PUNTER and COMMISSIONER OF POLICE - [2020] WASAT 142

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION:   PUNTER and COMMISSIONER OF POLICE [2020] WASAT 142
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   5 NOVEMBER 2020
DELIVERED          :   13 NOVEMBER 2020
FILE NO/S:   CC 9 of 2020
BETWEEN:   JAYMIE ALAN PUNTER
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence - Conviction for offence involving violence, in circumstances of aggravation, within five years - Application for review of decision to revoke firearm licence - Absent revocation applicant's firearm licence expired - Whether applicant now a fit and proper person to hold a firearm licence - Effect of review in circumstances where licence has expired

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 317(1)
Firearms Act 1973 (WA), s 5, s 5A, s 9A, s 9A(3), s 11, s 16, s 20(1), s20(1)(a)(iii), s 22
Firearms Act 1996 (NSW), s 11(3)
Firearms Regulations 1974 (WA), s 11B, s 11C
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s29(1), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b), s 32(4), s 32(7)(a)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant	:	Ms K Louden
Respondent	:	Ms A Western

Solicitors:

Applicant	:	Ross Williamson
Respondent	:	N/A

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

Coumbe v Whittaker [1999] WASCA 151
Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545
Harris v Commissioner of Police [2020] NSWCATAD 255
Jeffries v Commissioner of Police [No 2]
Killen v Commissioner of Police [2014] WASC 427
Knight v Commissioner of Police [2011] WASC 93
Middlecoat v Commissioner of Police [2012] WASC 309
Minitti v Commissioner of Police [2010] WASCA 198
Nickels v Commissioner of Police [2010] WASAT 19
Penketh v Commissioner of Police [2010] WASC 254
Penketh v The Commissioner of Police [2009] WASAT 174
Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246
Roongrote and Commissioner of Police [2018] WASAT 115
Tavelli v Johnson (1996) (unreported, WASC, Library No 960693, 25 November 1996)
Wally and Commissioner of Police [2014] WASAT 98
Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Following an incident of domestic violence, the applicant was convicted in August 2019 of unlawful assault. Shortly thereafter, he was advised by a delegate of the respondent, the Commissioner of Police, that his firearm licence was revoked, citing as the reasons for that decision, the applicant's conviction and the circumstances giving rise to it. The respondent contends that, by reason of those matters, the applicant is not a fit and proper person to hold a firearm licence. The applicant contends that he is a fit and proper person to hold a firearm licence and, by this proceeding, seeks review of the respondent's decision to revoke his licence.

Regulatory framework

Firearms Act 1973 (WA)

In these reasons, unless otherwise specified, any reference to:
(a)a legislative provision, or to 'the Act', is a reference to the Firearms Act 1973 (WA);
(b)a regulation, is a reference to the Firearms Regulations 1974 (WA).
Pursuant to s 5, the respondent, the Commissioner of Police (Commissioner), has carriage of the administration of the Act, which includes the licensing and control of firearms. The performance of those functions may be delegated by the Commissioner to prescribed members of the Police Force (s 5A). In the reasons, unless otherwise specified, a reference to the respondent includes an officer acting as delegate of the Commissioner.
Section 16 provides for the various types of licences which may be issued to eligible applicants, and s 9A provides for the duration and renewal of licences, with duration varying according to the type of licence issued.
The licence issued to the applicant was a firearm licence under s 16(1)(a) - licence number 04246641 (Licence) - which pursuant to s 9A(3) is valid for a period of 12 months from the day on which it is issued or last renewed.
A licence cannot be renewed under s 9A more than 12 months after its expiry.
Section 20(1) of the Act relevantly provides that, where the Commissioner is satisfied:
(a)that a person who is the holder of a licence, permit or approval under this Act
…
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it[,]
then he may refuse to renew or may revoke the licence (or impose reasonable restrictions, limitations or conditions on it).
Accordingly, the respondent exercises a discretion in relation to revoking (or refusing to renew) a licence, which is linked in nature to, and informed by the considerations relevant to, the exercise of discretion in issuing a licence.
The Commissioner is prohibited under s 11(1) from issuing a licence to a person if the Commissioner is of the opinion that to do so:
(a)would be contrary to s 11A or to the regulations made under s 11B or s 11C (which provisions largely go to the requirement that a person should have a genuine reason or need for the firearm);
(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 licence.
Section 11A prescribes the 'genuine reasons' for possessing a firearm or ammunition, which include that it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission: s 11A(2)(c).
Section 11(3) provides that the Commissioner will have sufficient grounds for forming an opinion that a person is not fit and proper to hold a firearm licence in certain circumstances, which include that the Commissioner:
(a)is satisfied that, within a five year period before applying of the licence:
(i)the person was convicted of an offence involving violence: s 11(3)(a)(ii) ; or
(ii)a violence restraining order was made against the person s 11(3)(a)(iv);
(b)is satisfied that the person fails to meet standards of mental or physical fitness considered necessary for holding a firearm licence: s 11(3)(b); or
(c)suspects, on the basis of an intelligence report or other information, that the person is a threat to public safety: s 11(3)(c).
It is clear, from its own terms and the sub-sections that follow it, that s 11(3) informs, rather than limits, the exercise of the respondent's discretion.
(a)As to its terms, the use of the phrase 'sufficient grounds' makes it apparent that the grounds specified in s 11(3) are neither necessary nor exclusive.
(b)As to the sub-sections that follow, pursuant to s 11(5) the Commissioner, notwithstanding being satisfied of one of the matters in s 11(3), may nevertheless form an opinion that a person is fit and proper to hold a firearm licence. Further, s 11(6) provides that the Commissioner may take account of matters other than those in s 11(3) in forming an opinion that a person is not fit and proper to hold a firearm licence.
Pursuant to s 11(2), if the Commission is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take that into account in deciding whether that person is fit and proper to hold a licence under the Act.
Section 22 provides that a person aggrieved by a decision of the Commissioner may apply to the Tribunal for review of the decision. This proceeding arises out of such an application.

Tribunal's role and jurisdiction

By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), an application pursuant to s 22 falls within the Tribunal's review jurisdiction, and the respondent's decision to revoke the applicant's firearm licence is a 'reviewable decision' under the SAT Act.
In the exercise of its review jurisdiction, the Tribunal:
(a)does not determine the validity or otherwise of the reviewable decision: Killen v Commissioner of Police [2014] WASC 427 at [42]-[43];
(b)undertakes a hearing de novo (s 27(1) of the SAT Act), meaning that the Tribunal must make the reviewable decision afresh. In doing so, the Tribunal has the same jurisdiction, functions and discretions as those of the original decision-maker, in this case being the Commissioner (s 29(1) of the SAT Act);
(c)may consider, but is not limited by, the reasons given by the respondent for the reviewable decision (s 27(3) of the SAT Act), and may take into account any new or additional information which was not provided to the respondent at the time that the reviewable decision was made (s 27(1) of the SAT Act); and
(d)may affirm, vary or set aside the reviewable decision, and in the latter case may substitute its own decision (s 29(3) of the SAT Act), to arrive at the correct and preferable decision (s 27(2) of the SAT Act).

Issue to be determined

As Heenan J noted in Knight v Commissioner of Police [2011] WASC 93, while it is clear that s 20(1)(a)(iii) enables the Commissioner (and in his place, the Tribunal) to revoke the applicant's firearm licence if satisfied that he is not a fit and proper person to hold it:
[20]However, this abbreviated summary … must not be regarded as implying that those are the only circumstances or considerations which might lead to the exercise by the Commissioner of his statutory power under s 20 to refuse to renew, or to revoke, any such licence, permit or approval or to impose restrictions[.]
Even where, as in this case, the fit and proper person test is the central issue, because the Tribunal undertakes a review hearing de novo, it must in reaching its decision be satisfied of the applicant's eligibility and suitability to hold a firearm licence, taking account of any relevant criteria under the Act, in respect of which the applicant bears a 'practical onus': see Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [279]-[285].
It follows that the issue for the Tribunal to determine is whether, on the basis that it is the correct and preferable decision, the applicant's Licence should be revoked. Of particular relevance to the determination of that issue, in the circumstances, is whether the Tribunal can be satisfied that the applicant is a fit and proper person within the meaning of s 11 of the Act to hold a firearm licence, having regard to his criminal conviction history.

Evidence

Proceedings in the Tribunal are to be conducted fairly with all relevant material disclosed to the parties (s 32(7)(a) of the SAT Act). The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2)(b) of the SAT Act) and may inform itself on any matter as it sees fit (s 32(4) of the SAT Act). Unless it adopts them, the Tribunal is not bound by the rules of evidence and the practices and procedures applicable to courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act).
A final hearing of the application was held on 5 November 2020 (Hearing).
Both parties filed various documents and materials, which were put into a hearing book prepared by the Tribunal and taken into evidence (Exhibit 1). Each party's documents included a Statement of Issues, Facts and Contentions (the applicant's submissions and the respondent's submissions, respectively) and supporting documents. The respondent's evidence included video footage which was provided on a USB stick and that was taken into evidence separately (Exhibit 2).
At the Hearing, the applicant gave oral evidence and called his wife, Jennifer Punter (Mrs Punter). The respondent called Constable Mia Guilianna Fiocco Walton (Constable Walton). Each party was legally represented and had the opportunity to examine and crossexamine the witnesses.
All of the above evidence has been considered by the Tribunal in making its findings on material questions of the facts, which are set out below, and in arriving at its decision.

Material facts

Absent revocation, the applicant's Licence:
(a)permitted him to possess the following firearms for recreational hunting and shooting:
(i)category B a .308 calibre bolt action rifle (Remington, serial number G6430336);
(ii)category A - a .22 calibre bolt action rifle (CZ, serial number A261921); and
(iii)category A a 12G calibre double barrel shotgun (Baikal, serial number 052778536); and
(b)was valid until 26 March 2020.
On 30 August 2019 the applicant was convicted, under s 317(1) of the Criminal Code Act Compilation Act 1913 (WA), of assault occasioning bodily harm in circumstances of aggravation (Conviction).
The applicant pled guilty to the offence and was sentenced to a 12 month community based order with a spent conviction.
The incident giving rise to the Conviction occurred on 31 July 2019 (Incident) and is described in the Statement of Material Facts (Exhibit 1, page 75) as follows:
… At about 9:57pm on Wednesday, 31st July 2019 the accused returned to his home … in an enraged state.
The accused became engaged in a heated verbal argument with the victim [the accused's wife], which escalated as the accused began to throw items around the house and punch the walls.
The accused punched the victim with a closed fist to her right cheek, causing pain and swelling.
This assault occurred in the presence of their eleven year old child.
The incident was captured on phone video recording by the victim[.]
There is some contention between the parties in relation to the details and circumstances of the Incident.
(a)The applicant pled guilty to the offence and is therefore taken to accept the Statement of Material Facts.
(b)Nevertheless, in the Hearing the applicant submitted that he pled guilty to avoid delay of his hearing (and associated separation from his family) and the costs of contesting the charge.
(c)Although he accepts he was behaving aggressively and struck his wife, he submitted that his recollection of the event was poor, that he was significantly affected by alcohol at the time, and that he had been punching the walls of the house and struck his wife accidentally rather than intentionally.
(d)The applicant's version of events was supported by Mrs Punter in her oral testimony at the Hearing. However, the signed statement she provided to the police at the time of the Incident does not support the contention that the contact was accidental.
(e)The respondent submitted that the Material Statement of Facts should stand as an accurate account of the Incident and that the applicant's submissions amounted to a collateral attack on his conviction and should not be accepted.
The video footage recorded by Mrs Punter on her telephone on the night of the Incident, being Exhibit 2, was played at the Hearing. The footage records the applicant behaving aggressively and shouting abusively. It also shows him punching, but does not assist with the issue of whether the punches were directed at the walls and/or Mrs Punter.
For the purposes of the present proceeding, the Tribunal does not need to resolve that matter. The facts as they are contained in the Material Statement of Facts are not inconsistent with the applicant's version of events. They include that the applicant was behaving aggressively, and was punching the walls and struck his wife with a closed fist, causing her injury. None of those matters is disputed; nor is it disputed that at least some of what occurred that night was in the presence of the applicant's child, who had been woken up by the shouting.
The Tribunal:
(a)accepts the Statement of Material Facts as an accurate account of the Incident;
(b)finds (and it is not contentious) that at the time of the Incident the applicant had been drinking and was affected by alcohol; and
(c)refrains from making further findings of fact in relation to the Incident.
By letter dated 28 October 2019, the respondent advised the applicant that, from the date of service of the letter (being 12 November 2019) (Exhibit 1, page 19) his Licence was revoked. The Incident and the Conviction were cited as reasons for the respondent's decision.
At the Hearing, the applicant denied having behaved violently or abusively towards Mrs Punter before the Incident.
Constable Walton gave evidence (Exhibit 1, page 108) that, on the night of the Incident, Mrs Punter disclosed that she had filmed previous 'violent outbursts' from the applicant but that she declined to comment on or show that footage.
Under crossexamination, Mrs Punter gave evidence that prior to the Incident the applicant had engaged in 'alcohol abuse'. When questioned about what this meant, she elaborated that the applicant would be verbally abusive towards her when he drank, but denied previous physical violence. That evidence is consistent with the signed statement she provided to police on 1 August 2019 (Exhibit 1, pages 77-81), which includes:
…
5.When Jaymie drinks he becomes angry and abusive towards me and the kids.
6.Jaymie drinks heavily every day.
7.For the past 3 years my relationship with Jamie has got worse, he has started getting angrier and angrier and for the past few years I have learned to accept his behaviour and I try not to react when he gets angry.
8.In the past our arguments were only verbal, and he would come home angry and become abusive towards me and the kids[.]
The Tribunal accepts Mrs Punter's evidence in relation to the history and nature of the applicant's behaviour in relation to her.
The applicant's submissions include that he is an alcoholic. He gave evidence that, since the Incident:
(a)he has been treated and reviewed by his General Practitioner (GP) in relation to that condition, with his alcohol cravings initially managed on prescribed medication (Campral), but that he has now been able to come off that medication and remain abstinent; and
(b)he attends weekly meetings of Alcoholics Anonymous (AA) in Port Hedland, and save for one relapse in January 2020, has remained alcohol free for a year (having recently achieved his nine month medal).
That evidence is accepted by the Tribunal, and is supported by:
(a)drug and alcohol testing being performed both under the community based order to which the applicant was sentenced, and as a requirement of his employment as a carpenter supervisor where he works on mine sites and is tested daily Monday to Friday (Exhibit 1, pages 38, 41-42, 45, 52-53 and 95-96);
(b)statements provided by the secretary of the Port Hedland AA meetings and the applicant's GP (Exhibit 1, pages 38 and 44); and
(c)evidence given by Mrs Punter to the effect that the applicant has remained sober, with a significant improvement in their relationship (and the applicant's behaviour towards her) as a result of this, as well as counselling the applicant has been attending.
The applicant and Mrs Punter gave evidence that the applicant uses his firearms to take their children hunting for kangaroos, which is an important part of their Aboriginal heritage, as well as a source of meat for the family.

The parties' contentions

The applicant's contentions may be summarised as follows:
(a)although the applicant's Conviction falls within the scope of s 11(3)(a)(i), being a conviction within the last five years of an offence involving violence (Relevant Offence), he is not deemed thereby to be a person who is not fit and proper to hold a firearm licence;
(b)the Commissioner (and in his place, the Tribunal) may consider the circumstances of the Conviction and any other relevant facts in forming an opinion in relation to whether the applicant is a fit and proper person to hold a firearm licence;
(c)the purpose of s 11(3) is to protect public safety, not to punish the person convicted of a Relevant Offence (citing Coumbe v Whittaker [1999] WASCA 151 (Coumbe));
(d)the applicant does not have a history of violence, and the Conviction and the Incident giving rise to it represents an isolated event which was contributed to significantly by the applicant's intoxication at the time;
(e)since the Incident, the applicant has addressed his use of alcohol, including by seeking and accepting medical treatment, undergoing counselling, and regularly attending AA meetings;
(f)the Incident did not involve the use of a firearm;
(g)the applicant understands the responsibilities associated with the privilege of owning a firearm, and there is no suggestion that the applicant has used or is likely to use a firearm for an unlawful purpose or that he lacks the physical or mental capacity to handle a firearm responsibly; and
(h)in the premises, the applicant is a fit and proper person to hold a firearm licence and his possession of firearms is not a risk to public safety.

The applicant submitted that the respondent's decision to revoke his Licence should be set aside and that the Tribunal should substitute that decision with a decision that his Licence be reinstated.
In support of his contentions, the applicant referred the Tribunal to a number of cases in which persons with convictions for Relevant Offences were nevertheless found to be fit and proper persons to hold a firearm licence: Nickels v Commissioner of Police [2010] WASAT 19 (Nickels); Jeffries v Commissioner of Police [No 2] [2011] WASAT 145 (Jeffries); Wally and Commissioner of Police [2014] WASAT 98 (Wally).
The respondent's contentions may be summarised as follows::
(a)the Incident represents a serious offence involving not just violence but circumstances of aggravation, which included domestic violence committed in the presence of a child;
(b)the evidence, particularly that of Mrs Punter, is to the effect that the applicant has a history of anger issues and a tendency towards abusive behaviour;
(c)the applicant's evidence and submissions regarding the circumstances of the Incident and his reasons for pleading guilty demonstrate a lack of insight and genuine remorse for his conduct;
(d)although the applicant has remained abstinent of alcohol for a period of almost a year, there has been insufficient time to determine whether, absent the conditions of the community based order to which the applicant was sentenced, there has been a real change in the applicant's circumstances or behaviour in relation to alcohol and his associated aggression;
(e)the cases referred to by the applicant (Wally, Jeffries and Nickels) could all be distinguished, noting in particular that in each case the time that had elapsed since the commission of the Relevant Offences was longer than is involved in this matter; and
(f)the applicant had not raised evidence sufficient to displace an expectation arising under s 11(3) (as to which the respondent referred the Tribunal to Wignall at [300]) that the applicant, having been convicted of a Relevant Offence, is not a fit and proper person to hold a firearm licence.
The respondent submitted that:
(a)there are reasonable grounds for the Tribunal to form an opinion that the applicant is not a fit and proper person to hold a firearm licence; and
(b)the Tribunal should affirm the respondent's decision to revoke the applicant's Licence.

Consideration

The Tribunal is satisfied that the applicant has a genuine reason under s 11A(2)(c) for possessing a firearm and ammunition, and accepts that there is no suggestion that the applicant:
(a)has used a firearm for an unlawful purpose;
(b)has otherwise breached the requirements of the Act in relation to the use or storage of firearms or ammunition; or
(c)subject to the consideration of fitness below, lacks the physical or mental capacity to handle a firearm responsibly.
Accordingly the Tribunal is satisfied that, on the evidence before it, if the applicant is otherwise found to be a fit and proper person to hold a firearm licence, then there would be no reason to revoke the applicant's Licence and the application should succeed (see [18][19] above).

The 'fit and proper person' test

As noted by the Tribunal in Roongrote and Commissioner of Police [2018] WASAT 115 (Roongrote) at [19]-[20]:
19[T]he term 'fit and proper person' carries no precise meaning (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321) (Australian Broadcasting Tribunal)). The expression takes its meaning from its context and the activities in which the person is or will be engaged and the ends to be served by those activities. The expression may require an assessment of a person's character because it provides an indication of public perception as to likely future conduct or reputation (Australian Broadcasting Tribunal).
20The applicant, in any case, must be assessed as being possessed of the requisite knowledge of the duties and responsibilities 'devolving upon him as the holder of a particular licence under a particular Act' (Maxwell v Dixon [1965] WAR 167 per Hale J). The expression 'fit and proper person' gives the widest possible scope for judgment and for rejection of an application for a licence (Minitti).
The Court of Appeal has emphasised the breadth of the expression 'fit and proper person' in s 11, and the discretion to be exercised in its application.
(a)In Minitti v Commissioner of Police [2010] WASCA 198 (Minitti), the applicant seeking review of a decision to reject his application for a firearm licence had contended (at [10]) that the correct test was whether the applicant was 'going to harm themselves or another person through the possession of a licensed firearm or in the exercise of rights associated with holding a firearm licence, or would use it for illegal activity'. The Court of Appeal rejected any such restriction to forming an opinion of whether an applicant is fit and proper to hold a firearm licence, describing (at [11]) the purpose of the expression 'fit and proper' as being 'to give the widest scope for judgment and for rejection of an application for a licence' (and, by extension, revocation of an existing licence).
(b)Similarly, in Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246 (Jones), the Court of Appeal held that 'fit and proper' was not confined by considerations of public safety, stating (at [22]) that all matters bearing on the question of fit and proper person, in the context of the Act, are to be considered.
There is no doubt that, as contended by the respondent, there are reasonable and indeed sufficient grounds for the Tribunal to be satisfied that the applicant is not a fit and proper person to hold a firearm licence. So much is clear from the express language of s 11(3), pursuant to which the fact of the applicant's Conviction is, without more, sufficient (see also Jones at [22]). Nevertheless, it is also clear that the Tribunal may look beyond the fact of the Conviction itself, to consider (amongst any other relevant matters) the circumstances and conduct of the applicant before, at the time of and since the Incident (see [17]-[18] above).
In Tavelli v Johnson (1996) (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) Wheeler J (as she then was) made observations about the relevance of prior convictions when assessing whether a person is fit and proper (in a different legislative context). While she cautioned 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 noted that a number of considerations might influence the relevance of convictions to assessments of character. Those considerations have been accepted as relevant to, and applied in the context of, assessments of fitness and properness under the Act (see, for example, Minitti at [11] and Wignall at [296]-[297]).
In Penketh v Commissioner of Police [2010] WASC 254 (Penketh), the Supreme Court (at [52]) approved the Tribunal's application of Tavelli in assessing whether a person was fit and proper to hold a firearm licence under the Act (see Penketh v The Commissioner of Police [2009] WASAT 174 at [34]), as follows:
… 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.
The Tribunal accepts that the Incident did not involve a firearm and does not of itself involve or give rise to concerns about breaches of the Act. Rather, the concern in this case is whether the applicant, by his conduct (illustrated by, but not necessarily confined to, the facts giving rise to his Conviction), has demonstrated such aggression and lack of self-control as to be ill-suited in character to a person having possession of a firearm (that is, whether he is not a proper person to possess a firearm). Additionally, the applicant has given evidence that he is an alcoholic, and this gives rise to a further concern about his fitness to possess or to continue to possess a firearm.
The applicant referred in support of the application to Harris v Commissioner of Police [2020] NSWCATAD 255, where the Tribunal (at [51]) placed particular weight on the applicant's offences not having involved the use of a firearm, and the absence of other incidents involving the applicant in his capacity as a gun owner. That case does not assist the applicant, however, because:
(a)the Tribunal in that case was concerned with a different statutory test, prohibiting the issue of a licence unless the Commissioner was satisfied that the applicant was 'a fit and proper person and [could] be trusted to have possession of firearms without danger to public safety or to the peace': s 11(3) of the Firearms Act 1996 (NSW); and
(b)in any event, Minitti, Jones and Wignall make it clear that the fit and proper test under s 11(3) involves the weighing up of all relevant information and is not properly confined by reference to the applicant's use of firearms.
The respondent points to an observation made in Wignall (at [300]) that s 11(3)(a) evinces:
[S]ome clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists[.]
Although that observation should be regarded as being incidental to the decision (because there was no suggestion that the applicant in Wignall had, during the five year period preceding his application for the firearms licence, been convicted of any of the types of offences that would fall within the scope of s 11(3)(a): Wignall at [291]), the Tribunal, with respect, agrees with it.
Accordingly, the Tribunal considers that, in weighing all the matters relevant to the exercise of its discretion, where an applicant has been convicted of a Relevant Offence, there ought generally be evidence of some relevant change in the applicant's circumstances to overcome the weight given to the expectation arising under s 11(3)(a). Such an approach is consistent with that described in [52] above.
In Wally, for example, the Tribunal noted (at [47]) that upon review, it may take into account the trigger for a person's behaviour that had resulted in a conviction but which trigger is no longer relevant to the person's behaviour. In that case, despite the applicant's long history of multiple convictions, including a conviction for common assault in the previous five years, the Tribunal was satisfied that at the time of his application he was a fit and proper to hold a firearm licence. The Tribunal accepted that he has taken responsibility for his actions, ceased consuming alcohol and other illicit substances (found to be the triggers for his offending behaviour), expressed genuine regret and remorse and had taken steps to ensure he would not re-offend.
The applicant refers to Wally in support of the application, while the respondent pointed to significant distinguishing features, noting that the applicant's most recent conviction in Wally had been almost five years prior to the hearing (and included mitigating factors).
As noted above, the applicant also referred the Tribunal to Nickels and Jeffries, each of which involved applicants who had been convicted of Relevant Offences (each including assaults against police officers) but had nevertheless been found to be fit and proper and granted firearms licences. In the former, the Tribunal accepted that the applicant's breaches of the Act were not deliberate; she was remorseful for her offending and had demonstrated a change in her character. In the latter, the Tribunal accepted that the applicant had reformed his character since his offending, having obtained full time employment and abstaining from alcohol use. The respondent points to the periods since offending (a period of four years in Nickels, and period of two years in Jeffries) and to the absence of aggravating features of domestic violence, as distinguishing features.
Ultimately, although the Tribunal is assisted by considering analogous cases, it must ultimately exercise its broad discretion anew in the circumstances of this particular application, in the light of the statutory framework: Tavelli.
The applicant has submitted that:
(a)the applicant's alcoholism condition ought to be treated as a medical condition; and
(b)the purpose informing the 'fit and proper person test' is public safety rather than punishment (citing Coumbe).
Acknowledging that the applicant's alcoholism as a medical condition does not mean that he should be assessed as 'fit and proper' to possess a firearm. On the contrary, if as the evidence suggests, the applicant's ability to regulate his conduct and aggression is significantly impaired when he is intoxicated, then being an alcoholic gives rise to a material risk that is properly taken into account in assessing his fitness to possess a firearm.
As highlighted by the Court of Appeal in Coumbe, any preclusion of the possession of firearms under the Act is aimed not at punishing the applicant, but at serving the protective purpose of the Act in the public interest (see also: Roongrote at [22]). In other regulatory contexts informed by the purpose of protecting the public, it has been noted that such protection may justify an outcome has adverse (or even harsh) consequences for the person affected by it, even if that person is not at fault: (see, for example, Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545 at [46]-[47]). This idea lies at the heart of the requirement of fitness (which will often not be a matter of fault) being in addition to that of properness.
The weighing up of the relevant information before the Tribunal in this matter, to arrive at a decision about whether the applicant is a fit and proper person for the purposes of s 11(1), was finely balanced.
The Tribunal considers the commission of any incident of domestic violence to be a matter of utmost seriousness, and of such a character as to be generally incompatible with the possession by the perpetrator of a firearm. The location of violent behaviour in the home, where the applicant keeps his firearms, is a matter of considerable concern. Although the Tribunal accepts Mrs Punter's evidence that the Incident represented an isolated instance of physical violence, it also finds that the applicant has a history of aggressive, verbally abusive and unregulated behaviour when intoxicated. Further, the applicant is, by reason of his alcoholism, at a higher risk of becoming intoxicated as compared to persons who do not have that condition.
The Tribunal accepts that alcohol is the principal trigger of the applicant's aggressive behaviours. The Tribunal finds that when the applicant is not abstinent of alcohol he is not a fit and proper person to possess a firearm.
Accordingly, the most significant factor in favour of the application is the considerable progress the applicant has made, since the Incident, to treat his alcoholism and manage his associated behaviours. Nevertheless, the period that has elapsed since the Incident is relatively short, and the applicant has, for most of that time, been subject to supervision under the community based order to which he was sentenced. The applicant's ongoing employment in an environment that requires regular drug and alcohol testing, and his regular attendance at AA meetings, are significant contextual factors in satisfying the Tribunal that the trigger for the applicant's aggression is likely to remain absent notwithstanding the expiration of the community based order.
On balance, the Tribunal is satisfied that:
(a)the applicant's Conviction represented an isolated incident of physical violence, triggered by alcohol consumption, and that the applicant has since that time (with the exception of one occasion in January) remained abstinent of alcohol and is likely to remain so;
(b)on that basis, by the time of the Hearing, the applicant had become a fit and proper person to hold a firearm licence; and
(c)the applicant's Licence should not be revoked.

Effect of decision

The Tribunal notes that it is not empowered to make any decision that differs in subject matter or substance from the reviewable decision. In this case, the reviewable decision concerns whether the applicant's Licence should be revoked; it is not a decision about whether to issue or renew a licence.
The Tribunal has determined that the reviewable decision should be set aside and substituted with its own decision. The applicant submitted that the Tribunal should 'reinstate' his Licence. However, the Tribunal considers that the more appropriate substituted decision is that the Licence is not revoked, which makes clear that the Licence can have no greater effect or duration than it would have had absent the respondent's revocation.
As noted above, absent revocation, the Licence was valid until 26 March 2020. Accordingly, the effect of the Tribunal's decision will be that the Licence expired on 26 March 2020.
Because any order giving effect to the determination of the Tribunal will be made within the 12 month period following the date of expiration, the applicant will be eligible to apply for renewal of the Licence under s 9A (see contra: Middlecoat v Commissioner of Police [2012] WASC 309). Accordingly, the Tribunal is satisfied that such an order has efficacy and is appropriate to make in the exercise of its discretion under s 27(3) of the SAT Act.

Orders

The Tribunal orders:
1. In relation to the applicant's firearm licence number 04246641, the decision of the respondent to revoke the licence is set aside and substituted with a decision that the licence is not revoked.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B MCGIVERN, MEMBER
13 NOVEMBER 2020