offences may include such as 'possession of narcotics with intent to sell or supply, the possession of an explosive substance' and 'offences involving dishonesty': see Re Bennett‑Borlase; Ex parte Commissioner of Police (Unreported, WASCA, Library No 970332, 20 June 1997) 12 (Parker J; Pidgeon & Ipp JJ agreeing).
It is my view that beyond those propositions neither the legislative context, nor the authorities in this court on the Firearms Act cited to me, describe directly how the decision-maker should approach determining the significance of a conviction to whether or not a person is a fit and proper person for the purposes of the Firearms Act.
Member Carey in Penketh heavily relied (see [34]), for the purposes of his assessment of that significance, on Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Wheeler J), which was a decision in a different legislative context. Tavelli concerned licensing under the InquiryAgents Licensing Act 1954 (WA) for the vocation of inquiry agent.
Wheeler J (7) quoted from Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, 156 (Dixon CJ, McTiernan & Webb JJ), where their Honours said that the 'very purpose' of 'fit and proper person' when 'used with reference to offices and perhaps vocations' is to give 'the widest scope for judgment and indeed for rejection'. Wheeler J (7) stressed 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'. She went on to say:
With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;
(2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
(3)they occur while the person is the holder of a licence under the Act;
(4)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.
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:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. 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 the person's words;
(2)if the offences were committed a substantial time ago. I 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 I list and, in appropriate cases, on others;
(3)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;
(4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they 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 (7 ‑ 9).
I accept the submission of counsel for the appellant that Tavelli must be considered bearing in mind that that case was decided in a different statutory context from the Firearms Act. I also note that under the legislation her Honour was considering a licence as an inquiry agent might be granted to a person who was 'of good character and in all other respects a fit and proper person to be the holder of a licence' (Inquiry Agents Licensing Act, s 4, emphasis added). I would accept that the vocational licensing and other legislative context in Tavelli made the matter of the person's integrity in the sense of general reliability or trustworthiness of particular significance to that determination: see Tavelli (7). I would further accept that other legislative contexts involving qualifications for a vocational licence may make integrity in that sense of equivalent significance: see the authorities relied upon by the respondent Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; (1966) 67 SR (NSW) 448, 461 (Walsh JA; Wallace P agreeing); and Kotowicz v Law Society of New South Wales (Unreported, NSWCA, 7 August 1987), 20 [5] (Kirby P dissenting). And I would also accept that the Firearms Act might be seen not to make integrity in that sense of equivalent significance.
At the same time, in my view the legislative context of the Firearms Act and the authorities support the conclusion that, in determining whether or not a person who has prior convictions, is a fit and proper person, there is a matter which has some similarity to integrity in the sense described and which has comparable significance. That matter is the person's appreciation of the need for responsible conduct in relation to firearms and ammunition.
I consider that the following from Jones as to the Firearms Act supports that view:
It is clear from the long title and the provisions of the Act that its objects include the control and regulation in the public interest, including safety, of firearms and ammunition and the limitation, by a restrictive licensing scheme of those who may possess, use, deal in or manufacture firearms and ammunition. The system of control and regulation is administered by the Commissioner of Police and includes power to prohibit the possession, use or dealing in types of firearms. Substantial penalties, including imprisonment in some cases, are provided for breaches of the Act [19].
The 'control and regulation' referred to in my view underscores the importance of responsible conduct in relation to firearms and ammunition of those holding licences under the restrictive scheme in the Firearms Act.
I find further support for the view I hold in the authorities that emphasise, in the context of disqualification from holding a firearms licence (a context to which I will return), that a firearms licence is a 'privilege, not a right': Schamotta v The Queen [2002] WASCA 262 [15] (Murray J, Wheeler J & Burchett AUJ); see also Binns v Gardiner [2004] WASCA 275 [40] (Templeman J; Jenkins & Simmonds JJ agreeing). A holder of a licence has a responsibility not to abuse the privilege which that holder enjoys.
I find still further support for the view that I hold in what was said of the holder of a commercial television licence in Bond (349) (Mason CJ), who had 'a responsibility to exercise the power conferred by the licence with a due regard to a proper standard of conduct and a responsibility not to abuse the privilege which it enjoys', that that holder
must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.
I should add that there is some support for this view in the reasons of the SAT in Wignall and Commissioner of Police [2006] WASAT 206 (Barker J, President, Members Mansveld & Lord). Counsel for the appellant commended those reasons to me as indicating, he submitted, the preferable approach to the meaning of the expression 'fit and proper person'. From Wignall I note [302] and [303] (emphases added):
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 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.
It follows in my view that, notwithstanding the difference in legislative context to which I have referred, Member Carey was correct in Penketh to take from Tavelli for his purposes the following:
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 [34].
Counsel for the appellant, as I understood his argument, did not submit that Member Carey was in error in describing that as the appropriate approach to assessing the significance of prior convictions in determining whether or not a person is a 'fit and proper person' under Firearms Act s 11(1)(c), save it appeared in one respect I will reach below: the behaviour after conviction. However, counsel submitted that Member Carey had erred in law in not recognising that, consistently with that approach, prior convictions could not mean a person was not a 'fit and proper person' under the Firearms Act where those convictions and the circumstances of the offender were of the kinds counsel described as accepted by Member Carey as having been established in this case. Put another way, 'fit and proper person' under Firearms Act s 11(1)(c) had a meaning which was consistent with the presence of such convictions in such circumstances.
I accept for this purpose that an error in construction of the expression 'fit and proper person', had one been made, would have been one of law and was within ground 1. Thus I do not find it necessary to consider whether or not the determination of whether a person is 'a fit and proper person' is discretionary in any sense such that it might be said Member Carey erred in law because his determination was unreasonable as explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 (Lord Greene MR) or Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431, 438 (Davies J) (see Carey [55] ‑ [58], Owen JA); and, if so, whether that was within ground 1. I note that the respondent submitted that a contention as to such unreasonableness was not within grounds 2 and 3, and as I took her submission ground 1 also. As to that submission I express no concluded view.
I also assume arguendo that the meaning counsel for the appellant put forward is correct. I will return to that assumption.
I consider that Member Carey in Penketh did accept the convictions and circumstances were of the kinds counsel described for the purposes of counsel's submissions (see especially [41], above), or at least did not find otherwise, with one exception and one qualification. Those kinds as set out in the appellant's written submissions were as follows:
There was no evidence of any likelihood of the Appellant re-offending;
The Appellant had shown genuine remorse and insight into his offending;
The offending behaviour of the Appellant did not pose a real or substantive risk to the public;
The offending behaviour of the Appellant showed a low degree of criminality; and
There was no suggestion of improper or dangerous use or handling of firearms by the Appellant.
The exception was in respect of the first matter, the likelihood of the appellant re‑offending. Member Carey considered that the 'cultivation and use of illegal drugs is antithetical to the preferred characteristics of the holder of a firearms licence' (Penketh [37]) while he considered 'the actions' of the appellant were not those that a reasonable person 'with more than a superficial understanding of the obligations of a licensee under the Firearms Act should have entertained' ([40], above). Reading those passages in the light of the rest of his reasons, and in particular [38], [41], [44] and [46] above, I consider that Member Carey was indicating the basis of his finding that the appellant's undertaking on future responsible behaviour as the holder of a firearms licence 'however sincere' [44] could not be accepted at face value. At least this was so when only about eight months had elapsed since his convictions (see [46]) within which to assess the appellant's actions as well as his words (see Tavelli (8)). This in my view was a finding that assessing the matter at the time of his decision there was a risk of future offending by non‑compliance with the requirements applicable to the appellant as the holder of a firearms licence.
The qualification related to the second matter in the list provided by counsel. Member Carey indicated he had 'little doubt' the appellant's expressions of 'remorse, embarrassment and resolutions for the future' were 'genuine' ([44], above). However, Member Carey indicated, by reference to the appellant's 'life experience in general, and his experience as a member and captain of a rifle club for a number of years in particular', a concern that the appellant had not previously had insight as to 'the need for firearms law and … why using cannabis is a bad thing'. That was an insight which the appellant said he now had and which it appeared to Member Carey arose from his being charged and convicted for the offences [44]. I consider that, in the context of the rest of Member Carey's reasons, and in particular [38], [40] and [46] above, Member Carey was indicating the basis for his finding that the appellant's insight into the matters described was not of a proper kind, representing a proper appreciation or 'true insight' as I understand that expression from Tavelli (8). By that finding I consider he was referring to a level of appreciation or a level of insight which could be relied upon to guard against future conduct in contravention of the Firearms Act. This is an aspect of what I understand by 'character' in Bond (380), being an aspect of the person in question which 'provides indication of likely future conduct'. That was a finding which Member Carey was indicating was open to him when only about eight months had elapsed since the appellant's convictions (see [46]) within which to assess his actions as well as his words (see Tavelli (8)).
However, counsel for the appellant submitted that Member Carey could not have regard to such a lapse in that way, which I took to be a submission that to that extent at least Tavelli had no application to determinations of 'fit and proper person' under the Firearms Act. I disagree, on the basis of the relevance of such a lapse to the matter of proper appreciation or true insight as I have explained those matters.
I should note that this is not a case where Member Carey found the appellant's responses to be 'very glib': compare the characterisation of the professions of ignorance of the requirements of the Firearms Act, which were seen to be 'hardly convincing' when made by a person at the time managing a retail firearms shop in Bennett‑Borlase (12).
However, in my view it was not necessary that the relevant responses had been shown to be 'very glib' before Member Carey's findings could be made. Such a showing was not necessary because a genuine but unreliable level of appreciation or insight would not be a proper appreciation of or true insight into the responsibilities of a holder of a firearms or ammunition licence.
Further, in my view Member Carey's findings were open on his assessment of the appellant's 'life experience in general, and his experience as a member and captain of a rifle club for a number of years in particular' [44], taken with his description of the body of the offending (see [40]). See Bennett‑Borlase (12) (experience managing a retail firearms shop and offending in that case). In my view on Bennett‑Borlase that experience represented, with the offending, facts found or agreed from which the inferences represented by Member Carey's findings could be drawn. Thus there was no error of law of the kind referred to in Bond (355 - 356) (see Carey [52]) involved in those findings. Further, in my view of Bennett‑Borlase (12) that evidence was logically probative of such matters, and so it could not be shown there was an error of law in making those findings in the sense described in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 31 ALR 666, 67 ‑ 68 (Deane J). However, see on that form of error Bond (356 ‑ 357) (Mason CJ), and Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, 2009) [7.30] especially n65.
Further, although counsel for the appellant put the contrary to me, Member Carey was in a position to make his findings notwithstanding that spent conviction orders had been made. As Member Carey noted (Penketh [42]) the learned magistrate could not make such orders without determining that he 'considers that the offender is unlikely to commit such an offence again' (Sentencing Act 1995 (WA) (Sentencing Act) s 45(1)(a)). However, as Member Carey noted ([43]), he, unlike the learned magistrate, was required to pay particular regard to the fact that offences under the Firearms Act were involved (see Firearms Act s 11(3)(a)(iii)).
When Member Carey's assessment of the appellant's 'life experience in general, and his experience as a member and captain of a rifle club for a number of years in particular' (Penketh [44]) as the basis for Member Carey's findings as to insight was put to counsel for the appellant at the hearing before me, counsel submitted that the making of those findings was a denial of natural justice. He submitted that such denial lay in Member Carey's failure to put to the appellant the possibility of making those findings before making them. See on the possibility of such a failure being a denial of natural justice: Aronson et al [8.260].
I accept that it is not readily apparent from the parts of the transcript of the hearing before Member Carey to which counsel took me, where the appellant was questioned as to his insight into the matters the subject of his offending (see 3 July 2009, ts 23 ‑ 30, which it seems to me must be read with the appellant's statement of 4 June 2009, Exhibit 4, [27] ‑ [34]), that the possibility of making the findings was drawn to the appellant's attention or otherwise there made apparent to his legal representative.
However, I also note that the representative of the appellant in his closing submissions put the matter of the experience of the appellant with firearms as relevant to what he should have known and to revoking his licences to Member Carey, and that counsel for the appellant had an opportunity, which he did not take up, to respond to those submissions (3 July 2009, ts 32, 36). Counsel for the appellant in fact drew my attention to those submissions, not in the present connection but in connection with ground 4, and I return to them in that connection. However, in the present connection it seems to me that, in the light of those submissions and the opportunity counsel for the appellant had to respond to them, the natural justice point cannot be sustained.
Counsel for the respondent submitted that in any event the natural justice point was not within the appellant's grounds of appeal, nor was it drawn to the attention of the respondent in the appellant's written outline of submissions, in circumstances where the grounds of appeal had already undergone change from those originally advanced. In my view, there is considerable force in counsel's submission. Counsel for the respondent took the position that I should take her submission 'into account' in assessing the natural justice point. In my view, I do not need to consider further whether or not I should act on that submission, by treating the natural justice point as a proposed new ground of appeal for which an extension of time and leave to re-open argument would be necessary. I have arrived at that view as I am satisfied that there is no prospect the natural justice point would be upheld.
I consider Member Carey's reference to Tavelli and the exception and qualification I have described also indicate that he did not in fact approach the case before him on the basis the six convictions alone were enough for a finding that a person was not a 'fit and proper person'. The contrary proposition put to me by counsel for the appellant cannot be sustained.
I should add that no argument was addressed to me as to how a decision-maker should proceed in a case where there is a conviction or convictions within Firearms Act s 11(3) but an argument is addressed to him or her that s 11(5) should be applied. It appeared not to be in contest before me that Member Carey had properly approached his case on the basis he should consider the ameliorating factors as relevant to whether or not a finding of the sort referred to in s 11(5) should be arrived at. My own view is that, at least where an argument is made that s 11(5) should be applied, and relevant evidence is put forward, as in this case, s 11(5) requires that that evidence be considered, and Tavelli indicates how such a consideration should proceed.
I should add that Tavelli indicates in particular that the length of time that has expired and the actions of the person concerned within that time are, among other factors, relevant to a determination as to 'fit and proper person' in the light of prior convictions. It seems to me Member Carey approached the matter of the time that had expired since the appellant's convictions in that way (see Penketh [46]). Accordingly, although counsel for the appellant pressed the contrary on me, I do not find any error in Member Carey's approach.
Thus I would not uphold ground 1.
I should add that in any event it is not apparent to me that the meaning of the expression 'fit and proper person' contended for by counsel for the appellant is correct, at least in the following respect.
It seems to me that prior offending with the other circumstances may in a particular case give rise to the conclusion that the offender is likely not to be responsible in relation to firearms or ammunition, even although such prior offending involved no real or appreciable risk to the public and showed a low degree of criminality, and even although the likely conduct of the offender of concern would not itself be an offence under the Firearms Act or Firearms Regulations. An example, suggested by an authority referred to me by counsel for the appellant, might be a person whose prior offending had involved storage of firearms for individuals without firearms licences in a highly secure but not an approved facility (see Firearms Act s 23(9)(d)(ii) read with Firearms Regulations 1974 (WA) reg 11A and sch 4), and whose conduct in that respect with the other circumstances gave rise to the concern that that person would participate in shooting exercises with such individuals: see Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 [33]. However, I express no concluded view on that example. It is also important I note that, even accepting that example, I do not suggest it is represented by the present case; further, all the circumstances might indicate to the decision-maker that the degree of likelihood of such participation was not sufficient to conclude the person was not a 'fit and proper person'.
That is, I consider that 'fit and proper person' is not an expression restricted to cases of characteristics of the person exciting concern as to risk to the public or offending under the Firearms Act or Firearms Regulations by the person. At the same time, characteristics of either kind would in my view tend to establish the person was not a 'fit and proper person'. This construction in respect of risk to the public is in my view supported by the fact that 'public safety' is addressed in Firearms Act s 11(1)(b) separately from 'fit and proper person' in s 11(1)(c). This construction in respect of offending by the person under the Firearms Act or Firearms Regulations I derive from Firearms Act s 11(2) and s 11(3)(a)(iii).
Ground 2: error of law in finding a direct relation between the convictions and the rights and obligations of the licence holder
Member Carey in Penketh [45] stated in material part that '[t]he applicant's convictions relate very directly to his rights and obligations as the holder of licences under the Firearms Act'.
It appears to me that Member Carey was thereby indicating that the body of offending comprising the drugs and firearms offences was relevant to his determination as to the levels of the appellant's appreciation of, and insight into, his responsibilities as the holder of firearms licence. His view as to such relevance seems to me to be one open to him, on Bennett‑Borlase (12).
However, counsel for the appellant submitted that on the authority of Bond (380) (Toohey and Gaudron JJ), above, only offences 'directly related to the context in which the licensed activity occurs will have relevance to the question of a person's fitness and propriety'. I understood the submission to require the offences to involve conduct consisting of, or directed to, activities which one or other of the appellant's licences permitted. I consider any such view cannot be drawn from Bond (380). Further, Bennett‑Borlase is inconsistent with counsel's submission.
Counsel for the appellant also submitted that the appropriate approach for Member Carey to have used in determining the relationship between the offending and the appellant's rights and obligation as the holder of licences under the Firearms Act was one which would have involved a detailed examination of the offending, of the appellant's remorse and insight into the offending and of the lack of a likelihood of re‑offending. That approach, had it been used, would have shown that the appellant's offending was not linked to the exercise of his rights as the holder of a licence and, in the absence of any risk to the public, the appellant was a fit and proper person.
It will be seen that this submission repeats most of the parts of the submission for the appellant as to the meaning of 'fit and proper person' above. I have already responded to those parts.
To the extent the submission for the purposes of the present ground is intended to go to different matters, it seems to me that the submission is that the finding as to the relationship was an unreasonable one. This appears to have been part of what counsel meant, because he referred for support of his submission to Webb v Police Commissioner New South Wales as well as Wignall. I also understood him to draw support from Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279.
It seems to me that the submission does not refer to an error of law but rather one of fact: see Carey [52]. What is alleged it seems to me is that Member Carey found a relationship incorrectly, his finding was doubtful, it was against the evidence or it was against the weight of the evidence.
It seems to me this emerges more clearly when the authorities counsel for the appellant referred to me to are considered.
I start with Ziems as that case was put to Member Carey in Penketh and he considered it in the present context, at [45] above.
In Ziems the determination was made by a majority of the High Court that the motor vehicle manslaughter conviction in that case did not justify a finding by the Full Court of the Supreme Court of New South Wales that Ziems was not a 'fit and proper person' to practise at the bar, and so should be disbarred (see Fullagar J, 296). However, as Member Carey noted (Penketh [45]) the conclusion of the majority in that case was that on analysis of the circumstances of the offending, which it was satisfied the Full Court had not undertaken, the offending did not have a connection with or significance for any professional function of the offender as a barrister (see (290), (297) (Fullagar J); (299) (Kitto J); (301 ‑ 302) (Taylor J)); as well, for two members of the majority, features of the criminal trial reduced the weight to be given to the conviction (296) (Fullagar J); and (308) (Taylor J).
It was not in contest that, as Member Carey said in Penketh [45], there was no equivalent to the latter in this case.
Further, here Member Carey undertook an analysis of the circumstances of the offending. In addition, I note that the offending was not of the isolated, unpremeditated character in Ziems, where that offending was seen as showing no tendency 'to vice or violence, or any lack of probity': Ziems (299) (Kitto J); see also (296 ‑ 297) (Fullagar J); and (303 ‑ 304) (Taylor J). The correctness of a finding that offending not of the same character showed such a tendency, where as I have said there was a basis that was logically probative for such a finding, seems to me to be a question of fact, not of law.
Webb was a review of a decision to revoke a firearms licence under the Firearms Act 1996 (NSW). The circumstances emphasised by the judicial member of the Administrative Decisions Tribunal, Montgomery S, occurred between June and November 2003 and involved offending in the form of false statements to the police that the firearm involved in an accident in June 2003, while the licence holder was shooting with a person without a firearms licence, was that of the licence holder: the firearm was later hidden by the other person, and subsequently reported stolen; and offending in November 2003, in the form of driving 'with middle range PCA' following a positive roadside breath test result: at the scene the licence holder had become abusive and other police were required. The licence holder had also had his firearms licence suspended after he was found in September 2003 to have security provisions that did not comply with safekeeping requirements, although subsequently police inspected and approved his facilities. Montgomery S stated that the gravity of the circumstances described and the offender's 'approach' made it an 'extremely difficult' task to determine whether there was a 'real and appreciable risk to the safety of the public' if the licence was reinstated [39]. He stated this was the 'principal question' he had to answer [32]. I should note that I do not consider this will necessarily be the principal question under the Firearms Act, for the reasons I have explained. In any event, it seems Montgomery S linked the answer to his question to the answer to the question whether or not the offender appreciated the importance of his obligations as the holder of a firearms licence and could be trusted to have access to firearms, as appears from [39] in his reasons (emphases added):
I have weighed the evidence to decide whether there is a real and appreciable risk to the safety of the public if Mr Webb's licence is reinstated. The gravity of the events between June and November 2003 and the approach that Mr Webb had adopted makes this an extremely difficult task. Nevertheless, I have formed the view that Mr Webb's appreciation of the importance of strict observance of his obligations as a firearms licensee has been strengthened by these incidents. Mr Webb has shown genuine remorse and I am satisfied that he is now a person who can be trusted to have access to firearms.
The offender in that case was much younger than the appellant in this case, being 21 at the time of the decision in Webb, and had held a licence for a much shorter period, being three years, while there was no indication he had held a position of responsibility in a rifle club. At the same time Montgomery S found he had been associated with firearms his whole life and 'been conditioned with a respect for them and the need for safety' [37]: there was no evidence on which to make such findings in this case to which my attention was drawn. In any event, the correctness of a finding that the appellant did not appreciate his responsibilities in the way described of the person seeking review in Webb, where in this case as I have said there was a basis for such a finding that was logically probative, seems to me to be a question of fact, not of law.
Wignall was a review by SAT of a decision to refuse a firearms licence where the applicant had an extensive criminal record that went to undermine the public's confidence in his general honesty, as well as strong associations with a motorcycle gang of concern, as described at [316]:
To conclude, it is perhaps not to say that the applicant is not a 'fit' person to hold a firearms licence, in the technical sense that he can handle a firearm, but it is to say that, having regard to the facts that the applicant ‑
•is a member of the Coffin Cheaters motorcycle gang;
•has been a Coffin Cheaters' member for a long time and remains so;
•maintains a loyalty to Coffin Cheaters, which club has as members many persons who have extensive criminal records, including for violence; and
•himself has an extensive criminal record, including convictions that must undermine the public's confidence in his general honesty,
the applicant is not a 'fit and proper' person to hold a firearms licence and it is not desirable in the interest of public safety that the applicant should hold a firearms licence.
Much of the difficulty for the purposes of the application for the firearms licence the SAT had to do with the applicant's association with the motorcycle gang was explained as follows:
Therein lies much of the difficulty that the Tribunal has with the applicant's current position in relation to his application for a firearms licence. While he remains a member of the Coffin Cheaters Motorcycle Club and has firearms lawfully in his possession pursuant to a firearms licence issued under the Firearms Act ‑ and even though he would labour under an obligation to maintain those firearms in a gun cabinet at his premises ‑ the Tribunal is left with a real concern that should there be further difficult times between the Coffin Cheaters Motorcycle Club and any rival gangs, or even between the disaffected members of the Coffin Cheaters for one reason or another, by one means or another, any firearms held by the applicant might be put to unlawful purposes. We express that fear, not so much on the basis that we consider that the applicant himself would readily choose to provide the firearms to other club members to effect an unlawful purpose, but because the bond between members of the Coffin Cheaters Motorcycle Club, of which the applicant is a long time member and remains a committed member, are so strong that other members, in a time of crisis, either might prevail upon him to 'do the right thing' or otherwise overbear the applicant and gain access to his firearms [311].
There was of course no equivalent evidence in this case. However, it seems to me that it is not possible to take from the findings on that evidence that on different evidence it would be an error of law to come to the determination a person was not a 'fit and proper person'.
I would not uphold ground 2.
Ground 3: error of law in finding the appellant posed a risk of re‑offending or a risk to the public where there was a finding of no risk of re‑offending
It will be apparent from the previous sections of my reasons that it is not apparent to me that a finding of no risk of re‑offending by a person would be inconsistent with a finding that he or she was not a 'fit and proper person'.
In any event, I have previously indicated why I consider that in Penketh there was in fact a finding that there was a risk of re‑offending. I there stated why I considered such a finding was open to Member Carey.
I would not uphold the present ground.
Ground 4: error of law in effectively disqualifying the appellant from holding a firearms licence as further punishment
It appeared from the written and oral submissions for the appellant that this ground rested on the submission that Member Carey in Penketh had to be seen as having approached the revocation of the appellant's licences on the basis that such revocation was an appropriate punishment for the appellant's offending conduct.
It was not in contest that such an approach, had it been adopted, would have involved an error of law, with which I agree. The authorities on disqualification from holding or obtaining a firearms licence imposed for an offence under Sentencing Act s 106 indicate that such disqualification is to be viewed as a matter of penalty for the offence, even though the considerations guiding its imposition 'in general' are those of 'public safety'. See Schamotta [8] ‑ [13] and authorities cited there (the last paragraph is the source of the quotations); and see Binns [42]. The power of revocation under the Firearms Act s 20(1)(a)(iii), by contrast with the power of disqualification under the Sentencing Act s 106, does not depend on the commission of an offence. Nor is there any indication in any of the authorities on the exercise of the power of revocation where the holder had committed offences which were taken into account that revocation can be approached as punishment for those offences.
I also note that Member Carey during closing submissions clearly indicated he did not regard the power of revocation as one to punish. He provided that indication when, early in the closing submissions by a Sergeant Bagley for the respondent, it was put that the position of the appellant was to be equated to that of a police officer who had committed an offence and who faced internal charges or that of a lawyer who had committed an offence and who faced the disciplinary authorities of the profession. Member Carey interjected at this point (3 July 2009, ts 32):
But you're not suggesting, are you, that punishment is the objective of both the commission in making decisions on licences and the tribunal on review of those decisions?
I consider this interjection also related to the earlier remarks by Sergeant Bagley commencing his closing submissions, remarks which I quote below.
Sergeant Bagley responded to the interjection in the negative.
However, counsel for the appellant submitted that Member Carey in fact had to be seen as having approached revocation as punishment because of certain language he had quoted with approval in his decision, and because of his having determined the appellant was not a fit and proper person when there was no evidence capable of supporting the proposition that the appellant was likely to re-offend. That is, Member Carey had to be seen in that context as having imposed revocation simply as a form of punishment for that prior offending conduct.
I have already dealt with the matter of whether there was evidence capable of supporting the proposition that the appellant was likely to re-offend. In my view, there was evidence capable of supporting that proposition and Member Carey acted on it.
The language to the quotation of which counsel drew my attention was in its context in Penketh as follows:
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 [35] ‑ [36].
Counsel for the appellant submitted that the language Member Carey quoted should be understood in the context of the closing submissions by Sergeant Bagley from which the language was taken. I took this to be a reference to the full text of Sergeant Bagley's commencement of those submissions in which the quoted language appears, as follows (3 July 2009, ts 31):
Thank you, sir. Unfortunately for Mr Penketh he chooses to undertake a hobby which requires a licence and therefore he should be held accountable for his actions and I disagree with Mr Skerritt [counsel for the appellant before Member Carey] when he made mention earlier that coming here shouldn't be seen as a form of punishment, it should be, and that's why we're here.
In my view, it is clear that Member Carey was also responding to these remarks in his interjection which I quoted above.
Counsel for the appellant also drew my attention to language used by Sergeant Bagley after the interjection and towards the end of his closing submissions. I took that language to be the following (3 July 2009, ts 32):
I'm not suggesting Mr Penketh loses his firearm licence for forever and a day, and I can see that Mr Penketh himself is remorseful and I have listened to the evidence and I've read the evidence and I agree this is not the normal run of the mill application that the tribunal deals with. However, Mr Penketh should have known better. He was the captain of a gun club. He of all people should know what the rules and regulations are in relation to his firearms licence and there should be some period of revocation applied to Mr Penketh's licence. The provision in the act is very clear insofar as section 11.
Counsel put to me that that submission was to the effect that Mr Penketh as a person who had held a firearms licence for some 10 years should be punished. Member Carey by endorsing as he did the language with which such closing submissions began should therefore be taken as approaching revocation as punishment.
In my view, whether or not Sergeant Bagley's language, coming as it did after Member Carey's interjection, should be read as commending to Member Carey revocation as punishment, it is Member Carey's approach with which I am concerned. Member Carey's language endorsing as he did language from Sergeant Bagley's closing submissions must be read in the context of the rest of Penketh. So read, Member Carey's language should be viewed as directing attention to the relevance of the appellant's offending conduct to a determination of whether or not he was a fit and proper person to whom a licence could be granted, with which the rest of Penketh was concerned. I consider Member Carey, in so doing, was approaching the question of whether or not the correct and preferable decision was that the appellant's licences should be revoked as the Firearms Act read with the SAT Act required him to do. He was not employing revocation as punishment.
Counsel for the appellant submitted that the emphasis in Member Carey's conclusion on a period over which the appellant could show good behaviour was an indication he had approached revocation as punishment. I do not consider this submission can be sustained, in view of the approach to taking account of such a period in Tavelli to which I have previously referred.
I do not uphold ground 4.
Conclusion and orders
I have concluded that the appellant should have leave to appeal. However, I have not upheld any of the grounds of appeal.
It follows I would dismiss the appeal
I will hear from the parties as to the other orders I should make.
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