Aoun v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-02-03

REASONS FOR DECISION

This is an application by Nick Aoun seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to revoke his category AB firearms licence. The decision to revoke the licence was made on 9 March 2022. Mr Aoun made an application for internal review but this was not determined by the Commissioner within the relevant timeframe and he then made this application to the Tribunal for administrative review.
The decision of the Commissioner was that it is not in the public interest for Mr Aoun to hold a firearms licence. The Commissioner relies on the following matters in support of her decision to revoke Mr Aoun's firearms licence:

On 28 April 2021 following the attendance of police at Mr Aoun's property he was charged with five firearms offences relating to possessing ammunition without holding a licence/permit/authority, not having approved firearms storage and not keeping a firearm safely; and
Information contained in criminal intelligence .

Mr Aoun acknowledges that he committed certain firearms offences. He states, however, that there is no risk to public safety if he regains his licence which he needs to control vermin on his property.

Evidence before the Tribunal

The Commissioner relied on:

the documents lodged pursuant s 58 of the ADR Act;
a statement of Senior Constable Patrick Hicks dated 29 November 2022, including body-worn video from 28 April 2021; and
a confidential statement of Senior Constable Patrick Hicks dated 12 August 2022.

I note that orders have previously been made for the filing of confidential material which was not to be disclosed other than to the Commissioner, her legal representatives and the Tribunal.
Mr Aoun relied upon two affidavits made by him on 11 November 2022 and 16 December 2022.
Both parties provided written submissions and made further oral submissions at the hearing. The Commissioner also provide confidential submissions in relation to the confidential material. Mr Aoun gave evidence and was cross-examined at the hearing.

Background and evidence

The background facts in relation to the matters that initially led to the revocation of Mr Aoun's licence are largely not in dispute. Mr Aoun has held a firearms licence since 1998 for recreational hunting/vermin control, based on ownership of rural property. His licence has been renewed several times and he has not come to the attention of police for any firearms breaches until April 2021.
On 28 April 2021 two police officers attended Mr Aoun's property near Cooma to conduct safe storage inspections in relation to Mr Aoun and his father George, both of whom were licenced firearms holders residing at the property. The officers initially spoke to George near a shed area and while doing so observed several cannabis plants growing in pots between two sheds. George made admissions to possessing a number of cannabis plants. Senior Constable Patrick Hicks, who was one of the officers present, states he observed other cannabis plants and cannabis leaf drying while he was at the property. George Aoun admitted to ownership of the plants and cannabis leaf.
Mr Aoun was not home at the time and complains that police did not advise him they were coming to his property and the inspection was conducted without him being present. He denies any involvement in growing cannabis and states he has never used or supplied others with illicit substances. Mr Aoun states that the property is owned by him, his father and his uncle.
Police conducted a safe storage inspection. The inspection revealed that: 1. a registered firearm - a Remington .223calibre bolt action rifle - was not in the safe; 2. the rifle bolt for another rifle stored inside the safe inside a yellow bag had not been removed, rendering the rifle able to be fired if the bolt was closed; and 3. a 5 x round box magazine was stored with the firearm in the bag in a separate pocket which contained 5 x .223 calibre rifle rounds in the magazine.
When police telephoned Mr Aoun to ask about the missing rifle he told them he had been hunting the night before and had left the firearm behind the door in the attic of the house. After speaking with Mr Aoun police noticed unsecured ammunition on top of the firearm safe. Mr Aoun states that when he arrived home he had to cook dinner and intended to put all items in the safe but got distracted by other chores. He said the safe is not accessed by any other members of the family.
Mr Aoun later returned to the property. Police obtained a search warrant and further searches were undertaken. Mr Aoun showed police where the .223 rifle was stored. The rifle was in a yellow bag in a small room on the second floor of the house. The bolt was still fitted and another magazine and ammunition were in a pocket of the rifle bag. Senor Constable Hicks states that in the room police also found a military style ammunition box containing 900 x .223 rifle rounds, another box containing 25 x .223 rifle rounds and 141 x .270 rifle rounds, 1 x 410 shotgun round, 525 x .22 rounds and 40 x 30-30 rounds, all of which are for calibres of firearm that are not registered to Mr Aoun. Mr Aoun told police that the different calibres of ammunition belonged to people who had attended the property previously to hunt. Mr Aoun further states that the 525 rounds and 40 x30-30 rounds were in fact in the ammunition lock up box in the safe.
In the attic police found two more boxes each labelled "9mm Luger 20 boxes - 50 rounds each 1000 centre fire cartridges". Mr Aoun denied he owned the ammunition. He did not hold a licence or permit to possess this type of ammunition. Mr Aoun told police that he found the ammunition about a year before when he and his family cleared out the attic. He had not tried to lawfully dispose of the ammunition. Mr Aoun acknowledges that he should have handed the ammunition in to police.
At the hearing Mr Aoun agreed that leaving a firearm and ammunition in the house unsecured posed a serious risk to the safety of others, including his children (then aged 18, 16 and 14). He stated that the children don't access the area where the firearm and ammunition were stored, but agreed that the area was not locked.
When police opened the ammunition storage compartment in the firearms safe they located 2 x .50 calibre rifle rounds, three boxes of 30-30 rifle rounds as well as several loose 30-30 rifle rounds along with 7mm Remington rifle rounds. Mr Aoun told police that the .50 calibre rounds were a gift from a friend and the other ammunition had been left there by people who used the property for hunting. In response to a question from police, Mr Aoun did not provide further information about the people he said were involved in hunting on the property or when they visited. At the hearing he said they were friends of his uncle. Mr Aoun also states that all the calibres of ammunition found are categorised under a category AB firearms licence. Senior Constable Hicks notes that none of the firearms licenced to Mr Aoun could have safely fired the ammunition.
Senior Constable Hicks states that during the search police had to warn Mr Aoun numerous times to stop picking up items. Mr Aoun denies that he was trying to conceal anything and states he picked up water bottles that were blowing about as it was a windy day and some empty ammunition shells in order to reduce any hazards.
Mr Aoun's firearms licence was suspended and he was subsequently charged with the five offences set out above. On 4 August 2021 he pleaded guilty to each of the offences and made subject to a six month conditional release order for the offence of "not keep firearm safely - not prohibited firearm". The other offences were dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999. Mr Aoun states that what he did was pretty stupid and he pleaded guilty because he was aware of the importance of the safe storage requirements.
In addition to the above matter, the Commissioner also refers to an Information Report from October 2020 where a truck driver accused Mr Aoun of aggressive behaviour. Mr Aoun alleged that the truck had cut him off and damaged his vehicle. No action was taken by police but the report states that Mr Aoun became aggressive towards police and threatened violence because the police did not arrest the truck driver. Mr Aoun states that he was the person who in fact called the police as he was trying to get the truck driver to exchange details so he could report the accident to his insurer. Mr Aoun states he may have been agitated, but was not aggressive.
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On 28 April 2021 Senior Constable Hicks prepared an information report detailing his and other officers attendance at the property and execution of a search warrant. The bulk of the report has been released to Mr Aoun but certain information has been redacted. Some of the redactions concern personal information of third parties. [NOT FOR PUBLICATION]
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Mr Aoun states that he requires his firearms licence to eradicate vermin and minimise damage to the olive plantation, cherry orchard and other fruit trees on his property. He states his olive oil business has won various awards and the business has recently invested in an olive oil processing machine costing about $140,000. Mr Aoun derives an income from the business and from his construction business. He states that not having a firearms licence will cause him tremendous inconvenience and possibly put his business at risk of failure. He states that it is too expensive to contract a shooter to deal with vermin as he has to pay people who pick the fruit.
Mr Aoun states that since moving to the Snowy Mountains region he has become well known within the community and believes he has a good reputation, both professionally and personally. He notes he has never been charged with any other criminal offences and, prior to the 2021 incident, had an unblemished record as a firearms licence holder. Mr Aoun has provided several references from people in the community. All speak highly of him and believe he is a suitable person to hold a firearms licence.

The relevant law

Two of the underlying principles of the Firearms Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
Additionally, the Firearms Act's objects include:

to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and
to ensure that firearms are stored and conveyed in a safe and secure manner.

Grounds for revocation

Section 24 of the Act provides for the revocation of a licence. Of relevance is s 24(2)(b)(ii) which provides that a licence may be revoked if the licensee contravenes any provision of the Firearms Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention. Under s 24(2)(b)(ii) a licence may be revoked if the licensee contravenes any condition of the licence. In addition, a licence may be revoked for any other reason prescribed by the regulations: s 24(2)(d).
The general requirements for safe keeping of firearms are set out in s 39(1) of the Firearms Act. Under that provision a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping.
Mr Aoun held a category AB licence and further requirements for that category are set out in s 40(1). In particular, when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable. In addition, any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm.
In relation to ammunition, s 65(3) of the Firearms Act provides that a person must not possess ammunition for any firearm unless the person is the holder of a licence or permit for a firearm which takes the ammunition or is authorised to possess it by a permit.
The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23]. It has been said that in considering matters under the Firearms Act public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
In exercising its discretion whether a licence should be revoked, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62]-[64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

The public interest

Clause 20 of the Firearms Regulation 1997 (the regulations) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. The Commissioner submits that it is not in the public interest for Mr Aoun to hold a firearms licence.
What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "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."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Consideration

In this matter Mr Aoun entered a plea of guilty to the five offences he was charged with arising out of the safe storage inspection conducted on 28 April 2021. The Commissioner submits, and Mr Aoun does not disagree, that he contravened various provisions of the Act in not properly storing a firearm and ammunition and in possessing ammunition (the 20 boxes of 9mm Luger ammunition) which he was not authorised to possess by licence or permit. Mr Aoun also does not dispute that, by not storing his firearms and ammunition properly, he contravened a condition of his licence.
It is clear that grounds for revocation of the licence exist. Whether the licence should in fact be revoked is a matter of the exercise of the Tribunal's discretion. Factors relevant to the exercise of the discretion are whether the contravention was merely a technical breach, whether the conduct posed no risk to public safety and whether the licence holder would engage in future conduct which posed a risk to public safety: Bevan v Commissioner of Police [2004] NSWADT 1 at [26].
The Commissioner also raises whether it is in the public interest for Aoun to hold the licence. The "public interest" has been held to require that all licensees are aware of, and comply with, the legislative requirements: Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 at [41]. These requirements include safe storage requirements.
As set out above, the Commissioner raises an incident involving Mr Aoun which occurred in 2000. I place minimal weight on this incident as it involves contradictory accounts of an event many years ago out of which no charges were laid or matters followed up by police. While police state he was aggressive on this occasion, Mr Aoun strongly denies that and there is nothing to corroborate either view.
It cannot be said that Mr Aoun's contraventions of the Firearms Act were merely technical. The contraventions were multiple and involved a firearm and various calibres of ammunition which were found in various locations in the house. Most of those locations were completely unsecured and could be accessed by anyone in the household or a stranger who entered the house. By Mr Aoun's account large amounts ammunition had been knowingly left unsecured for at least a year.
In addition, the firearm that was left unsecured was stored with ammunition that could be fired from that firearm. This clearly posed a significant public safety issue as other persons, including his children, were in the house. Mr Aoun could easily have locked the firearm away in the safe but chose not to do so.
In determining the likelihood that Mr Aoun will not store firearms and ammunition safely in the future, the Tribunal has recognised that the past conduct of an applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; Cooper v Commissioner of Police [2022] NSWCATAD 195 at [60]. In O'Brien v Commissioner of Police [2022] NSWCATAD 259 at [59] the Tribunal noted that it has been widely accepted that, while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance.
Of concern is that Mr Aoun had full knowledge that ammunition was stored contrary to requirements but he did nothing about it. Accepting that he did not own some of the ammunition in that he had not purchased it, he took no steps to either store it appropriately or hand it in to police. This conduct does not indicate that he would actively take steps to comply with the requirements of his licence.
In summary, the contraventions by Mr Aoun were certainly not trivial and it is clear that they posed a risk to public safety. Overall, I cannot be satisfied that Mr Aoun would not in the future engage in conduct which posed a risk to public safety.
In relation to the public interest, the Commissioner notes the risks to public safety posed by Mr Aoun's actions in keeping a firearm and ammunition unsecured. The Commissioner also states that Mr Aoun's behaviour on the day of the inspection and subsequent search is of concern. The Commissioner refers in particular to Mr Aoun not following directions given by Senior Constable Hicks and displaying hostile behaviour towards police. Mr Aoun strenuously denies that he exhibited any aggressive behaviour and provides an explanation for some of his behaviour. It is difficult to reach a concluded view in relation to his behaviour, particularly in circumstances where the search extended over many hours and Mr Aoun was surprised by the visit to his property by the police. In the absence of any other significant history of aggression or opposition to police I do not place emphasis upon the Commissioner's submissions in this regard.
However, it is concerning that police discovered about 15 cannabis plants on the property and dried leaf. According to Senior Constable Hicks the amount of dried leaf exceeding the trafficable quantity. While George Aoun accepted responsibility for the cannabis plants and said it was for personal use, Mr Aoun was aware of the plants and did not take any steps to remove them from the property or to prevent the activity from taking place on the property of which he is an owner.
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As noted above, Mr Aoun has provided several character references, some from prominent and well-respected members of the community. While the referees are aware that Mr Aoun's licence has been revoked, it is not clear that they are aware of the reasons for the revocation. In those circumstances the references do not outweigh other considerations. Many of the referees refer to Mr Aoun's need for the licence. While I accept that Mr Aoun has a genuine need for a firearms licence to control vermin, that does not outweigh matters of public safety.
In light of Mr Aoun's conduct and the confidential information provided to the Tribunal, I am satisfied it is not in the public interest for Mr Aoun to hold a firearms licence. For this reason and in view of my conclusions with regard to Mr Aoun's contraventions of the Firearms Act and his licence conditions, I am satisfied that the licence should be revoked. The correct and preferable decision is therefor to affirm the Commissioner's decision must.

Order 1. The decision to revoke the applicant's Category AB firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023

At a glance

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Judgment (10 paragraphs)

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Cases Cited (14)