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[2009] WASAT 223
General information, not legal advice.
State Administrative Tribunal (WA)
2009-10-26
Judge J
Original judgment source is linked above.
ACT : FIREARMS ACT 1973 (WA)
CITATION : MINNITI and COMMISSIONER OF POLICE [2009] WASAT 223
Firearms licence - Previous convictions - Fit and proper person - Firearms Act 1973 (WA) - Drug trafficker
State Administrative Tribunal 2004 (WA), s 27, s 29
Decision of delegated officer of Commissioner of Police affirmed.
In Wignall and Commissioner of Police [2006] WASAT 206
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
1 The applicant, Salvatore Minniti, sought a review of a decision by the delegated officer of the Commissioner of Police acting under the Firearms Act 1973 (WA) to refuse him a licence for three firearms. The decisionmaker took into account Mr Minniti's criminal record, namely two convictions for cannabisrelated offences in 1995, and a conviction for possession of amphetamine with intent in 2003. The decisionmaker concluded that, in light of these offences, Mr Minniti was not a fit and proper person to be issued with a firearm licence.
2 On review, the State Administrative Tribunal affirmed the decision of the decisionmaker to refuse the application for a firearms licence. The Tribunal found that Mr Minniti was not presently a fit and proper person to hold a gun licence, in view of Mr Minniti's history of offending, the very serious nature of the drug offences (which had resulted in Mr Minniti being declared a drug trafficker), his continued difficulty in accepting the circumstances of the offences and the comparatively short time that had elapsed since his last sentence.
3 This is an application for a review of the decision of a delegate of the Commissioner of Police, refusing Mr Minniti's application for a firearms licence. Section 22(2) of the Firearms Act 1973 (WA) (Firearms Act) enables a person aggrieved by a decision of the Commissioner to seek a review of that decision.
4 Mr Minniti held a firearms licence from when he was 18 years of age until the end of 2005 or the beginning of 2006, when it was revoked by the Commissioner. He did not challenge the Commissioner's decision to revoke his licence. Instead, on 18 March 2009, he applied afresh for a firearms licence in respect of three guns, namely a shotgun and two rifles. The delegate's decision is set out in his letter of 25 May 2009. The decisionmaker refused the application, as he did not consider Mr Minniti to be a fit and proper person due to his criminal convictions, which include three serious drug convictions.
5 Section 11 of the Firearms Act provides the framework for decisions by the Commissioner in relation to the grant of a firearms licence. That section prohibits the Commissioner from issuing a licence if the Commissioner is of the opinion that to do so would be contrary to s 11A or regulations made under s 11B or s 11C, 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.
6 In the present case, Mr Minniti's reason for wanting a firearms licence was stated to be for use in hunting or shooting of a recreational nature on land, the owner of which has given permission for such shooting. The decisionmaker did not contend that Mr Minniti did not have a genuine reason for seeking to acquire or possess firearms in this case. It was also not suggested by the decisionmaker in his reasons for refusing the licence or in submissions today that a licence should be refused in the interests of public safety.
7 Accordingly, the review falls to be determined having regard to the question of whether Mr Minniti is a fit and proper person to hold a firearms licence. Section 11(3) of the Firearms Act provides guidance as to when the Commissioner will have sufficient grounds for forming an opinion that a person is not fit and proper. Section 11(3) provides:
(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,
(b) is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
(c) suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.
8 Section 11(6) of the Firearms Act makes it clear that s 11(3) does not limit the Commissioner's ability, when forming a judgment as to whether a person is a fit and proper person to hold a licence, to take into account a conviction or a violence restraining order made outside the period of five years or anything else that could have been taken into account if s 11(3) had not been enacted.
9 In approaching this matter, we are conducting a review of the decision of the Commissioner's delegate. The review is governed by, amongst other things, s 27 and s 29 of the State Administrative Tribunal Act (2004) (WA). In Wignall and Commissioner of Police [2006] WASAT 206 at [279] to [282] (Wignall), the Tribunal made some observations about the exercise of the Tribunal's review jurisdiction in cases like this. The Tribunal noted that a review hearing is a hearing de novo and the Tribunal must come to the correct and preferable decision. The Tribunal also exercises the same functions and discretions as those exercised by the original decisionmaker, who in this case, is the delegate of the Commissioner. In such proceedings, no party bears any formal onus to prove any facts, but in some cases, such as under the Firearms Act, an applicant bears a practical onus to prove facts and issues and 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 and as such, it can properly regard evidence produced that may be indirect or hearsay information.
10 In Wignall, at [295] to [297], the Tribunal also made a number of observations about the fit and proper person test in the context of the Firearms Act, and referred to observations made by Wheeler J in Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996):
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 1996), 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:
11 Bearing those observations in mind, we turn now to the evidence. Essentially the decision to refuse Mr Minniti's application for a firearms licence was based on his prior convictions. A copy of his criminal history was provided to the Tribunal. That history details the following convictions:
12 Based on Mr Minniti's drug convictions, but also relying on Mr Minniti's traffic convictions, the Commissioner submits that presently Mr Minniti is not a fit and proper person to hold a firearms licence.
13 In addition to these offences, we were also told that Mr Minniti was the subject of a violence restraining order (VRO) when he was approximately 21 years of age. Mr Minniti gave evidence that the order was obtained by an ex-girlfriend, following what he described as 'a messy breakup'. He says he was never violent, but simply did not challenge the VRO. During the period of the VRO, he did not hold a firearms licence, but subsequent to the VRO expiring, successfully regained his firearms licence. In those circumstances, we do not give the VRO any weight.
14 Mr Minniti gave evidence before us and a witness statement by his mother was admitted into evidence unchallenged. A number of aspects of the evidence weighed in favour of the conclusion that he was a fit and proper person to hold a firearms licence. He explained that he had held a firearms licence since he was 18 years old. He enjoyed recreational shooting and he had held the licence without incident. He had held a firearms licence before he was convicted of drug offences and that licence was not revoked by the Commissioner until late 2005 or early 2006. In the interim period, he had not been convicted of any offence relating to firearms.
15 Mr Minniti has matured considerably since the last drug offence in 2003. As a result of going to prison for the offence of possession of amphetamine with intent to sell or supply, he overcame his drug addiction. He says that he no longer has a drug habit. He made it clear to the Tribunal that he felt sad and embarrassed as a result of going to gaol. He maintains that he never intends to go back to gaol again. He describes turning over a new leaf and partly attributes the mistakes he made to his age. He was 18 years old at the time of the cannabis offences and 25 at the time of the amphetamine offence.
16 Mr Minniti has the support of his family. His mother and his sister were present at the hearing today and he says that he wants to be close to his family. He is currently living in West Swan with his parents. Mr Minniti no longer has contact with the persons he associated with at the time of his drug offences. He is employed. Having previously worked as a hairdresser for approximately 15 years, he recently decided to change work and for the past four months has been working as a concreter in a concreting business run by a member of his family.
17 Mr Minniti has had no convictions for violence or offences under the Firearms Act since the amphetamine offence conviction in 2003. A number of character references were supplied in support of Mr Minniti's good character. However, six of these were from members of his immediate family, his mother, siblings and siblings-in-law, and although we take them into account, we do not give them much weight, in view of the family connection of the authors. A further five references were submitted from friends of Mr Minniti. These attest to the fact that the offences committed by Mr Minniti were totally out of character, that the authors of the references consider it unlikely that Mr Minniti will reoffend, that he is remorseful and insofar as they touch on Mr Minniti's use of firearms, the references attest to the fact that he has used them safely and responsibly in the past.
18 Despite having taken this evidence into account, however, we have, on balance, reached the view that we do not consider that at present Mr Minniti is a fit and proper person to hold a gun licence. We have reached that conclusion for the following reasons.
19 Firstly, although Mr Minniti's evidence demonstrated remorse for his offending, he maintains that he did not offend in the manner in respect of which he was convicted, which suggests that he does not have a real acceptance of the circumstances of his offending and which in turn undermines his claims to remorse for his offending. In relation to the cannabis offences, for example, Mr Minniti claimed that he had never used cannabis and he was simply given the cannabis seeds by a friend, that he had no idea what to do with them and he 'just threw them into the ground'. On its own, that explanation lacks credibility. Given that Mr Minniti was convicted for cultivating cannabis with intent to sell or supply and possessing cannabis with intent to sell or supply, Mr Minniti's claims were in our view disingenuous. Similarly, in relation to the amphetamine offence, Mr Minniti claimed that the paraphernalia which was found in his car at the time when the drugs were found by police was not used for the purpose of selling or supplying the amphetamine and that the large quantity of amphetamine was solely for his personal use. Again, we found his explanation disingenuous.
20 Secondly, Mr Minniti expressed a desire not to reoffend, because he did not want to put his family through the same distress again. That evidence had less persuasive force in view of Mr Minniti's history of offending. Mr Minniti admitted that his family were upset after he committed the cannabis offences, yet he nevertheless proceeded to commit a more serious offence involving amphetamine. In addition, he admitted that in relation to the cannabis offences, he grew the cannabis at his parents' home, although he said they were overseas at the time.
21 Thirdly, both before and after the drug offences, Mr Minniti had a number of traffic offences. His licence has been suspended four times since 1995 following the loss of demerit points and most recently, in September 2007, he was convicted of an offence of being the driver of an unlicensed vehicle and of speeding. These offences in our view establish a pattern of continued disrespect for the law, which has continued since his conviction for the amphetamine offence.
22 Fourthly, although the drug offences were committed more than five years ago and therefore outside the period in s 11(3) of the Firearms Act, given the serious nature of the offences and the fact that Mr Minniti's latest offence was more serious than his earlier offending, we do not consider that a sufficient period of time has passed which, combined with demonstrated good character, would enable a conclusion to be drawn that Mr Minniti is now a fit and proper person. In reaching this conclusion, we have taken into account the fact that Mr Minniti lapsed into reoffending with the amphetamine offence some seven years after his cannabis offences. We note that it is not yet four years since the completion of Mr Minniti's sentence in respect of the amphetamine offence. That sentence was a term of imprisonment for two years, although he served one year in prison and one year on parole.
23 In reaching this conclusion, we have also taken into account the seriousness of the drug offences for which Mr Minniti was convicted. Following his conviction for the amphetamine offence in 2003, Mr Minniti was declared to be a drug trafficker. The effect of that declaration was directed to the confiscation of criminal proceeds. Under the Criminal Property Confiscation Act 2000 (WA), the declaration that he was a drug trafficker permitted the seizure of all of Mr Minniti's property. Nevertheless, the fact that the Parliament has seen fit to permit all of a drug trafficker's property to be seized demonstrates how very seriously the Parliament views drug offences of the kind for which Mr Minniti has been convicted. In our view, the relevance of the fact that Mr Minniti was declared to be a drug trafficker was not the label itself, and the pejorative nature of that label, but rather the offending which lay behind that label and how seriously that offending is viewed by the Parliament and thus by the community as a whole.
24 Although we commend Mr Minniti on the changes he is making to his life, in respect of which there is no doubt he is being greatly helped by his family, given the nature of the offences included in his criminal history, the repetition of drug offences and traffic convictions, the very serious nature of the drug offences, his continued difficulty accepting the circumstances of the offences and the comparatively short time that has elapsed since completing his last sentence, at present we do not consider Mr Minniti is a fit and proper person to hold a gun licence.
25 With further time and continuing on his current path, it is possible that in the future the conclusion may be different, but for the moment we do not consider that he is a fit and proper person to hold a firearms licence. For these reasons, we have decided that the decision of the delegate of the Commissioner should be affirmed and we make that order.
The decision of the delegated officer of the Commissioner of Police dated 25 May 2009, to refuse Mr Minniti's application for a firearms licence, is affirmed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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