Tomizzi and Commissioner Of Police
[2009] WASAT 112
•8 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: TOMIZZI and COMMISSIONER OF POLICE [2009] WASAT 112
MEMBER: MR T CAREY (MEMBER)
HEARD: 3 APRIL 2009
WRITTEN SUBMISSIONS FILED 29 APRIL 2009
DELIVERED : 8 JUNE 2009
FILE NO/S: CC 49 of 2009
BETWEEN: JOHN TOMIZZI
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm and dealer's licences under Firearms Act 1973 (WA) - Licences revoked due to series of incidents - Whether applicant fit and proper person Whether issue of the licences not desirable in interests of public safety Applicant found to have firearm and ammunition in vehicle when driving with excess alcohol level - Alcohol involved in previous incidents - Importance of safekeeping obligation of firearms licensees - Applicant's receipt of letter notifying him that licence credentials under review - Whether penalties in criminal proceedings relevant
Legislation:
Firearms Act 1973 (WA), s 11, s 11(1)(b), s 11(1)(c), s 20(1)(a)(iii), s 22(2)
Firearms Regulations 1974 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr A P Skerritt
Respondent: Sgt S Bagley
Solicitors:
Applicant: O'Connor Lawyers
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant's firearm and dealer's licences were revoked on the basis of a number of incidents. In the most serious incident, the only one where firearms were directly involved, the applicant drove a vehicle whilst well over the maximum permitted blood alcohol limit at a time when the car contained a handgun and ammunition. Earlier that day, the applicant had been cleaning the firearm when a guest arrived at his house unexpectedly. The applicant hurriedly placed the firearm and ammunition in the vehicle rather than securing them in his firearms cabinet, before consuming alcohol with his guest. He proceeded to drive the vehicle that evening, having forgotten what he had placed there a few hours earlier. Alcohol was said to have been a factor in all but one of four previous incidents upon which reliance was placed by the decision‑maker.
The issues for the Tribunal were whether in the circumstances the applicant was to be regarded as a fit and proper person to hold his licences and whether he should not be permitted to retain them in the interests of public safety.
The Tribunal considered all the incidents relied upon as giving rise to a question as to his suitability as a licensee of firearms. It took a dim view of the applicant's failure to comply with his safekeeping obligations leading to the discovery of the firearm and ammunition in the vehicle when the applicant was alcohol‑affected, and also of one of the previous incidents when he was required by police order to leave his home for 72 hours, again when he had been drinking. The seriousness of both incidents was regarded as exacerbated by the applicant's awareness that his licence credentials were the subject of review by the Commissioner of Police generally, and specifically with regard to his alcohol use.
The Tribunal determined that too many doubts existed arising from the applicant's recent actions to permit the assumption that his responsible possession of firearms would not again be compromised. It refused the application and affirmed the revocation decisions.
Introduction
The applicant seeks review under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) of decisions of a delegate of the Commissioner of Police (respondent) made on 10 November 2008 to revoke the respondent's firearm licence and dealer's licence. The applicant had held the firearm licence for approximately 30 years, and at the time of revocation it supported the possession of four firearms. The dealer's licence was held initially in a company name and later in the applicant's own name for a total of 13 years, under which some 18 transactions involving firearms were transacted between 1999 and 2008.
Notice of the revocation decisions was given by two letters dated 10 November 2008, which were received by the applicant on or about 23 November 2008. The reason for the revocation as expressed in both letters (which, in this respect, were in almost identical terms) refer to the delegate having formed the opinion that the applicant is not a fit and proper person to hold a licence due primarily to circumstances associated with an incident that occurred at about 11.30 pm on 1 November 2008 on Rockingham Road, Naval Base. Those circumstances were then set out as follows:
1.Arising out of Police inquiries at this time it is alleged you drove your motor vehicle with a breath alcohol content of 0.158% calculated to 0.135% at the time of driving. Also at this time whilst Police were securing the vehicle, a 9mm self loading handgun recorded as being licenced [sic] under your Dealer's Licence was located in a side pocket of the driver's door.
2.In terms of being in control of a motor vehicle this would lead to a mandatory suspension of a person's Motor Driver's Licence and in my view suggests you were affected by alcohol whilst in possession of the aforementioned firearm[.]
3.Further, it is alleged a loaded magazine containing eleven (11) rounds of ammunition was located in the same side pocket, with a second, loaded magazine containing nine (9) rounds being located in the side pocket of the passenger side door.
…
According to each letter, revocation was called for under s 20(1)(a)(iii) of the Firearms Act because a licence could not, because of s 11 of the same Act, be granted if a person was then applying for it.
Issues
Expressed in broad terms, the issues raised by the application are agreed as:
(a)whether the applicant is a fit and proper person to hold a firearm and dealer's licence as required under s 11(1)(c) of the Firearms Act; and
(b)whether the issue of the licences is not desirable in the interest of public safety, as required by s 11(1)(b) of the Firearms Act.
The particular provisions of the Firearms Act to which reference has just been made are:
11. Exercise of Commissioner’s discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that ‑
…
(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 approval, permit, or licence.
Section 20(1)(a)(iii) of the Firearms Act provides relevantly:
20. Revocation etc.
(1)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;
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto …
As I have said, the respondent relies principally upon the events of 1 November 2008, which resulted in the applicant being convicted of failing to ensure the safekeeping of two firearms held under the dealer's licence. Consistent with its notices of revocation, it also relies upon four earlier incidents of a domestic nature, in relation to all bar one of which the conduct of the applicant was said to have been affected by alcohol ‑ a factor also present on the night of 1 November 2008. Taken together, the incidents are said to have given rise to an apparent link between the behaviour of the applicant and his use of alcohol in relation to which the general community would expect the Commissioner to exercise his authority to revoke the applicant's licences, and thereby to restrict the possession of firearms to those who are fit and proper. The applicant disputes both the characterisation of the incidents concerned, or some of them, and the respondent's conclusion based upon them.
On the basis that the respondent has not contended to the contrary, I find that the applicant has a genuine reason to possess the various firearms for which the licences were issued, as required under s 11A of the Firearms Act.
It is necessary for me to examine each of the incidents to determine if the correct and preferable decision is that the revocation decisions should stand on the basis of either or both of s 11(1)(b) or s 11(1)(c) applying. I will commence with the latest, on 1 November 2008, before dealing with the four earlier incidents together. Then, under 'Consideration', I will highlight what I regard to be the critical aspect of the applicant's unsatisfactory conduct with respect to his firearms against the applicant's submission going to his obligations as a firearm licensee, before drawing together the findings and conclusions in relation to the various incidents, with reference to a letter he had received from the respondent regarding his suitability to continue as a licensee, in reaching my ultimate conclusion on the application.
Incident on 1 November 2008
The applicant was driving along Rockingham Road, Naval Base when another motorist caused him to stop and removed the keys from the applicant's vehicle. The other motorist regarded the applicant's driving as erratic on account of the applicant apparently being under the influence of alcohol. The police, upon being called by the other motorist and attending the scene, conducted a preliminary breath test, which was positive, and moved the applicant's vehicle to a safe location. In the course of doing so, a self‑loading handgun was discovered in the side pocket of the driver's door, and a loaded magazine with 11 rounds of ammunition was located in the same door pocket. Another loaded magazine with nine rounds of ammunition was found in the front passenger door side pocket. The firearm was held by the applicant under his dealer's licence.
Arising from the incident, the applicant was charged with driving with a blood alcohol content in excess of .08% (the reading was calculated to be 0.135% at the time of driving) and failing to ensure safekeeping of a firearm. The applicant pleaded guilty to both charges and was convicted of both offences. On the drink‑driving charge, he received a fine of $700 and was disqualified from driving for five months. On the firearms charge he was fined $400. An order was made for forfeiture of the ammunition, but not for forfeiture of the firearm, expressly on the basis that that was a question for determination by this Tribunal.
The circumstances of the offending which occurred on that night were the subject of a mitigation plea before the magistrate, and also the subject of evidence and submission before me. I will attempt to accurately summarise those circumstances as they have been put on the applicant's behalf.
According to the applicant, on the afternoon of 1 November 2008, he was taking advantage of the absence of the rest of his family to attend to a number of matters at his home. They included washing clothes, servicing his wife's car and cleaning his firearms; at least the handgun which was subsequently seized. Without any notice to him, his friend, Mr Satina, paid the applicant a visit. On observing his friend driving his vehicle into the driveway, he hurriedly put the firearm, which he had been cleaning in the shed which housed the vehicle, and ammunition in the car. He locked both the car and the shed before coming out to meet his friend.
The two men went into the house. Although in his examination‑in‑chief, Mr Tomizzi referred to the amount of alcohol he had consumed in terms of 'a couple of beers', under cross‑examination he said that he had 'six or seven beers'. The subsequent reading of his blood alcohol content would seem to indicate the latter assessment to be the more accurate. I will return to the subject of the applicant's tendency to underestimate his alcohol intake later in these reasons.
Mr Tomizzi was aware that he would be driving later that day to pick his son up from his work in Kwinana. His friend left and he slept for about one and a half hours before receiving an SMS message from his son requesting that he be picked up. That was around 10.30 pm to 10.45 pm. The applicant said that he felt quite good after his sleep. When he drove off to pick up his son, he forgot having previously deposited the firearm and ammunition in the car. He conceded that the manner of his handling of the firearm and ammunition was 'unacceptable' and volunteered that he would not do it again, though, in an apparent attempt to ameliorate the seriousness of his transgression, stated that the firearms were well hidden.
I note that the respondent took issue with some aspects of the applicant's version of events, in particular the sequence of events leading to his hiding his firearm and ammunition in the vehicle. However, it is unnecessary for my purposes to determine any such question because the outcome is the same. It is convenient to accept the applicant's evidence as to the events on that day.
In my view, the conduct of the applicant on 1 November 2008 reflected a surprising failure of an experienced licence holder to do what should have been second nature to him ‑ to secure the firearms and ammunition safely ‑ even in the circumstances of a surprise visit by a friend. I am prepared to accept that the unexpected nature of the visit contributed to the poor decision‑making of Mr Tomizzi, but it does not excuse it. The applicant permitted his asserted aversion to 'advertising' his possession of guns to counterbalance his clear obligation of safekeeping, to the prejudice of that obligation. Even though the applicant says that the guns and ammunition were safe, at least at the time that he remained in his house, as they were in a locked car within a locked shed, it is necessary to go no further than refer to the subsequent events to demonstrate the folly of the applicant's conduct and the potential risk they posed the community. I will deal further with the 1 November 2008 incident under 'Consideration'.
Earlier incidents
The factual basis and significance of each of the incidents upon which the respondent relied was the subject of dispute. The respondent described the four incidents concerned in the following terms:
On the 12 August, 2007 Police intervention was sought in relation to a domestic violence report where the Applicant, who was affected by alcohol had become involved in an altercation with his 16 year old son.
The matter was resolved without incident.
On the 5 January, 2008 Police attendance was requested at an address in Spearwood where the Applicant's son was visiting a friend. It was alleged the Applicant was affected by alcohol and had become involved in a verbal argument with the son.
Upon police attendance the Applicant was found to be intoxicated. The matter was resolved without incident.
On the 20 February, 2008 Police attendance was requested at an address in Hilton where it was alleged the Applicant had threatened a person with a firearm. There was a counter claim [sic] that the complainant in this instance may have initially been in possession of a knife and that he had threatened the Applicant's son.
On the 25 April, 2008 Police intervention was sought in relation to a domestic violence report where the Applicant, who was affected by alcohol, had become involved in an altercation with his wife. It was alleged at this time that the Applicant had commenced to remove a number of firearms from a security cabinet and place them on a table in the garage, after his wife had indicated she was going to call Police. As a result of Police attendance a 72 hour Police Order was issued and the Applicants' [sic] firearms seized as a precautionary measure.
The applicant submitted that the four earlier incidents were manifestations of tensions between Mr Tomizzi and his teenage son at a time when his son was taking drugs and associating with people for whom Mr Tomizzi had a low regard. That tension was impacting adversely on his relationship with his son, and also with his wife, to whom he had otherwise been happily married for about 30 years. It was submitted on Mr Tomizzi's behalf that firearms use or misuse did not play any role in any of the incidents.
Regarding the common (with respect to all bar one of the incidents) factor of alcohol use by the applicant, the amount of alcohol actually consumed was generally sought to be mitigated. As indicated earlier in these reasons, even on his evidence in the hearing before me, Mr Tomizzi displayed a readiness to underestimate his alcohol consumption. I am therefore not prepared to accept the suggestion made on his behalf that alcohol was not a significant factor in his conduct on three of the four incidents, and do find that the observations by the police that the applicant was affected by alcohol on those occasions are more likely than not to be accurate. There is no issue about the applicant's alcohol use on 1 November 2008, when the proven alcohol content in Mr Tomizzi's system reached significant levels (0.158% calculated to 0.135% at the time of driving).
In my assessment of the significance of the earlier incidents for the question that I must determine, the evidence going to the first three incidents tend to support the applicant's submission about the problems he was experiencing with his son, and save for the applicant's affectation by alcohol, they do not seem to me to impact in any real sense upon his suitability as the holder of licences under the Firearms Act. Although an allegation was made, arising from the incident on 20 February 2008, that the applicant threatened the complainant with a firearm, no police action was taken ‑ specifically on the basis of a lack of evidence ‑ and the complainant's position appears severely compromised given his admission to having threatened the applicant's son with a knife.
The fourth incident, however, in which the applicant's wife called the police amid concerns about the applicant's demeanour, resulted in the rather extreme outcome of his being removed from the home for 72 hours. Although at the time all parties appeared to accept the risk of any misuse by the applicant of his firearms was low, and under cross‑examination, the applicant attributed his aggression to the need to guard against his son's capabilities as a Golden Gloves boxer at a time when he (the son) was affected by drugs, this incident does raise a degree of concern regarding the applicant's character which is material to the issues I have to decide, and I will return to it.
Consideration
It is convenient to restate the Tribunal's task: to determine whether the applicant is properly to be regarded as a fit and proper person were he now being considered for the issue of the licences the subject of the application, and whether or not it would not be desirable in the interests of public safety for the licences to be issued in the same scenario.
I accept the submission of the applicant that there is an overlap between these requirements, and that it would be rare for a person to be fit and proper and for it not to be in the interests of public safety for that person to hold a firearm licence. Also, neither party sought to distinguish between the two licences formerly held by the applicant, correctly, in my view, so that either the applicant is entitled to both the licences, or not.
I do have some difficulty, however, with the focus of the applicant's case, reflected in both the applicant's statement of issues, facts and contentions and the oral submissions made on his behalf at the hearing, upon whether or not a person has a history of, or tendency towards, violence; whether the person is a risk in terms of his or her use of firearms, including whether there is any past history of use of firearms whilst intoxicated; and whether or not there is demonstrated a propensity to use firearms for improper purposes. Although it is true that any of those matters, if found against a holder of a firearm licence, may form the basis for revocation on either the fit and proper person or public safety grounds, the decisions taken in relation to the applicant's licences were not referable to any of them, with the possible exception of inappropriate handling when intoxicated. Rather, the case against the applicant continuing to hold the licences is concerned most directly with Mr Tomizzi's failure to comply with his safekeeping obligations in respect of his firearms and ammunition on 1 November 2008, which was contributed to and exacerbated by his alcohol use on that day.
The right to possess firearms is a privilege bestowed under the grant of a licence under the Firearms Act. The licence holder is bound by the obligations imposed upon him or her by the licence, the Firearms Act and the Firearms Regulations 1974 (WA). Those obligations are neither optional nor time‑based. The licence holder should reasonably expect that any breach of any of those obligations, and certainly the more important ones, will result in the action taken in this case. The duty to ensure the safekeeping of firearms at all times when they are not being used is such an obligation.
Earlier in these reasons, I described the applicant's failure to comply with his obligation of safekeeping his firearms as 'surprising'. The applicant's failure is especially surprising given that he was aware that the Commissioner had, as recently as seven months earlier, written to the applicant informing him that consideration was being giving to the possible revocation of his firearm licence, albeit arising from 'several domestic violents [sic] incidents that police have attended to on 20 February 2008, 5 January 2008 and 12 August 2007'. To put that letter in its correct context, it highlighted the issue of the applicant's alcohol use, and required the applicant to obtain reports of a medical practitioner and psychologist or psychiatrist as to whether the applicant was suffering from alcohol addiction or dependence. As a response to that requirement, the applicant attended upon a clinical psychologist, Dr Brown, who reported on 5 June 2008 that, in the expert's opinion based on his examination of Mr Tomizzi, there was no evidence of a 'mental condition' which would result in his being considered unfit to possess a firearm licence. In reaching this conclusion, Dr Brown pointed to the applicant not having previous alcohol‑related driving convictions, including during the previous seven years when he has worked as a truck driver. In his evidence before me, Mr Tomizzi said that his truck driving duties comprise carting dangerous goods for which there is regular random testing for drugs and alcohol, which the applicant has never failed.
Interestingly, the same report notes Mr Tomizzi's claim to Dr Brown that he drinks approximately 30 cans of mid‑strength beer a month. In his evidence before me, Mr Tomizzi said that he gave up drinking any alcohol immediately following the 1 November 2008 incident, but that he was not a big drinker previously, and that he would have a half to one can of beer on the hottest day. This inconsistency once again supports the conclusion of a tendency on the part of the applicant in these proceedings to underestimate his alcohol consumption. Although perhaps not a significant factor on its own, it has galvanised my view that, although he refuses to admit it, the applicant's past use of alcohol has been a factor which has conspired with other circumstances to produce unfortunate outcomes, and on one occasion may well have had tragic consequences. In those circumstances, his uncorroborated assertion that he no longer uses alcohol at all is properly to be regarded as a mere statement of intent, the vindication of which is subject to assessment in the fullness of time.
The main significance to be attached to the Commissioner's letter of 10 April 2008, however, is to demonstrate that the applicant was on notice that his licence credentials were under review. In light of this, Mr Tomizzi's actions approximately 2 weeks later resulting in the 72‑hour police order assume a more ominous dimension. His alcohol-induced failure to comply with his fundamental obligation in respect of the safekeeping of his firearms some seven months later is even more damning. In respect of the latter incident, Mr Tomizzi proceeded to drink at least six beers in an afternoon when he was aware that he would be required to drive a vehicle to pick up his son, and, on the applicant's evidence, the vehicle used for that purpose was the repository of a firearm and ammunition which Mr Tomizzi had forgotten he had placed there. This was despite the very direct warning to be gleaned from the Commissioner's letter back in April that the applicant's use of alcohol was a subject of concern, and his efforts to satisfy the Commissioner that that concern was misplaced. Despite his counsel's submission that his client had shown 'a remarkable degree of insight' since the events of 1 November 2008, the fact that those events occurred demonstrated anything but.
Counsel for the applicant noted that the penalties meted out by the magistrate for the driving and firearms offences were at the lower end of the scale, which, according to his submission, reflected the gravity with which the magistrate viewed them. According to the applicant's counsel, the magistrate accepted the factual basis of his plea in mitigation, which recounted the series of unfortunate events commencing with the unexpected visit of the applicant's friend and culminating in the applicant driving to collect his son. The reservation of the Tribunal decision was held over pending provision of the transcript of the magistrate's sentencing remarks, and the transcript was subsequently provided.
Although it may be accepted that the monetary penalties were at the lower end, the decision whether or not to affirm the revocation of the licences depends upon the application of the statutory criteria under s 11 of the Firearms Act reproduced earlier. They are quite different from principles of sentencing. It is useful to reproduce some of the magistrate's comments which bear this out, as well as raising another point which weighs heavily against the application succeeding.
[HIS HONOUR:] In regard to the firearms matter, it [sic] always a concern to the court when people have a hand gun at their disposal. It is not so much about you necessarily. I don't believe you show the signs of - and certainly your referees don't believe you are a bad person. And of course cars get taken. They fall into the hands of the wrong people, and when they are then in a position to have a weapon of that nature available to them, then all hell can break loose. Do you understand that?
TOMIZZI, MR: Yes.
HIS HONOUR: That's why the legislation is there. The firearms and ammunition needs to be secured so that situation doesn't happen. So many times we read about people's cars being burgled in places and firearms being left insecure and then taken by the wrong sort of people. They are definitely the wrong sort of people to have that kind of availability of firearms.
But I have listened to what counsel has said. Obviously this matter is not finalised as far as you are concerned. You have still got another court to deal with, and that will deal with your licence situation. In regard to the firearm you will be fined $400. There is an order for forfeiture of the ammunition, but I am not going to make an order for forfeiture of the firearm. That can come about in due course with what happens in the SAT.
In my respectful view, his Honour has accurately encapsulated the importance of the legislative provisions for the safe securing of firearms. This was the point which I raised early in this consideration. Despite the applicant's submissions, which, if accepted, would have the contrary effect, the safekeeping requirement is one which the public is entitled to insist upon as being compulsory for licence holders under the Firearms Act. The applicant's failure in this regard is tied to the spectre of his alcohol use, which, on his own story, directly contributed to the sorry events of 1 November 2008, as it had contributed to at least one incident of concern previously. For reasons that I have given, the applicant's claim to have given up drinking alcohol must be treated with some circumspection. In any event, it is in my judgment still too early to accept the applicant's abstinence as enduring fact.
In my opinion, there are, arising from recent events, simply too many doubts touching upon the applicant's status as a fit and proper person under the Firearms Act and the interests of public safety to permit this Tribunal to take him at his word that his responsible possession of firearms would never again be compromised. The correct and preferable decision, therefore, is to refuse the application and to affirm the decisions under review.
Orders
The Tribunal orders:
1.The application is refused.
2.The decisions of the respondent to revoke the applicant's firearm licence and dealer's licence are affirmed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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