SHORE and COMMISSIONER OF POLICE
[2011] WASAT 9
•21 JANUARY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: SHORE and COMMISSIONER OF POLICE [2011] WASAT 9
MEMBER: MR T CAREY (MEMBER)
HEARD: 16 NOVEMBER 2010
DELIVERED : 21 JANUARY 2011
FILE NO/S: CC 1263 of 2010
BETWEEN: MICHAEL GEORGE SHORE
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm licence Fit and proper person Convictions for drug offences and failure to ensure safekeeping of ammunition Discretionary considerations
Legislation:
Firearms Act 1973 (WA), s 11, s 11(5), s 11(6), s 22(2)
Firearms Regulations 1974 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Application successful
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Senior Constable S Bagley (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Minniti and Commissioner of Police [2009] WASAT 223
Penketh and Commissioner of Police [2009] WASAT 174
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
Wignall and Commissioner of Police [2006] WASAT 206
Wilson and Commissioner of Police [2010] WASAT 120
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought review of a decision of a delegate of the Commissioner of the Police under the Firearms Act 1973 (WA) refusing to grant him a firearm licence. The refusal decision was made on the basis that the applicant was not a fit and proper person to have a firearm licence primarily by reason of his 2007 convictions for possession and cultivation of cannabis with intent to sell or supply and failure to ensure safekeeping of ammunition.
The Tribunal considered various matters which it regarded as impacting upon whether the applicant should now be regarded as a fit and proper person for the relevant purpose. These included the convictions (noting that the drug offences incorporated the element of dealing and that the firearm ammunition offence was of itself sufficient to form the opinion that the applicant was not fit and proper); the circumstances of the convictions, including the applicant's explanations; the applicant's expressions of remorse and commitment to not reoffend; the elimination of factors contributing to the offences; and the intervening period of four years of good behaviour and positive character references. It concluded that the applicant had reestablished his credentials as a fit and proper person to hold a firearm licence.
The Tribunal set aside the delegate's decision and ordered the issue of the licence applied for.
Background and legal principles
Mr Shore seeks review, under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act), of a decision of a delegate of the Commissioner of Police (Commissioner) made on 22 July 2010 to refuse his application for a firearm licence.
Mr Shore applied for the licence on 17 June 2010. He had previously held licences dating back some 35 years, but his entitlement to such a licence was removed in 2008 upon a violence restraining order being issued in July 2008 on the application of a former partner. The violence restraining order was subsequently cancelled.
Mr Shore's licence application related to three firearms, a .243 calibre Sako rifle bolt repeater, a .22 Magnum CZ rifle bolt repeater and a .22 Gamo air or gas rifle.
According to the letter notifying Mr Shore of the delegate's decision, the decision was based upon an opinion that Mr Shore is not a fit and proper person to hold a licence under the Firearms Act 'considering his criminal and traffic antecedents, including convictions for drug and firearm offences'. Section 11 of the Firearms Act prohibits the Commissioner from issuing a licence if the Commissioner is of the opinion, among other things, that the licence applicant is not a fit and proper person to hold a licence.
On 16 May 2007, Mr Shore was convicted of the following offences:
1)failure to ensure safekeeping of ammunition;
2)possession of prohibited drugs with intent to sell or supply; and
3)cultivation of a prohibited plant with intent to sell or supply (two counts).
The penalty for the possession and cultivation offences was a global fine of $5,000. In respect of the failure to ensure safe-keeping charge, Mr Shore was fined $300.
The delegate's letter also indicated that the following matters had been taken into consideration:
•failure to declare on the application all the applicant's convictions;
•failure to declare on the application having been served with a violence restraint order in 2008; and
•failure to demonstrate a genuine need to possess the firearms for which the licence was sought.
At the hearing, Senior Constable Bagley, who appeared for the Commissioner, advised that no reliance was placed on either of the first or second consideration. Going on the contents of the Commissioner's statement of issues, facts and contentions and the way in which the Commissioner's case was run at the hearing, including the lack of crossexamination about them, neither was a serious question raised as to whether or not there existed a genuine reason, or genuine need (the latter being the third consideration listed in the letter) for the firearms sought to be licensed. The reason stated in the application for the licence for the three firearms was for use in hunting or shooting of a recreational nature on land the owner of which had given written permission (being the ground appearing under s 11A(2) of the Firearms Act as establishing a genuine reason). To the extent that such a requirement applies to any of the firearms in question (see s 11B of the Firearms Act), the genuine need, as expressed in the licence application, was in order to assist a primary producer to cull small vermin on his property. In the face of a lack of any serious point being taken as to the existence of either a genuine reason or genuine need, I am content to accept Mr Shore's assertions in relation to them.
The Commissioner places no reliance upon some earlier minor criminal and traffic offences, the most recent of which arose in 1997. Further, although, under s 11(3)(a) of the Firearms Act, the making of a violence restraining order against a person within five years before the person applies for a licence of itself may form a sufficient ground for forming an opinion that a person is not a fit and proper person for the purposes of s 11 of the Firearms Act, Mr Shore's four criminal convictions in 2007 alone form the basis of the Commissioner's case that Mr Shore is not a fit and proper person.
Issue
The issue for the Tribunal is whether it can be satisfied, on the basis that it is the correct and preferable decision to make, that Mr Shore is not a fit and proper person to hold the firearm licence sought by him, having regard to the criminal convictions upon which the Commissioner continues to rely.
I will proceed by considering the circumstances of the 2007 offences, with reference to Mr Shore's explanations of those circumstances and his responses to his convictions, before embarking on a consideration as to whether or not Mr Shore should be regarded as fit and proper for the relevant purpose.
Mr Shore's convictions
Mr Shore's offending came to light on 28 November 2006, upon the execution of a search warrant under the Misuse of Drugs Act 1981 (WA) at his Girrawheen address.
The police located two selfwatering hydroponic systems. Six small cannabis plants measuring 10 15 centimetres in height were located growing between the two systems. A further search disclosed four cannabis plants ranging from 30 centimetres to 1 metre in height growing in the backyard.
In the police record of interview, Mr Shore said that he planted and cared for the plants. He also said it was his intention to harvest the cannabis once mature and sell it by the ounce for $200.
The police located what was described as a large amount of cannabis head/leaf material immersed in water in a washing machine in the house. The cannabis material so found would appear to be the harvest of the more mature plants at the rear of the property. When dried, the cannabis leaf weighed 300 grams.
Some $5,000 in cash located inside the applicant's locked gun cabinet, and a further amount of almost $300 in Mr Shore's wallet, were determined by the police to be proceeds from previous drug dealing. These amounts were confiscated by the police, although there does not appear to have been orders made for their forfeiture. Mr Shore posits innocent explanations for his possession of the two amounts, but concedes that no action was taken for their recovery.
In respect of the Firearms Act charge of failure to ensure safekeeping of ammunition, the police case, which was accepted, relied upon the location of four boxes of ammunition in an unlocked desk drawer next to Mr Shore's computer in a study area. The boxes contained 83 by .243 calibre ammunition and 83 by .222 calibre ammunition.
According to Mr Shore's written statement to the Tribunal, in 2000, he had a serious work accident resulting in injury to his shoulders. He was unable to work for six years and had three operations during 2001 2003. As he was losing his savings and compensation ran out, he became depressed. He turned to smoking cannabis to relieve the physical pain and his depression. He started with one or two plants, but they did not produce enough for his use. He built his stock up to six plants, which did provide him with his requirements. It was then that the raid at his house occurred.
Mr Shore pleaded guilty to all the possession with intention to sell or supply and cultivation with intent to sell or supply charges. Why he did so is not at all clear, given his explanation before me as to his purpose in cultivation of the cannabis solely for personal use. It is, of course, incumbent on me to accept the convictions, and the essential factual elements underlying them, in this proceeding. I will return to this.
At the hearing, Mr Shore said that he is aware that indulging in illegal drugs is irresponsible and wrong. He said that his cultivation of them stopped when the police raided his house, and that he will never go near them again. In place of the cannabis use, he increased his antiinflammatory medications to deal with his pain and depression.
Regarding the firearm conviction, Mr Shore said that he was unaware that he was required to secure the ammunition in such a manner. He also referred to his previous experience of having a firearm stolen before gun cabinets became a legal requirement, when he was happy to advise the police that no ammunition was stolen because it had been stored away from his rifle.
Mr Shore called, as a character referee, Mr Richard La Motte. Mr La Motte has known Mr Shore since they played sport together as boys, and in adult life has had a continuing relationship, including a professional one with respect to the provision of insurance. Their respective families went on shooting trips together, and Mr La Motte attested to Mr Shore's respect for firearms. He regards the 2007 offences as 'one mistake' and spoke of Mr Shore's love of life and absence of aggression. Although he said that Mr Shore enjoys a beer, he has never observed him to mix alcohol with his firearm use.
Two written references provided further endorsements of Mr Shore's character. They also confirmed the link between his drug convictions and work injury and its sequalae, and of his abstinence in terms of illegal drug use since being raided.
My consideration
Section 11(3) of the Firearms 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 firearm licence in certain circumstances. The first of those circumstances is where he:
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place;
…
Mr Shore's conviction for failure to ensure safekeeping of ammunition thus provides a sufficient ground under s 11(3) of the Firearms Act for forming the opinion that he is not a fit and proper person.
Section 11(5) of the Firearms Act provides that the Commissioner may form an opinion that a person is a fit and proper person, notwithstanding that a sufficient ground exists under s 11(3) of the Act for forming the contrary opinion. Section 11(6) of the Firearms Act expressly empowers the Commissioner to take into account, in evaluating whether a person is a fit and proper person, anything else that could have been taken into account if s 11(3) of the Act had not been enacted.
I had occasion to consider these provisions, in the context of the review of a decision to revoke a firearm licence on the basis of convictions for drug offences bearing some similarity to those in the current matter, in Wilson and Commissioner of Police [2010] WASAT 120 (Wilson). It is convenient to incorporate [48] [50] of Wilson by reference into these reasons. It will be seen that the incorporated paragraphs draw heavily from Wignall and Commissioner of Police [2006] WASAT 206 (Wignall).
In addition to the drug related convictions in the current matter, Mr Shore has also been convicted of a Firearms Act offence. That being so, the following observation from Wignall at [300] is apposite:
Section 11(3)(a), therefore, provides some clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists, although it still leaves the Commissioner with a discretion to regard particular circumstances in which the conviction was made.
In addressing Mr Shore's drug convictions, as I did in Wilson at [51], I now turn to those factors set out in the Supreme Court judgment of Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) which bear upon the matter:
a)The Firearms Act offence was related to Mr Shore's possession of ammunition under the Firearms Act. The drug offences were not. All offences were committed at a time that Mr Shore was licensed under the Firearms Act.
b)Mr Shore's drug offences, including cultivation and possession with intent to supply, must be a factor tending towards the conclusion that he is not a fit and proper person for the purposes of the Firearms Act. I incorporate by reference the discussion on this topic appearing in Wilson at [51], particularly at (b), subject to the correction of a sentence which appears beneath the reference to Penketh and Commissioner of Police [2009] WASAT 174. The sentence should have read:
The point I was attempting to make is that the ideal candidate for a firearm licence would not be a person who had resorted to the cultivation, use, sale or supply of illicit substances.
As I have said, the Firearms Act offence, of itself, provides a sufficient basis for the conclusion that Mr Shore is not fit and proper. Careful consideration of any factors which might permit a contrary conclusion to be reached under s 11(5) of the Firearms Act is therefore required.
The 'dealing' aspect of Mr Shore's possession and cultivation convictions has presented the most difficult aspect of this application. Despite his evidence before me of his use of the cannabis being limited to personal use, his criminal convictions are to the contrary effect. It was submitted by the Commissioner that the circumstances in which Mr Shore found himself of being out of work for a considerable period made the prospect that he was selling the cannabis for profit more likely. In any event, as I have indicated, Mr Shore was convicted of cultivation and possession with intent to sell or supply, and I am unable to look behind those convictions.
I was interested to see the Magistrate's sentencing comments to determine the impact of the dealing on the result, but they were unavailable. I accept the Commissioner's submission that the $5,000 global fine was a sizeable penalty and that this should be regarded as reflective of the seriousness with which the Criminal Court regarded the offences.
Mr Shore's offences were not as serious as the convictions in Minniti and Commissioner of Police [2009] WASAT 223 (a reference to which appears in Wilson at [51]). Against this, unlike in Wilson, they are accompanied by an offence within s 11(3) of the Firearms Act.
c)Significantly, I am persuaded, based on Mr Shore's written statements, his evidence at the hearing, and the statements of his referees, that he is genuinely remorseful for his past wrongdoing. I am satisfied by the same evidence that he has discontinued his association with illegal drugs, and that he did so immediately after he was raided in 2006. I am also satisfied that he accepts, although does not necessarily agree with, the requirement for housing of ammunition, effectively, in the same secure cabinet as his firearms, and that this is an issue never likely to resurface with him.
d)The raid at Mr Shore's address occurred in November 2006. There have now been four clear years during which no repeats of the offences for which he was convicted have occurred, nor have any other offences been committed. Whilst the statutory provisions (in particular, s 11(3)(a) of the Firearms Act) point to a period of five years prior to a licence application being of significance, no hard and fast rule applies and all relevant factors need to be considered: Tavelli, cited in Wilson at [297].
e)I am satisfied that Mr Shore has taken appropriate steps in order to eliminate the factors which existed prior to the 2006 offending taking place. He has eschewed any involvement in the cultivation or possession of illegal drugs. Regarding his Firearms Act conviction, by reason of being charged and convicted for his past failure, he is, no doubt, now well aware of a licensee's obligations regarding storage of ammunition.
f)Any current analysis must allow Mr Shore the benefit of four clear years of good behaviour. Although the Firearms Act offence stands in addition to the drug related offences, it is clear that Mr Shore has learnt from that conviction. The evidence is also strongly and consistently suggestive that his dalliance in the illegal production and supply of cannabis is now confined to history.
Based on the above discussion, and particularly having regard to the factors referred to in parts (c) (f) of the previous paragraph, I have formed the view that Mr Shore is once again a fit and proper person to hold a firearm licence, and that his application in that regard should now be allowed.
Orders
The Tribunal will issue an order in the following terms:
1.The review application is granted.
2.The decision of the Commissioner's delegate to refuse the applicant's application for a firearm licence is set aside.
3.The Commissioner shall, as soon as possible after payment of any applicable fee, issue the firearm licence.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
4
3