WILSON and COMMISSIONER OF POLICE
[2010] WASAT 120
•20 AUGUST 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: WILSON and COMMISSIONER OF POLICE [2010] WASAT 120
MEMBER: MR T CAREY (MEMBER)
HEARD: 29 JUNE 2010
DELIVERED : 20 AUGUST 2010
FILE NO/S: CC 511 of 2010
BETWEEN: KEVIN WILSON
Applicant
AND
COMMISSIONER OF POLICE
Respondent
FILE NO/S :CC 596 of 2010
BETWEEN :KEVIN WILSON
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm licence - Fit and proper person - Drug offences - Previous decisions favourable to applicant
Legislation:
Firearms Act 1973 (WA), s 11, s 20, s 22(2)
Misuse of Drugs Act1981 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Result:
Applications successful
Orders setting aside decisions
Orders for reinstatement and issue of firearm licences
Category: B
Representation:
CC 511 of 2010
Counsel:
Applicant: Mr P Marsh
Respondent: Snr Constable S Bagley
Solicitors:
Applicant: Paul Marsh
Respondent: Commissioner of Police
CC 596 of 2010
Counsel:
Applicant: Mr P Marsh
Respondent: Snr Constable S Bagley
Solicitors:
Applicant: Paul Marsh
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; SCt of WA (Wheeler J); Library No 960693; 25 November 1966)
Wignall and Commissioner of Police [2006] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought review of two decisions of delegated officers of the Commissioner of Police under the Firearms Act 1973 (WA) to revoke an existing firearm licence and to refuse the issue of another firearm, being a .22 calibre handgun. Both decisions were supported by the Commissioner of Police in the review proceeding on the basis that the applicant was not a fit and proper person to hold a firearm licence by reason of his 2008 convictions for four drugrelated offences.
On review, the Tribunal set aside both decisions and ordered the reinstatement of the applicant's firearm licence and that a licence for the handgun be issued. It rejected the applicant's submission that this result necessarily flowed from the facts that there were, prior to the two decisions, two earlier decisions to extend the applicant's licence by the addition of firearms, when the delegates must have determined the applicant to be a fit and proper person, and no change of circumstances between the earlier decisions and those the subject of the review application had occurred. However, upon considering the circumstances of the applicant's convictions, his remorse, steps taken by him to ensure against any repeat, and a number of positive references, the Tribunal concluded that the applicant's drug-related convictions were an aberration, which no longer raise a legitimate concern as to his suitability to hold a firearm licence.
Background and legal principles
Mr Wilson seeks a review of two decisions of different delegates of the Commissioner of Police.
The first decision, notified by letter dated 21 October 2009, which Mr Wilson received on 2 April 2010, was to revoke Mr Wilson's firearm licence No 1792563 supporting his possession and use of five firearms, comprising four rifle lever repeaters and one rifle bolt repeater. The second decision, notified by letter dated 14 April 2010, was to refuse Mr Wilson's application for a firearm licence for a selfloading .22 calibre handgun.
Section 22(2) of the Firearms Act 1973 (WA) (Firearms Act) enables a person aggrieved by a decision by the Commissioner to seek a review of that decision.
I was not informed when Mr Wilson first obtained a firearm licence. However, it appears from his witness statement that he was enlisted in the Australian Army for a period of 10 years until 1987 and that during that time, he became familiar with handling firearms and ammunition.
Section 11 of the Firearms Act provides the framework for decisions by the Commissioner in relation to the grant of firearms licences. That section prohibits the Commissioner from issuing a licence if the Commissioner is of the opinion that to do so would be contrary to (among other things) s 11A, or it is not desirable in the interests of public safety, or the person is not a fit and proper person to hold the licence. Under s 11A of the Firearms Act, the Commissioner cannot issue a licence if, in the Commissioner's opinion, the applicant for the licence has not been shown to have a genuine reason for acquiring or possessing the firearm for which the licence is sought.
Under s 20 of the Firearms Act, the Commissioner may suspend or revoke an existing firearm licence on a number of grounds, including where he is of the opinion that the licensee could not be issued the licence by reason of s 11 of the Firearms Act if he or she were then applying for it.
I was informed at the hearing by Snr Constable Bagley, appearing for the Commissioner, that each of the decisions of the delegates was supported on the identical basis that Mr Wilson is not a fit and proper person to hold the relevant licence. This was despite a reference in the letter of the delegate dated 14 April 2010 concerning the decision refusing the handgun licence that Mr Wilson had not established a genuine need for acquiring the firearm sought or that its addition to his firearm licence could be reasonably justified. According to Snr Constable Bagley, it was accepted that a genuine need had been established by the intention of Mr Wilson to use the handgun for recreational purposes at a gun club.
Accordingly, both reviews fall to be determined having regard to the identical question of whether Mr Wilson is a fit and proper person to hold a firearms licence.
The Commissioner relies upon four drug-related convictions of Mr Wilson as justification for an assessment that he is not a fit and proper person to hold a firearms licence. On 13 February 2008, Mr Wilson was convicted of the following offences:
a)Possession of prohibited drugs with intent to sell or supply (cannabis)
b)Possessing stolen or unlawfully obtained property
c)Possessing a smoking utensil
d)Cultivate a prohibited plant with intent to sell or supply
For the sake of completeness, Mr Wilson's criminal record also includes a spent conviction in 1988 for the possession of a firearm without a licence. The Commissioner has not sought to rely upon that conviction, which, given its age and lack of any repeat behaviour, would appear entirely appropriate.
The Tribunal's review is governed, amongst other things, by s 27 and s 29 of the State Administrative Tribunal Act 2004 (WA). The review is by way of a hearing de novo and its purpose is to come to the correct and preferable decision. The Tribunal exercises the same functions and discretions as those exercised by the original decisionmaker. The Tribunal on review is not limited to the information available to the original decision-maker and may consider new material whether or not it existed at the time the decision was made.
Issues
The primary 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 Wilson is not a fit and proper person to hold the relevant firearm licences. That issue can be distilled, on the facts of this case, to a determination of whether Mr Wilson's drug convictions render him not fit and proper.
On 24 September 2008, and again on 9 September 2009, additional firearms were added to Mr Wilson's then extant firearm licence. On both occasions, Mr Wilson's conviction record was disclosed. Apart from the arguments advanced on his behalf that he is to be regarded as a fit and proper person, Mr Wilson has in this proceeding raised the following further propositions, based upon the imputation arising from the permitted extensions that the licensing officers concerned were satisfied that Mr Wilson was a fit and proper person for the purposes of the legislation:
a)The two recent decisions, based on a contrary view about whether Mr Wilson is a fit and proper person, were 'unreasoned and arbitrary', and for the Tribunal to affirm them would be contrary to the substantial merits of the case.
b)In order for the Commissioner to be 'relieved' of his previous decision, he must point to a change in relevant circumstances from when his previous decision was made, or rely upon other provisions of s 20 of the Firearms Act justifying the decision to revoke.
c)Otherwise, the absurd possibility arises of an endless cycle of approval and revocation. Section 20 of the Firearms Act must be interpreted in such a way as to avoid this absurdity.
These propositions, if accepted, would result in the application being determined in Mr Wilson's favour without more, the Commissioner relying solely on the four 2008 convictions. I will therefore consider them, before dealing with the merits of whether or not Mr Wilson is a fit and proper person for the relevant purpose.
Significance of previous decisions being predicated upon a finding that the applicant is a fit and proper person
Mr Marsh submitted that, on a proper construction of s 20 of the Firearms Act, the circumstances in which there can be, in effect, a revisiting of an earlier decision to grant a licence are extremely limited. This was said to be illustrated by the reference, as the ground appearing in s 20(1)(ab), that a licence was issued '... incorrectly because of an administrative or procedural error'. According to the submission, a mere difference of opinion on the part of a different delegate could not form a valid basis for a licence previously granted to be revoked.
At the hearing, in response to the extreme example put by me to Mr Marsh of a mass murderer obtaining a licence other than by reason of an administrative or procedural error, Mr Marsh conceded that a delegate of the Commissioner would be entitled to enquire whether harm may be suffered by any person as a result of the person retaining the licence (see s 20(1)(aa)), or whether retention by the person of the licence would be in the public interest (see s 20(1)(ac)).
Whilst acknowledging the extremity of my example, once Mr Marsh's concession is made, the argument that the type of protection afforded previous decisions for which Mr Marsh contends becomes diluted. If, in the example, the mass murderer's licence is able to be revoked under either one of the grounds referred to by Mr Marsh, why must the new licensing officer be constrained only to those obvious grounds? And, in the case of a decision concerning the grant of any approval or permit or the issue of any licence, does he or she not remain bound by all the restrictions which the Firearms Act brings to bear, including that if the delegate making the decision is of the opinion that the person is not a fit and proper person to hold the approval, permit or licence, he or she cannot grant or issue it?
The contention that s 20 of the Firearms Act, properly construed, is indicative of an extremely limited opportunity to revisit earlier decisions in the absence of a material change in circumstances must, in my view, be rejected for a number of reasons.
Firstly, s 20 of the Firearms Act clearly contemplates revocation of licences previously granted, by reference to a wide range of circumstances, some of which necessarily include a change of circumstances, but the remainder of which do not.
Secondly, the express reference in the ground appearing in s 20(1)(d) of the Firearms Act to 'the circumstances in which his approval under this Act was given in relation to any person or matter no longer prevail' is indicative of a change of circumstances not being an essential component of other grounds.
Thirdly, strong public policy considerations inherent in the Firearms Act support the contrary view. The long title of the Firearms Act includes:
An Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition ...
The Firearms Act is replete with provisions controlling the public's access to firearms. Its provisions are concerned with limiting possession and use of firearms to those who have an appropriate reason to do so and who are able to demonstrate their suitability, by reference to the fit and proper person characteristic, amongst others. In addition, a number of express provisions of the Firearms Act are concerned with the notion that public safety not be compromised by the issue of licences. Such public policy considerations must prevail over the concern expressed on Mr Wilson's behalf in this case that a decision made that a person is fit and proper to hold a licence can be overturned on another day simply on the basis of a different delegate's contrary opinion, as regrettable as such inconsistency might be. The existence of the right of review of decisions under the Firearms Act to the Tribunal will, hopefully, assist in ensuring consistency of decision-making in this area.
The submission that absent a change of circumstances, a decision to revoke a firearm licence predicated upon a finding that the licensee is a fit and proper person is not open to the delegate, or to this Tribunal on review, is rejected.
Fit and proper person test - Mr Wilson's drug offences
I will, under this heading, address the evidence in relation to the four convictions in 2008 and what Mr Wilson now says in relation to his convictions, before dealing with their significance in the context of the fit and proper person issue.
Mr Wilson's house was the subject of the execution of a search warrant under the Misuse of Drugs Act1981 (WA) on 18 January 2008. Mr Wilson confessed to operating a sophisticated hydroponic cannabis growing system in a room of the house. He admitted setting up the equipment in order to grow cannabis plants. Six plants were seized. He admitted the intention was to harvest cannabis for sale or other supply to friends.
A container of harvested cannabis on the floor of Mr Wilson's bedroom was declared. A set of digital electronic scales and empty clip seal bags were also found. Mr Wilson admitted to weighing the cannabis on the scales and dividing it into bags which he would supply to his friends.
A ceramic bong smoking implement and two metal smoking pipes were also found. Mr Wilson admitted that the implements belonged to him and said that he kept them on his premises for his friends to use when they smoked cannabis.
Cash to the value of $3,150 was found in an envelope in Mr Wilson's bedside drawers. He admitted that some of this cash came from proceeds of selling cannabis.
On 13 February 2008, the applicant was convicted of all four drug related offences and he was fined a total of $3,000.
In Mr Wilson's written statement, he accepted all but one of the factual circumstances of the offences as set out above. The exception was that, according to Mr Wilson, of the six cannabis plants found, only four were growing and the remaining two were cuttings.
Mr Wilson, who is 52 years old, said that at the time of the offences, he was employed mainly in the building industry. Most of the trades in that industry stop working early on a Friday and engage in social activity which usually involves drinking. Because he was single at the time, that activity generally occurred at his home, involving between half a dozen and a dozen people.
Mr Wilson said that it was very common for people attending gatherings at his house to bring cannabis and to share it around. In his statement, he denied ever having used cannabis or any other unlawful substance. Under crossexamination, he recanted this to some extent. I will return to this.
Mr Wilson said he was persuaded to start to grow cannabis by some of his former army associates, who use the drug to attempt to relax and sleep. In oral evidence he said that he started growing about six months before the raid on his house. He did not sell or supply cannabis otherwise than at the social gatherings at his house on Friday afternoons.
According to Mr Wilsons's statement, the shock and embarrassment of being charged and convicted for the offences caused him to re-evaluate his lifestyle and role in the social activities at his house, to the point that he stopped holding those kinds of social events. In addition, he said he stopped drinking and has not consumed since.
As I have said, Mr Wilson's statement indicates that he had never used cannabis or any unlawful substance. One of his character witnesses, Mr Reeves, cast doubt on this statement, by his oral evidence that 'Kevin smokes a bit'. According to Mr Reeves, Mr Wilson had told him this. Under crossexamination, Mr Wilson said that he didn't know why Mr Reeves gave this evidence. However, under reexamination, he said that he had tried cannabis once in the army, and again when he got out of the army when he could not sleep. I found Mr Wilson's evidence about his cannabis use less than satisfactory due to the inconsistencies to which I have referred.
According to Mr Wilson's written statement, as part of his re-evaluation and redirection of his life following the drugs seizure, in August 2009 he joined the Perth Lever Action Rifle Club. In March 2010, he qualified as a Sporting Shooters Association of Australia Shooting Range Officer.
Mr Wilson relied upon six written references. Five of the references were prepared for the purpose of this proceeding. The fifth was a 1991 reference prepared by his then employer, Mr Barugh, who was glowing in his opinion of Mr Wilson's ability as an electrical trades assistant.
The five other references are all current (May/June 2010), and four of the referees gave evidence before me. The referees comprised Mr Wilson's former de facto partner, two long-time work associates, Vice President of the Perth Lever Action Rifle Club, and Mr Reeves, who stated his regard for Mr Wilson as 'a close and valued family friend', who had assisted his (Mr Reeves') daughter in a variety of situations.
The references consistently indicate an awareness on behalf of the author of 'a drug offence', 'a drug conviction', 'the charges he was facing' and '... was charged for growing marijuana'. The references contain ample corroboration of Mr Wilson's remorse and embarrassment from his convictions, his abstinence from alcohol since his convictions, his involvement in his rifle club (currently as Club Treasurer), his highorder work ethic and community involvement, and his responsible attitude towards firearms.
Although when cross examined about the extent of their knowledge of Mr Wilson's convictions, his referees giving evidence disclosed an imperfect knowledge, which in no case extended to each of the four offences of which he was convicted, all were aware of the cultivation of cannabis, and two were aware of the purpose to sell or supply. When those not informed of that purpose were asked if it changed their opinion, the universal response was that it did not. This might be explained by reason of the constant themes of the referees' evidence that Mr Wilson was remorseful for his past misdeeds and had taken steps to ensure that they were not repeated.
Fit and proper person - my consideration
Section 11 of the Firearms Act provides guidance as to the circumstances in which the Commissioner might reach the opinion that a person is not a fit and proper person to hold a firearm licence. It does so in essentially three ways.
Firstly, s 11(3) of the Firearms Act provides that the Commissioner has a sufficient ground for forming such an opinion in certain circumstances. The first of those circumstances, in s 11(3)(a), is where he:
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.
I pause to note that none of the circumstances listed in s 11(3)(a) applies to Mr Wilson's convictions. Nor are those convictions picked up by any of the other provisions of s 11(3).
Secondly, s 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) for forming the contrary opinion.
Thirdly, by s 11(6), the Commissioner is expressly empowered to take into account in evaluating whether a person is a fit and proper person under s 11(1):
a)a conviction or order made outside the period of five years referred to in s 11(3)(a); or
b)anything else that could have been taken into account if s 11(3) had not been enacted.
Wignall and Commissioner of Police [2006] WASAT 206 (Wignall), a firearms matter decided by a panel presided over by the former President of the Tribunal, Barker J, contains a number of useful observations and references which I am, respectfully, content to adopt for the purposes of this matter. Firstly at [295] [298], the Tribunal considered, in broad terms, the significance of past convictions to the determination of the fit and proper test, in the following terms:
295The question of what personal misconduct disqualifies a person from being considered 'fit and proper' to hold a licence has been considered in a number of statutory contexts, most often in a vocational regulation context. There are many persons who must hold a licence to work. These cases provide some guidance as to how the 'fit and proper' factor is to be interpreted in this particular case, although they are not in any way determinative of the issue.
296In Tavelli v Johnson (Unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1966) [Tavelli],Wheeler J had to deal with the relevance of prior convictions in deciding whether or not a person was 'fit and proper' to be licensed as a security agent under the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act). At pages 7 9, Wheeler J, with the caution 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, suggested that some factors relevant to prior convictions can be listed. Wheeler J suggested that convictions will generally be regarded as more serious in the statutory context if:
•they occur in the course of or relate to carrying out of the proposed licensed occupation;
•they are offences of dishonesty, broadly understood. This is because, at least in the case of the security agents legislation, the Act is concerned with the integrity of the gathering and presenting of material in Court, and that material may be suspect, where the character of the agent suggests dishonesty;
•they occur while the person is the holder of a licence under the Act;
•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.
297Wheeler J further suggested, at pages 7 9, that indications that a person may be of good character and a fit and proper person, notwithstanding previous convictions, may be gleaned from the following factors:
•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;
•if the offences were committed a substantial time ago. One would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors;
•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;
•a person's character generally since commission of the offences, including his lack of offending, age, family support, paid and voluntary work and character references. Character references, however, 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.
298What is sufficiently clear on all the authorities cited to the Tribunal, is the fact that just because a person has been convicted of some offence in the past does not necessarily mean that they are not a fit and proper person to be given a licence under a statutory licensing system. The licensing statute in question would need to state quite unequivocally that a person could never be granted a particular type of licence if they had been convicted of an offence or a particular offence before this result would follow.
As I have said, the decisions made against Mr Wilson rely upon the four drug-related convictions, which do not fall within the 'sufficient ground' provision of s 11(3) of the Firearms Act. This was also the case on the facts in Wignall. Such 'other' convictions were considered in Wignall in the following terms (at [301] - [303]):
301As we have seen, in the case of the applicant, none of the defined conviction circumstances applies. This suggests that there needs to be some particular disqualifying factor in the other convictions of the applicant that do not satisfy the conviction circumstances described in s 11(3)(a), before the fact of the convictions on their own should result in the applicant not being considered fit and proper by reason of his prior convictions to hold a firearms licence.
302Indeed, it might also reasonably be said that, leaving aside s 11(1)(c) which deals with the fit and proper requirement, most, if not all, of the other criteria set out in the Act have to do, directly or indirectly, with either the physical or mental capacity of an applicant to handle a firearm responsibly or safely, and or the propensity of a person to use a firearm for an unlawful purpose.
303If this is right, as we think it is, it perhaps suggests that the fit and proper purpose requirement should also be interpreted along similar lines and be seen as a catchall requirement that enables an application for a firearms licence to be refused where there remains a concern that the applicant is not be an appropriate person to hold a firearms licence on responsibility or safety grounds or out of concern for the possibility that the firearms might be used for an unlawful purpose, even though none of the other express requirements of the Firearms Act seem to apply in the circumstances.
Having regard to the above passage from Wignall, the question which I must determine is whether Mr Wilson's drugrelated convictions raise a legitimate concern that he is not an appropriate person to hold a firearm licence on responsibility or safety grounds or out of concern for the possibility that Mr Wilson might use firearms for an unlawful purpose.
The answer to the question just postulated will be informed by at least some of the factors canvassed by Wheeler J in Tavelli. The following comments relate to a number of those factors:
a) The offences were not related to Mr Wilson's possession or use of any firearm. However, they were committed at a time that Mr Wilson was the holder of a firearm licence.
b) Regarding the seriousness of the offences, the parties' respective representatives advanced opposing submissions as to the significance, for the purposes of whether someone is fit and proper for the purposes of the Firearms Act, of offences of the type with which Mr Wilson was convicted. Mr Marsh submitted that what is necessary is to identify what the offences demonstrate about the person concerned. I have no difficulty with this submission. The question remains whether, and to what extent, Mr Wilson's drug-related offences have the adverse impact on character to which Wheeler J referred in Tavelli v Johnson (Unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1996) (Tavelli) as being:
… 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.
In my previous decision of Penketh and Commissioner of Police [2009] WASAT 174 (Penketh) I made the comment:
Further, it cannot be doubted that the cultivation and use of illegal drugs is antithetical to the preferred characteristics of the holder of a firearm licence.
Perhaps not surprisingly, Snr Constable Bagley endorsed this comment, whereas Mr Marsh criticised it as a statement of fact disguised as principle without precedent. However, as the discussion on my comment developed at the hearing, and, in particular, after I suggested to Mr Marsh that the words 'preferred characteristics' be given their proper emphasis, I sensed that Mr Marsh retreated somewhat from outright rejection of my proposition in Penketh. The point I was attempting to make is that the ideal candidate for a firearm licence would not be a person who had not resorted to the cultivation, use, sale or supply of illicit substances. That is not to say, however, that a person who has had such experience is automatically to be regarded as not a fit and proper person. This is the point made in Wignall at [298]. All relevant factors need to be analysed in arriving at a conclusion.
There is certainly no mandate, in my view, to exclude drug related convictions from the categories of 'other' offences which should be considered. In my view, they are clearly capable of adversely reflected on the character of the offender, to which Mr Wilson's expressions of remorse and embarrassment bear testament. Such offences are a regular ingredient in applications under the Firearms Act in this Tribunal. They have been considered, along with other relevant matters, in the Tribunal's decision in a number of cases. Minniti and Commissioner of Police [2009] WASAT 223 (Minniti), which Snr Constable Bagley referred in oral submission, is but one example. Penketh (which is currently on appeal) is another.
Mr Wilson's drug related offences were serious. They included cultivation and possession with intent to sell or supply. He gained financially from his illicit endeavour. The convictions must represent a factor tending towards the conclusion that he is not a fit and proper person for the purposes of the Firearms Act, because such offences do reflect adversely on his character. Having said that, the drug offences were not of the level of gravity as in Minniti, which concerned a declared drug trafficker, nor were they combined with offences within s 11(3) of the Firearms Act as in Penketh.
c) I am satisfied, both on the basis of Mr Wilson's evidence, and that of his referees, that he has demonstrated genuine remorse and true insight into his wrongdoing. His actions in putting a stop to the social gathering which fostered the illicit drug activity and his consumption of alcohol, and in joining the rifle club, where he has become an active member, underscore his understanding. Although his equivocal evidence regarding whether or not he has ever personally used cannabis is a matter of some concern, such use was never a focus of the Commissioner's case, and there is no evidence of current use. In my view, consideration of this factor provides support for a finding that Mr Wilson is fit and proper.
e) The offending behaviour occurred over a period of six months or so until January 2008. The length of the intervening period, slightly more than two and a half years, might be considered insufficient to reach a conclusion that Mr Wilson is a fit and proper person (cf Minniti at [22]). However, as Wheeler J made clear in Tavelli, no set period exists for the expunging effect of time since the commission of offences. All the relevant factors need to be considered.
f) I have already referred to the actions taken by Mr Wilson aimed at eliminating the factors giving rise to his offences.
g) Regarding Mr Wilson's character since committing the offences, the relatively short period involved needs to be borne in mind. However, the consistency of his own and his referees' evidence going to both ceasing the activities which resulted in the convictions, and the channelling of his energies into other areas such as the rifle club, together with his propensity for assisting others in a work context or in the community generally, does inspire confidence that Mr Wilson's drug-related offences were an aberration. I do not, as Snr Constable Bagley submitted I should, apply any significant discount to the value of the character references on the basis that the referees had not been informed of the entirety of Mr Wilson's convictions, because, as I understand their evidence, they were sufficiently aware of the essential nature of his offending conduct. I am satisfied that the referees hold him in high esteem by reason of the qualities of which they spoke, his acceptance of his past transgressions and the concrete steps he has taken to ensure there is no repetition.
Taking into account all of the factors to which I have referred, I have concluded that Mr Wilson's drug-related convictions do not, as of now, continue to raise a legitimate concern that he is not an appropriate person to hold a firearm licence. I am therefore of the view that his previous licence ought to be restored and his application for a fresh licence granted.
Orders
The Tribunal will issue the following orders:
CC 511 of 2010
1.The application is granted.
2.The decision to revoke the applicant's firearm licence No 1792563 is set aside.
3.The applicant's firearm licence No 1792563 is re-instated.
CC 596 of 2010
1.The application is upheld.
2.The decision to refuse to issue a firearm licence for a selfloading .22 calibre handgun is set aside.
3.The respondent shall issue the applicant with such a licence upon payment of any applicable fee.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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