Roongrote and Commissioner of Police

[2018] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   ROONGROTE and COMMISSIONER OF POLICE [2018] WASAT 115

MEMBER:   MS N OWEN-CONWAY (MEMBER)

HEARD:   19 SEPTEMBER 2018

DELIVERED          :   1 NOVEMBER 2018

FILE NO/S:   CC 18 of 2018

BETWEEN:   KRISANAPONG ROONGROTE

Applicant

AND

COMMISSIONER OF POLICE

Respondent

Catchwords:

Revocation of firearm licence ­ Collateral challenge to convictions ­ Guilty plea resulting in conviction ­ Record of convictions proof of conviction and guilt ­ Lack of probity of oral evidence of precise facts of conviction ­  No record of the proceedings in which conviction recorded and sentence passed ­ Turns on own facts

Legislation:

Criminal Investigation Act 2006 (WA)
Customs Act 1901 (Cth), s 201A
Firearms Act 1973 (WA), s 4, s 5, s 5(2), s 5A(3), s 10A, s 11(1), s 11(2), s11(3), s 11(5), s 20, s 20(1)(a)(iii), s 22(2), s 22A(4), s 29(2),
Firearms Regulations 1974 (WA), reg 25
Misuse of Drugs Act 1981 (WA)
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 17, s 27, s 27(3), s 29(3), s 32, s 32(1), s 32(2)(a), s 32(2)(b), s 32(4), s 32(7)(a)
The Evidence Act 1906 (WA)
Weapons Act 1997 (WA)

Result:

Upon review decision to revoke firearm licence affirmed

Category:    B

Representation:

Counsel:

Applicant	:	Ms K Louden
Respondent	:	Mr M Holgate

Solicitors:

Applicant	:	Ross Williamson
Respondent	:	Commissioner of Police

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Bennett v The State of Western Australia [2012] WASCA 70

Byfield and Commissioner for Consumer Protection [2012] WASAT 217

Donnellan v The Public Trustee [2010] WASC 214

Granato v Comptroller­General of Customs [2018] WASC 201

Hardingham v Chief Executive Officer, Department of Child Protection [2011] WASC 86

Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Ives and Plumbers Licensing Board [2013] WASAT 125

Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961

Knight v Commissioner of Police [2011] WASC 93

Maxwell v Dixon [1965] WAR 167

McGee v Chitty [2011] WASCA 125

Mickelberg v Director of Perth Mint [1986] WAR 365

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115

Minitti v Commissioner of Police [2010] WASCA 198

Minniti and Commissioner of Police [2009] WASAT 223

Murphy and Commissioner for Consumer Protection [2012] WASAT 74

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64

Roberts v The State of Western Australia [2005] WASCA 37

Rodriguez v Telstra Corp Ltd [2002] FCA 30

Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27

Tavelli v Johnson (1996) (unreported, WASC, Library No 960693, 25 November 1996)

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA Library No 970426A, 26 August 1997)

Wally and Commissioner of Police [2014] WASAT 98

Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

The application

1. On 5 January 2018, the Tribunal received an application made pursuant to s 22(2) of the Firearms Act 1973 (WA) (Act). The applicant, Mr Roongrote, is a person who is aggrieved by decision made by the respondent, the Commissioner of Police, in November 2017 under that Act. The respondent's delegate, the Acting Inspector of the Licence Enforcement Division (delegate), decided to revoke the applicant's firearms licence number 04431220. The delegate formed the opinion that the applicant is not a fit and proper person to hold a firearms licence. That opinion was formed pursuant to s 11(1), (3) and s 20(1)(a)(iii), because the applicant had been convicted of the following:

   (a)two criminal convictions in 2017 for importing silencers;

   (b)six convictions for contraventions of the Act in 2016; and

   (c)a number of other criminal 'convictions' between 2001 and 2017.

2. Section 11(3)(a)(iii) of the Act provides that three convictions for contraventions of the Act constitute a sufficient basis to for the delegate's opinion.

3. The applicant seeks an order from the Tribunal setting aside the respondent's decision to revoke the applicant's firearms licence.  The applicant's contention is that he is a fit and proper person to hold a firearms licence, despite his convictions.

4. The respondent does not rely upon s 11(3)(a)(i), (ii) or (iv) of the Act to establish sufficiency of grounds for the formation of the opinion that the applicant is not a fit and proper person.

The issues

1. The issue in this proceeding is whether on all of the evidence, the applicant is not a fit and proper person to hold a firearm licence.

2. If so, the issue is whether the Tribunal concludes on the evidence that the applicant's firearms licence is to be revoked pursuant to s 20(1)(a)(iii) of the Act.

Jurisdiction and powers of the Tribunal

1. Section 22(2) of the Act and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) confer on the Tribunal the jurisdiction to review the respondent's decision made pursuant to s 20 of the Act. An application pursuant to s 22(2) of the Act falls within the Tribunal's review jurisdiction (s 17 of the SAT Act). The Tribunal's review of the reviewable decision is by way of a hearing de novo and the objective of the review is if for the Tribunal to arrive at the correct and preferable decision on the basis of the information and the evidence before the Tribunal at the time of review (s 27 of the SAT Act). In the exercise of its review jurisdiction, the Tribunal may consider the reasons for the reviewable decision but is not limited in its considerations to the material that was before the original decision-maker (s 27 of the SAT Act), nor to the original decision-maker's reasoning (s 27(3) of the SAT Act). Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decision­maker are conferred on the Tribunal in addition to the powers conferred on the Tribunal by the SAT Act. The Tribunal may affirm, vary or set aside the reviewable decision and in the latter case my substitute its own decision in place of the reviewable decision (s 29(3) of the SAT Act).

Evidence before the Tribunal

1. The Evidence Act 1906 (WA) does not apply to the Tribunal's proceedings. The Tribunal is not bound by the rules of evidence and the practices and procedures applicable to courts of record, except to the extent the same are adopted by the Tribunal (s 32(2)(a) of the SAT Act). The Tribunal is bound by the rules of natural justice (s 32(1) of the SAT Act) and s 32(2)(b) of the SAT Act directs the Tribunal to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The Tribunal may inform itself on any matter as it sees fit (s 32(4) of the SAT Act). However, the rules of natural justice and the provisions of s 32(7)(a) of the SAT Act require that proceedings be conducted fairly with all relevant material disclosed to the parties. The fact that the rules of evidence do not bind the Tribunal does not mean that those rules have no operation or that the Tribunal proceedings be conducted without regard to the same. This more flexible procedure provided by s 32 of the SAT Act requires that Tribunal decisions are made on the basis of evidence that has probative force (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 250 and 256; Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64, Rodriguez v Telstra Corp Ltd [2002] FCA 30 cited with approval in respect of s 32 of the SAT Act in Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27). The rules of evidence represent the evolution of 'a method of enquiry best calculated to prevent error and elicit truth' (R v War Pensions Entitlement Appeal Tribunal;     Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 250 and 256) and should therefore not be disregarded by the Tribunal. Section 32(2) of the SAT Act allows the Tribunal to be dispense with the rules of evidence as to the strict form in which relevant information is supplied to the Tribunal provided the information is sufficiently cogent and the form in which it is presented is reliable for the purposes of making findings of facts in order to arrive at the correct and preferable decision based on the substantial merits of the case. To this extent the presentation of information is less formal and more flexible but ultimately the nature of information and the manner in which the parties have chosen to supply that information for the Tribunal's consideration will likely affect the weight to be given to that information and its probity.

2. In conducting the proceeding, the Tribunal is to review decisions fairly and according to the substantial merits of the case, as dictated and required by s 9 and 32 of the SAT Act (Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115).

3. This proceeding falls within the Tribunal's review jurisdiction and the order sought is one that the Tribunal is empowered to make.  As will be seen, the proceeding was the subject of a number of directions hearings and a hearing where the applicant was able to present his evidence and make submissions.

The delegate and the notice of revocation

1. Briefly, s 5 of the Act vests responsibility for the administration of that Act in the relevant Minister. Section 5(2) of the Act provides that the administration shall be carried out by the Commissioner. The Commissioner is defined by s 4 of the Act to be the respondent. Section 5A(3) of the Act provides that the respondent may delegate any power that he has under the Act, other than those of his functions delegated to him by the regulations made pursuant to the Act, or the power of the respondent to delegate as conferred by s 5A(3) of the Act. The permitted delegation must be to a member of the WA Police and must be affected by a signed instrument of delegation. Although the signed instrument of delegation was not before the Tribunal, the Tribunal concludes that where a member of the WA Police issues a letter of revocation of a firearms licence in which that member asserts that he is a delegate of the respondent for the purposes of issuing the letter of refusal, such statement and letter is, in this proceeding, evidence of that fact of delegation, and is to be accepted as that fact in the absence of evidence to the contrary (s 29(2) of the Act). The Tribunal finds that the notice of revocation dated November 2017 was issued by a duly delegated officer of the respondent and is a valid notice of revocation.

Statutory framework

1. The purpose of the Act is to protect the public (McGee v Chitty [2011] WASCA 125 per Mazza J at [41]).

2. Section 20 of the Act provides, relevantly:

   (1)Where the Commissioner is satisfied ­

   (a)that a person who is the holder of a licence, permit or approval under this Act ­

   (i)obtained it by fraud or deception; or

   (ii)has breached or failed to observe a restriction, limitation or condition to which it is subject; 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 or may impose reasonable restrictions, limitations or conditions thereon[.]

3. Section 11(1) of the Act provides:

   The Commissioner cannot … issue a licence under this Act to a person if the Commissioner is of the opinion that ­

   …

   (c)the person is not a fit and proper person to hold the … licence.

4. Relevantly, s 11(3) of the Act provides that:

   The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold … a licence under this Act if the Commissioner ­

   (a)is satisfied that at any time within … 5 years [prior to their application for a licence]­

   …

   (iii)the person was convicted of any offense against this Act[.]

5. The respondent is not obliged to form an opinion that a person is not a fit and proper person to hold a firearm licence sufficient grounds exist by reason of s 11(3)(a)(iii) to form that opinion. Section 11(5) of the Act provides that the respondent may form the opinion that a person 'is a fit and proper person' to hold a firearm licence, notwithstanding proof of any of the facts referred to in s 11(2) and s 11(3) of the Act. The Tribunal upon review, may take into account, for example, the trigger for a person's behaviour that resulted in a conviction but which trigger is no longer relevant to the person's behaviour (see: Wally and Commissioner of Police [2014] WASAT 98 (Wally)). In such an example, the Tribunal may decline to form the opinion that the person is not a fit and proper person to hold a firearm licence for the purpose of s 11(1)(c) and 20(1)(a)(iii) of the Act. Further, the respondent may conclude that a person is not a fit and proper person to hold a firearm licence even if none of the matters referred to in s 11(3) are established. The breadth of the power conferred by s 20 of the Act demonstrates that the power which may be exercised by the respondent is not limited to where the licensee has committed an offence against the Act or any other law, or where the conduct of the licensee becomes cognisable by a court (Knight v Commissioner of Police [2011] WASC 93 (Knight) per Heenan J at [21]).

6. A question that arises in this matter is: what are the factors relevant to the assessment of whether a person is not fit and proper to hold a firearm licence?  As to prior convictions, Tavelli v Johnson (1996) (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) is instructive.  In Tavelli, Wheeler J made observations concerning the relevance of prior convictions in deciding whether a person was or was not fit and proper to be licensed as a security agent pursuant to the Security and Related Activities (Control) Act 1996 (WA). Her Honour's observations were applied by the Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 and Minniti and Commissioner of Police [2009] WASAT 223. The Tribunal's application of her Honour's observations in Tavelli in a matter cocnering the Act, was implicitly affirmed as an applicable guide by which the Tribunal may assess whether or not a person is fit and proper in the context of the exercise of a statutory discretion (Minitti v Commissioner of Police [2010] WASCA 198 (Minitti)).

7. Those principles may be summarised as follows:

   •There can be no inflexible rules and no policy that restricts the exercise of the statutory discretion.

   •The statutory discretion is to be exercised anew in the circumstances of each application in light of the statutory framework.

   •A conviction, if serious by its nature (and notwithstanding that the conviction does not relate to the vocation or the licence in issue, or does not involve dishonesty where honesty is critical to the vocation or the issue of the licence under scrutiny), is relevant to the issue of whether a person is 'fit and proper'.

   •The conviction, if serious in the sense that it represents 'a course of disregard for the law as to reflect particularly adversely on the character of the person who committed the offence' (Minitti per Pullin JA at [13]), is relevant to the issue whether a person is 'fit and proper'.

8. Generally, the expression 'fit and proper' incorporates the qualities of honesty, knowledge and ability (Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127; The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA Library No 970426A, 26 August 1997) per Kennedy J; Murphy and Commissioner for Consumer Protection [2012] WASAT 74; Byfield and Commissioner for Consumer Protection [2012] WASAT 217; and Ives and Plumbers Licensing Board [2013] WASAT 125)). Of itself, the 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).

9. The 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).

10. In the case of the Act, the applicant must be assessed to possess the requisite knowledge of the duties and responsibilities of owning and using a firearm, as imposed by the Act.  In this proceeding, the applicant must be assessed as having the character to be trusted to discharge those duties and responsibilities, as imposed by the Act, into the future in a way that preserves public safety, which is an objective of the Act.

11. To the extent that the applicant has been convicted for offences against the Act and the submission that the revocation is a second round of punishment, the Tribunal concludes that the power conferred upon the respondent by s 20 of the Act is not a judicial power, but rather a statutory administrative power (Knight per Heenan J; Penketh v Commissioner of Police [2010] WASC 254). The administrative power conferred upon the respondent is extensive but limited by the object, scope and purpose of the Act, which is the protection of the public and public safety.

12. By reason of s 11(3)(a)(iii) of the Act, the fact of any convictions for offences against the Act is relevant to any consideration of whether a person is a fit and proper to hold a firearm licence. Because of the nature of the consideration, a person's record of conviction is also relevant for the reasons identified in Tivelli (supra) and Minitti (supra).  The unchallenged record of conviction is evidence of the fact of the convictions recorded.  The convictions are also prima facie evidence of the essential or material facts constituting the offence for which the person is convicted in civil matters between the same parties (i.e. the State and the convicted person) and between the accused and a third party (Mickelberg v Director of Perth Mint [1986] WAR 365 (following Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961); Roberts v The State of Western Australia [2005] WASCA 37; Donnellan v The Public Trustee [2010] WASC 214; Hardingham v Chief Executive Officer, Department of Child Protection [2011] WASC 86; Bennett v The State of Western Australia [2012] WASCA 70)). A party may not lead evidence in subsequent civil proceedings to collaterally challenge the conviction although he may lead evidence concerning the material facts found or admitted by the Court that recorded the conviction. Where those precise facts are in issue, the 'record of the trial will provide the only reliable guide to that issue which will usually be established by the facts admitted for the purpose of sentence (in the case of a guilty plea), or the facts found by the trial judge for the purposes of sentence (in the case of a conviction after trial)' (Bennett per Martin CJ at [67] with whom Mazza JA agreed at [139]).

Procedural history in the Tribunal

1. The Tribunal held three directions hearings.  The proceeding and directions hearing were adjourned twice and ultimately the Tribunal made orders at a directions hearing on 30 April 2018.  The Senior Member of the Tribunal presiding ordered that the respondent file in the Tribunal and give to the applicant a statement of the reasons for the review decision and any documents and other material in its possession or under its control, that the respondent sought to rely on.  The Senior Member also made an order that the applicant file in the Tribunal and give to the respondent any 'evidence or references it wishes to rely on at the hearing'.

1. The respondent filed a statement of issues facts and contentions, the reasons for the decision and the respondent's documents comprised of the record of convictions and various statements of material facts.

2. The applicant filed a statement of issues facts and contentions on 16 August 2018.  No references or other documents were filed, although four written references were handed to the Tribunal at the hearing. 

3. The applicant filed a statement of issues, facts and contentions.  The applicant's record of convictions and the statements of material facts for some charges for which the applicant was convicted are included in the respondent's documents.

The convictions

1. The fact of the convictions was not disputed and both the record of convictions and the statements of material facts for some offences were not disputed by the applicant.

2. The record of the applicant's convictions and the Tribunal's findings on some convictions is as follows:

   (a)Between 2001 and 2002 the applicant was convicted of disorderly conduct and two counts of possession of a prohibited weapon with intent to cause injury (recorded as spent convictions).  There are no material facts in the respondent's documents concerning the convictions between 2001 and 2002.  The applicant, having been born on 14 February 1983, was 18-19 years of age at the time of those convictions.  The Tribunal considers that the convictions from approximately 17 years ago are not representative of the applicant's character and fitness today and are not sufficiently temporal to be relevant.  

   (b)In 2004 when the applicant was about 21 years of age the applicant was convicted of possession of amphetamines and a suspended sentence of two years imprisonment was imposed on him in the District Court of Western Australia.  The applicant gave evidence that the events concerning this offence occurred when he was young and foolish and is not representative of the person he is today.  Given the character evidence and the evidence of the applicant's involvement in various youth activities and his business operations, the Tribunal accepts that that statement by the applicant is true and finds that this conviction is not sufficiently temporal to be relevant.

   (c)In 2011 the applicant was convicted of a drinking and driving offence and charged $200.  The Tribunal considers that this conviction in light of the character evidence is not a reflection of the applicant's character, nor does it represent a disregard for the law generally.

   (d)On 7 July 2015 the applicant was charged on with:

   (i)An offence against the Weapons Act 1997 (WA) for being in possession of a controlled weapon (a stun gun); and

   (ii)An offence against the Criminal Investigation Act2006 (WA) for failing to obey a data access order.

   On 21 August 2015 the applicant was convicted of the same and fined $400 and $500 respectively.

   (e)On 11 December 2015 the applicant was charged with an offence against the Act for his failure to keep in his possession an extract of his firearm licence whilst in possession of a firearm.  The applicant was convicted on 21 January 2016 and fined $150.

   (f)At some time after November ­ December 2015 the applicant was charged with two offences against the Customs Act 1901 (Cth) (Customs Act) for importing tier 2 goods that were and are prohibited (silencers). The applicant was convicted of those offences on 8 September 2017 and was fined a total of $5,000 for the two convictions.

   (g)On 3 August 2016 the applicant was charged with:

   (i)an offence against the Act for being in possession of an unsecured ammunition magazine;

   (ii)an offence against the Act for being in possession of one round of 0.50 calibre ammunition for which he did not hold a firearm licence under the Act;

   (iii)an offence against the Act for his failure to store a firearm and ammunition separately;

   (iv)an offence against the Act for his failure to store firearms and ammunition securely in compliance with the Act; and

   (v)an offence against the Act for being in possession of 20 rounds of 0.300 Winchester ammunition for which he did not hold a firearm licence under the Act.

   On 2 September 2016 the applicant was convicted of each of the same and was fined a total of $1,150.

   (h)On 3 August 2016 the applicant was charged with an offence against the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act) for being in possession of 14 tablets containing the Schedule 8 drug, Oxycodone.

   On 9 December 2016 the applicant was convicted of the same and fined $200.

   (i)At some time after 3 August 2016 the applicant was charged with an offence against s 201A of the Customs Act for failing to comply with an order to provide information and assistance. The applicant was convicted of this offence on 8 September 2017 and fined $500.

   (j)On 1 December 2017 the applicant was charged with a drinking and driving offence and was disqualified from driving and holding a motor vehicle driver's licence for six months and fined $500.

The evidence at the Tribunal hearing

1. The respondent produced no oral evidence but cross-examined each of the applicant and the applicant's character witnesses who gave oral evidence.

2. The applicant gave oral evidence at the hearing and was legally represented.

3. The applicant produced four character references as follows which were tendered as Exhibit 1 with the respondent's consent.  The letters are as follows:

   (a)Mark Jason Sayers-Streeton, a self­employed chef and owner of two cafes who has known the applicant for five years.  Mr Sayers-Streeton states that the applicant is an honest and hardworking family man and is not a threat to any person.  The Tribunal accepts this evidence.

   (b)Benjamin Poric, Dental Prosthestist.  Mr Poric states that he has known the applicant for almost 20 years and considers him as a fit and calm person who would not hurt anyone.  The Tribunal accepts this evidence.

   (c)Melissa Lekias who has known the applicant for 23 years and considers him a responsible and respectful member of the community with a strong set of values.  The Tribunal accepts this evidence.

   (d)Jamie 'Stormie' Mills, an artist of considerable reputation, who has known the applicant for 25 years or so.  Mr Mills states that the applicant is a responsible hard working man who has demonstrated responsibility in his business decisions, social decisions and for his children, one of whom is now 15 years old and a credit to her father's parenting.  Mr Mills gave affirmed evidence to support his character reference letter.         The Tribunal accepts this evidence.

4. The applicant also called Mr Peter Walker, a business associate, to give evidence of the applicant's character and who stated that the applicant is a responsible employer and a good family man.  The Tribunal accepts this evidence.

The applicant's evidence

1. The applicant pleaded guilty to all of the charges referred to above culminating in the convictions.  The crux of the applicant's position is that he was poorly or wrongly advised to plead guilty to most of the charges which pleas resulted in the convictions.  He also stated he entered guilty pleas as a matter of commercial expediency.  No evidence was led of the facts admitted by the guilty pleas in each matter, save for the statements of material facts in certain instances, and the recorded the convictions and sentences imposed.

2. The applicant's statement of issues, facts and contentions asserts various bases that he submits identify 'defences'. 

3. The Tribunal finds that the applicant's oral testimony of the facts surrounding the events of the charges is not reliable evidence of the facts constituting the offence which were admitted by the applicant's guilty pleas.  There is no reliable evidence of the facts admitted by the applicant in each of the charges and upon which the Court accepted his guilty pleas and passed sentence except the statement of material facts in some instances.

Charge 7 July 2015 (Weapons Act)

1. The applicant gave evidence to the Tribunal that he purchased a stun gun, when on holidays in Bali when he was a boy, 16-17 years old.        He gave evidence that the stun gun did not work because it was broken in any event.  He gave evidence that it was in effect a boyish trinket and was not capable of harm.  The statement of material facts alleges that the stun gun was found during a search of the applicant's property on 5 June 2015.  The search was linked to a search of an Alfred Cove property.  No connection was made with the Alfred Cove property and the search of the applicant's property.

2. On 21 August 2015 the applicant was convicted and fined $400 for the offence of being in possession of a firearm ­ the stun gun - without a firearm licence.  He was legally represented at his hearing and entered a plea of guilty.  The applicant's evidence was that he pleaded guilty as a matter of commercial expediency.  There is no reliable evidence before the Tribunal of the state of the stun gun and whether the facts now put to the Tribunal were put to the Court and/or agreed to by the prosecution.  The Tribunal does not accept the applicant's oral evidence as probative in the face of the conviction which is the prima facie evidence of guilt of the constituent elements of the offence to which he entered the guilty plea.  The statement of material facts before the Court makes no mention of the state of the stun gun.  

3. The Tribunal does not accept the submission that the applicant entered a plea of guilty to the charge because he was poorly advised.  Whether the Tribunal accepts that the applicant found it commercially expedient to enter a plea of guilty, the Tribunal does not find that the applicant was anything other than guilty of the offence.  This is the position with each of convictions.  However, the Tribunal can infer little from the fact of this conviction and the statement of material facts except that the applicant appears to have been unaware of the state of the law concerning the stun gun at the time.

Data access order (Criminal Investigation Act)

1. During the same search six mobile phones were found and confiscated.  The applicant gave evidence to the Tribunal that the mobile phones found at his home during the search, were old phones that he had kept and there was nothing unusual or sinister in that fact.  He gave evidence that he refused to comply with a request for the PIN for each phone because he did not want or think it justified that the private sensitive information on those phones be examined by the WA Police.  As to the data access order that was obtained and his failure to comply with the same, he says he was confused by the caution and his right to silence.  He gave evidence that he did ultimately provide the PINs to the phones before his hearing. 

2. As stated the applicant was legally represented at his hearing and he entered a plea of guilty.  The Tribunal notes that nothing has arisen from the information on the phones to date.

3. On 21 August 2015 the applicant was convicted and fined $500 for the failure to comply with the data access order.  There is no reliable evidence before the Tribunal of what occurred at the hearing of this matter save that the applicant was convicted on his plea of guilty and that the Court had before it the statement of material facts and the Tribunal finds that the applicant was convicted on the basis of the admitted facts which are those in the statement of material facts.  The applicant's evidence to the Tribunal at best is demonstrative of a lack of knowledge of the legal obligations when presented with an order of a commanding nature.  However, the Tribunal does not have sufficient facts to find that the conviction is evidence of the applicant's disregard for the law generally. 

Charge 11 December 2015 - not being in possession of his extract of firearm licence (The Act)

1. The applicant gave evidence that:

   (a)he had only just obtained his licence shortly prior to this incident;

   (b)he was on his way to a shooting activity in Gingin with friends;

   (c)in the excitement he forgot his licence extract;

   (d)he suggested his wife could drive it to him to produce the licence extract; and

   (e)he was not advised by the Police that he could have produced the extract within 24 hours at a police station to avoid the offence.

2. The applicant agreed that there was no obligation on the Police to provide legal advice and the Tribunal does not accept as a mitigating factor that the applicant was not aware of the legislation (s 22A(4) of the Act).  The applicant admits that he was legally represented for the hearing of this charge and that he entered the plea of guilty.  There is no reliable evidence of the admitted facts constituting the offence before the Tribunal other than the conviction and the statement of material facts and the Tribunal finds that the applicant was convicted of the offence on the basis of the admitted facts being those in the statement of material facts. 

3. However, the Tribunal does accept the applicant's evidence, which is broadly consistent with the statement of material facts that he was careless and concludes that the applicant was not reckless in his conduct.  The Tribunal concludes that this conviction is not evidence of a disregard of the Act or the law generally.

November-December 2015 ­ suppressors (Customs Act)

1. The applicant's home was the subject of an intervention by the Commonwealth Border Force (Border Force) agency, following his online purchase of an object said to be a solvent trap boxed and sent and marked 'flashlight parts' and then a second purchase of the same.            The first object was intercepted by Border Force and upon examination was considered by that agency to be a firearm noise suppressor or silencer or capable of being altered so that it achieved the same end.

2. The statement of material facts concerning the offences against the Customs Act identifies the tier 2 items as silencers or devices that could be altered so as to be silencers. The statement of material facts asserts that the applicant had undertaken searches of websites concerning the alteration of solvent traps intended for the cleaning and maintenance of firearms, so as to convert the same to silencers. It is implicit from the statement of material facts that those website searches occurred at the time or before the applicant made his online purchases. In his evidence before the Tribunal the applicant said he placed two orders because the first object ordered did not arrive or because the first that arrived did not fit his firearm. He also gave evidence that after receipt of the objects he searched the internet and found that the objects could be converted to silencers and that he was just interested in that information. He did not admit to having made any alterations to either object so as to convert them to silencers. The Tribunal does not rely upon any of the applicant's evidence that amounts to a collateral challenge to the correctness of the convictions or his guilt.

3. Although the statement of material facts records the applicant's responsive statements to the authorities that he intended to purchase solvent traps to assist in the cleaning of his firearms and not as silencers, the applicant entered pleas of guilty to those charges.  The applicant's submission is that he received poor legal advice. The applicant submits that had he been properly advised he would not have pleaded guilty and that 'his situation is on all fours with …' Granato v Comptroller­General of Customs [2018] WASC 201 in which a conviction of the same charge was set aside and where it was found that the 'legal advice to plead guilty was wrong'. The applicant's situation is not akin to the position in Granato because the applicant's conviction is evidence of his guilt of those offences and those convictions have not been set aside.  There is no appeal of the conviction on foot and no application has been made for leave to appeal out of time and further the applicant has not given instructions to take any steps towards an appeal as revealed during the hearing. 

4. Again the applicant cited in effect economic expediency for this not taking place, which is a decision he has every right to make.  However, he cannot successfully advance a case as if the conviction has been or even is likely to be set aside.  The record of the proceedings before the Court hearing the charges was not before the Tribunal so as to make a finding about precisely what facts had been agreed to by the applicant in entering his guilty plea and upon which he was sentenced.  All that the Tribunal has is the statement of material facts and evidence of conviction on the applicant's plea of guilty which suggest that the applicant accepted that his searches of websites about conversion of solvent traps to silencers were relevant to the importation charges and his knowledge or intention to convert the same at the time he placed the online orders for the solvent traps.  The applicant's evidence was vague on this issue and there was no evidence presented to support his contentions.

November ­ December 2015 (s 201A Customs Act)

1. During the attendance by Border Force the applicant had five electronic devices seized. He says he was cautioned and believed he had a right to remain silent. Again he was asked for access to the data on the devices and he refused. An order was made pursuant to s 201A of the Customs Act and the order was served on the applicant but still he refused. He gave the information necessary to access the devices later before he attended at Court on the importation charges and the charge resulting from his non­compliance. There is no evidence that the accessed data is significant. Under cross­examination the applicant stated he did not understand that the order compelled him to disclose the information to access the devices and again stated he believed he had a right to remain silent. This evidence may only be relevant as to the precise circumstances of the material facts of his conviction on his own admission and guilty plea. There is no reliable evidence of these facts. Further, the applicant's statement is not credible, given his experience of a similar situation back on 5 June 2015 culminating in his plea of guilty and conviction on 21 August 2015. The applicant submitted that the orders applicable in June 2015 under WA law looked different to those issued in relation to the November-December 2015 incident. The Tribunal does not accept this submission. The applicant's failure to comply with s 210A of the Customs Act order did not take place until 3 August 2016 ­ almost a year after the conviction on 21 August 2015 for non­compliance with the order made under the Criminal Investigation Act.As a result, the Tribunal finds that the applicant's evidence that he was confused between the obligation to provide the access to the five devices as compelled by the order and his right to silence is not credible and does not accept that evidence.  This conviction and the applicant's submission to the Tribunal is significant because it does indicate that the applicant must be compelled by prosecution to comply with the law and to that extent it persuades the Tribunal that the applicant does not regard compliance with compulsive orders highly.

Oxycodone (Misuse of Drugs Act)

1. The applicant gave evidence that he had about two Oxycodone tablets left over from surgery that he had some years earlier. Again, no objective evidence was produced to the Tribunal to support his statement and he was vague about when and where he had the surgery and who was his Doctor. The submission filed in the Tribunal on his behalf admits there were 14 tablets and as that is what is identified in the statement of material facts, the Tribunal concludes that that is the fact admitted by him when he entered the guilty plea. Given the lack of objective evidence put before the Tribunal there is no basis for the Tribunal to give the conviction of the offence against the Misuse of Drugs Act anything other than full weight.

3 August 2016 ­ offences against the Act

1. The applicant gave evidence that he left the unsecured Merkel bolt action magazine in the rifle case because it was about 3.00 am and he was very tired after having been out shooting with friends in the country.  The applicant's evidence is that the magazine was a spare and it had fallen behind the phone and he could not see it.  The applicant's submission is that the magazine is not required to be secured under the Act and the applicant did not receive proper legal advice.  The Tribunal does not accept this evidence as it a direct challenge to the applicant's guilt evidenced by the conviction.  Further, the submission assumes that the magazine was not loaded with any ammunition.  That assumption is inconsistent with the applicant having entered a plea of guilty.  In any event, there is no reliable evidence of what transpired before the Court in respect of this matter at sentencing and the Tribunal finds the implied fact in the applicant's submission ­ the magazine was empty - not proved.  The Tribunal finds this conviction is relevant to the applicant's knowledge, and understanding of the strict obligations the Act places on his as a firearms licence holder and the statutory role those obligations play in the scheme of the Act designed to protect the public.

2. The applicant's conviction for not having all of his ammunition locked  in a safe separately from his firearms is relevant to his knowledge, and understanding of the strict obligations the Act places on his as a firearm licence holder and the statutory role those obligations play in the scheme of the Act designed to protect the public.  The applicant stated he had purchased too much ammunition over time and had been shooting on the night of 2-3 August 2016 but still had too much ammunition to fit in the separate ammunitions safe.  The applicant gave evidence that he placed the excess ammunition in the firearms safe with the firearms.  This tends to suggest that at least in the interim, the applicant knew that the purchased ammunition could not be accommodated in his ammunitions safe and although it was submitted that he intended on obtaining and fitting a new additional safe, it appears he did not intend to do that at the time.  Further, the applicant was charged after his return from the evening shooting expedition and he still had more ammunition than could fit in his ammunition current safe.       So prior to the shooting expedition the applicant must have had an even greater amount of ammunition improperly secured at his home.

3. There was no evidence of the ammunitions purchases at all and no evidence from the applicant about his use. That is there was no attempt to account for the purchases and his use of the ammunition that could not fit in the ammunitions safe. The applicant's counsel submitted that such information or evidence was impractical to retain and was not to hand. However, s 30 of the Act and reg 25 of the Firearms Regulations 1974 (WA) (Regulations) requires suppliers to keep a record of all ammunition sales for three years and to record the sales against the purchaser's firearm licence to ensure that the sale is to a person authorised by that licence to be in possession of the same. The applicant's evidence was vague and unconvincing. The conviction is relevant to the issue of the applicant's fitness to hold a firearm licence as it tends to suggest that either the applicant was unaware of the strict obligations imposed by the Act on a firearm licence holder or that he disregarded those obligations. The Tribunal does not accept the applicant's evidence that this was an instance of mere tiredness resulting in his carelessness.

4. The applicant gave evidence that he was supplied incorrect ammunition (0.300 Winchester) by a supplier.  The applicant provided no independent evidence of this allegation.  Given the regulatory framework and the obligation of an ammunition supplier to accurately record all ammunition sales against the firearm licence of the purchaser and to retain that record for three years post sale, the Tribunal is not satisfied that the sale of the incorrect ammunition did occur.  The applicant did not give reliable evidence about when the purchases might have taken place and was vague about why he had not returned the 0.300 Winchester ammunition to the supplier, given that he was not authorised to be in possession of the same.  The applicant's reason for being in possession of ammunition for which he did not have a licence (0.300 Winchester) is not plausible and the applicant did not impress the Tribunal as being truthful about the source of the Winchester ammunition.  The conviction is significant because it is a serious matter to be in possession of ammunition for which his is not licenced.              The Tribunal concludes that this conviction demonstrates either a significant lack of knowledge of the obligations imposed on firearm licence holders by the Act or a disregard for the same. 

5. The applicant was charged also with having one round of ammunition for which he was not licenced.  The applicant now says he wrongly entered a plea of guilty to that charge because he thought it was sold legally to him at the markets and because it was not a live round of ammunition.  This evidence is not relied upon by the Tribunal because it is an attempt to challenge the applicant's guilt that is evidenced by the conviction.  There is no reliable evidence before the Tribunal concerning the essential facts constituting this conviction except the statement of material facts and the applicant's guilty plea.  The Tribunal found the applicant's evidence to be vague and does not accept that the ammunition was not live.  This conviction again evidences that applicant's significant lack of knowledge of his obligations as a firearms licence holder as imposed by the Act or a disregard of the same.

6. The applicant was charged with not securing his firearms and his ammunition ­ that is the safe was not properly locked.  He gave evidence that he had failed to lock the safe properly because he had not turned the safe handle after pushing it closed.  The applicant says he was extremely tired and this perhaps may have caused his failure to recognise that the safe was not properly locked.

7. The Tribunal finds this conviction to be significant as it represents a significant failure to comply with the strict standard of safety and security called for by the Act.  The offence under the Act is not a mere failure to take reasonable care but rather it arises in the event of a failure.  The reasons for the strict obligations supervised by the Police and the criminal justice system are obvious and the history of the Act are well documented (see McGee (supra)).  The Tribunal does not accept the applicant's evidence of it being a case of mere carelessness brought about by his fatigue. 

8. Generally diminution of the significance of the convictions for offences against the Act as not harmful because the circumstances posed no immediate harm to public safety, is not a mitigating factor.  It is arguably an aggravating factor when it comes to assessing whether a person is a fit and proper person to hold a firearm licence because of the serious consequences, should unsecured firearms or ammunition be stolen from the home, used or misused by children or other adults in the home.

9. The applicant referred to the Tribunal decision in Wally and Commissioner of Police (supra) involving many convictions.  However, in Wally there was evidence of a change in the conduct or behaviour of the licence holder.  Here there is no 'turning point' evidence.  There is no evidence of, for example, an attempt to undertake tuition by a training course (s 10A of the Act); no evidence of a stand-alone intention to purchase additional ammunition storage, although in submissions it was put to the Tribunal that the applicant intended to purchase more storage but only because he has purchased two new hand guns which must be separately stored. 

Consideration

1. In every case the Tribunal must consider if the person is fit and proper within the confines of the Act.  To not fully acknowledge the obligations that come with owning licenced firearms is a significant failure and in the Tribunal's opinion it is a weighty consideration.          The failure to store and lock firearms and ammunition is dangerous to the public at large.  The danger is both to the home occupants, the applicant, his wife and their children, one of whom is 15 months old, and members of the public should the firearms have been stolen and used against members of the public.  Unsecured firearms may be more easily stolen and used in criminal activities through the carelessness of the owner.  To diminish the significance of such failure is to subvert the purpose of the Act, to control and regulate firearms, and displays a lack of appreciation of the purpose of the regulatory scheme of the Act.

2. There is no reliable evidence before the Tribunal that persuades the Tribunal that the convictions for offences against the Act and the offences against the Customs Act and particularly the convictions concerning the silencers should not be given their full weight.

3. In summary the Tribunal concludes that:

   (a)The applicant has poor understanding even now of the onerous strict obligations a firearms licence places on the licence holder under the Act.

   (b)The Tribunal is not satisfied that the applicant has a real appreciation of the significant public safety objectives of the Act and the licence holder's significant role in maintaining that public safety under the Act.

   (c)The convictions for offences against the Act (save for the conviction of failing to carry his licence extract) are sufficient to establish that the applicant is not a fit and proper person to hold a firearms licence.  The Tribunal is satisfied that these convictions indicate a lack of knowledge of both his strict obligations and the reason for that obligation such that he is not a fit and proper person to hold such a licence.

   (d)As to the importation of devices that could be converted to silencers, the Tribunal is not satisfied that it was mere curiosity post placement of the online orders for the solvent traps that caused the applicant to investigate the conversion of solvent traps to silencers. The Tribunal cannot conclude what the applicant's motivation was from the evidence before it in importing the devices. What is clear is that such devices are only approved by the Minister for Agriculture under the Act and otherwise prohibited and are prohibited from import without approval pursuant to the Customs Act.

   (e)The Tribunal places no weight on either of the two the drink driving convictions and notes that they do not relate to his firearms licence.

   (f)The Tribunal acknowledges but places no significant weight on the Misuse of Drugs conviction concerning the oxycodone medication as the applicant was not directly in control of the firearms and under the influence of that drug at the time of the search.

   (g)The Tribunal places no weight on the other convictions for the reasons stated.

4. Having concluded as above, the Tribunal has formed the opinion that the applicant's lack of knowledge or disregard of the strict requirements of the Act; that silencers are generally prohibited under the Act and importation of the same is generally prohibited under the Customs Act, the applicant is not a fit and proper person to hold a firearm licence.

5. On the evidence and the weight of the evidence the Tribunal is not satisfied that the applicant is a fit and proper person to hold a firearm licence and the Tribunal affirms the respondent's decision.

Order

1.Upon review, the Tribunal affirms the decision by the Commissioner of Police and his delegate to revoke the firearm licence 04451220 issued to the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS N OWEN-CONWAY, MEMBER

1 NOVEMBER 2018