Police v Losapio - [2007] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v LOSAPIO
[2007] SASC 112
Judgment of The Honourable Justice David
2 April 2007
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeal against decision of magistrate overturning order of Deputy Registrar of Firearms refusing to grant firearms licence on basis that respondent not fit and proper person to hold firearms licence - respondent had convictions for drug and firearms offences - magistrate stated that Deputy Registrar's decision was correct at time of decision, but that given passage of time and respondent's good conduct since decision, respondent was now fit and proper person - whether sufficient evidence for magistrate to find that respondent fit and proper person - whether magistrate gave undue weight to passage of time - whether magistrate had sufficient regard to aims and objectives of Firearms Act 1977 (SA) - held, appeal allowed - drugs and firearms convictions serious, particularly in combination - insufficient time between Deputy Registrar's decision and appeal by magistrate to alter conclusion that respondent was not fit and proper person to hold firearms licence.
Firearms Act 1977 s 5, s 11, s 12, s 21D, referred to.
Davies v Registrar of Firearms [2005] SASC 149 (Unreported, Gray J, 21 April 2005); Johnson v Registrar of Firearms [2001] SASC 51; (2001) 79 SASR 353, applied.
Pav v Commercial & Private Agents Board (1988) 143 LSJS 1, considered.

POLICE v LOSAPIO
[2007] SASC 112
Magistrates Appeal: Civil

DAVID J. This is an appeal against a magistrate’s decision to overturn an order of the Deputy Registrar of Firearms (‘Deputy Registrar’) refusing to grant the respondent a firearms licence.
Statutory Scheme
Section 11 of the Firearms Act 1977 (‘the Act’) requires any person possessing a firearm to hold a firearms licence. Section 12(7) of the Act provides that a firearms licence for possession of a prescribed firearm can only be granted if the Registrar is satisfied, inter alia, ‘that the applicant is a fit and proper person to have possession of the prescribed firearm’.
Section 5 of the Act relevantly provides:
(11)For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person–
(a)     has not complied with the requirements of this Act in relation to the safe handling, carriage or use of the firearms; or
(b)     has been convicted of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)     has been convicted of an offence involving actual or threatened violence in this State or any other State or Territory of the Commonwealth or in any other part of this world; or
…
(12)Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
Backgrounds Facts
It is useful at the outset to detail the respondent’s previous court appearances, as these were the basis for the Deputy Registrar’s initial refusal to grant the respondent a firearms licence.
The respondent had five court appearances as a juvenile in the Children’s Court prior to 1988.
The respondent’s next court appearance was on 14 December 2001 for producing cannabis. On 24 May 2001, police located five cannabis plants growing hydroponically in a shed at the respondent’s residence in Norwood. The respondent was fined $250 with no conviction recorded.
On 6 April 2003, the respondent was arrested at a house in Maylands and charged with taking part in the sale of a controlled substance. Police seized three pounds of dry cannabis together with two cannabis plants. Police subsequently searched the respondent’s home in Dernancourt finding two cannabis plants grown hydroponically in a locked room beneath the house. In a spare bedroom, police also found three cannabis seedlings growing under lights in a wardrobe. In the same room, police found a loaded, unsecured revolver and 311 rounds of various calibre ammunition. In relation to these discoveries, the respondent was further charged with producing cannabis, failing to keep a firearm secure, failing to store ammunition and failing to comply with a condition of a firearms licence. Police also found other firearms on the premises, which although properly secured, were seized on the basis that they suspected the respondent was not a fit and proper person to hold a firearms licence.
In relation to the charge of taking part in the sale of a controlled substance, the respondent was imprisoned for four months and two weeks. The respondent’s appeal against sentence was dismissed. In relation to the charge of producing a controlled substance, the respondent was fined $400. The cannabis plants were forfeited. In relation to the charges concerning firearms the respondent was fined $1,000. The magistrate ordered forfeiture of the revolver on 27 October 2004. The prosecution did not press for a similar order in respect of the other firearms seized as the respondent’s licence had expired on 30 November 2003 and, in any event, the firearms were not returned to the respondent.
Deputy Registrar’s Decision
The respondent held a firearms licence for the 15 years prior to 30 November 2003 when the licence expired. On 16 September 2005, he applied to the Deputy Registrar for a Class A and B Firearms Licence for the stated purpose of target shooting and hunting.
In response to the respondent’s application, the Deputy Registrar prepared a report, dated 1 November 2005, to the Firearms Consultative Committee (‘the Committee’). The report listed the respondent’s previous court appearances, and noted police apprehension reports in relation to offending on 24 May 2001 and 6 April 2003. The report concluded the respondent ‘is not a fit and proper person to possess a firearms licence and that his application to obtain a firearms licence should be refused’ for the following reasons:
· Convictions for offences displaying disregard for the Law – pursuant to section 5(12) of the FirearmsAct
· Conviction for an offence against the Firearms Act – pursuant to section 5(11)(b) of the Firearms Act.
The Committee considered this report on 21 February 2006 together with representations by the respondent. The Committee agreed with the Deputy Registrar’s opinion and refused the respondent’s application. The Deputy Registrar wrote to the respondent on 3 March 2006 to inform him of this decision.
Appeal to the Magistrate
The respondent appealed this decision to a magistrate pursuant to s 21D of the Act. Section 21D(1) relevantly provides:
(1)A person aggrieved by a decision of the Registrar –
(a)     to refuse and application for a licence, or renewal of a licence or an application for a permit authorising the acquisition of firearm; or
…
may appeal against that decision to a magistrate sitting in chambers.
…
The powers of a magistrate hearing such an appeal are set out in s 21D(3):
(3)The magistrate may, on the hearing of the appeal, exercise one or more of the following powers:
(a)     affirm or vary the decision appealed against, or substitute any decision that should have been made in the first instance;
(b)     remit the subject matter of the appeal to the Registrar for further consideration;
(c)     make any order for costs.
On 20 October 2006, the magistrate heard the appeal. The magistrate reviewed the evidence considered by the Deputy Registrar and heard oral evidence from the respondent, including that the respondent had not committed any offences since those on 6 April 2003.
The magistrate stated that in his opinion ‘the court appearances as a juvenile and those in 2001 are irrelevant’ to deciding the fitness of the respondent to hold a firearms licence, noting that two of the juvenile appearances resulted in no convictions being recorded, as did the appearance in 2001. The 2003 drug and firearms offences were a different matter. He noted that the firearms offence ‘is of the type which section 5(11) of the Firearms Act says is a factor which may lead to a finding that a person is not a fit and proper person to hold a firearms licence’. He stated that the drug offence was serious and that ‘[t]he term of imprisonment imposed by the court is a reflection of this’. In respect of the drug offence, he noted:
Despite the terms of Section 5(12), the type of offences which Section 5(11) declares to be particularly relevant are violence and firearms offences. Perhaps the drug offence may not in isolation justify a finding that a person is not fit and proper for the purposes of the Act. I do not need to decide that. At the every [sic] least, it has greater significance however, where the applicant for a licence has convictions relating to firearms or violence.
The magistrate concluded that the Deputy Registrar was right to decide that the ‘seriousness of the drug offence and the firearms offence were such as to impact upon the appellant’s fitness to hold a firearms licence’.
The magistrate, however, clearly viewed his task on appeal as one of determining the respondent’s fitness to possess a firearm at the time of the appeal, not the time of the Deputy Registrar’s decision. Accordingly, the magistrate turned to consider whether the passage of time – some 10 months – since the Deputy Registrar’s decision had altered the appropriate conclusion.
The magistrate referred to the decision of Pav v Commercial & Private Agents Board.[1] In that decision, Perry J refused an appeal against a decision that the appellant’s history of offending meant he was not a fit and proper person to be employed as a security guard. Perry J concluded that:
[1] (1988) 143 LSJS 1.
This is not to say that the time may come when if the appellant is able to keep out of trouble, he may be able to prove himself fit to obtain the licence he seeks. His record should not be held against him indefinitely.[2]
[2] Ibid 13.
The magistrate also referred to the decision of Davies v Registrar of Firearms where Gray J concluded:
At some time in the future, if Mr Davies is able to demonstrate that he is a ‘fit and proper person’ to hold a licence then any further application that he may make can be considered in the light of those circumstances and on its merits.[3]
The magistrate stated:
The defendant has not re-offended since 2003. He has had no court appearances since the 2003 offences were dealt with in the Magistrates Court in October 2004. He has served four and a half months in gaol and to that extent has paid for his offence. Is this unblemished record over the last three and a half years sufficient to rehabilitate Mr Losapio for the purposes of the Firearms Act.
…
In his favour, the appellant has breached the requirements of the Firearms Act only once in the 15 years that he has held a licence. He had prior to the firearms offence complied with the requirement to securely store his firearms and to separately secure his ammunition. He says that his one transgression against the Act occurred only because of the particular circumstances that prevailed on that occasion and that he intended to leave the handgun unattended for only a short period. Otherwise he had been a responsible gun owner. He has been a member of gun clubs during the whole period that he was licensed and has only used his guns in that context and for hunting and target shooting. He says that he should receive the benefit of the doubt.
The magistrate further said when the Deputy Registrar refused the respondent’s application, ‘barely two and a half years had passed since the time of the firearms and drug offences’ and this was not sufficient time for the appellant to be considered fit and proper to hold a firearms licence. However, the magistrate said that, since that time, another year had passed, concluding:
In view of the appellants [sic] good record before the 2003 offences and because, in the words of Perry J ‘he has kept himself out of trouble’ since, I am satisfied that the appellant is again a fit and proper person to hold a firearms licence for A class and B class firearms for the purpose of target shooting and hunting.
The magistrate allowed the appeal.
[3] [2005] SASC 149 (Unreported, Gray J, 21 April 2005).
The Present Appeal
There are three grounds of appeal:
1.The learned Magistrate erred in that there was insufficient evidence before him to make a finding that the respondent was a fit and proper person to hold a firearms licence under the Firearms Act 1977.
2.The learned Magistrate erred in that he gave undue weight to the passage of time that had elapsed since the respondent was convicted of offences demonstrating his unfitness to hold a firearms licence.
3.The learned Magistrate erred in that he failed to have sufficient regard to the aims and objectives of the Firearms Act 1977.
Ground 1
Counsel for the appellant submits that, while the magistrate was entitled to hear fresh evidence, ‘the question of whether the respondent was a fit and proper person was to be determined at the time of the making of the decision under review’. Counsel for the appellant submits that the magistrate, having confirmed the correctness of the Deputy Registrar’s decision at the time it was made, should not have then substituted ‘a fresh decision based on time that had passed since the original decision’.
Counsel for the respondent submits that the magistrate was correct to decide the question of fitness at the time of the appeal, not the time of the original decision. Both counsel referred me to authority on this point.
In light of my conclusion as to grounds 2 and 3 of the appeal, it is not necessary for me to decide this point.
Grounds 2 and 3
The principal aim of the Act is one of public safety. In Davies v Registrar of Firearms, Gray J stated:
The primary aim of the Firearms Act 1977 is to ensure public safety. In 1996 the legislation was amended to enact stricter uniform gun laws throughout Australia. These amendments introduced a ‘comprehensive scheme dealing with gun control, gun ownership, collection and dealing’. (Citations omitted).
Later he added:
There is a clear need for the provisions of the Firearms Act 1977 and Regulations to be complied with. It is important that the community generally is aware of the need for careful and strict compliance. The legislative scheme for gun control requires compliance for its efficacy. Compliance with the Act and Regulations may cause a degree of inconvenience but the dangers of poor gun control are too evidence in our society for matters of non-compliance to be disregarded or overlooked.[4]
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility. At the same time, characters change over time and offences in the past need not permanently prevent an individual from holding a firearms licence.
[4] Davies v Registrar of Firearms [2005] SASC 149 (Unreported, Gray J, 21 April 2005); see also Johnson v Registrar of Firearms [2001] SASC 51; (2001) 79 SASR 353.
In my view the magistrate was correct in finding the respondent’s court appearances as a juvenile are not relevant in determining his fitness to hold a firearms licence. The 2001 charge of possessing cannabis was of some relevance, but I agree that alone it would be insufficient to found a view that the respondent was not a fit and proper person to hold a firearms licence. However, the 2003 drug and firearms offences are serious matters. Despite the fact that drug offences are not specified in s 5(11) of the Act, they may be considered by virtue of the general provision in s 5(12). In my view, a drug conviction may be of particular relevance if it is in combination with a firearms offence.
Counsel for the respondent submits that the offending in April 2003 needs to be viewed in its proper context. She submits that the charge of taking part in the sale of a controlled substance, for which the respondent was imprisoned for four months and two weeks, was not related to the firearms offences. She explained that the respondent was reloading his handgun, a lengthy procedure, at his residence in Dernancourt, but left quickly to visit the shops before they closed. In his haste he left the gun on his bed, loaded and unsecured. Whilst out he was called to the residence in Maylands. While he was present there police officers raided the premises and, finding the dried cannabis and cannabis plants, charged him with taking part in the sale of a controlled substance. Police subsequently searched his home in Dernancourt and discovered the unsecured firearm, together with some cannabis plants that the respondent kept for his own use.
In my view this explanation of events does not relieve the serious nature of the offending for which the respondent was convicted. In light of the seriousness of these offences, the Deputy Registrar was correct to decide in March 2006 that the respondent was not a fit and proper person to possess a firearms licence.
It is true that the relevance of past offending may fade over time when considering this question. In this case, however, there was only a period of seven months between the Deputy Registrar’s decision and the magistrate’s hearing of the appeal in October 2006. In my view this time was insufficient to substantially alter the conclusion in this matter. It follows that the magistrate erred by giving too much weight to the passage of time in assessing the respondent’s fitness.
I allow the appeal and restore the Deputy Registrar’s original decision.