WOODS and COMMISSIONER OF POLICE - [2010] WASAT 4

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: WOODS and COMMISSIONER OF POLICE [2010] WASAT 4

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 21 DECEMBER 2009

DELIVERED : 14 JANUARY 2010

FILE NO/S: CC 1599 of 2009

BETWEEN: SCOTT WOODS
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms Can a licensing officer revoke a firearm licence if no new facts or circumstances have materialised since the granting of the licence? Can one licensing officer override the decision of another licensing officer by revoking a licence that had been granted? Previous convictions Relevance of convictions that were not recorded under the Firearms Act 1973 (WA) Fit and proper Public interest

Legislation:

Firearms Act 1973 (WA), s 11, s 20, s 20(1)(a)(iii), s 20(1)(ab)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)

Result:

The application is dismissed
The decision of the Commissioner of Police to revoke the eight firearms' licences of Mr Woods is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr P Marsh
Respondent: Sgt S Bagley (Representative)

Solicitors:

Applicant: Paul Marsh
Respondent: Commissioner of Police

Case(s) referred to in decision(s):

Palmer and Commissioner of Police [2008] WASAT 313

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Woods sought a review of a decision by a licensing officer, acting under the Firearms Act 1973 (WA), to revoke his firearms' licences. Mr Woods had previously been granted, over a period of time, eight firearms' licences. All of these were revoked by the licensing officer.
Mr Marsh, acting for Mr Woods, contended that the decision of the licensing officer should be set aside for two reasons: firstly, that a licensing officer should, for sake of consistency, not be able to override the decision by the earlier licensing officer without a change in the facts or circumstances since the licences had been issued; secondly, that the convictions of Mr Woods were not recorded under the Firearms Act 1973 (WA) and were all committed a substantial time prior to the revocation.
Mr Marsh contended that the previous licensing officer took into account information about Mr Woods' criminal record, namely, three convictions for assault, one conviction for criminal damage, one conviction for reckless driving and one conviction of driving with a blood alcohol level in excess of 0.08%. A record of all these offences was available to the licensing officer at the time when the respective licences were previously renewed or issued. The licensing officer nevertheless decided to grant the licences. No change in facts or circumstances had taken place since the last licence was issued.
Sergeant Bagley, for the Commissioner of Police, explained that the Firearms Act 1973 (WA) enables the licensing officer to revoke a licence at any time, even if another licensing officer had authorised the issuing of the licence. The review procedures before the Tribunal enable a disgruntled owner of a firearm to seek a review of a decision by the licensing officer if such owner feels the revocation should not have occurred. Sergeant Bagley said that the Commissioner decided recently to centralise the issuing, renewal and review of firearms' licences to ensure consistent standards across Western Australia and it is in a process of reviewing all previously issued licences. The licensing officer therefore acted within its powers by reviewing these licences. Sergeant Bagley further contended that the licensing officer had to take into account all information to form an opinion as to whether a person is a fit and proper person to be licensed or to continue to be licensed. There were, according to Sgt Bagley, adequate grounds for the licences to be revoked on the basis that the licensing officer was of the opinion that Mr Woods was not a fit and proper person to continue to hold the licences due to his previous convictions.
The Tribunal rejected the contentions of Mr Marsh. It found that all information regarding the criminal record of Mr Woods was relevant to form an opinion whether Mr Woods is fit and proper to be issued with a firearm's licence or to continue to hold a licence. The interest of the public demands that all criminal convictions, traffic offences, outstanding charges and other relevant information about the character of Mr Woods and whether he is a fit and proper person to be issued with a firearm's licence ought to be taken into account. There was no ground to suggest, as Mr Marsh did, that the licensing officer is limited to take into consideration only those offences committed under the Firearms Act 1973 (WA). Further, the Tribunal held that the licensing officer acted within its powers when it conducted a review and decided to revoke those licences that had already been issued.
The Tribunal affirmed the decision to revoke the firearms' licences on the grounds that it was of the opinion that Mr Woods was, on the basis of his criminal record, not a fit and proper person to hold such licences.

Issue

Mr Woods seeks review of a decision of the Commissioner of Police (Commissioner) to revoke his eight firearms' licences.

Background

The application was received on 12 October 2009. The directions hearing took place on 29 October 2009. The hearing was set down for 21 December 2009. Both parties made written submissions and Mr Woods gave evidence during the hearing. No other witnesses were called.

Summary of facts

The facts are well set out in the respective submissions and evidence. The Tribunal has taken all of the information into account before coming to its decision.
The facts can be briefly summarised as follows.
Mr Woods is 40 years of age and was licensed at or soon after the age of 18 years to hold his first firearm. He has had firearms for more than 20 years and has not committed any offence under the Firearms Act 1973 (WA) (Firearms Act).
In January 2009, he applied for an additional rifle, a .308 calibre, and disclosed his criminal record. The application was approved on 28 May 2009.
He applied in the same year for a shotgun licence and it was also approved on 28 August 2009. He again disclosed his criminal record when he applied for the shotgun licence.
Mr Woods was informed on 22 September 2009 by Detective Inspector Bell that, on review of the licences, as licensing officer, he had formed the opinion, based on the criminal record of Mr Woods, that Mr Woods is not a fit and proper person to continue to be licensed and that all the licences previously granted had been revoked.
The criminal record relied on by Mr Bell is as follows:
•17 November 2008: common assault;
•17 November 2008: criminal damage;
•27 June 2006: common assault;
•24 January 2006: reckless driving;
•24 January 2006: in excess of 0.08%; and
•9 December 1991: two common assaults.

Statutory framework

The Tribunal will briefly summarise the legal framework within which the review occurs.
The licence to acquire a firearm or to continue to hold a firearm is not a right, but a privilege; hence the regulatory regime imposed by Parliament whereby the obligation is on the applicant to demonstrate why he should be licensed.
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 licensing officer.
The Tribunal is not limited to the statement of reasons given by the licensing officer (s 27(3) SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made (s 27(1) SAT Act). The objective of the Tribunal is to come to the best and preferable decision.
The review hearing is therefore de novo (s 27(1) SAT Act) and is not confined to the matters and information that were before the licensing officer at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the licensing officer (s 29(5) SAT Act).
The discretion of the Tribunal must be exercised within the context of the provisions of the Firearms Act. The question as to whether Mr Woods is a fit and proper person to hold a firearm licence must therefore be determined within the framework and objectives of the enabling Act.
Section 11(1) of the Firearms Act provides that the licensing officer, or in this case the Tribunal, cannot grant an approval if the Tribunal is of the opinion that the person is not a fit and proper person to hold the licence.
Section 11(2) of the Firearms Act provides that if the licensing officer is satisfied that a person has a history or a tendency towards violent behaviour, it may take that information into account in deciding if the person is a fit and proper person to be licensed.
Section 11(3) of the Firearms Act provides that the licensing officer 'has sufficient grounds for forming an opinion that a person is not fit and proper' to be licensed if, within a five year period before the application, the person was convicted of an offence involving violence. The licensing officer is, however, not limited to take into account only convictions recorded in the last five years (s 11(5) Firearms Act).
Section 11(5) of the Firearms Act provides that, regardless of the provisions of s 11(3), the licensing officer may form an opinion that a person is fit and proper to hold a licence. Section 11(3) and s 11(5) therefore confirm the discretion of the Tribunal to take into account all relevant information before forming an opinion if a person is fit and proper to be licensed.
Section 20 of the Firearms Act provides that a firearm's licence may be revoked under certain circumstances. It determines that the licensing officer may revoke a licence if they are satisfied that the person could not, because of s 11, be granted a licence if the person were applying for it at that stage.

Questions to be considered

There are three questions that crystallised during the hearing that need to be considered by the Tribunal, namely:
a)Is the discretion of the Tribunal limited to offences that took place under the Firearms Act?
b)Can a later licensing officer revoke a firearm's licence that was granted by a previous licensing officer even if there had been no change in circumstances since the grant of the licence?
c)Is the Tribunal satisfied that Mr Woods is a fit and proper person to be licensed to hold the firearms?
The Tribunal will now deal with each of these questions.

Is the discretion of the Tribunal limited to offences that took place under the Firearms Act?

Mr Marsh contended that the discretion of the Tribunal to take into account previous offences committed by Mr Woods is limited to such offences that were recorded under the Firearms Act. Mr Marsh did not offer the Tribunal any references to previous decisions of the Tribunal or of the courts to substantiate his contention.
The Tribunal does not accept the contention of Mr Marsh.
It is clear from the provisions of the Firearms Act and the SAT Act that the discretion of the Tribunal to take into account information is not limited to the specific considerations set out in the Firearms Act or to offences under the said Act. The question whether a person is 'fit and proper' to be licensed to hold a firearm requires the totality of the behaviour and actions of the person to be taken into account. If Parliament had intended to limit the scope of the Tribunal's discretion, it would have legislated accordingly.
The Tribunal may, therefore, take any other information into account when forming its opinion whether a person is fit and proper to be licensed with a firearm. In the matter of Palmer and Commissioner of Police [2008] WASAT 313, the Tribunal rejected the contention that the only offences of which it may take note are those that relate specifically to the Firearms Act. In that matter, it was contended that traffic offences, police records and charges could not be taken into account by the Tribunal. The Tribunal found as follows at [50]:
The Tribunal does not accept these contentions [that its discretion is limited] for the following reasons:
(a)The Tribunal must take all information before it into account prior to making a decision. The public interest and the statutory framework under which the Tribunal functions demand no less. The Tribunal cannot censure information. It may attach less weight to some information than to others, but it must take all information into consideration.
(b)The Tribunal does not exercise its discretion in isolation, whereby some criminal acts or other incidents are not taken into account, merely because, at face value, they are not directly related to the Firearms Act. …
The Tribunal rejects such an interpretation. An approach as suggested by Mr Skerritt would make a mockery of the discretion that the Tribunal is clothed with to make a decision after it has taken into account all information before it. The Tribunal must weigh all information before it in order to come to an informed and balanced conclusion.
(c)The test of 'fit and proper' in the Firearms Act does not only refer to the technical ability and training of a person to handle a firearm, but also to the character of a person, his behavioural traits, his maturity and the appropriateness of him being licensed to carry a firearm. In light of the danger that firearms hold to the holder of the firearms and the community, the public interest demands that the licensing authority must guard against the licensing of persons who may cause harm, and who are not fit and proper to be licensed. It is an intentionally wide discretion afforded to the decisionmaker by Parliament.
(d)In these proceedings, it is not any of the individual offences that, in isolation, weigh negatively against Mr Palmer's application, but rather the severity and regularity of the entire criminal record as well as other aspects of his conduct that were highlighted during the hearing. The Tribunal must take into account the trend set by his actions. It is the trend, rather than any individual act, that works against him.
The answer to the first question posed by the Tribunal is, therefore, that its discretion is not limited to offences committed under the Firearms Act. As a result of this finding, the entire criminal record of Mr Woods can be considered in forming an opinion whether he is fit and proper to hold firearm licences.

Can a later licensing officer revoke a firearm's licence that was granted by a previous licensing officer even if there had been no change in circumstances since the grant of the licence?

Mr Marsh contended that the licensing officer was acting without powers when he decided to revoke all the licences of Mr Woods after those licences were approved by a previous licensing officer. Mr Marsh further argued that no new facts or circumstances were available to the licensing officer to revoke the licences. The decision was therefore arbitrary and without justification. Mr Marsh said it was in the interest of public certainty and consistency that the decision of the first licensing officer should stand, unless there are new facts or circumstances to justify a new decision. Mr Marsh proposed that the only other basis whereupon a decision of an earlier licensing officer could be overridden, was if the licence had been issued due to administrative or procedural error (s 20(1)(ab) Firearms Act).
Mr Marsh did not refer the Tribunal to any authority, be it within the realm of the Tribunal or the courts of Western Australia, in support of these contentions.
Sergeant Bagley contended that the licensing officer could at any time review licences that had been granted and, if any of the conditions of s 20 of the Firearms Act are met, revoke a licence. He explained that the Commissioner had recently decided to centralise the issuing and review of firearms' licences. Previously, firearms' licences were issued on a regional basis. As a result, there was a risk that different standards would apply to different parts of the State. The Commissioner was, according to Sgt Bagley, concerned that the regional issuing of licences was giving rise to inconsistency across the State. After having considered the licences granted to Mr Woods, the licensing officer concluded that, as provided by s 20(1)(a)(iii) of the Firearms Act, Mr Woods could not, if he were applying for the licences at the time of review, satisfy the requirements of being a fit and proper person pursuant to s 11 of the Firearms Act.
The Tribunal does not accept the contentions of Mr Marsh.
If Mr Marsh were of the view that the licensing officer acted without powers, an application for judicial review could be brought to an appropriate court. In these proceedings, however, the Tribunal is satisfied that the licensing officer had, pursuant to s 20 of the Firearms Act, the power to revisit and review a firearm's licence that had been issued and to revoke such a licence if any of the requirements set out in s 20 are met.
The decision to revoke a previously granted licence is subject to review by the Tribunal. The necessary safeguards have, therefore, been built into the Firearms Act to ensure that a firearm's licence is not revoked without proper reason. If it appears that a later licensing officer had insufficient grounds to revoke a licence, the Tribunal can set such a decision aside.
The Firearms Act provides in s 20(1)(a)(iii) as follows:
20. Revocation etc.
(1)Where the Commissioner is satisfied
(a)that a person who is the holder of a licence, permit or approval under this Act
…
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon. (Tribunal emphasis)
It is clear from these provisions that Parliament had intended that even if a firearm's licence had been issued, it may be reviewed from time to time. The review may occur when an application is received for the licence to be renewed or at any time. The discretion of the licensing officer is not constrained to new information or new circumstances.
In these proceedings, the licensing officer took into account the information before him and formed the opinion that had Mr Woods applied for the licences at the time of review, he would have been refused on grounds of not being a fit and proper person to be licensed. The Tribunal is satisfied that the licensing officer acted within his powers and that he had the power to discharge his functions in the way he did.
The answer to the second question is, therefore, that pursuant to s 20(1)(a)(iii) of the Firearms Act, the licensing officer acted within his powers to revoke the licences after he formed the opinion that Mr Woods would not be licensed at the time of review to hold the licences, since he was not a fit and proper person under the Firearms Act.

Is the Tribunal satisfied that Mr Woods is a fit and proper person to be licensed to hold the firearms?

The next question for the Tribunal to determine is what the correct and preferable decision is, if all the information regarding Mr Woods' application is taken into account.
It is not disputed that Mr Woods has not committed an offence under the Firearms Act. He has held firearm licences for more than 20 years and was issued with his first firearm's licence shortly after the age of 18. All the licences issued to him were after he had fully declared the extent of his criminal convictions.

Although Mr Woods gave evidence in support of his application, he did not call any witnesses and did not submit any letters of reference in regard to his fitness to continue to hold firearm licences. The only information before the Tribunal is, therefore, his criminal convictions, his evidence, the records of his previous applications for licences and the submissions of counsel for the parties.
Mr Woods gave evidence that he has attended alcohol and anger management counselling, that he has reduced his alcohol consumption, and that he has changed his general behaviour, but he did not call any witnesses to explain in their words to the Tribunal what changes they have seen in the life of Mr Woods.
The Tribunal has already found that nonFirearms Act offences can be taken into account by the Tribunal to determine if Mr Woods is a fit and proper person to be licensed under the Firearms Act. The Tribunal accepts that the licensing officer had not criticised Mr Woods' handling of the firearms. The Tribunal further accepts that Mr Woods has considerable experience in the use of firearms, and that he has not used a firearm in an inappropriate way, but the Tribunal's discretion goes wider than offences under the Firearms Act. The convictions regarding aggressive behaviour, assault, damage to property, and behaviour to police officers can and must be taken into account by the Tribunal.
The Tribunal will briefly consider the nature and extent of the criminal convictions of Mr Woods:
a)Two counts of common assault: conviction 9 December 1991; $500 fine, $500 good behaviour bond.
b)Reckless driving: conviction 24 January 2006; $1,000 fine under hoon legislation; driver's licence disqualified for six months. The statement of material facts, to which Mr Woods pleaded guilty, described his behaviour as follows:
As he entered the carpark area he began to accelerate heavily and turn the steering wheel in a left hand direction. His actions caused the vehicle begin doing 'Donuts'. His actions as the driver caused the vehicle to spray dirt and dust from the rear wheels, he completed approximately 3 revolutions before stopping.
Police were parked about 4 metres from his vehicle with the emergency blue and red lights activated.
He again proceeded to cause the vehicle to begin doing more 'Donuts', his actions caused Police to retreat twice to avoid being hit by the vehicle, at one stage the rear of the accused vehicle came within 1 metre of the front of the police vehicle. On this occasion he completed 5 revolutions before coming to a stop.
c)Driving in excess of 0.08%. Conviction 24 January 2006. Fine $600.
d)Common assault: conviction 27 June 2006; fine $1,200. The statement of material facts, to which Mr Woods pleaded guilty, described his behaviour as follows:
During the evening of Friday 2nd June 2006 both the victim and the accused were drinking at the Yerecoin Tavern on Miling Road, Yerecoin. As the evening progressed the accused became quite heavily affected by alcohol and started being abusive towards other patrons in the bar, including the victim.
…
On exiting the Tavern, as the victim turned to face the accused, the accused has punched the victim in the mouth with his fist. The punch has caused the victim to stumble backwards and trip over a dropoff in the concrete. The punch was unprovoked and totally caught the victim by surprise.
e)Common assault: conviction 17 November 2008; fine $500. The statement of material facts, to which Mr Woods pleaded guilty, described his behaviour as follows:
The accused has then picked up a glass from the bar and thrown it at the Victim who was behind the bar[,] missing her. The accused has then picked up a glass stubby and thrown it at the victim[,] again missing the victim. The accused has then picked up a glass beer jug and thrown it at the victim. The glass jug has struck the victim on the left shoulder as she ducked and turned in an attempt to avoid being hit.
f)Criminal damage: conviction 17 November 2008; community based order and community work of 50 hours. The statement of material facts, to which Mr Woods pleaded guilty, described his behaviour as follows:
The accused has then started yelling abuse at the victim and lost control. The accused has grabbed other patrons drinks and scholled [sic] them. The accused has then picked up a bar stool and thrown it at the large rear projection television in the bar. The stool has hit the screen of the television causing it to crack. The accused has then picked up another bar stool and thrown it at the television[,] totally smashing the screen and damaging the television beyond repair.
The Tribunal considers these incidents in a serious light. Mr Woods has shown a very aggressive attitude to persons in authority and to persons in public places. He acknowledges that he had a drinking problem and although he says he has reduced his use of alcohol, no evidence other than his word was provided to support his contention. The risks of a person with an explosive temper, combined with excessive alcohol use and having access to a firearm (or eight firearms in this matter), are issues that would cause major concern to the community.
Mr Woods says that he had reduced his alcohol consumption and that he has attended counselling. According to him, he used to drink 'a lot' but he now realises the errors of his ways and has adjusted his living style. He is unemployed and takes care of his child. If he drinks, he does so in the company of friends.
Mr Woods did not provide any evidence or letters of reference of the counsellor who treated him or of any other persons who could confirm the changes in behaviour. He said that he had attended two telephone counselling sessions. While this may be the case, the question is whether sufficient remedial action has been taken to address anger and alcoholrelated issues.
It appears to the Tribunal, when all of this information and the convictions are considered, that Mr Woods has potentially serious underlying issues with anger management and the use of alcohol. He has shown aggression in public places, leading to destruction of property and assaults. He has shown a blatant disregard to the police by doing 'donuts' in front of them while under the influence of alcohol. He has twice assaulted patrons in a local pub.
The Firearms Act does not define what is meant by 'fit and proper', but the Tribunal accepts that to be licensed for a firearm requires a high level of maturity, responsibility, selfcontrol and compliance with the laws of the land. It requires not only an ability to safely handle a firearm, it also requires a character that can be entrusted to hold a firearm with responsibility, with respect for the rights of others, with respect for persons in authority and compliance with the laws of the land. In essence, fit and proper includes the requirement to be a lawabiding person. Mr Woods' behaviour falls short of that required behaviour.
Section 11(2) and s 11(3)(a)(ii) of the Firearms Act specifically highlight that opinion of Parliament in regard to a person who has a record of violence or a tendency towards violence. Parliament envisaged such a record or tendency constitutes sufficient reason for a licence to be refused or revoked. Although s 11(5) of the Firearms Act bestows a discretion on the licensing officer to form a contrary opinion, in these proceedings the Tribunal is satisfied that the correct decision was made.
The Tribunal finds that if Mr Woods were to apply at the time of the hearing to be licensed to hold the eight firearms, the application would be refused on the basis that the Tribunal is of the opinion that he is not a fit and proper person to be licensed.
These proceedings illustrate the merit of a centralised review process for the issuing and review of firearms' licences. It is surprising that Mr Woods was, over the years, allowed to be licensed to hold eight firearms given the nature and extent of his convictions.

Conclusion

Section 11(1) of the Firearms Act provides that the Tribunal 'cannot' grant approval for a licence if it 'is of the opinion' that it is not in the interest of the public safety or if the person is not a fit and proper person to hold the licence. Section 20(1)(a)(iii) of the Firearms Act provides that a firearm's licence may be revoked if the licensing officer is satisfied that if Mr Woods had applied for the licences at the time of the hearing, the licence would have been refused. The Tribunal is of the opinion that if Mr Woods were to apply for the licences at the time of the hearing, he would not be a fit and proper person to be licensed.
The Tribunal concludes, on the basis of the foregoing, that there were sufficient and compelling grounds for the licensing officer to have formed an opinion that Mr Woods is not a fit and proper person to be licensed if he were to apply for the licences at the time of the review. The decision to revoke the licences was therefore proper.
The decision of the Commissioner of Police should therefore be affirmed and the application should be dismissed.

Orders

1.The application for a review of the decision of the Commissioner of Police to revoke the eight firearms' licences previously issued to Mr Woods is dismissed.
2.The decision of the Commissioner of Police is affirmed.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER