VIZZARI and COMMISSIONER OF POLICE
[2024] WASAT 144
•9 JANUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: VIZZARI and COMMISSIONER OF POLICE [2024] WASAT 144
MEMBER: MR T CAREY, MEMBER
HEARD: 18 DECEMBER 2024
DELIVERED : 23 DECEMBER 2024
PUBLISHED : 9 JANUARY 2025
FILE NO/S: CC 421 of 2024
BETWEEN: TOMMASO VIZZARI
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms - Review of revocation of firearm licence - Firearms and ammunition stolen from vehicle - Whether in transit or in storage - Fit and proper person - Public safety
Legislation:
Firearms Act 1973 (WA), s 11(1)(c), s 11(3)(a), s 11(6), s 21(a)(iii), s 22(2), s 23(9)(a), s 23(9)(d)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 27(1), s 27(3), s 29(1), s 29(3)
Result:
Application unsuccessful
Decision affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr R Williamson |
| Respondent | : | Mr J Orley |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Commissioner of Police |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Hayes and Commissioner of Police [2023] WASAT 18
McGee v Chitty [2011] WASCA 125
McRobert and Commissioner of Police [2005] WASAT 204
Minitti v Commissioner of Police [2010] WASCA 198
Penketh and Commissioner of Police [2009] WASAT 174
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to add headings and make necessary corrections for the purposes of correcting grammatical errors or infelicity of expression).
Introduction
The applicant, Mr Tommaso Vizzari, has applied under s 22(2) of the Firearms Act 1973 (WA) (the Act) for a review of a decision of the respondent's delegate made on 28 May 2024 to revoke his firearms licence. The licence permitted the applicant to use 10 firearms for recreational hunting and shooting and club purposes. Notice of the decision was given in a revocation letter which was served on 12 June 2024. The applicant lodged his review application with the Tribunal on 3 July 2024.
A criminal prosecution against the applicant in the Magistrates Court, ultimately under s 23(9)(a) of the Act relating to safeguarding firearms while not in storage, was unsuccessful on a no case submission relating to the adequacy of the caution given. It is worth noting that the exercise undertaken on a review in this Tribunal proceeding is quite different from the criminal matter.
An application pursuant to s 22(2) of the Act falls within the Tribunal's review jurisdiction: s 17 of the State Administrative Tribunal Act 2004 (WA) (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 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 the 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 consideration to the material that was before the original decision-maker: s 27(1) 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 decision-maker 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, may substitute its own decision in place of the reviewable decision: s 29(3) of the SAT Act.
Reviewable decision and grounds of review
The ground of the revocation set out in the revocation letter was that were the applicant applying for it, he could not be issued the licence: s 21(a)(iii) of the Act. This, according to the letter, was because the Commissioner had formed the opinion that the applicant is not a fit and proper person to hold a firearms licence: s 11(1)(c) of the Act. The letter relied upon a series of events occurring on 9 January 2024 when, according to the letter, the applicant left two firearms on the back seat of a locked vehicle at his farm and left the vehicle unattended in order to work at another property. While he was away, a door window of the vehicle was smashed and the firearm stolen along with some ammunition.
The grounds of the review application are expressed as follows:
The incident upon which the respondent relies does not justify the decision that I am not a fit and proper person. I did take reasonable precautions to ensure the safe keeping of the firearms that were stolen. I locked them in a car, ensured they were not visible and the car was on private farmland a distance from the closest public road. The thieves who stole them got access to the car by cutting a fence on a neighbouring farm, driving through that farm and smashing the window of the car. I left the car on the farm because I was suddenly called to work at the port which does not allow firearms, and I did not have time to take the firearms back to my home. I drove a truck to the port.
Evidence at the hearing
Much of the evidence before me was documentary, primarily contained in the respondent's s 24 bundle of documents, which was tendered as Exhibit 1. It includes an account of relevant events concerning the applicant in the form of a witness statement of Mr Vizzari which was prepared by the police on 9 January 2024, being the date of the events critical to this matter and signed by him.
Further, there is factual material relating to the events the subject of the applicant's statement in the parties' respective statements of issues, facts and contentions (SIFC), both of which were also tendered, the respondent's SIFC as Exhibit 2 and the applicant's SIFC as Exhibit 3.
The applicant also gave evidence at the hearing.
The applicant described himself as a cattle and sheep farmer and feedlot operator. His current farm, which he leases, is in Byford, described in the Commissioner's letter as Oakford. He lives in Mundijong, which is 15 to 20 minutes away. The feedlot, which is at Peel, is 16 to 17 kilometres from the farm and 10 minutes from the applicant's home. At the feedlot, the applicant selects and drafts sheep, culls sick sheep, and loads live sheep for transport to the wharf at Fremantle Port as required. The port is approximately an hour from the feedlot and would be slightly more from the applicant's home.
It is common cause that the applicant was present at his farming property on 9 January 2024 from about 5.40 am for only a short period. At that time, he had in his possession a Brno.22 calibre bolt-action rifle and his Harrington and Richardson 12-gauge shotgun, which he had taken with him that morning in his Holden utility from his home. In oral evidence, he said that an animal on the farm was sick and there was a possibility that he would put it down. Shortly following his arrival, after checking the stock and water, he received a telephone call from the port asking him to go to the wharf to pick up rejects. These are sheep unsuitable for transporting due to their condition. He said this request was unexpected and had not happened before. He said that the port did not allow any firearms in the port precincts.
The applicant said that following the call, he parked the vehicle, took clothing and tools out, buried the firearms underneath the seat and stashed the ammunition in another compartment. He then put everything back on top and locked the vehicle. He locked the gate to the property, which has three padlocks, as he left the farm in his truck for the port.
Later that morning, the applicant was informed by a family member that the doors to the vehicle were open, whereupon the applicant contacted police and returned to his property. When he did so, he saw that one of the door windows was smashed, and the firearms in the vehicle were gone, along with ammunition. The applicant called the police, met detectives on site, and made the statement to which I have referred.
Mr Vizzari said that the thieves gained access to the farm by cutting seven wires in the fence line of his neighbour's property and opening two gates before reaching the utility.
Although counsel for the applicant, Mr Williamson, wished to downplay the use to which the firearms were put, presumably by the thief or thieves or persons associated with them, stating that it is the actions and omissions of the applicant which were the relevant consideration, in my view, the background story here would be incomplete were that use not to be referred to briefly. And it is relevant in a general way as an example of how serious the consequences of a failure by a firearms owner to comply with his or her obligations concerning the storage and handling of firearms can be.
On the material provided by the respondent, on 11 January 2024 the police were involved in the pursuit of a stolen vehicle which exceeded 60 minutes during which speeds well above the various speed limits were reached. At one point a rifle was pointed out of the window towards the police vehicle and a helicopter and the driver shot multiple rounds out of the window. After the vehicle was finally stopped, the applicant's Brno.22 calibre rifle was located and seized. On the same day, on the execution of a warrant in Greenfields, apart from drugs and cash, the applicant's shotgun and ammunition were located.
Legal issues
An issue arose as to whether the obligation of the applicant as regards the two firearms he left in the utility was that of a licensee of firearms in transit or in storage. Depending upon which of these applied, he was obliged to either take all reasonable precautions to ensure the firearms' safekeeping under s 23(9)(a) of the Act or use adequate and prescribed storage facilities under s 23(9)(d) of the Act, respectively. Clearly, if he was under an obligation to properly store the two firearms when he left the farm for the port, he failed to comply with that obligation.
The 'in transit' nomenclature is actually a shorthand description for the following words in the Act s 23(9)(a):
… whilst carrying or in actual physical possession of, or having the custody or control otherwise than by way of storage of, any firearm, major firearm part or ammunition …
Mr Williamson submitted that the applicant's obligation fell within the s 29(9)(a) 'transit' scenario and not s 23(9)(d). He did not cite any authority in support of this submission.
Mr Orley, counsel for the respondent, cited McGee v Chitty [2011] WASCA 125 (McGee) to support his contention that the 'transit' scenario did not apply on the facts. In that case, the respondent to the appeal transported his firearms from a previous house to his new house, intending to install a firearms cabinet in his bedroom where he would store his firearms. He was unable to complete the installation due to a power cut. He left the cabinet in a shed, removed the firearms, took them to his bedroom and lent them against the wall. This is where police found them the next day.
Noting at [58] that:
… It may not always be easy to identify when something is in transit and when it is not …
and that the particular facts of a given case were determinative, Mazza J, with whom the other two judges agreed, held, 'on any reasonable view of the circumstances', that the firearms were no longer in transit at the point when the respondent removed them from the shed and put them in the bedroom (at [59]). His Honour said at [60]:
Having reached their intended destination, the respondent, as licensee, was under the duty to use adequate storage facilities. He had adequate storage facilities in the form of the firearms cabinet, but chose not to use it …
And at [62]:
… [I]t was not open to the magistrate to conclude that the firearms were in transit. The firearms were clearly being stored and the respondent, as the licensee of the firearms, failed to use the adequate storage facilities he had provided.
The respondent in McGee was unable to rely on the extending words 'having the custody or control otherwise than by way of storage of, any firearm (etc)' in s 23(9)(a) of the Act to excuse his failure to comply with his storage obligations.
Although the applicant had not reached his final destination that day, he had reached the farm. Once at the farm, he could legally carry them in the sense of having them in his utility as he drove around the farm or have them in his actual possession, for example, to carry out the euthanasia of the sick animal. He could also leave them in the utility for periods of time as he undertook other farm tasks, although for how long he could do so might come down to a question of fact and degree, depending upon for how long and how far from the vehicle he ventured. But, in my opinion, he could not legally do as he did - leave them in the utility for a number of hours as he drove to the port, completed what he needed to do there and return to the farm. Mr Olney's description that the applicant's diversion to the port broke the chain of causation is apt. For the entirety of that diversion, the firearms and ammunition were being stored in the applicant's car. His duty as licensee was to return home and place the firearms and ammunition in their respective safe places.
Mr Vizzari's evidence of his reasons for his conduct that morning included that the request to attend the port was unexpected; had he taken the firearms home first, his arrival at port would have been delayed at least an hour; the ship's staff were waiting for the rejects to be removed to count the remaining stock so that the ship could leave; and this would have resulted in a cost for the employer of the applicant's services of approximately $1,000 per hour. However, as I said in Penketh and Commissioner of Police [2009] WASAT 174 at [40]:
… The various requirements imposed upon licensees under the Firearms Act are not optional, nor are they time-based.
The failure of the prosecution case against the applicant has the impact on this matter that the Commissioner, and the Tribunal on review, cannot be satisfied that the applicant was convicted of an offence under the Act within the past five years and therefore that sufficient ground for forming an opinion that he is not a fit and proper person based on such a conviction exists: s 11(3)(a) of the Act. However, it remains open to the Commissioner, and the Tribunal on review, to form a negative opinion based on all of the relevant circumstances: s 11(6) of the Act. My finding that the applicant did contravene s 23(9)(d) of the Act is a significant relevant circumstance.
The High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (Australian Broadcasting Tribunal v Bond) said that the expression 'fit and proper' carries no precise meaning, but rather (at [36]):
... it takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities …
The High Court went on to say:
[T]he question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur …
In Minitti v Commissioner of Police [2010] WASCA 198, the Court of Appeal said at [11]:
… [t]he purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence…
and:
It is not a concept which is to be narrowly construed or confined.
The Court of Appeal went on to say at [13]:
The Act makes provision for the control and regulation of firearms and ammunition, and the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition. See the long title to the Act. It is obvious that the statutory context requires consideration to be given to the interests of public safety. This is a consideration the decision-maker is bound to take into account, see section 11(1)(b). The requirement that the person who is to be granted a firearms licence be a fit and proper person goes arm in arm with the consideration of public safety.
As Member Ms KY Loh said in Hayes and Commissioner of Police [2023] WASAT 18 at [64] and [65]:
Any decision about whether or not the applicant is likely to represent a threat to public safety in the future if allowed to retain or obtain further firearms licences is a decision which has to be made in the knowledge of the applicant's past conduct, behaviour and general character: Knight v Commissioner of Police [2011] WASC 93 at 74.
The fit and proper person requirement has been characterised as a 'catch-all requirement' that enables an application for a firearms licence to be refused where there remains a concern that the applicant is not an appropriate person to hold a firearms licence on responsibility or safety grounds, even though none of the other expressed requirements for refusal under the Act seem to apply in the circumstances: see Wignall v Commissioner of Police [2006] WASAT 206 at [303].
And as I said in McRobert and Commissioner of Police [2005] WASAT 204 at [21]:
… the Act pays special regard to the requirements for storage of firearms and ammunition. The licensing provisions do not deal solely with the usage of firearms by licensees, but are also concerned to ensure that firearms and ammunition do not fall into the hands of persons who are not licensed and who might use them for illegal purposes[.]
My determination
How then is the applicant's conduct on 9 January 2024 to be regarded?
On the view I have adopted that the applicant failed to store his firearms and ammunition for the time that he left them in the locked utility on his farm, a grave breach of duty by a firearm licensee occurred. The potential for significant prejudice to the public safety in a case where firearms are not adequately protected, whether by storage or otherwise, is obvious. The facts of this case present a glaring example.
Mr Williamson's primary submission rejected the proposition that the applicant was under a duty to return home to place the firearms in their storage cabinet and denied a failure to take all reasonable precautions to ensure their safe keeping. He submitted that the applicant took a number of steps: hiding them in the utility and locking it; ensuring they were not visible from the road; locking the gate of the farm as he exited. He referred to the utility's location being not readily visible from the road and that entry required breaking wires or locks or both. He also referred to the 'difficult situation' in which Mr Vizzari found himself, the 'sheep were there waiting', the 'people were there waiting'. These were 'pressing issues' which prevented him from returning the firearms to authorised storage. According to Mr Williamson, '[t]hese things do happen'.
Even had I agreed with the premise that the firearms were not in storage but in transit in the broader sense, I disagree that the steps the applicant took amounted to 'all reasonable precautions to ensure their safekeeping'. Given the duration of his absence from the vicinity of the vehicle, with its inherently dangerous contents, something more was required. At the very least, the firearms and the ammunition needed to be separated. It would appear that both were utilised in the thief's subsequent rampage through the southern streets of Perth. However, for the reasons I have given, in my opinion, the guns and ammunition were in storage, which the applicant should have recognised, and adopted the appropriate course of action.
The applicant made the decision to prioritise the interests of those concerned with the live export consignment over the public interest. The consequences were bad, and could have been disastrous. No reasonable authority charged with considering a licensee's continuing suitability as such could ignore such a transgression. This is particularly so when the authority is directed expressly to the requirements of the interests of public safety and the question of whether the person is a fit and proper person to hold the licence.
It may well be that the applicant, finding himself having to make a split-second decision, with the consequences of delaying his attendance at the wharf in stark relief, and taking the precautions he did, considered the risk of someone discovering the rifles and ammunition in their hidden states extremely unlikely. However, as the actual events showed, malevolent actors can defy the odds. The utility was visible from the road (as can be seen from the photograph tendered as Exhibit 5), and it would appear that the thief had confidence it was unattended. The fact that the firearms and ammunition were both stored there increased the potential for harm in the event that the locked vehicle was raided.
Mr Williamson argued in the alternative that one offence or instance of carelessness does not automatically result in the loss of a firearm licence. While that much is correct, as the authorities disclose, a wide lens is required in assessing whether someone is a fit and proper person, with the interests of public safety being a primary consideration.
Mr Williamson also submitted that the test to be applied is about the future, that Mr Vizzari is capable of knowing what happened to him and resulting from those matters, he will in future be an exemplary citizen and the most fit and proper of persons.
In a case where a breach of duty as grave as in this case has occurred, declarations of intent will rarely be sufficient where only a relatively short period has elapsed since the commission of the breach. In my view, regrettably for the applicant, this case falls to be determined within the latter two Australian Broadcasting v Bond scenarios of whether it can be assumed that improper conduct will not occur and whether the general community will have confidence that it will not occur. Despite his four supportive written references, all of which attest to the applicant's responsible attitude towards his firearms, his conduct in January of this year precludes an assumption that no further improper conduct will occur, and is inconsistent with the prospect of community confidence about such an outcome.
I am satisfied that the applicant could not be issued a firearms licence if he were currently applying for it, as I am of the opinion that it would not be desirable in the interests of public safety and that the applicant is not a fit and proper person to hold the licence. In my view, the correct and preferable decision is to affirm the Commissioner's decision.
Order
The Tribunal orders:
1.The application is dismissed.
2.The decision of the Commissioner of Police to revoke the applicant's firearm licence number 03350459 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR T Carey, MEMBER
9 JANUARY 2025
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