WALLY and COMMISSIONER OF POLICE
[2014] WASAT 98
•8 AUGUST 2014
WALLY and COMMISSIONER OF POLICE [2014] WASAT 98
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 98 | |
| FIREARMS ACT 1973 (WA) | |||
| Case No: | CC:1159/2013 | 6 MARCH 2014 | |
| Coram: | MS C WALLACE (MEMBER) | 8/08/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for review successful | ||
| B | |||
| PDF Version |
| Parties: | IAN WALLY COMMISSIONER OF POLICE |
Catchwords: | Firearm licence under Firearms Act 1973 (WA) Extensive history of criminal convictions Offences involving violence Whether evidences pattern of behaviour and disregard of law Whether applicant is now a fit and proper person to hold firearm licence |
Legislation: | Firearms Act 1973 (WA), s 11, s 11A(2)(c), s 22(2) State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(5) State Administrative Tribunal Rules 2004 (WA), r 10 |
Case References: | Nickels and Commissioner of Police [2010] WASAT 19 Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996) |
Orders | On the application heard on 6 March 2014 by Member Charlotte Wallace, it is on 8 August 2014 ordered that: ,1. The application seeking an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA) in which to seek review of the decision of the Commissioner of Police to refuse the applicant's firearm licence under s 22(2) of the Firearms Act 1973 (WA) is granted.,2. The application for review is granted.,3. The decision of the delegate of the Commissioner of Police to refuse the applicant's application for a firearm licence in relation to two firearms is set aside.,4. The Commissioner of Police shall, as soon as possible, issue the firearm licence in relation to the applicant's two firearms, namely:,a .22 calibre rifle bolt action CZ A989941; and,a .223 calibre rifle bolt action Tikka F20999. |
Summary | The applicant, Mr Ian Wally, sought review of a decision of a delegate of the Commissioner of Police under the Firearms Act 1973 (WA) refusing to grant him a firearm licence.,The refusal was made on the basis of a finding that Mr Wally was not a fit and proper person under s 11(1)(c) of the Firearms Act 1973 (WA) to hold a firearm licence, due to his extensive criminal convictions and traffic offences. In particular, the Commissioner was concerned with two criminal convictions involving violence, being a common assault conviction in 2009 and an aggravated assault occasioning bodily harm conviction in 2007.,The Tribunal found that Mr Wally was, as at the time of the review, a fit and proper person to be licensed to hold a firearm on the basis of the following matters:,in the past decade Mr Wally had only been convicted of two criminal offences, and whilst they involved violence, the Tribunal found that they did not establish a continuing course of criminal conduct on behalf of the applicant or evidence a complete disregard for the law;,since abstaining from alcohol consumption and the use of illicit substances, the applicant's behaviour and standing within his community had significantly improved;,the applicant illustrated genuine remorse, contrition and insight into his earlier turpitudes;,the applicant is in a stable long-term relationship, is responsible for 13 children, is involved in volunteer and mentoring activities in his community and is heavily involved in the Pilbara Aboriginal Church;,the applicant's most recent criminal conviction occurred seven years ago and resulted in a minor fine being imposed; and,positive character references and written and oral witness evidence of the applicant's standing in his community.,The application for review was therefore granted and the decision to refuse the applicant's application for a firearm licence was set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : FIREARMS ACT 1973 (WA) CITATION : WALLY and COMMISSIONER OF POLICE [2014] WASAT 98 MEMBER : MS C WALLACE (MEMBER) HEARD : 6 MARCH 2014 DELIVERED : 8 AUGUST 2014 FILE NO/S : CC 1159 of 2013 BETWEEN : IAN WALLY
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm licence under Firearms Act 1973 (WA) Extensive history of criminal convictions Offences involving violence Whether evidences pattern of behaviour and disregard of law Whether applicant is now a fit and proper person to hold firearm licence
Legislation:
Firearms Act 1973 (WA), s 11, s 11A(2)(c), s 22(2)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(5)
State Administrative Tribunal Rules 2004 (WA), r 10
Result:
Application for review successful
Summary of Tribunal's decision:
The applicant, Mr Ian Wally, sought review of a decision of a delegate of the Commissioner of Police under the Firearms Act 1973 (WA) refusing to grant him a firearm licence.
The refusal was made on the basis of a finding that Mr Wally was not a fit and proper person under s 11(1)(c) of the Firearms Act 1973 (WA) to hold a firearm licence, due to his extensive criminal convictions and traffic offences. In particular, the Commissioner was concerned with two criminal convictions involving violence, being a common assault conviction in 2009 and an aggravated assault occasioning bodily harm conviction in 2007.
The Tribunal found that Mr Wally was, as at the time of the review, a fit and proper person to be licensed to hold a firearm on the basis of the following matters:
- in the past decade Mr Wally had only been convicted of two criminal offences, and whilst they involved violence, the Tribunal found that they did not establish a continuing course of criminal conduct on behalf of the applicant or evidence a complete disregard for the law;
- since abstaining from alcohol consumption and the use of illicit substances, the applicant's behaviour and standing within his community had significantly improved;
- the applicant illustrated genuine remorse, contrition and insight into his earlier turpitudes;
- the applicant is in a stable long-term relationship, is responsible for 13 children, is involved in volunteer and mentoring activities in his community and is heavily involved in the Pilbara Aboriginal Church;
- the applicant's most recent criminal conviction occurred seven years ago and resulted in a minor fine being imposed; and
- positive character references and written and oral witness evidence of the applicant's standing in his community.
Category: B
Representation:
Counsel:
Applicant : Ms J Anderson
Respondent : Senior Constable S Bagley
Solicitors:
Applicant : Pilbara Community Legal Service
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Nickels and Commissioner of Police [2010] WASAT 19
Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996)
Background facts
1 Mr Ian Wally (applicant) seeks review under s 22(2) of the Firearms Act 1973 (WA) (hereafter referred to as the Act) of a decision of the delegate of the Commissioner of Police (Commissioner respondent) made on 10 May 2013 and served on the applicant on 18 June 2013, to refuse his application for a firearm licence relating to two firearms, namely:
• a .22 calibre rifle bolt action CZ A989941; and
• a .223 calibre rifle bolt action Tikka F 20999.
2 The applicant applied on 17 April 2013 for the firearm licence. On that application the applicant disclosed that he needed the firearm licence for recreational use and for (traditional) hunting, in addition to the destruction of vermin at a property in Roebourne, in respect of which a property letter dated 8 March 2013 was provided purporting to grant the applicant approval in that regard by the property manager. The applicant disclosed on the firearm licence application that he had previous convictions for drink driving offences and had also been a respondent of a violence restraining order in respect of an assault on a family member.
3 On 10 May 2013 the Commissioner respondent refused to grant the firearm licence to the applicant as he found that the applicant was not a fit and proper person under s 11(1)(c) of the Act, given that the applicant had been convicted of 121 criminal convictions and 35 traffic convictions, with several of them relating to violence and/or alcoholrelated offences.
Preliminary issue application made out of time
4 The applicant made his application to the Tribunal for review of the Commissioner respondent's decision on 30 August 2013. Given that the decision under review was served on the applicant on 18 June 2013 and the applicant was required to make an application for review within 28 days, such application should have been received by the Tribunal on or before 16 July 2013. Given that the application has been made out of time, the Tribunal needs to consider whether this is an appropriate matter in which to exercise its discretion under rule 10 of the State Administrative Tribunal Rules 2004 (WA) so as to extend the time for commencement of the proceeding. The factors to be considered in determining whether to exercise the discretion are well settled and are as follows:
1) The length of delay.
2) The reason for the delay, and in particular whether there is a satisfactory explanation for the delay.
3) Whether there is an arguable case for review.
4) Whether the extension of time would cause prejudice to the respondent.
5 Firstly, in assessing the period of delay I note that initially the applicant made an application for review to the Administrative Appeals Tribunal on 14 August 2013. The applicant was not, as at that time, legally represented and was clearly in error in initiating his application in that jurisdiction. However, given that the applicant had, as at that date, attempted to seek review of the Commissioner respondent's decision, it is appropriate to look at the period of delay on the basis that his application was attempted to have been made on 14 August 2013. Effectively, therefore, the period of delay is one month. The period of delay is therefore not insignificant.
6 Secondly, the Tribunal needs to consider the reasons for the delay and whether the explanation offered by the applicant is satisfactory in the circumstances. In this regard it has been submitted on behalf of the applicant that he is an Aboriginal man with limited literacy skills and who is unfamiliar with the litigation and review process. In addition, the applicant lives in a remote area of Western Australia where services are limited. At the time that the applicant made his initial application he had not yet been able to secure legal advice or legal assistance. It was submitted that he felt overwhelmed and confused as to what steps were required to initiate the review proceeding. I accept the explanation in this regard and note that it is supported by the fact that the applicant initially made his application in the wrong jurisdiction. I do therefore accept that the applicant's explanation for the delay is satisfactory.
7 In relation to whether there is an arguable case for review, I do find that there is a case to be argued on behalf of the applicant, having seen his statutory declaration, submissions and character references. There is certainly material which supports the applicant's position which merits consideration by the Tribunal through the course and conduct of a review hearing.
8 Lastly, the Tribunal needs to consider whether, by the granting of an extension of time, prejudice would be suffered by the Commissioner respondent. The Commissioner respondent has not provided submissions to support the position that he would suffer prejudice in this regard and, indeed, did not oppose the applicant's application for an extension of time. I therefore find that there is no prejudice caused to the Commissioner respondent by an extension of time being granted.
9 In conclusion, therefore, I find that this is a matter in which it is appropriate to grant an extension of time within which to make the application.
Application for review procedure before the Tribunal
10 The application for review before the Tribunal concerns the Commissioner respondent's decision to refuse the applicant's firearm licence to licence two firearms. The Commissioner respondent provided a statement of issues, facts and contentions and supporting documents on 21 January 2014. The applicant provided a number of documents in support of his application including:
1) a statutory declaration of Mr Wally, dated 21 October 2013;
2) three character references provided by Mr Ron Critchley, CEO of the Murujuga Aboriginal Corporation, Mr Garry Bailey, Justice of the Peace, and Mr Marshall Smith, Chairperson/Manager of the Mingullatharndo Association;
3) written submissions dated 20 February 2014, together with a bundle of documents; and
4) witness statements from Mr Marshall Smith and Mr Ron Critchley dated 6 March 2014.
11 At the hearing, counsel for the Commissioner respondent questioned whether the applicant had satisfied the requirement in s 11A(2)(c) of the Act by obtaining written permission from the landowner to use a firearm for hunting or shooting on the relevant land. The property letter relied upon by the applicant purported to give permission to the applicant to destroy vermin on 'Mingullatharndo and Muster Area' consisting of '1000 and 119,000 approximate acres/hectares Mt Welcome muster area' and is signed by Mr Smith, the chairperson/manager of the Mingullatharndo Association.
12 As this issue was raised for the first time during the course of the hearing, the hearing could not be concluded and it was necessary for the parties to provide the Tribunal with further submissions and documentation in relation to this issue. In this regard the Tribunal received the following documents:
a) supplementary written submissions filed on behalf of the applicant dated 15 May 2014;
b) Commissioner respondent's written closing submissions dated 6 June 2014; and
c) additional submissions and documents on behalf of the applicant dated 24 July 2014.
13 The matter was then listed for a further directions hearing on 29 July 2014. At that directions hearing it was accepted by the Commissioner respondent that the applicant had now satisfied the requirement set out in s 11A(2)(c) of the Act by obtaining written permission from the landowner as he had been able to establish clearly that Mr Smith, as chairman of Mingullatharndo Association, being the lease holder of Lot 555 on plan 28120 (comprising part of the land on which the applicant intends to use a firearm), had authority to satisfy that threshold requirement. It was accepted therefore by the Commissioner respondent that leasehold ownership is sufficient to satisfy the landowner permission requirement set out in the Act. On that basis, I do not intend to deal with this issue any further.
14 At the hearing, the applicant appeared and gave evidence, as did Mr Paul Tahi Tahi, from the Yindjibarndi Crew, with whom the applicant is currently employed.
Role of the Tribunal in review proceedings
15 The Tribunal has in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the same jurisdiction, functions and discretions as those of the original decisionmaker pursuant to the Act. The Tribunal is not limited to the statement of reasons given by the Commissioner respondent (s 27(3) of the SAT Act). The Tribunal may take into account any additional or new information which was not provided to the Commissioner respondent at the time that the original decision was made (s 27(1) of the SAT Act). In this application, the Tribunal has all of the material which was before the Commissioner respondent, as well as additional evidence as set out above, in the form of the applicant's oral evidence, in addition to the signed character references, and witness statements and the oral evidence of Mr Tahi Tahi at the hearing.
16 As the Tribunal considers the application de novo, the decision of the Tribunal is regarded as a decision of the original decisionmaker (s 29(5) of the SAT Act). The purpose of the review is to produce the correct and preferable decision at the time of the review (s 27(2) of the SAT Act).
Issue
17 The issue for the Tribunal is whether it can be satisfied, on the basis that it is the correct and preferable decision, that the applicant is a fit and proper person within the meaning of s 11 of the Act to hold a firearm licence having regard to his criminal conviction history.
Commissioner respondent's contentions
18 The basis for the Commissioner respondent's contention that the applicant is not a fit and proper person to hold a firearm licence is his extensive prior criminal and traffic convictions, namely, 121 criminal convictions and 35 traffic convictions. This extensive criminal history, in the submission of the Commissioner respondent, supports his contention that the applicant has a general disregard for the law, and if the applicant were licensed to use firearms, this could therefore pose a genuine risk to public safety.
19 The Commissioner respondent is also concerned in relation to the specific nature of many of the criminal convictions which include violent offences and offences related to excessive alcohol consumption. The Commissioner respondent is essentially concerned with bestowing the privilege of a firearm licence on somebody who, in the Commissioner's submission, has a propensity for violence. The Commissioner respondent submits that to license the applicant in the circumstances, would be contrary to community expectations. Therefore, the Commissioner respondent submits that the applicant is not a fit and proper person under s 11(3)(a)(ii) of the Act and should not be granted a firearm licence.
Applicant's contentions
20 The applicant contends that he is a fit and proper person to hold a firearm licence despite his extensive criminal record. The applicant submitted and gave evidence that this is because in the last nine years he has taken significant steps to take back control of his life and to contribute meaningfully to his community.
21 The applicant conceded that prior to 2005 he would not have met the requirements of the Act in being fit and proper to hold a firearm licence given his extensive history of excessive alcohol consumption and criminal convictions. By way of explanation, the applicant gave oral evidence that when he was 16 years old his sister (who was his primary carer) was stabbed to death by her abusive partner and his inability to deal with the trauma of that event led him into a life of alcohol and drug abuse.
22 However, the applicant gave evidence that he reached a turning point in his life in 2004 when he moved to Darwin in the Northern Territory to look after his seriously ill daughters in hospital. The applicant gave evidence that he came to realise his responsibilities as a father and had insight into the need to turn his life around so that he could be there for his family. As a result, the applicant gave evidence that he moved permanently to Darwin in order to remove himself from the unhealthy environment that he had created. It was during this time that he commenced attending Alcoholics Anonymous meetings and gave up drinking and taking drugs.
23 In the applicant's evidence he informed the Tribunal that his abstinence from the use of illicit substances and alcohol had a significant bearing on his offending behaviour, which can be seen from his conviction history in that there have been only two criminal convictions in the past nine years. This can be compared with 119 criminal convictions prior to that date. The applicant effectively says that although his historical offences clearly evidence a concerning pattern of behaviour and a disregard for the law, that that pattern of behaviour ended in 2005.
24 In addition, the applicant made the following submissions in support of the contention that he is now a fit and proper person for the purposes of the Act:
1) Most of his criminal history is historic, with the majority of convictions occurring at least a decade or more ago.
2) None of the applicant's criminal convictions have ever involved the use of firearms.
3) The applicant's most recent criminal conviction was in June 2009 for common assault. It involved a situation where the applicant was concerned for the welfare of his daughter who, he gave evidence, had been assaulted and therefore, although it was an action he deeply regrets, it was one he took because he was emotionally charged. The applicant was given a $300 fine which evidences that it was dealt with as a less severe offence.
4) The applicant has significant family responsibilities as he is married and is responsible for 13 children, including children that have been placed into his custody by Department for Child Protection and Family Support.
5) The applicant is employed as a leading hand with the Yindjibarndi Crew as partof a clean-up crew, responsible for a crew of men. He has held this position since the beginning of 2014.
6) The applicant is heavily involved in his local community as a committed member of the Pilbara Aboriginal Church, as a volunteer with various sporting organisations and through volunteering with young Aboriginal children by teaching them about their culture and history in relation to the traditional use of the land.
7) The applicant also has significant responsibility to the Aboriginal community, not only through teaching and mentoring of the young Aboriginal people but also by way of cultural responsibility by provision of food to Aboriginal elders in the community through traditional hunting.
The relevance of prior convictions to the fit and proper person test in s 11(1)(c) of the Act
25 Section 11(3) of the Act provides that the Commissioner respondent will have sufficient grounds for forming an opinion that a person is not fit and proper to hold a firearm licence in certain circumstances. One of those grounds is that the Commissioner respondent is satisfied that within the period of five years before the person applies for the licence, the person was convicted of an offence involving assault with a weapon, an offence involving violence or any offence against the Act.
26 Section 11(6) of the Act goes on to provide that s 11(3) does not limit the Commissioner's ability to also take into account a conviction recorded outside the previous five year period, and anything else that could have been taken into account if s 11(3) had not been enacted.
27 Prior convictions beyond the five year period were considered in Nickels and Commissioner of Police[2010] WASAT 19 at [28], and they may be relevant where they occurred while the person was the holder of a firearm licence under the Act or, even if not the holder of a firearm licence, then they may also be relevant if they are serious, in and of themselves, or as representing a general disregard for the law.
28 The applicant's criminal history shows that in the five years before he applied for his firearm licence he was convicted of the following offences:
• common assault, on 4 June 2009, resulting in a fine of $300; and
• driving contrary to conditions of an extraordinary licence, 9 January 2014, which resulted in a fine of $500.
29 Outside of the five year period, the significant criminal offence which has been taken into account by the Commissioner respondent is:
• Aggravated Assault Occasioning Bodily Harm, on 27 November 2007, resulting in an intensive supervision order of nine months.
30 The Tribunal attaches little weight to the driving offence as it is not so serious, in and of itself, to represent a general disregard for the law or to reflect particularly adversely on the character of the applicant (see: Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996) (Tavelli) at 8).
31 It is only the offences of common assault and aggravated assault occasioning bodily harm which are particularly relevant to the provision of s 11(3)(a) of the Act as those offences involved violence.
Common assault
32 In relation to the five year period before the applicant applied for his firearm licence, the applicant was convicted of an offence involving violence, namely common assault. The effect of s 11(3)(a)(ii) of the Act means that the common assault offence is relevant to whether the applicant is a fit and proper person to hold a licence under the Act.
33 The statement of material facts sets out that the offence occurred on 25 April 2009. The applicant's daughter came home and told the applicant that she had been punched and pushed by a man known to the applicant. The applicant then attended the man's address and confronted him about his treatment of his daughter and challenged him to a fight, following which he struck him three times. The victim did not engage in the fight.
34 The applicant never denied the offence and immediately accepted responsibility and cooperated with the police. The applicant informed the Tribunal that he regretted the assault and acknowledged that it constituted a serious departure from the expected and appropriate behaviour in the circumstances. The applicant gave evidence that he apologised to the victim the day after committing the offence. The applicant informed the Tribunal that he was confronted by the sight of his daughter who had been beaten by the victim and gave evidence that he was emotionally charged at the time of the offence. The applicant did not condone his actions and it is an unfortunate blemish in what would otherwise be a clean criminal history for the past six years. The applicant submitted that due to the surrounding circumstances the matter was dealt with as a less severe conviction which is reflected in the $300 fine outcome. The maximum penalty for common assault is imprisonment for 18 months and a fine of $18,000.
Aggravated Assault Occasioning Bodily Harm
35 Section 11(6) does not limit the Commissioner from considering convictions of the applicant made outside of the period of five years referred to s 11(3)(a) and, in this regard, the Commissioner respondent places significant reliance on the applicant's criminal conviction in 2007 of aggravated assault occasioning bodily harm.
36 It was submitted at the hearing on behalf of the Commissioner respondent that this crime was one of a particularly violent nature involving the applicant's daughter and in which a weapon was used. The circumstances relate to an altercation between the applicant and his daughter during which he used a broomstick to beat his daughter which resulted in his daughter being hospitalised. The applicant admitted in oral evidence that he was not under the influence of alcohol at the time of the incident. It was submitted on behalf of the Commissioner respondent that this conviction involving violence, together with the 2009 conviction for common assault, sways heavily against a finding that the applicant is fit and proper and also raises a real concern as to the safety of the public if the applicant were licensed to use a firearm.
37 The applicant addressed the issue in his oral evidence at the hearing. The applicant gave evidence that he deeply regretted the incident in 2007 and has since had insight into his behaviour and his relationship with his daughter. The applicant informed the Tribunal that his involvement with the Pilbara Aboriginal Church assisted him in this regard in reforming himself and in developing better ways to deal with issues of conflict. The applicant gave oral evidence that although his relationship with this particular daughter remains volatile, he has in the past seven years been able to better deal with hostile situations by either removing himself from the conflict or, if unable to do that, by calling the Police so that they can intervene.
Significant history of traffic convictions
38 It was submitted on behalf of the Commissioner respondent that it is clear that there is a pattern of behaviour on behalf of the applicant evidencing a complete disregard for the law, despite the fact that the applicant has been sober for the past nine years. In this regard, in addition to the two criminal convictions for violence, the Commissioner respondent also took into account, in determining whether the applicant was fit and proper to be granted a firearm licence, his significant history of traffic offences including most recently, in January this year, totalling eight offences in the past 10 years. It was contended by the Commissioner respondent that this supports the position that the applicant has a disregard generally for the law and did not turn his life around when he decided to abstain from alcohol and drugs but that he in fact continued to offend.
39 The applicant's response to this contention is that traffic offences are not so serious, in and of themselves, to support a finding that the applicant is not a fit and proper person. In addition, the applicant submitted that the majority of the offences related to the applicant driving without a motor driver's licence and that he did so in circumstances where he would otherwise have found it difficult to provide for his extensive family. Effectively, although the applicant's extensive traffic offence history is something that the applicant regrets, he submitted that it occurred because he lives in a remote community in the northwest of Australia where it is extremely difficult to maintain a job and provide for a family in the absence of, or in circumstances of, limited means of transport.
Is Mr Wally a fit and proper person to hold a firearm licence notwithstanding his prior convictions?
40 Justice Wheeler in Tavelli dealt with the relevance of prior convictions in deciding whether a person was fit and proper to be licensed as a security agent under the Security and Related Activities (Control) Act 1996 (WA), and in relation to the expression 'fit and proper', Wheeler J stated at 7:
It must be stressed … that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.
41 Wheeler J went on to state that in her view prior convictions will generally be regarded as more serious in the statutory context if:
1) They occur in the course of or relate to carrying out of the … occupation …;
2) They are offences of dishonesty, broadly understood. …;
3) They occur while the person is the holder of a licence under the Act;
4) They are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
42 Wheeler J went on to consider in Tavelli at 8 9 some factors which may indicate that a person remains a fit and proper person to hold a licence, notwithstanding prior convictions. Those factors were:
1) Where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes … the understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by their words;
2) If the offences were committed a substantial time ago;
3) Any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; and
4) A person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to the character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
43 Having considered the relevant principles, the oral and written evidence provided at the hearing and the submissions made by the parties, the Tribunal has reached the following decision.
44 It is almost five years since the applicant last committed a criminal offence and in the past decade the applicant has two criminal convictions both of which resulted in penalties at the lower end of the scale, one being a $300 fine and the other a supervision order. In the Tribunal's view, there has been a marked change in the behaviour of the applicant coinciding with him making the decision to give up alcohol and drugs. Prior to making that decision the applicant admitted that he drank alcohol excessively and also took illicit substances which had a direct impact on his offending behaviour. The Tribunal found the applicant to be a credible witness in this regard and accepted his evidence that indeed his prior criminal activities occurred, in the most part, whilst he was under the influence of alcohol and/or drugs.
45 The Tribunal is comforted by the fact that the applicant is now sober and accepts his evidence that this has had a direct impact, together with his involvement with his community church, on the significant reduction in his offending behaviour over the past nine years. Although there have been two criminal offences in the past decade, the Tribunal does not accept that that, in and of itself, is sufficient to show a complete and utter disregard for the law by the applicant. Indeed, it is a significant departure from his prior significant criminal history. In addition, the sentences imposed indicate to the Tribunal that the offences were either considered by the presiding Magistrates as being at the lower end of the scale and/or that there were significant mitigating circumstances which were taken into account in sentencing. It is also significant, in the Tribunal's view, that none of the applicant's offending has ever involved a firearm. The Tribunal is also satisfied that the applicant is not otherwise an aggressive or violent person and has demonstrated that he has now developed tools which he implements so as to avoid or resolve conflict and better manage volatile situations.
46 The Tribunal was impressed with the manner in which the applicant gave his evidence and found him to be a forthright witness. He gave evidence of his longterm relationship with his wife and their shared responsibility for the 13 children under their care. The applicant explained the circumstances of his life during the period when he was drinking excessively and also described the point in time when he effectively had an epiphany and decided to turn his life around. He expressed genuine regret and remorse regarding his prior conduct. The applicant has now been in Roebourne for nine years and during that time has remained sober despite the fact that it is not a dry community.
47 Whilst the Tribunal accepts that the applicant's convictions from a decade ago, and prior, are extensive, the Tribunal also accepts the applicant's explanation in relation to his excessive consumption of alcohol and his reluctance to deal with personal trauma as being the trigger for that particular course of conduct and disregard for the law. The Tribunal is satisfied that the applicant has learnt from his mistakes and has made significant changes in his life to ensure that he does not fall back into those patterns of offending behaviour, particularly the fact that he is now sober and has significant family, community and cultural obligations.
48 The three written references and two witness statements provided in support of the applicant's review, together with the oral evidence of Mr Tahi Tahi, reinforce his good standing in the Roebourne community. One character reference and witness statement was provided by Mr Critchley who was the applicant's previous employer. Mr Critchley informed the Tribunal that the applicant was an exemplary employee and is committed to his family. Mr Critchley also informed the Tribunal that the applicant is an active and valued member of the community and assists voluntarily with sporting organisations and generally is actively involved in the community.
49 Mr Smith's written evidence was consistent in this regard. Mr Smith was the applicant's probation and parole officer during 1991 and 1992 and supervised the applicant on his various communitybased orders. Mr Smith informed the Tribunal that the applicant has, since becoming sober, changed his life around and is now an upstanding member of the community and is involved in mentoring young men with football and basketball and other activities. Mr Smith is also the pastor at the Pilbara Aboriginal Church and his witness statement refers to the applicant's involvement in the Church. Mr Smith also refers to the applicant's role as a mentor of young Aboriginal boys in the community.
50 The Tribunal is able to attach weight to the character references and witness statements on the basis that those referees were aware of the applicant's criminal history and remained willing to attest to his good character and standing in the community. That evidence supports the conclusion the Tribunal has reached, that the applicant's character is now, as of the time of this decision, such that he is a fit and proper person to hold a firearm licence.
51 For the reasons set out above, the decision of the Commissioner's delegate to refuse the applicant a firearm licence should be set aside.
Orders
52 The Tribunal makes the following orders:
1. The application seeking an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA) in which to seek review of the decision of the Commissioner of Police to refuse the applicant's firearm licence under s 22(2) of the Firearms Act 1973 (WA) is granted.
2. The application for review is granted.
3. The decision of the delegate of the Commissioner of Police to refuse the applicant's application for a firearm licence in relation to two firearms is set aside.
4. The Commissioner of Police shall, as soon as possible, issue the firearm licence in relation to the applicant's two firearms, namely:
• a .22 calibre rifle bolt action CZ A989941; and
• a .223 calibre rifle bolt action Tikka F20999.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS C WALLACE, MEMBER
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