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[2008] WASAT 1
General information, not legal advice.
State Administrative Tribunal (WA)
2008-01-03
Original judgment source is linked above.
ACT : FIREARMS ACT 1973 (WA)
CITATION : COMO and COMMISSIONER OF POLICE [2008] WASAT 1
Application for review of decision to revoke Firearms Licence - Decision based on conviction under Firearms Act 1973 (WA) - Whether "fit and proper" person - Whether desirable in the interests of public safety - Decision affirmed
Firearms Act 1973 (WA), s 11, s 11A, s 20, s 22, s 23(9)(d)(i)
Applicant : Selfrepresented at hearing on 18 September 2007
Applicant : Selfrepresented at hearing on 18 September 2007
1 This is an application for a review of a decision by the Commissioner of Police to revoke Mr Como's firearms licence. That decision was largely based on Mr Como's conviction in 2006 under s 23(9)(d)(i) of the Firearms Act 1973 (WA).
2 The Tribunal considered that there were insufficient circumstances to warrant exercising any discretion to interfere with the decision of the Commissioner of Police. The decision was therefore affirmed and the application dismissed.
3 This is an application by Mr Michael Bernd Como (Mr Como) for a review of the decision of the Commissioner of Police (Commissioner) to revoke his firearms licence. The application was made pursuant to s 22 of the Firearms Act 1973 (WA) (the Act). Mr Como originally held a firearms licence for a .22 magnum rifle. That firearm was seized by Police on 14 February 2006 at his home at 1 Templemore Garden, Waterford. The rifle was not in a locked cabinet and had ammunition in it at the time and there was ammunition in the box where the rifle was located. Mr Como was subsequently charged and convicted on 14 September 2006, under s 23(9)(d)(i) of the Act, for failing to provide and use adequate storage facilities to ensure the safety of his rifle and ammunition.
4 Subsequent to his conviction, Mr Como was issued with a letter from the Commissioner on 7 June 2007, advising him that it was the Commissioner's intention to revoke his firearms licence. That letter referred to Mr Como's conviction under the Act and as a result, the Commissioner did not consider Mr Como to be a fit and proper person to hold such a licence and that it was not in the public interest to allow him to possess a firearms licence.
5 Mr Como subsequently commenced this application. The grounds stated in his application are as follows:
"I am a farmer and need a licence for vermin control. I consider myself a fit and proper person due to my membership of RSL and Freemasons."
6 In the Commissioner's statement of issues, facts and contentions filed 19 July 2007, the Commissioner raised three alternative grounds for the refusal to renew Mr Como's firearms licence being:
7 The Commissioner relies on Mr Como's criminal history and his recent non-compliance with the Act and contends that as a result, Mr Como is not a fit and proper person to hold a firearms licence and that to grant him a firearms licence is not desirable in the interests of public safety. The Commissioner also maintains that Mr Como cannot establish a genuine reason for acquiring or possessing a firearm under s 11A of the Act.
8 The matter was the subject of a hearing on 18 September 2007 at which neither party was legally represented. Following the hearing, an order was made reserving the decision. However, the matter was later the subject of three directions hearings. It became necessary to hold further directions hearings to enable the parties to address the Tribunal on whether, at the date of revocation, Mr Como's firearms licence was current. At the last of those direction hearings on 27 November 2007, Mr Como was represented by legal counsel. At that time, the parties confirmed that despite some information provided in the documents and the statement of issues, facts and contentions filed by the Commissioner, it had been ascertained that Mr Como's licence was current at the date of the Commissioner's letter of revocation. At the directions hearing on 27 November 2007, Mr Skerritt, who appeared for Mr Como, filed submissions despite not having appeared at the hearing. In a letter addressed to the Tribunal, received 27 November 2007, Mr Skerritt stated that the submissions had been drafted upon review by him of the papers and some of the transcripts of the hearing. To that extent therefore, the submissions are of limited use.
9 Sergeant Flynn, who represented the Commissioner at the hearing, indicated at the directions hearing on 27 November 2007, that he had only just received a copy of the submissions referred to above. He was offered the opportunity to file any answering submissions, but declined, preferring to simply commend to the Tribunal, the submissions he had made in closing at the hearing on 18 September 2007.
10 The application is for a review of the decision of the Commissioner to revoke Mr Como's firearms licence. Section 22(2) of the Act enables a person aggrieved by a decision by or on behalf of the Commissioner, to seek a review of that decision. The relevant provisions of the Act that apply in this matter are as follows:
(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."
"(1) The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that -
(a) to do so would be contrary to section 11A or regulations under section 11B or 11C;
(b) it is not desirable in the interests of public safety; or
(c) the person is not a fit and proper person to hold the approval, permit, or licence."
"(2) A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if -
(c) it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;"
Section 11A(3) also relevantly provides:
"(3) A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified."
"(3) The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner -
(a) 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,
11 The relevant provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that apply to a review are s 27 and s 29(1), (2) and (3). Those provisions state as follows:
The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision."Powers of Tribunal on reviewThe Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.The Tribunal may -affirm the decision that is being reviewed;vary the decision that is being reviewed; orset aside the decision that is being reviewed and -
(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
12 It is clear from these provisions, and the documents filed by each party, that three issues need to be determined. Those three issues are as follows:
13 The evidence relied upon by the parties constituted the documents filed by each party including a copy of the transcript of the hearing before Magistrate Crawford for the offence by Mr Como under the Act. It also comprises documents handed up during the hearing and oral testimony of the following witnesses:
14 As a review hearing, which is a hearing de novo, the Tribunal must come to the correct and preferable decision. In such proceedings, no party bears any form of onus to prove any facts but in some cases, such as under this Act, an applicant bears a practical onus to prove facts and issues. Further, in exercising the task to come to the correct and preferable decision, the Tribunal may consider all credible, relevant and significant information. It is not bound to consider only that information that conforms with the rules of evidence, but may inform itself as it sees fit. As such, the Tribunal can properly regard evidence produced that may be indirect or hearsay information (see Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [279]-[282].
Issue No 1 - Does Mr Como have a genuine reason for acquiring a firearm pursuant to s 11A of the Act?
15 Section 11A(2) defines what constitutes a genuine reason for acquiring a firearm. The reasons under that section are limited. In this case, Mr Como seeks to show that he has a genuine reason on the basis of s 11A(2)(c). He maintains that he requires a firearm to kill vermin at his sister's property in Collie. Section 11A(2) sets out that a person has a genuine reason for acquiring or possessing a firearm if it is for use in hunting or shooting of a recreational nature on land where the owner of that land has given written permission for that hunting or shooting to take place. At the hearing for this matter, Mr Como provided to the Tribunal a signed letter from his sister confirming that she permits him to hunt or shoot on her property in Collie to eradicate vermin. Mr Como explained to the Tribunal that he mainly uses his rifle for shooting rabbits. Although the Police have queried whether such a weapon is appropriate for disposing of rabbits, there was not a serious challenge to Mr Como fulfilling the requirements of s 11A(2)(c). In those circumstances, I am therefore satisfied that Mr Como has established a genuine reason for requiring a firearm pursuant to s 11A(2)(c) of the Act.
Issues 2) and 3) - Is Mr Como a fit and proper person to hold a firearms licence? And, is it desirable in the interests of public safety for Mr Como to hold a firearms licence?
16 The Commissioner's position in respect to these issues are based on Mr Como's recent conviction under the Act for failing to ensure his rifle was adequately stored as required under s 23(9)(d)(i) of the Act. Apart from that conviction, Mr Como has no other convictions in the five year period preceding the decision to revoke, for the type of offences mentioned in s 11(3) of the Act. Although the Commissioner has filed a copy of Mr Como's criminal convictions, the Tribunal notes that prior to the conviction under the Act, the last of the convictions occurred in 2000. The Commissioner placed little reliance upon the prior convictions, other than the conviction under the Act.
17 Section 11(3)(a)(iii) of the Act is relied upon by the Commissioner which provides that the Commissioner has sufficient ground for forming an opinion that a person is not a fit and proper person to hold a firearms licence if at any time within five years before the person applies for the licence, that person is convicted of any offence against the Act. Section 20(1)(a) of the Act makes clear that revocation of a licence can occur if at any time, the person could not, because of s 11 of the Act, be granted a licence, if that person were then applying for it. As a result of s 20(1)(a) of the Act, the five year period in this case, is the five years prior to 7 June 2007, the date of the decision to revoke. Mr Como was convicted of an offence under the Act in that five year period.
18 The issue of "fit and proper", as it relates to the Act, was discussed in the case of Wignall where Justice Barker stated, at [295] - [303], as follows:
"The 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.
In Tavelli v Johnson (Unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1966), 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:
Wheeler 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:
What 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.
In relation to the Firearms Act, as we have seen, s 11(3)(a) expressly provides that the Commissioner, and so the Tribunal on review, has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold a firearms licence if satisfied 'that at any time within the period of five years before the person applies for the licence', the person was convicted
Section 11(3)(a), therefore, provides some clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists, although it still leaves the Commissioner with a discretion to regard particular circumstances in which the conviction was made.
As 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.
Indeed, 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.
If 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."
19 Following the hearing of this matter, as previously stated, Mr Como's counsel filed written submissions in which paragraphs 5 - 16 deal with the issues of "fit and proper" and public safety.
20 In this case, Mr Como was convicted on 26 August 2006 under the Act of "failing to ensure safe keeping of firearm/ammunition". The determination of whether Mr Como can satisfy the Tribunal that despite the conviction, he remains a "fit and proper person" to hold a firearms licence, requires an examination of the circumstances in which the conviction was made.
21 Mr Como's conviction under the Act resulted from the Police attending Mr Como's home in the suburb of Waterford to serve him with a violence restraining summons. Constables Paskett and Preedy were the attending officers when Mr Como was served with the violence restraining summons. When serving Mr Como, he was asked, as is the normal practice, whether he was in possession of a firearm. Mr Como indicated that he was and offered to retrieve his rifle from an upstairs bedroom for the Police. The Police declined that offer and asked Mr Como to take them to where his rifle was located in the house. Mr Como and the two Police officers went to an upstairs bedroom. Upon entering the bedroom where his rifle was kept, the Police officers found the rifle in a metal box which was unlocked and under a bed. The metal box had the lid open. Along with the rifle, the metal box contained rounds of ammunition. Mr Como removed the rifle from the metal box and indicated it contained ammunition.
22 There is a dispute as to whether Mr Como stated to the Police officers "do you want me to unload it" and in saying that he meant "do you want me to make it safe". At the hearing of this matter, Mr Como sought to differentiate between whether the firearm had ammunition in the tube magazine or whether there was ammunition in the firing chamber. Although he did not concede, at the time the Police officers seized his firearm, that there was ammunition in the firing chamber, he did accept that there was ammunition in the tube magazine. Mr Como sought to explain that there was a difference between there being ammunition in the firing chamber or the tube magazine. In doing so, he was trying to explain that unless the gun was unloaded by removing the ammunition from the tube magazine, there was no way of knowing if there were bullets or rounds in the firing chamber.
23 Constable Paskett explained that following seizure of Mr Como's rifle, he later unloaded the rifle in the Police armoury. On questioning, he couldn't recall whether the safety switch of the rifle was on or off. He explained he unloaded the rifle by moving the lever forwards. After unloading the rifle, he counted a total of 60 bullets which included the bullets ejected from the rifle and those found with the rifle. Constable Paskett initially indicated that he thought there was a bullet in the firing chamber because when he pushed the lever of the rifle forward, a bullet came out. However, on further questioning, Constable Paskett conceded that because he did not remove the ammunition from the tube magazine at the start of this process, he could not confirm that at the time of unloading Mr Como's rifle that there was a bullet or round in the firing chamber. Mr Como maintained there was not a bullet in the firing chamber. Mr Como had argued in the proceedings before Magistrate Crawford that if the ammunition was in the tube magazine only and not in the firing chamber, it was not loaded. Despite that argument, Magistrate Crawford still found that the rifle at the time of being seized by the Police was loaded. Mr Como put the proposition to Inspector Young that his rifle at the time of seizure was made safe, not loaded. In answer to Mr Como's proposition, Inspector Young gave his interpretation of loaded. He maintained that a loaded firearm is one that has ammunition in it, either in a cartridge or in the firing chamber and it is capable of firing that ammunition. He also stated that a firearm that has no ammunition in it is not capable of firing anything.
24 Mr Como was endeavouring to establish a difference between his rifle being in what he considered to be a "made safe" state and being loaded. It seems by doing so, he was endeavouring to show that the offence for which he was convicted under the Act was not as serious as it may have been if his rifle was "loaded", according to his understanding of the term (that is, with ammunition or bullets in the firing chamber).
25 For the purposes of these proceedings, it is of little significance whether the ammunition was in the firing chamber or the tube magazine. It was still a firearm that had ammunition in it and was capable of firing ammunition. What is of more significance is that despite Mr Como's experience with firearms, he chose to keep a rifle in his suburban property under a bed in an unlocked metal box with ammunition in the rifle and ammunition within that box. This was a serious lack of judgment by Mr Como that could have compromised public safety and was in breach of the Act. As such, the Tribunal considers this constitutes a serious offence.
26 Mr Como also explained that he had brought the rifle to his home in Waterford as he was intending to take it to a gunsmith for adjustment. He had kept the rifle in his home in Waterford for 36 hours before the Police arrived. Mr Como questioned Inspector Young on the issue of whether there was a policy by the Police, that allowed a person not to be in breach under the Act, where the firearm was not in a locked container, if it was in transit and in the custody or control of the licensee. A similar issue was raised by Mr Como in the hearing before Magistrate Crawford. Mr Como was trying to establish that, the Police accept there will be times when a firearm cannot be kept within a locked container and as long as the licensee can establish that the firearm is in his or her custody or control, there will be no breach of the Act. Inspector Young could not say whether such a policy existed, but explained that such a policy may exist to cover situations where a person is preparing to use the firearm or just returning from using a firearm. He considered that as a matter of common sense, however, such a policy would not apply in the circumstances of this case. The Tribunal agrees.
27 This is not a case where Mr Como was en route to the gunsmith to deliver it up for adjustment. Rather, the rifle was seized at a time when it had been at Mr Como's residence for at least 36 hours. During that period, it was kept in an unlocked metal box. The rifle contained ammunition and the unlocked metal box contained ammunition. Although Mr Como satisfied the Tribunal that his home in Waterford had some form of security, this does not overcome the fact that Mr Como allowed his rifle to be kept in an unlocked container with ammunition in the rifle in his suburban home.
28 Mr Como also raised the issue that the Police did not pursue forfeiture of his firearms licence at the time of his conviction under the Act. He suggested that this indicates the prosecutor who attended on that day did not consider it was warranted. Whether that is the case or not, I must determine the matter de novo, despite what might appear to be inconsistent actions of the decision-maker.
29 Mr Como says he now realises the seriousness of his mistake. He says that he has learnt from the experience and it will not happen again. He explained that he has storage facilities for his rifle at his sister's Collie property which consists of a large metal box chained to a sea container, which are locked. He maintains that he has held a firearms licence for approximately 26 years and has had no previous breaches of the Act. He has also provided character references of several people who state they have known Mr Como in recent years. Unfortunately, only one of those references is dated. Although both referees are supportive of Mr Como, the referees do not appear to have any knowledge of these proceedings or Mr Como's conviction under the Act. For those reasons, the references provided by Mr Como carry little weight.
30 Although Mr Como explained that he now understands the seriousness of the offence and the error of judgment, he nonetheless maintained similar arguments in this matter to those he pursued in the trial before Magistrate Crawford, which were ultimately not accepted by Magistrate Crawford. That is, he still sought to suggest that his rifle was not loaded and further, that the rifle was in transit at the material time and therefore was not required to be in a locked container. As indicated in the matter of Wignall, remorse, contrition or insight is given more weight if demonstrated by a person's actions as well as their words. For the reasons given, the Tribunal considers that Mr Como has little insight in respect to the behaviour that led to his conviction for the offence under the Act. By again adopting similar arguments to those pursued in the hearing before Magistrate Crawford, the Tribunal is not satisfied that despite his words, Mr Como accepts that his actions constituted a serious breach of the Act and one which compromised public safety.
31 Section 11(3)(a) of that Act makes it clear that a person is not fit and proper to hold a firearms licence where at the time of the decision to revoke or to renew a licence, the person has, in the last five years, been convicted of an offence against the Act. The intent of the Act is to apply an interpretation of its provisions to ensure the overarching principle of public safety is maintained. Although Mr Como has previously held a firearms licence for 26 years without any convictions under the Act until recently, given the Tribunal's findings above that:
the Tribunal is not satisfied that Mr Como is a fit and proper person to hold a firearms licence.
32 The Police have also sought to show that at the time of the seizure of Mr Como's rifle, he told them he had the rifle at his home for personal protection. They maintain that he did not make mention that he was taking his rifle for adjustment. Mr Como disputes he ever said he had the rifle for personal protection. The Police relied on the alleged comments by Mr Como to establish that it would not be desirable in the interest of public safety for Mr Como to remain a licensee. The keeping of the rifle in an unlocked metal box in a house in the suburbs, with ammunition kept with the rifle and ammunition within the rifle was a dangerous act which compromised public safety. For those reasons alone, the Tribunal is satisfied that it would not be desirable in the interests of public safety for Mr Como, at this stage, to be licensed. Given that finding, I consider it unnecessary to make any finding as to whether Mr Como made the comment that he kept the rifle for "personal protection".
33 To conclude, given Mr Como's recent conviction under the Act and the circumstances concerning that conviction, the Tribunal is not satisfied that pursuant to s 11(3) of the Act, that Mr Como is at present a fit and proper person to hold a firearms licence or that it would be desirable in the interests of public safety for him to hold a firearms licence. The welfare and safety of the public is an overriding consideration. It may well be, in time, Mr Como will be in a position to satisfy the provisions of the Act and be re-issued with a firearms licence. At present, however, the Tribunal does not consider that there is sufficient information to exercise a discretion in favour of Mr Como. Therefore, the Commissioner's decision to revoke Mr Como's firearms licence must be affirmed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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