Almasi v Commissioner of Police, NSW Police Force - [2023] NSWCATAD 312 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Almasi v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 312

NCAT Administrative and Equal Opportunity|2023-04-06

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Court

NCAT Administrative and Equal Opportunity

Decision date

2023-04-06

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Background

Mr Josip Nedjeljko Almasi (the Applicant) applied to this Tribunal on 25 November 2022 for review of a decision by the Commissioner of Police, NSW Police Force (the Respondent) to refuse his application for a Category AB firearms licence.
The Applicant submitted his application for a firearms licence on 18 May 2022. On 27 May 2022, the Respondent refused his application on the basis that it was not in the public interest for the Applicant to hold a firearms licence.
On 10 June 2022, the Applicant applied for an internal review of the Respondent's decision to refuse his application for a firearms licence. It was not contested by the parties that no internal review was conducted and that the Tribunal had jurisdiction in this matter as the Applicant was not notified of the outcome of the review within 21 days and the review was taken to have been finalised under s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act).

[2]

Applicable legislation

The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 as follows: (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) …

[4]

Material before the Tribunal

The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1) and the Supplementary bundle of documents (exhibit R2). The Respondent also relied on written submissions.
The Applicant relied on a bundle of documents that had been filed with the Registry. It appeared that the Applicant did not serve all of these documents on the Respondent, although he had provided the Respondent with some of the documents contained in this bundle. During the course of the hearing, the Applicant emailed Mr Winram the two page "Table of Contents" that referred to the various documents within the bundle and the matter was stood down for a short time to allow for a review of the material. When the hearing resumed, Mr Winram advised that it appeared that he had not received all of the documents that were referred to in the Table of Contents. He indicated that given the nature of the documents, the matter could proceed.
Directions were made at the conclusion of the hearing for the Applicant to provide the Respondent on or before 14 April 2023 with a copy of the 72 pages of documents that he relied on and had filed with the Tribunal. The Respondent was then given an opportunity to provide written submissions to address any issues relating to these documents on or before 21 April 2023. The Applicant was given the opportunity to provide written submissions in reply on or before 28 April 2023.
Mr Winram indicated at the hearing that there was no objection to the Tribunal receiving the documents into evidence, but that there was a question of the weight to be afforded to certain of the documents. The 72 page documents were admitted into evidence during the hearing (exhibit A1).
On 20 April 2023, the Respondent's solicitors confirmed by way of an email to the Registry that on 12 April 2023, the Applicant had provided the Respondent with access to all of the material referenced in the 72 page "table of contents" bundle that had previously been provided to the Tribunal and noted that the Respondent had not previously received documents numbered 32 to 50 in the Applicant's internal review request. The email indicated that the Respondent did not propose to provide any further submissions in relation to the material and confirmed that the Respondent did not object to the tender of the bundle (exhibit A1).
The email noted that the Applicant had provided further submissions in relation to this material which in the Respondent's view went beyond the scope of the directions made. However, the Respondent did not object to the Tribunal receiving these submissions. I will address the Applicant's further submissions below.

[5]

Respondent's submissions

Written submissions were filed on behalf of the Respondent on 17 March 2023 and oral submissions were made at the hearing by Mr Winram. It was submitted that the Applicant has been the subject of a number of reports to Police by members of his family and the community detailing aggressive and intimidating behaviour, as well as suspected illicit drug use. As a result of a number of the reports, the Applicant has been charged with criminal offences and had also been subject to interim apprehended violence orders (IAVOs) and apprehended violence orders (AVOs).
It was submitted that the evidence provided by the Applicant in relation to his mental health had a number of inconsistencies with information previously provided to Police by the Applicant and his family members. It was also submitted that the Applicant's repeated breach of traffic laws and regulations indicated a disregard for a regulatory scheme aimed at ensuring public safety. As a consequence of these matters, the Respondent submitted that it is not in the public interest for the Applicant to hold a firearms licence and that the correct and preferable decision would be for the Tribunal to affirm the decision of the Respondent to refuse the Applicant's application for a Category AB firearms licence.
In oral submissions, Mr Winram relied on his written submissions. He submitted that it was his understanding that the Applicant appeared not to deny the descriptions of events contained in the Applicant's criminal history except that he denied any drug use and some minor details of some reports. Reference was made to the Applicant's responses to questions in cross-examination that he had told police in 2007 that he had mental health problems and was taking Avanza in order for police to treat him better. It was submitted that the Applicant's evidence was that he had not been honest with the police and that the public expectation of a person holding a firearms licence was that a licence holder would be honest in answering straightforward questions from police. It was further submitted that whilst the Applicant claimed to be a changed person, this was not the case and that he had continued to have interactions with police.

[6]

Applicant's submissions

The Applicant provided a number of documents (part exhibit A1) that contained both evidence and submissions, including an email to the Respondent dated 9 June 2022 in relation to his internal review application, a "Personal statement to the Tribunal" dated 27 March 2023 and a statement dated 27 March 2023. In the statement, the Applicant indicates that it is a response to the Respondent's submissions of 17 March 2023 and refers to the section "Criminal History". In the statement, the Applicant refers to various matters raised by the Respondent as being "irrelevant" and that various incidents relied upon by the Respondent were "tit for tat" arguments.
In oral submissions, the Applicant denied any pattern of behaviour by him. He stated that he went through a phase that included interactions with his family. He submitted that these events were "stepping stones" and that he is now a more thoughtful man and that he had to go through those times to end up where he is now. He indicated that he and some members of his family are relatively passionate individuals and that nothing serious had come from the incident that occurred in 2019. He submitted that just because family members argue, in his family that is not a reason to grab a gun and shoot that person. He said that there is too much on the line and that he is here to do the right thing.
The Applicant submitted that he was almost 40 years old and takes pride in his religious life. He submitted that there was no evidence to suggest that he was a risk to the public. He submitted that he was a full time carer and assisted his grandmother as well as his mother. He was very busy and also had a full time job. In addition to this, he drove an Uber, managed landscaping, looked after his grandmother and went to church. He submitted that he had had some adversity when young but that this had been few and far between in the last 14 or 15 years and that he prayed to be the best.
The Applicant submitted that he was a changed man who does not seek to have further interactions with the police, and that he respects the police. The previous matters occurred when he was immature and not thinking. He submitted that he was truly sorry for these matters and wanted to help his whole family, to give good advice and to model behaviour for others. He submitted that there would be no future issues with aggression or driving offences.
In his written submissions in reply following the hearing, he apologised for not co-ordinating the documents with the Respondent. The Applicant continued on to make further submissions, largely seeking to clarify his religious beliefs. I accept the Respondent's view that these submissions go beyond the directions made on 6 April 2023. I note however that the Applicant was self-represented in these proceedings and that the Respondent did not object to the Tribunal receiving the further submissions.

[8]

Public Interest

As referred to above, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence for the following reasons: 1. The extensive history of reports made to Police detailing aggressive behaviour by the Applicant, including criminal charges and AVOs; 2. Conflicting information regarding the Applicant's mental health; and 3. The Applicant's numerous traffic infringements.
The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. The Applicant's personal interest in obtaining a licence is subordinate to the public interest in ensuring public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] (Ward) said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [7].
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

[9]

September 2007 convictions

On 2 September 2007, Police attended the Applicant's residence in response to a domestic disturbance. The Applicant was subsequently arrested and conveyed to Cabramatta Police Station where he agreed to participate in a recorded interview and then declined to answer any questions. The Applicant was charged with two counts of common assault of his brother, and a count of destroy or damage property, namely a grey leather couch belonging to his mother. He was bailed to appear at Liverpool Local Court on 11 September 2007. The Applicant was subsequently made subject to an AVO, with his brother being named as the Victim.
The Applicant failed to appear in court on 11 September 2007 and was convicted in relation to the three charges and a first instance warrant was issued for his failure to appear. On 24 September 2007, the Applicant rang Cabramatta Police Station and was told to attend, which he did and was arrested by virtue of the outstanding warrant. He was also charged with the offence of fail to appear in accordance with his bail undertaking.
The Applicant appeared before Liverpool Local Court on 25 September 2007 where he was sentenced in relation to the two counts of common assault and placed on a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of two years. He received another good behaviour bond under s 9 in relation to the charge of destroy or damage property and the charge of fail to appear was dismissed.
The Facts Sheet for these matters (part exhibit R1) refers to the Applicant's brother as the Victim of the offences and recorded that they both lived at the same address. The Victim told Police that he and his brother were both involved in a serious motor vehicle in 2003 and that since the accident, the Applicant had suffered depression and been highly aggressive.
In relation to the first count of common assault, the Facts Sheet records that at approximately 5 pm on 2 September 2007, the Applicant and the Victim became involved in a verbal argument, and both started calling each other names. The Applicant then picked up a knife and threw it at the Victim but missed. The Victim then said to the Applicant "You're an ice junkie". The Applicant then walked over to the Victim and punched him with a closed fist to his back and arm. They exchanged a few insults before separating and the Applicant then left the residence.
In relation to the second count of common assault and the count of destroy/damage property, the Facts Sheet records that about 5.20 pm, the Applicant walked back into the house and approached the Victim. The Applicant picked up a large torch which was located inside the house and swung it towards the Victim, striking him to the left leg and causing the Victim immediate pain. The Applicant then acquired a water pressure gurney from the driveway and returned inside the house. The Applicant then began to spray the Victim who was seated on the couch with the gurney. As a result, the Victim and the couch became soaked with water, causing damage to the couch. The Applicant then went back outside and grabbed a broom. The Applicant returned and started chasing the Victim around the kitchen table and then struck him around the body. As a result of this, the Victim sustained minor cuts and bruises and a larger cut around his collar bone. The broom handle then broke, and the Applicant threw it at the Victim.
The Victim then picked up a dining chair to defend himself against the Applicant. The Applicant also picked up a chair and began to swing it at the Victim. A short time later, the Victim dropped the chair and ran upstairs and locked himself inside one of the rooms. The Applicant also went upstairs and began to bang on the locked door. When the banging stopped, the Victim exited the room, snuck out of the house and called Police. Police later attended the house and arrested the Applicant.
In his evidence before the Tribunal, the Applicant did not dispute these convictions, the Facts Sheet referred to or that an AVO was issued. In his written statement dated 27 March 2023 (part exhibit A1), he stated that it was a "tit for tat" argument with his brother and that it was a "brotherly love argument." He said that he takes full responsibility and that he should have conducted himself differently as he was the older of the two.
I accept the Applicant's convictions and the facts as set out in the Facts Sheet.

[10]

2007 Traffic convictions

The Applicant was arrested on 24 November 2007 and charged with driving whilst suspended. The Facts Sheet for this matter (part exhibit R1) records that at about 1.30 am on 24 November 2007, prior to his arrest, the Applicant was driving north along the Pacific Highway at Nabiac, when his speed was checked on Police Radar at 160 kilometres per hour in a 100 kilometre per hour zone. The Applicant was issued with a Traffic Infringement Notice for the offence of exceed speed limit by more than 45 km. He was also issued with a Notice of Suspension and Confiscation of his Drivers Licence and his licence seized. The Applicant signed the Notice of Suspension and was directed not to drive, and the Police then left the scene at 1.40 am.
About 1.47 am on 24 November 2007, other Police performing Radar duty on the Pacific Highway detected the Applicant's vehicle travelling at 111 kilometres per hour in a 100 kilometres per hour zone. The Applicant admitted being the driver of the vehicle earlier and that his licence was suspended. He stated that he was only moving his vehicle because it was parked in a dangerous zone. The Applicant was subsequently charged and convicted of driving whilst suspended, fined $500 and disqualified from driving for 12 months.
The Applicant was again arrested on 2 December 2007. The Facts Sheet for this matter (part exhibit R1) indicates that the Applicant was pulled over by Police for speeding and asked to produce his licence. He told Police that he had left his licence at home and after being told that lying was an offence, he provided Police with his details and Police confirmed that his licence had been suspended. When asked about this, the Applicant stated that only the Court could suspend his licence and not the Police. He was subsequently told that he was being placed under arrest for driving whilst suspended, to which he said "no" and started to get back into the driver's seat. When Police attempted to take hold of the Applicant, he resisted, resulting in a scuffle with Police. He was then arrested and conveyed to Cabramatta Police Station.
The Applicant was charged and convicted of driving whilst suspended, fined $750 and disqualified for driving for 12 months. He was also charged with resist or hinder police officer in the execution of duty and the matter was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act.
The Applicant did not dispute his convictions for these driving related matters or the traffic offences relating to them. He did not dispute the finding of guilt in relation to the charge of resist or hinder police. In his written statement he said that the traffic offences were "irrelevant". I accept the Applicant's convictions and finding of guilt for these matters and the facts underlying these matters as relied upon by the Respondent.

[14]

2007 IAVO/2008 AVO

The Respondent relied on COPS Report E 107537098 (part exhibit R1) that records that on 12 November 2007, the Applicant was reported to police for punching and denting the bonnet of a vehicle that belonged to another of his brothers (second brother). It was then claimed that the Applicant left and came back and called out "I'm gonna kill you. I'm gonna get the people to come around." The Applicant then left and returned a third time, sitting in his vehicle and staring at his second brother for around five minutes before leaving. The Applicant was later arrested and interviewed in relation to the matter but was not charged.
The COPS report contains reference to the Applicant denying that he had punched the bonnet or dented it. He was recorded as stating that he had become very angry as he had been provoked by his second brother. He admitted storming into his second brother's house to look for his keys and that both of them had been yelling at each other. Police considered that there was insufficient evidence of malicious damage by the Applicant, but the COPS report indicates that as the Applicant's second brother has expressed fears in relation to future confrontations with the Applicant, an AVO would be sought by way of complaint and summons. The Applicant was informed of this and released from custody. An IAVO was issued against the Applicant and a final AVO was listed for hearing at Fairfield Local Court on 10 March 2008. The Applicant did not attend court, and an AVO was issued against him on an ex-parte basis for the protection of his second brother.
In his written statement, the Applicant continued to dispute the conduct relating to the vehicle and stated "AVO issued by police. - 16 years ago - irrelevant." Having regard to the evidence, I do not find that the Applicant's conduct, as referred to in the COPS Report E 107537098, to have been proved to the requisite standard. However, I do accept that Police attended the scene, that the Applicant was later arrested, interviewed and released and that he admitted to police that he had been very angry and had been provoked by his second brother. I also accept that an IAVO, and later an AVO were issued against the Applicant for the protection of his second brother, following fears being expressed by him.

[15]

Traffic history

The Respondent relied on the Applicant's traffic history as set out in the Traffic Record Report (part exhibit R1). Over the period from 2002 to 2021, the Applicant has been issued with 12 traffic infringements as follows: 1. Exceed speed limit by more than 15km/h but not more than 30km/h on 10 September 2001, 10 January 2002, 20 August 2007 and 24 August 2007; 2. Exceed speed limit by not more than 15 km/h (camera detected) on 4 January 2003; 3. Making an unlawful U-turn on 30 July 2002; 4. Disobey traffic lights on 8 August 2007, 1 November 2007 and 22 January 2017; 5. Exceed speed limit by more than 45 km/h on 24 November 2007; 6. Drive across dividing lines to perform a U-turn on 7 April 2019; and 7. Exceed speed limit by more than 10 km/h but not more than 20 km/h on 28 April 2020.
These matters are in addition to the Applicant's convictions for driving whilst suspended referred to above and the finding of guilt relating to the charge of resist or hinder police officer in the execution of duty.
In his written statement, the Applicant stated that in 2015, he was issued with a ten year licence due to good driving behaviour, and that the licence is due to expire in 2025. He stated that he comes from a motoring family and has made mistakes for which he apologises. He stated that he obeys all traffic rules and is a safer driver than most. In relation to the most recent infringement for disobey traffic lights on 22 January 2017, he stated that he misjudged the lights after an all-night shift with Uber and that his rear tyres caught the red. He said "Human error, no damage to 3rd parties. Section 10 issued to excellent driving record and also considering I spent in excess of 60 hours per week on public roads for work." In relation to the illegal U-turn in in 2019, he said that he had contested the fine and the amount was reduced. He said that the only other car on the road was the police car and that he posed no danger to the public.
Having regard to the evidence, I accept the matters set out in the Applicant's Traffic Record Report.

[16]

Further reports to Police

The Respondent relied on a number of further reports to police between 2005 and 2019 in relation to the Applicant, some of which involved allegations of domestic disturbance made by his family members. The reports included the following: 1. COPS Report E 25396912 - On 15 October 2005, a family member of the Applicant called police in relation to a domestic disturbance at their home. The Applicant was reported to be argumentative and aggressive, and police were called to intervene as it was reported that there were concerns about the stress that the Applicant's conduct was causing his family. 2. COPS Report E 25482731 - On 29 October 2005, a family member of the Applicant called police in relation to a domestic disturbance involving the Applicant at their home. The family member left the residence prior to police attending and did not wish to make a statement. 3. COPS Report E 26607009 - On 21 November 2005, the Applicant was reported to have become aggressive and abusive towards a family member. Due to feeling intimated, the family member called for police intervention. The Applicant had left the residence prior to police arriving. 4. COPS Report E 352814317 and Information Report I 35562934 - On 7 November 2008, police were called to attend a disturbance at Canley Heights. The Applicant was reported to have been involved in an incident with the owner of the home over vehicles parked in the street. It was alleged that the Applicant had yelled at the owner after entering the house without permission and on his way out, armed himself with a brick. It was alleged that the Applicant had swung the brick at the homeowner, and the homeowner did the same back to him, hitting the Applicant's arm. Both parties then telephoned police. The Applicant was reported as having called 000 and stating he was being threatened with a gun. It was reported that the Applicant advised police that he was an undercover police officer. The Applicant was issued with a move on direction from the property. The homeowner did not wish to take any action and no charges were laid. 5. COPS Report E 59345236 - On 20 November 2015, the Applicant was reported to be involved in a dispute at a Hassel Grove property involving a damaged fence and was alleged to have spat on the other party who was conducting renovations on the neighbouring property. It was alleged the other party pushed him as a result of being spat on. There were conflicting versions of events, and the police took no further action. 6. COPS Report E 254207497 - On 24 September 2018, police were called to the Applicant's residence in response to a report from the Applicant's brother that the Applicant had attempted to assault him and spat in his face. It was indicated that the Applicant suffers from mental health issues and that his brother had called for intervention as he feared the argument they were having would escalate. Police attended and were informed by both parties that no threats or assaults had occurred, and the matter was a simple disagreement. 7. COPS Report E 70590656 - On 27 February 2019, police were called to the Applicant's residence in response to a report by the Applicant's brother of a domestic disturbance with the Applicant. Police were called as the caller had been involved in a verbal argument with the Applicant and did not want the situation to escalate. Police mediated the incident and took no further action.
In relation to the incidents on 15 October 2005, 29 October 2005 and 21 November 2005, the Applicant said in his written statement "no charges - irrelevant". In relation to the incident on 7 November 2008, the Applicant contested the version of events in the COPS Report and said, "I had contacted the police due to my own safety, albeit, I shouldn't have approached them, lack of judgement on my part - 15 years ago - no charges - irrelevant". In relation to the incident on 20 November 2015, the Applicant stated that he was caring for his grandparents and his grandmother had complained about a neighbour's building work. He said the "tradesmen were not exactly helpful and were quite upfront after I started taking pictures of them and the damaged fence. I did not spit on them, my grandmother can confirm that."
In relation to the incident on 24 September 2018, the Applicant said it had been "approximately 11 years since our last tit for tat. This particular argument was simply that, an argument. Brotherly love at best. Was quickly resolved. The next day he bought me dinner -irrelevant". The Applicant said of the 27 February 2019 incident "My brother and I had another verbal, was quickly resolved. Police contacted haphazardly. No aggression, tit for tat - no charges - irrelevant".
It is clear that the Applicant was not charged in relation to any of the above matters and no IAVOs or AVOs were issued as a result of these incidents. The Applicant disputed various of these reports and having regard to the evidence contained in the Respondent's documents, I am not satisfied that the conduct disputed by the Applicant is proved to the relevant standard. The Applicant did not dispute, and I accept, that the police had been called in relation to these various incidents, that they subsequently attended on each occasion and that a move on direction was given to the Applicant in relation to the 2008 incident. I accept that the report in 2018 was made by the Applicant's brother who reported that the Applicant had attempted to assault him and spat at his face and indicated that the Applicant suffered from mental health issues. I also accept that he reported to police that he called for police intervention as he feared the argument would escalate. I also accept that the 2019 report to police was made by the Applicant's brother, and he reported that he did not want the situation with the Applicant to escalate.

[19]

Criminal history, IAVOs, AVOs and reports to Police

I have previously accepted the various matters contained in the Applicant's criminal history. I have also accepted that the Applicant was subject to an IAVO in 2001, an AVO in 2007 that arose out of his criminal conduct on 2 September 2007 together with an IAVO and an AVO arising out of the incident in November 2007. The Applicant's criminal conduct on 2 September 2007 resulted in two convictions for common assault of his brother and damage to his mother's couch. The Applicant's conduct included throwing a knife at his brother, which missed, punching him and striking him with a torch. He then sprayed his brother inside the house with a water pressure gurney brought in from outside before grabbing a broom and chasing his brother with it.
The IAVOs and AVOs were issued to protect members of the Applicant's family during the period from 2001 to 2008. I have previously accepted that whilst no charges or orders were issued, police were called by family members to attend in relation to further domestic disturbances involving the Applicant on 15 October 2005, 29 October 2005 and 21 November 2005 and that police were called in relation to disturbances involving the Applicant and non-family members on 7 November 2008 and 20 November 2015. I further accept that police were also called to attend the Applicant's residence on 24 September 2018 and again on 27 February 2019 in response to concerns from the Applicant's brother, who had been the subject of the Applicant's convictions for common assault and also the person in need of protection under both an IAVO and an AVO.
It was not contested by the Respondent that the issue of the IAVOs or the AVO in this matter enlivened the provisions of s 11(5)(c) of the Act, namely that a firearms licence must not be issued to a person who is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked). I accept that this provision does not apply to this matter.
The Applicant relied on various character references from friends and family. None of the character referees gave evidence before the Tribunal. Of note, two of the references were from the Applicant's brothers who were the persons in need of protection from the Applicant in the two AVOs issued against him. There was a further reference from the Applicant's mother, and as previously referred to, she was the subject of an IAVO issued against him.
The Applicant's brother said in his reference "Although we've had our brotherly love moments and have made mistakes in our past (to which we take full responsibility for and are repentant) we are nonetheless brothers and we have the utmost respect and love for each other". He went on to state that he fully supports and affirms the Applicant's application for a firearms licence.
The Applicant's second brother stated in his character reference that he has taken the Applicant to a shooting range on multiple occasions and has supervised him target shooting. In relation to the incident in September 2007, he said that he had "very vague recollections of it as it was almost two decades ago". He stated that he and the Applicant enjoy a very close relationship and "support each other without fail".
In the reference from the Applicant's mother, she states that the Applicant: "…is one of 5 boys and they haven't been without their arguments and mishaps but this is just normal brotherly love. … In other words, the level of care, commitment and courage this man has, is second to none not to mention, he is not violent, does not suffer from any illnesses and does not take any drugs".
All of the references refer to the Applicant in positive terms. His neighbour Duc Nguyen states that he has lived opposite the Applicant for 20 years and that the Applicant "has never changed in the 20 years that I've known him and his family". There is a reference from an unknown person, although it is listed in the Applicant's index as being from Darko Meic. This reference states that the Applicant had an unfortunate accident in the year 2000 and endured a "slight rough patch" while he recovered but has come out of it a much better man. Not one of the Applicant's character references refers to the Applicant's criminal history or to the IAVOs or AVOs issued against him. Whilst it may be assumed that the Applicant's family members, and in particular his mother and two of his brothers, would be aware of these matters, no reference is made to them, and it is only the Applicant's second brother who refers to "very vague recollections" of the incident in which he was involved.
None of the Applicant's family members has provided an explanation of the incidents involving them and the Applicant. Having regard to the previous reports to police from the Applicant's mother expressing concerns and fears in relation to the Applicant's aggressive behaviours and the charge of damage to her couch in September 2007, in the absence of an explanation for her change of opinion, I do not accept her statement that the Applicant is "not violent", and I give no weight to the character reference that she has provided. In the absence of any explanation from the Applicant's second brother as to the events that occurred in 2007, the reason that he expressed fear to the police that resulted in an AVO being issued against the Applicant in 2008, and the reasons for his apparent change in view, I give no weight to the character reference that he has provided in these proceedings.
The character reference provided by the Applicant's brother makes no mention of the various reports to police, including those made by him as recently as 2018 and 2019, nor to the assaults against him by the Applicant in 2007 or to the IAVO or AVO. Whilst his statement in the character reference that the Applicant is "not depressed, does not suffer from mental issues, does not take any drugs whatsoever" is framed in the present tense, it appears to be at odds with his statement in the Facts Sheet for the 2007 assaults and his reference does not address this. In the absence of any reference to the previous incidents, I give this character reference no weight.
The remaining character references make no mention of the Applicant's criminal history or to the IAVOs or AVOs issued against him. In the absence of any evidence that the character witnesses were aware of these matters, I give them extremely limited weight. I have had regard to the various photos and customer comments provided by the Applicant but afford them little weight in considering the Application before me.
I do not accept that the Applicant's conduct towards his brothers can in any way be characterised as "tit for tat" or "brotherly love". I find that this characterisation by the Applicant demonstrates a significant lack of insight by him into his conduct and the fear that it has instilled in two of his brothers, as does his reference to these matters being "irrelevant".

[20]

Mental health issues

The Respondent submitted that there was conflicting evidence about the Applicant's mental health. Reference was made to the incident on 15 October 2005 (COPS Report E 25396912) in which it was recorded that the Applicant's mother stated that the Applicant was medicated for depression and was failing to take his medication on a regular basis as prescribed. Reference was also made to the Facts Sheet for the Applicant's criminal convictions in 2007 which record that the Victim stated that he and the Applicant were involved in a serious motor vehicle accident in 2003 and since that time the Applicant had suffered depression and been highly aggressive.
The Respondent also referred to the Applicant's interview with police on 21 November 2007 in relation to the incident with his second brother on 12 November 2007. The interview with police was electronically recorded and COPS Report E 107536098 records that the Applicant "readily admitted" to police that he had anger management issues after sustaining head injuries in a motor vehicle collision three years earlier and that he only gets "in a rage" when provoked. In the report to police on 24 September 2018 referred to previously, the Applicant's brother indicated to police that the Applicant suffered from mental health issues.
The Respondent also relied on various custody reports from 2 September 2007, 24 September 2007, 21 November 2007, 24 November 2007 and 2 December 2007 in the supplementary bundle of documents (exhibit R2). Reference was made in these records to the Applicant advising police that he had been treated for a form of epilepsy and in response to the question "Do you have any other serious medical or mental problems", the response "DEPRESSION/ANXIETY/ANGER MANAGEMENT" is recorded. It was recorded in a number of records that the Applicant had suffered from epilepsy or did suffer from epilepsy and took medication for it. It was also recorded that the Applicant suffered from "Anger, depression and other unknown mental problems" and "was receiving treatment for his mental problems". It was also recorded in a number of different custody records that the Applicant was on Avanza, an antidepressant, that it was taken daily and that he had taken his dosage for that day.
In her character reference, the Applicant's mother stated: [The Applicant] was involved in a car accident at the end of 2000 which impacted him in the sense that he had to go through a recovery period of approximately 7 years due to his injuries in which he had to give up his career and was stuck at home for most of this period unable to conduct himself normally as other did. This was an unfortunate event that he had to go through. As part of his rehabilitation, he was offered anti depression drugs which [the Applicant] did take, for maybe a week, but he did not like the way drugs made him feel, so he discontinued the use of those drugs. He has never been on anything since nor was he on any medication prior to his car accident.
The Applicant gave evidence that he was in a car accident on 26 December 2002. He said that his claim for compensation had taken about five to six years and that he was prescribed an antidepression medication, Avanza about halfway through his claim. He said that he took it for about a week, and it debilitated him so much that he stopped taking it. He said in his Affidavit dated 31 March 2023 that he is perfectly healthy, not depressed and is not prescribed antidepressants.
Whilst varying dates have been given in relation to the car accident in which the Applicant was involved, it appears that it happened sometime during the period between 2000 and 2003. No detailed evidence was adduced by the Applicant in relation to the accident, the nature of the injuries sustained by him or his brother, his treatment or rehabilitation I accept that the accident was serious, that the Applicant claimed for compensation and that it took him up to seven years to recover. The Applicant conceded in cross-examination that he had told police on a number of occasions in 2007 that he suffered from depression, anxiety and anger issues and was taking Avanza but said that it was a 'haphazard" answer and that he did so because he was scared and thought he would be better treated by police.
Whilst the Applicant denies any current mental health issues or use of anti-depressants, the material referred to above, including both from his family members and the statements that hemade to police, indicate that at least during the period 2005 to 2018, the Applicant suffered from depression and anxiety and had anger management issues following the car accident and was receiving treatment, including medication, for those issues.
Whilst the recorded interview that took place with the Applicant on 21 November 2007 was not before me, I accept from the COPS report that the Applicant readily admitted to having an anger management problem that had arisen after he suffered head injuries in a motor vehicle collision three years earlier and that he advised that he was on daily medication to assist with this problem. I also accept that he told police that he only gets in a rage when provoked. The reports from the Applicant's family, including the reference in the Facts Sheet are consistent with the statements made by the Applicant to Police in the various custody records from 2007 referred to previously.
Whilst there were no medical reports for the period 2005 to 2018 in the evidence before me, I am satisfied on the balance of probabilities that, during this period, the Applicant suffered from mental health issues, including depression and anger management issues and was prescribed anti-depressant medication.
There is conflicting evidence in relation to whether or not the Applicant took the medication that he was prescribed. The Applicant's mother advised police in October 2005 that he failed to take his medication as prescribed and the Applicant's evidence was that he only took the medication for about one week. In contrast, the Respondent's evidence indicated that the Applicant had told police on various occasions over a number of months in 2007 that he was prescribed medication and took it daily. In his written statement, the Applicant stated that in relation to the custody record of 21 November 2007 where he refers to suffering from depression/anxiety and taking Avanza, that this was a "haphazard statement made to police regarding Avanza as I was afraid of being mistreated in the police station - irrelevant'.
During his cross-examination of the Applicant, Mr Winram took the Applicant to the various custody documents referred to above. The Applicant indicated that the events had occurred a long time ago and that it was not fun being arrested or being taken to a police station. He acknowledged that he may have provided the answers recorded in the various custody records. He said that he was not on Avanza at that time and that he basically answered the police questions "haphazardly". He thought that some of the responses may have been pre-populated and could not remember.
The Applicant said that he wanted the police to treat him with extra care and acknowledged that he told police that he had depression. He said that this was because he was scared, and he wanted police to treat him with respect. He acknowledged that he had taken Avanza but that it was only for a week and that he then stopped taking it. Mr Winram put to him that he had told police on various occasions between 2 September 2007 and 2 December 2007 that he was on Avanza. The Applicant responded that he may have done so but that it was just a "haphazard" response to him feeling scared by foreign events.
The Applicant admitted to having provided "haphazard" responses to police in 2007 in the hope that they would give him better treatment. I have previously found that the Applicant did suffer mental health issues between at least 2005 and 2018 and as a consequence, I accept that he was truthful with police on various occasions in 2007 when he disclosed his mental health issues. Having regard to the evidence, including that of the Applicant's mother and the Applicant, I accept that he was prescribed Avanza at some time during, or prior to, 2007 but only took it for a very short period of time. Accordingly, I find that the Applicant's responses to police in relation to taking daily medication for his mental health issues in 2007 were not true.
The Applicant provided a medical certificate dated 28 February 2023 from his general practitioner, Dr Romeo who has been treating him since 22 March 2019. Dr Romeo stated that the Applicant has no known past history of mental illness nor has been prescribed psychoactive medications from that practice. Dr Romeo stated that he was unaware that the Applicant had an impairment. Dr Romeo does not refer to any medical records from other medical practitioners who may have treated the Applicant prior to 2019 or to any discussions with them. He does not provide any details of consultations with the Applicant nor with any other doctor within the practice.
There is no reference in the medical certificate to the Applicant having applied for a firearms licence or to the Tribunal proceedings. Whilst I accept that the Applicant has not been prescribed psychoactive medications from Dr Romeo's practice, or reported a past history of mental illness to Dr Romeo, given the length of time the Applicant has attended the practice and the limited information within the medical certificate, I afford the medical certificate very limited weight.
The Applicant relied on a report from Mr Camacho, psychologist. Mr Camacho did not give evidence before the Tribunal and stated in his report that his opinion was based entirely upon evaluation, observation and information provided during the assessment of the Applicant as well as documentation provided by Dr Romeo. Mr Camacho made mention of a referral letter from Dr Romeo and to the Applicant's medical record, but these documents were not before the Tribunal. Whilst reference was made to the Applicant's criminal history, no copy of that history was included in Mr Camacho's report. Whilst Mr Camacho referred to a fight in 2007 that the Applicant had with his brother where he was charged with common assault, his opinion was that due to this event being over 15 years ago, it did not affect the Applicant's "psychological present stability".
Mr Camacho also referred to the Applicant reporting having been in a motor vehicle accident in 2001 and being referred to a psychologist with whom he had a handful of sessions as part of his rehabilitation treatment plan from his insurer. The Applicant reported that he had been prescribed Avanza and took the medication for one week. Mr Camacho did not have access to any files or documents of the Applicant's sessions with the psychologist and the Applicant told him that he did not remember much and that whilst he felt he did not require it, he had been sent to the psychologist by the insurer.
It is not apparent from the report whether Mr Camacho was aware of the full extent of the Applicant's motor vehicle accident, his criminal history, the facts relating to the Applicant's convictions for the assaults on his brother in 2007 or the various IAVOs and AVOs issued against the Applicant in relation to family members. In his report, Mr Camacho's records the Applicant having reported a "stable relationship with his family, He has good relationships with all members of his family". It would appear that Mr Camacho may not have been aware of the various reports made to police about the Applicant by family members from 2001 to 2019, a number of which resulted in IAVOs or AVOs being issued against him for their protection. Other than the assault matter, there is no reference in Mr Camacho's report to any other interaction with the Applicant and police, including the incidents that occurred on 7 November 2008 and 20 November 2015, that I have previously referred to.
Mr Camacho indicated that the Applicant was referred to him on 4 February 2023 and that he had spoken to him 3 times to prepare the report, presumably including the examination he had with the Applicant on 10 February 2023, the date of his report. Having regard to Mr Camacho's report, the limited reference to the documentary material before him and the limited time that he spent with the Applicant, I am not satisfied that Mr Camacho was aware of the full extent of the Applicant's criminal history, his domestic history including the various IAVOs and AVOs issued against him or his interactions with police. On this basis and given that Mr Camacho did not give evidence before the Tribunal, it is not possible to ascertain what effect, if any, this information would have had on his opinion. Accordingly, I afford extremely limited weight to Mr Camacho's report and his opinion that he supported the Applicant being given a firearms licence .

[21]

Traffic history

I have previously accepted the Applicant's criminal and traffic history. The Applicant's traffic record is extensive, with traffic offences from 2001 to 2020. In addition to the traffic offences, the Applicant has two convictions for driving whilst suspended and the s 10 dismissal of the charge of resist or hinder police referred to above. The Applicant has also had a number of matters referred to the State Debt Recovery Office, as well as having two Demerit Points Warning letters and a Habitual Offence Warning letter issued to him. Following his licence being suspended, the Applicant was able to drive from 22 October 2009 subject to good behaviour conditions being imposed on his licence for 12 months. I accept that whilst there are no traffic infringements from that time up until 22 January 2017, the Applicant has subsequently been issued a further three traffic infringements between that date and 28 April 2020.
In his written statement, the Applicant refers to his traffic offences as "irrelevant". Senior Member Montgomery held in Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [102] that "the Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety".
I accept that an applicant's disregard for the traffic laws and regulations can be relevant to the criteria for a firearms licence. In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Schahill said at [57] and [81]: The Applicant's traffic infringement history 57. The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt - the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety. … 81. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.
The Tribunal must consider all relevant matters and give "proper, genuine and realistic" consideration to each of the relevant matters. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi [Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82] does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
Having regard to the Applicant's traffic history and driving related history, I do not accept his statement that his driving record within the last 16 years is "exceptional" even having regard to his work as an Uber driver. The continuing traffic matters do not support the Applicant's contention in his personal statement to the Tribunal that "I comply and consent to the law at every level" and that (sic) "lessons that has definitely been learnt."

[22]

Conclusion

It is an underlying principle of the Act to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The Applicant's repeated and ongoing breach of traffic laws and regulations as well as his criminal convictions for driving whilst suspended and the associated finding of guilt relating to resist or hinder police in the execution of duty indicates a disregard for a regulatory scheme aimed at ensuring public safety. Whilst there were no offences committed by the Applicant for a substantial period after having good behaviour conditions imposed on his licence on 22 October 2009, he has had a further three traffic offences in the period from 2017 to 2020. Having regard to the evidence adduced by the Applicant in the proceedings, I find that he has demonstrated very little insight into this conduct. In my view, the Applicant's traffic history would of itself be sufficient to establish that the issue of a firearms licence to the Applicant would be contrary to the public interest.
In his personal statement to the Tribunal, the Applicant stated that he is ashamed of his past and wishes to move forward positively and I accept that the Applicant wishes to do so. I have however had regard to the various matters referred to above, and in particular the Applicant's history of domestic violence and aggression as evidenced by his criminal history and the IAVOs and AVOs issued against him. Whilst there was a significant cluster of matters involving the Applicant in 2007, police have attended to various incidents relating to the Applicant in 2008, 2015, 2018 and 2019, with the incidents in 2018 and 2019 involving further reports from his brother. I have also had regard to the absence of any current medical or psychological evidence that addresses this history and evaluates the Applicant's current risk in relation to holding a firearms licence.
Accordingly, taking all of these matters into account, I find that there would be a real and appreciable risk to the public if the Applicant was to be granted a firearms licence and that the issue of a firearms licence to him would be contrary to the public interest.
The Respondent relied upon a number of further reports to police, including allegations of illicit drug use by the Applicant. The Applicant strongly denied having ever used illicit drugs. Having made the finding that the issue of a licence to the Applicant would be contrary to the public interest, it is not necessary for me to consider the further material relied upon by the Respondent.