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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Losapio

Details

AGLC: Police v Losapio [2007] SASC 112
Case: [2007] SASC 112
Decision Date: 2 April 2007

CaseChat Overview and Summary

The case of Police v Losapio involved an appeal by the police against a decision made by a magistrate who overturned an earlier decision by the Deputy Registrar of Firearms to refuse the respondent a firearms licence. The central issue was whether the magistrate was correct in finding that the respondent was a fit and proper person to hold a firearms licence, given his past convictions for drug and firearms offences. The Deputy Registrar had initially refused the licence on the basis that the respondent was not a fit and proper person, a decision that was subsequently overturned by the magistrate. The court had to determine whether the magistrate erred in his assessment and whether he had sufficiently considered the aims and objectives of the Firearms Act 1977 (SA).

The court found that the magistrate’s decision to overturn the Deputy Registrar’s refusal was flawed. The court held that the magistrate gave undue weight to the passage of time since the Deputy Registrar's decision and did not adequately consider the seriousness of the respondent's past convictions for drug and firearms offences. The court emphasised that the combination of these convictions, particularly their nature and recency, were significant factors in determining the respondent's fitness to hold a firearms licence. The court also noted that there was insufficient time between the Deputy Registrar's decision and the magistrate's appeal to warrant a change in the conclusion that the respondent was not a fit and proper person.

The court ultimately allowed the appeal, reinstating the Deputy Registrar's decision to refuse the respondent a firearms licence. The decision underscores the importance of considering the gravity of past criminal conduct when assessing an individual's suitability to hold a firearms licence. The court's ruling highlights the need for magistrates to carefully weigh the evidence and objectives of firearms legislation in making such determinations.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

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.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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