Arnold v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-05-22

REASONS FOR DECISION

On 4 February 2021 the Applicant, Dean Arnold applied for a Category AB firearms licence. On 5 November 2021 the Respondent decided to refuse the application, on the basis that he was not a fit and proper person to hold a firearms licence and that it was not in the public interest for him to hold a firearms licence. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 3 Principles and objects of Act (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 sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence

The Applicant gave evidence and was cross examined.
The Applicant provided a letter from his employer dated 20 February 2023 to the effect that he has been selected for a leadership program. References were provided from: 1. Jason Milne dated 14 March 2023 2. Damien Sabey dated 14 March 2023 3. Kim O'Connell (undated) 4. Whitney Brown (undated) 5. Jeff Morris (undated)
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act).

Tribunal's approach

Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

On what basis was the Applicant's licence application refused?

The Applicant was originally granted a firearms licence in 1998, which was re-issued in 2003. In April 2009 that licence was suspended following a provisional AVO being issued following an alleged domestic violence incident (discussed below), and on 23 September 2009 the licence was revoked, on mandatory grounds, when the final AVO was imposed. The Applicant sought a fresh firearms licence in 2015, but his application was refused because of the AVO: s 11(5)(c) of the Act. His application of 4 February 2021 was refused on 4 February 2021 (and on review) and this is the application the subject of this review.
In refusing the Applicant's application for a firearms licence on the basis that the Applicant was not a fit and proper person to hold a firearms licence and that it was not in the public interest that he do so, the Respondent relied on an alleged history of domestic and violence offences, alcohol and aggressive antisocial behaviour, and a poor traffic record.

Break and enter 2009

According to Police records, on 7 April 2009, the Applicant attended the house in which his estranged wife was living. Ms Arnold told Police that at 8.30pm she was in bed with her new partner of 6 weeks, Mr C, watching TV when she heard a banging on the bedroom window and guessed that it was the Applicant. She said she told him she was not going to let him in. She told Police that she then heard a bang on the front door and again told the Applicant that she was not going to let him in. The Applicant then punched the window beside the door, breaking the glass, which then shattered over Ms Arnold; the Applicant was later observed by Police to have suffered cuts to his right hand and fingers. The Applicant then reached through the broken window and unlocked the front door.
Once inside, the Applicant allegedly assaulted Ms Arnold by twice throwing her to the ground. He also allegedly grabbed her companion by the throat and told him to him to "watch his back". An AVO was subsequently taken out against the Applicant. At the time the Applicant and Ms Arnold had been married for about six years, but had not lived together for a few months, with the Applicant having moved out of the matrimonial home, which he owned. Unbeknownst to the Applicant, Ms Arnold had changed the locks to the property.
Ms Arnold told Police she was scared was crying. She and Mr C attended the Police station. According to Police, she allegedly vomited whilst speaking to Police on at least 2 occasions, reportedly, "from shock and fear". In cross examination the Applicant conceded that his wife may have been upset but said that she would have been more upset because she had been "caught out".
As a result of the above incident, Police took out an Interim AVO in favour of Ms Arnold and Mr C. The Applicant's firearms and ammunition were seized. The Applicant was charged with two counts of Aggravated Break and Enter and Commit Serious Indictable Offence, for which he was convicted and sentenced to nine months imprisonment by the Broken Hill District Court on 9 September 2009. The sentence was suspended on the Applicant entering into a bond under s 12 Crimes (Sentencing Procedure) Act 1999, which included conditions of supervision of NSW Probation and Parole and counselling.
The Applicant's evidence was that the incident occurred at a very "tortuous and stressful" time in his life, when his marriage was failing and his wife, he said, was neglecting the children. He had heard that she was having an affair, and he had seen her and Mr C around the town. His wife however had denied it.
The Applicant said a friend had asked if he could borrow his chainsaw, which was still stored in the garage at the home. When the Applicant went there to retrieve it, he saw Mr C's car in the driveway; through the window he could see them in bed. He did not think he had banged on the window as had been claimed. He tried to use his housekeys but his wife had changed the locks. He said that he had knocked on the door, but she refused to open it. "Stupidly", he decided to break the door.
The Applicant conceded in cross examination that accessing the house by breaking the glass next to the door to unlock it was a violent act. The Applicant said that it was a stressful time: he had watched his wife "go and be unfaithful to him"; it appears that she did not attempt to hide her new relationship, and it was known around the town. He said he was very stressed about his marriage and concern for the children. This was the first time he had returned to the home since they had formally separated about 3-4 months beforehand; they agreed that he would move out in an attempt to salvage the marriage. The Respondent was critical of him not phoning in advance of his visit, but the Applicant said his wife had blocked his calls. Contact in relation to the children occurred through a third party.
The Applicant denied that he had gone to the home to confront his wife and her new partner; he did not know Mr C would be there. He said he could not now recall why he went to retrieve the chainsaw at 8.30pm, but said he would not have gone there at all had it not been for his friend's request to borrow the chainsaw. When he saw that his wife had another man there, he was "frustrated" by what he had seen. He agreed he had become angry and aggressive.
He denied that he had assaulted either his wife or Mr C, as described in the Police record; he had just "walked out", and abandoned the collection of the chainsaw. He conceded he had pushed his wife and she fell to the ground but denied he had "thrown" her to the ground, as she had claimed. He denied that he had pushed her a second time. He denied he had grabbed Mr C by the throat as Mr C had claimed, instead only "pointing" into his face. He agreed though that they were both scared by his actions. He said that his wife was able to make people see things her way and that she was "not a nice person".
The Applicant expressed significant regret for what had occurred and said that it was not his normal behaviour and that he is usually "placid, caring and loving". This was a culmination of stressful events. He said he was worried about the children and it was "a dark time in [his] life".
He said that he handles stress better now, and had undertaken an anger management course.
I observe that, at the time of the incident the Applicant had 50% custody of the couple's two children, and that there was no evidence that his access to them posed a risk following this event.
Alleged domestic violence
When reporting the above incident Ms Arnold is recorded as having told Police that there have been "numerous" assaults in the past, but none had been reported. The Applicant vehemently denied that there had been previous domestic violence and said he was shocked when he saw that allegation in the s 58 documents. He said Ms Arnold was trying to make herself "not look bad".
The Applicant gave evidence, which was confirmed by his ex-wife's sister, Ms O'Connell, that, from 2019 he had sole custody of the children, after his wife had "gone missing" for 5 days. He described other salacious conduct of his ex-wife, which need not be detailed.

Aggressive antisocial behaviour

In 1994 the Applicant climbed onto the roof of a tourist coach and was charged with offensive conduct for which he received a bond under s 556A of the Crimes Act 1900. In 1995 he was convicted and fined for offensive conduct when he was involved in a fight at a local hotel.
In 1999 he was convicted and fined ($50) for an offence of behave in an offensive manner. The Applicant said he was at a hotel with friends, one of whom had sustained a football injury and was "defenceless". His friend was being "picked on" by a large group. The Applicant allegedly swore at the group and retaliated on his friend's behalf. The COPS Event details a melee which involved 3 other persons of interest. A statement by the victim, the Applicant's friend, was to the effect that the incident had commenced with violence by at least one of the persons of interest (other than the Applicant). The Applicant said in his evidence that he and his friend were "set upon" by a large group. The Applicant was argumentative with Police and accused them, in abusive terms, of not doing their job. The Applicant conceded in cross examination that he had engaged in violent behaviour. He said that he and his friend were getting bashed; he said that the presiding judge (sic) had said that he was the one being assaulted, and that the very low fine reflected leniency because of that.
The Applicant, who is now aged 48, said he was, at that time, "young and stupid", and was under the influence of a girlfriend of the time who was "not good for [him]". He said he had been "a good kid" - good at school and at sport. When he got into trouble his parents were "disgusted" with him.
He said the person from that time is "unrecognisable to [him] now".

Traffic record

The Respondent pointed to the Applicant's driving history. His recorded infringements are: negligent driving and failing to stop after an accident (1994), speeding by more than 5 km/h but not more than 30 km/h (1994), driving while unlicensed (2011), speeding by not more than 10 km/h (2016), and driving with middle range concentration of alcohol (2017) (PCA).
I invited the Applicant to explain the 1994 offence of failing to stop after an accident, as this would appear to be a serious contravention of traffic rules, and there were no details about the offence in the s 58 documents, other than the notation of the offence and the consequent fine of $99. The Applicant said that he was driving to a friend's house when the front tyre blew and he lost control of the vehicle and ran into the curb at a roundabout. He said he went to his friend's house, which was nearby, to see if they could move the car off. There was no other vehicle involved and no-one was injured.
In relation to the 2012 driving while unlicensed offence he said that his licence had expired 9-10 days beforehand and he was pulled over while en route to the motor registry to renew it. At that time he had the care of 2 young children and a new house, and could only afford to renew his licence annually, rather than the significant outlay for a 5 year licence.
In relation to the PCA charge, on 11 March 2017 Police stopped the Applicant at 8.45 am. It was recorded that his eyes appeared glazed and bloodshot and there was a slight smell of intoxicating liquor on his breath when Police were speaking with him. The Applicant returned a reading of 0.123. The Applicant admitted to having consumed 12 cans of mid-strength beer at home with a friend, commencing at 6.00pm the previous day and having his last drink at about 12.05am. The Applicant was charged for Drive with Middle Range PCA, resulting in a suspension of his drivers licence (until the matter was heard in the Broken Hill Local Court). Although the offence was proven it was dismissed by way of a two-year good behaviour bond under s 10 Crimes (Sentencing Procedure) Act 1999.
The Applicant gave evidence about the circumstances of the 2017 offence. He said that a friend who had not seen for some time came to his house and they drank mid-strength beer from about 6pm to about midnight. He said he had about 12 beers. He said the next morning he had to drive his daughter to work, and he thought he was alright to do that; he said he would never knowingly drive while affected by alcohol. He said that just because his eyes were glazed, did not mean he was intoxicated, especially as he had just got out of bed. He could not understand how he would have smelt of alcohol when he had had nothing to drink since about midnight. He said the Police advised him against having a blood sample taken, even though he did not think he could have registered such a high reading after having ceased drinking about 8 hours beforehand. He said his legal advice was to plead guilty and seek a bond.

References

The Respondent was critical of the references provided by the Applicant and submitted that it was unclear for what purpose the references had been obtained and also that I should place little weight on the majority of the references, as most do not, on their face, indicate a full knowledge of the Applicant's criminal history. In that regard, the Respondent referred to Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [4]: 4. Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of the negative history, they must be approached with caution.
The Applicant gave evidence, which I accept, that all the references had been obtained following the Tribunal's direction of 14 February 2023.
All the referees spoke very highly of the Applicant, and most, in particular, referred to his devotion to his children. Jason Milne has known the Applicant for 13 years as a co-worker and friend; Damien Sabey is a life-long friend. Whitney Brown is also a long-term friend and work colleague who regards him as honest and trustworthy. Jeff Morris has known him for 30 years and for the last 10 years has been his immediate work superior, and considers him to be a person of integrity. The reference from his employer identified him as a future leader in the company and that he has been selected to undertake a prestigious program to prepare for this role. While it is unclear if senior management was aware of the Applicant's past legal problems, it is highly likely that Mr Morris, his supervisor, was aware of the Applicant's difficulties and, nonetheless was confident that he be nominated as a future leader.
I consider some weight can be attached to those references because it is very likely that the referees were aware of the Applicant's offences, if only in general terms because of the length of their various associations with the Applicant and that they are all from the same, relatively small town. Notwithstanding his history they still believe him to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].
Kim O'Connell, the Applicant explained, is his ex-wife's sister, and I consider she is likely to be acutely aware of the events of 2009 and the Applicant's relationship with her sister over the years; she has known him for 18 years. She regards him as "responsible, honest and dependable". She wrote of the children becoming upstanding citizens "like their father", and observed that he had had 100% of their care since 2019. I attach significant weight to the reference from Ms O'Connell, a person, who, given the relationship with the Applicant's ex-wife, might not have been expected to be so positive in her assessment of him.

Is the Applicant a fit and proper person to hold a firearms licence?

Section 11(3) of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: Australian Broadcasting Tribunal v Bond [1990] HCA 33 per Toohey and Gaudron JJ at 380. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. The Respondent submitted, in particular, that the 2009 incident raises significant concerns about the risks posed by the Applicant's behaviour and his disregard for the law. The Respondent said that the evidence is of the Applicant resorting to violence when confronted with a stressful situation, and that he has not taken responsibility for any of his offending.
Past offences involving violence are not necessary determinative in considering if an applicant is a fit and proper person to hold a firearms licence. As I said in Doan v Commissioner of Police, NSW Police Force [2022] NSWCATAD 220 at [29] 29. In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17 NS Isenberg SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence.
I accept that in 2009 the Applicant acted foolishly in forcibly entering the premises in which his wife was living after she had refused him entry. I note that the evidence was that he was the owner of the property and his wife had, of her own accord, changed the locks. The Applicant acknowledged that he had pushed her, although it is unclear if this allegation and the allegation that he had grabbed Mr C and threatened him formed part of the charge. No information was provided by the Respondent as to the particulars of the charge, such as the Facts Sheet. He was not separately charged with assault(s).
I accept that, at the time, the Applicant had concerns about the children and was upset that his wife had taken up with someone else when they were supposed to be working on repairing their marriage. This unfortunate occurrence was now 14 years ago. The Applicant has not come to attention for any violent conduct since that time.
The Respondent contended that the Applicant had a history of confrontation and allegations of violence which should cause concern for increased risk to public safety if firearms were in his possession. Those offences were in 1994, 1995 and 1999 - all now over 24 years ago. As such, I attach little weight to those matters. I further observe that shortly after the latter offence the Applicant was issued with his first firearms licence; his history did not appear to be an impediment.
As to allegations of prior domestic violence, the Applicant completely rejected such allegations. I accept that victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions: Manning v Commissioner of Police [2020] NSWCATAD 111 at [51]. However, in this matter the claims were completely unsubstantiated: there was nothing other than the record of his wife having made that contention to Police in 2009; there was no statement from her, nor was she called to give evidence before me. In the absence of any such evidence I prefer the Applicant's evidence that there was no history of domestic violence.
The Applicant has not come to Police attention at all in the years since 2009, other than for the PCA in 2017. His explanation of that incident was reasonably plausible in that he had not consumed alcohol for some hours and did not feel his driving capability to be compromised. The Applicant pointed to the fact that he had received numerous safety awards, which would be inconsistent with ill-advised driving while intoxicated. It remains though, that he tested markedly over the limit and chose not to seek a blood test nor to otherwise challenge the reading.
The Applicant said he is being painted as a "violent criminal". His evidence was of a presently conservative lifestyle, consisting of hard work and dedication to his children. It is significant that, notwithstanding the 2009 incident, in 2019 he was granted sole custody of the children, and, in that regard, I particularly note the very supportive reference by his ex-wife's sister, Ms O'Connell.
For these reasons, I am comfortably satisfied that the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.

Public interest

The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act. It is well-settled that "the public interest", although not defined in the Act, is to be considered relative to the objects of the Act. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege, conditional on the overriding need to ensure public safety: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise its discretion adversely to, or in favour of, an individual.
The discretion is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. The "public interest" factor allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] 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. 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, at [64] - [66].
The Applicant said that he seeks a firearms licence because guns have been a part of his life, ever since he was a child - he would go hunting with his grandfather. They are part of his "family's culture". He said he would love to be able to introduce his own children and (in due course) his grandchildren to the sport. He has been putting his life back together after the failure of his marriage and to attain a firearms licence again would be the "last piece of the puzzle".
Private interests such as a desire to resume a long-held family interest in shooting, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters 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 at [33].
When assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, 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] and Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41].
From the available evidence, I accept that the Applicant: 1. as a young man, committed 3 offences which were a result of alcohol consumption and probably, on one occasion, provocation; 2. in 2009 he broke into premises occupied by his wife and her boyfriend and behaved violently. There was no evidence of any other domestic violence; 3. he had, up till 2017, an imperfect traffic record, including a PCA offence.
There was no evidence whatever that in the years the Applicant held a firearms licence that he had in any way misused firearms nor failed to comply with his statutory obligations.
I do not consider the Applicant's past conduct gives rise to a real and appreciable risk if he were to hold a firearms licence. I therefore do not find that it would be contrary to the public interest for a licence to be issued to the Applicant.

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: 31 May 2023

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Judgment (12 paragraphs)

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Cases Cited (16)

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