Bladen v NSW Commissioner of Police

NCAT Administrative and Equal Opportunity|2015-09-07

REASONS FOR DECISION

This is an application by Larry Raymond Bladen seeking review of the decision of the Commissioner of Police to revoke his category ABH firearms licence and high calibre pistol permit on 6 March 2015. The Commissioner's decision was affirmed after internal review dated 14 of May 2015. Mr Bladen's application was made to the Tribunal on 15 July 2015. It was accepted out of time as Mr Bladen said that he had not received the Internal Review decision until June 2015 and he had problems filling in the Application form.
The reason that the Respondent had revoked Mr Bladen's firearms licence was that he had failed to reveal that he had another name by which he had been known in his applications for firearms licences and permits.

The Hearing

Mr Bladen attended the hearing by telephone. He lives in far northern New South Wales close to the border with Queensland and the Queensland town of Stanthorpe.
At the commencement of the hearing the Respondent sought to have the matter dismissed under section 55 1 (b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The basis of the application was that the Respondent contended that Mr Bladen's firearms licence had been obtained by reliance upon a fraudulent identity. Mr Bladen's real name was Peter John Roche. His legal name was not Larry Raymond Bladen. It would be abuse of process for Mr Bladen therefore to seek review of the decision to revoke the firearms licence fraudulently obtained in the name of Larry Raymond Bladen. The Respondent contended that the application was frivolous, vexatious misconceived or lacking in substance and should be struck out.

Tribunal's determination of application under section 55 of NCAT Act

The Tribunal was satisfied that as a matter of procedural fairness it should not proceed to consider the Respondent's application to strike the matter out under section 55 as frivolous, vexatious misconceived or lacking in substance. Mr Bladen had not had the opportunity to understand this ground or seek advice about it prior to hearing.
The Tribunal determined to proceed with the hearing. The issue of Mr Bladen's alternative name and his failure to declare it is a real issue of substance in the matter and forms a basis of the Respondent's decision to revoke Mr Bladen's firearms licence and permit.
Mr Bladen also told the Tribunal he had used the name Larry Raymond Bladen for quite some time. His use of the name was not fraudulent. He had never got around to changing his name by deed poll. He sought review of the decision to revoke his firearms licence in the name of Larry Raymond Bladen.

Facts

There was no substantial disagreement between the parties about the facts of the matter.
The Tribunal accepts the following outline of the facts and bases its decision on them.
Mr Bladen was born Peter John Roche on 19 May 1945. He is now 70 years of age. The Respondent's section 58 documents show that Mr Bladen had made applications in December 2007, 2009, August 2010 and 2012 for firearms licences and permits in the name of Larry Raymond Bladen. Mr Bladen's most recent permits and licence were a category ABH firearms licence and a high calibre pistol permit, issued on the first of February 2013 to expire on the 1st February 2018. On two of the firearms licence applications and both high calibre pistol permit applications, the form specifically asked whether the applicant had been known by another name. Mr Bladen had left that section blank and had not advised that he had previously been known as Peter John Roche.
On 26th of August 2014, Mr Bladen's vehicle was stopped by Queensland police. He provided a New South Wales driver's licence in the name of Larry Raymond Bladen. It is alleged that his car was then searched because police had information that Larry Bladen was a member of the Finks motorcycle gang. While they were searching the vehicle, the police found various banking cards, documents and an RACQ membership card in the name of Larry Raymond Bladen. They also found prescriptions, medical documents, pensioner concession cards, a BUPA health insurance company card and a Medicare card in the name of Peter John Roche, date of birth 19th of May 1945, with an expiry date of 08/2015. When the police checked the name "Roche", they found that Peter John Roche was subject to an outstanding warrant issued for failure to appear at Beenleigh Magistrates Court in 1991.
It is alleged that initially Mr Bladen told the Police that Peter John Roche lived at his home. Mr Bladen later admitted that he was also Peter John Roche. At the time, Mr Bladen told police he had obtained a Queensland drivers licence in the name of "Bladen" approximately 15 to 20 years earlier and had later transferred the licence to New South Wales in the name of Larry Raymond Bladen.
On 27 August 2014 Mr Bladen then appeared before the Warwick Queensland magistrates Court in relation to the old charges in Queensland. He was convicted of "imposition" and fined $400 with an offender levy of $107. He was also convicted of driving a motor vehicle without a driver's licence and fined $400. He was disqualified from driving for one month and with an offender levy of $107. He was convicted of In Charge with concentration equal to or greater than 50 mg less than 100 mg and fined $600 with an offender levy of $107.
On 1 September 2014 the New South Wales Police suspended Mr Bladen's firearms licence and seized his firearms.
On 10 December 2014, Mr Bladen appeared before the NSW Tenterfield Local Court on the charge of False/misleading information - not prohibited firearm/pistol T2 under section 70 of the Firearms Act. The Court found Mr Bladen guilty of the offence, but the charge was dismissed without conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. This matter was based on Mr Bladen's failure to reveal his other name of Peter John Roche on a firearms licence application.
The Tribunal understands that when he was stopped by Queensland Police, Mr Bladen told the police that he had changed his name for personal reasons and had not got around to changing his name by deed poll. He admitted to having been a member of the Gold Coast chapter the Finks outlaw motorcycle gang in the 70s but had severed his ties with the group between 12 to 15 years previously.

The Respondent's Submissions

The Respondent provided written submissions which Ms Maton spoke to at the hearing. They are as follows.
The Respondent relied on subsections 24(2) (b) (ii) and 24(2) (d) of the Firearms Act in support of his decision to revoke the licence.
Subsection 24(2) (b) (ii) sets out that the Commissioner may revoke a licence if the licensee had contravened a provision of the Firearms Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention. In this regard, Mr Bladen had been found in breach of section 70 of the Firearms Act at Tenterfield Local Court on 10 December 2014.
The Commissioner's second ground for revocation was as set out in Subsection 24(2) (d) which refers to "(d) for any other reason prescribed by the regulations." The Respondent relied on Clause 19 of the Firearms Regulations which provides that "The Respondent may revoke a licence if he is satisfied that it is not in the public interest (Tribunal's emphasis) for the licensee to continue to hold the licence."
The Respondent noted that both these grounds were discretionary. The Commissioner was not required to revoke the licensee's licence - rather the Commissioner could decide to exercise his discretion to do so.

Reason for exercising discretion to revoke

The Respondent noted that the Tribunal had dealt with the issue of exercise of discretion in Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 at [23] where the Tribunal 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."
The principles and objects of the Firearms Act are as set out in section 3: (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: (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,
The Respondent accepted that the power to revoke under subsection 24(2)(b)(ii) is discretionary and submits that the principles and object of the Act are to provide strict controls on the possession and use of firearms and strict requirements that must be satisfied in relation to licensing of firearms.
The Applicant had misled the Respondent by not providing details of other names he was known by, namely Peter John Roche. In not disclosing this identity the Applicant failed to provide the Respondent with the opportunity to adequately assess the Applicant's suitability to hold a licence. As the identity Peter Roche was subject to an arrest warrant, the Applicant's failure to disclose that identity should be given more weight.
Accordingly, the Commissioner is justified in revoking the Licence on the basis that the Applicant has contravened the Act and Regulations.

Revocation for any reason prescribed by the Regulations - section 24(2) (d)

The power to revoke a licence under subsection 24(2) (d) arises in relation to any reason prescribed by the Regulations.
Clause 19 of the Regulations provides that the Respondent may revoke a licence if he is satisfied that "it is not in the public interest for the licensee to continue to hold the licence."
The High Court in O'Sullivan v Farrer [1989] 168 CLR 210 at [13] stated that the 'public interest' imported a discretionary value judgment to be made by reference to undefined factual matters, confined only insofar as the subject matter and the scope and purpose of the statutory enactments may enable.
The concept was discussed by the Tribunal in Commissioner of Police v Toleafoa [1999]NSW ADTAP 9 at [25], as follows: The 'public interest' is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range 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 in the same section [section 15], it is reasonable to infer that the parliament intended that the public interest discretion operated 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 circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997. In Ward v Commissioner of Police [2000] NSW ADT 28 at [32]-[33], the Tribunal confirmed that these comments apply equally to the Act.
In Lynch v Commissioner of Police [2006] NSW ADTAP 43 at [37], the Tribunal said relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
In Ward, the Tribunal stated: "Where there has been, or is, a 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."
The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: see Vella v Commissioner of Police [2003] NSWADT 91 at [35].
In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal said: The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.
In considering risk to public safety, the Tribunal has recognised that before it interferes in any decision to revoke a licence that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms. In Ward, the Tribunal stated: 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. Ward v Commissioner of Police [2000] NSW ADT 28 at [28].
The Respondent submits that the Applicant's procurement of the licence and permit was through fraudulent means and it is therefore not in the public interest for someone to possess a licence in such circumstances.
The Tribunal cannot be satisfied that there is virtually no risk as: For all applications under the Act the Applicant provided as proof of identity a NSW drivers licence number 12366393. On 17 September 2014, the NSW Roads and Maritime Services marked that drivers licence as void and of no effect, having been obtained by false statement or misrepresentation. The Applicant has admitted that his legal name is Peter Roche and that he has never legally changed his name to Larry Bladen.
Accordingly, it is not in the public interest to allow the Applicant to hold a firearms licence and it was appropriate for the Respondent to use his discretion to revoke the licence and permit.
The revocation of the licence is both separately and cumulatively justified on the basis that: 1. the Applicant has contravened the Act in relation to possession and storage of firearms and ammunition; and 2. it is not in the public interest for the Applicant to continue to hold the licence as the Tribunal cannot be satisfied that there is virtually no risk.
The Tribunal must, after considering the material available to it, agree that the correct and preferable decision is the revocation of the licence.

Evidence and Submissions of Mr Bladen

Mr Bladen had provided a 2 page statement to the Respondent for purposes of the Internal Review. He also provided a copy of this for the Tribunal's review. Mr Bladen also responded to questions from the Tribunal at hearing. He said he had first had a gun at age 8. He had never committed any gun crime in 60 years. He had held a firearms licence for 7 plus years in Queensland before moving to NSW. He has held a firearms licence for 14 years with no trouble. He lives in the hills with his dogs. He presents no danger to the public. Larry Bladen is his name. He hadn't attempted to deceive anyone in completing applications. He could have put in a false name. Instead he left it blank. He hasn't used his birth name for 20 plus years. He has blocked this name out of his mind as it holds bad memories.
He first obtained a firearms licence in Queensland in the name of Larry Raymond Bladen in or around 1997. He had not told the Queensland Police of his name Peter John Roche. He had wanted to distance himself from the name Peter John Roche because there had been a paedophile in the family. When he had sent the forms in he had thought "if they pick it up, I will sort it out then."
He had pleaded guilty in Tenterfield Court to the offence under section 70 of the Firearms Act of providing false/misleading statement in relation to an application under the Firearms Act. It was dismissed without conviction. He was sorry for not filling out a bit of paper. This did not make him a bad person. He lives on an isolated rural property. He is a dog breeder and he needs a firearm as there are wild dogs around him. He opposed the revocation of his firearms licence. He had been a member of the Finks motorcycle gang in the 1970s. Motorcycle gangs then were not involved in criminal enterprises as they might be today.

Relevant findings of fact

The Tribunal finds the facts are as set out above. The Tribunal finds that Mr Bladen completed four applications which asked him to provide other names- but he left all of these blank. The Tribunal finds that Mr Bladen left these blank knowing and understanding the information sought. Mr Bladen told the Tribunal that he had literacy issues which meant he wasn't very good at filling in forms. However the Tribunal was satisfied that Mr Bladen had understood the contents of the forms and the information sought. This is because Mr Bladen told the Tribunal that he thought if the forms became an issue he would sort it out. The Tribunal understands this to mean that Mr Bladen knew there could be an issue in not revealing his previous name.
Mr Bladen also told the Tribunal that he hadn't used the name Roche for 20 years. However this is not correct as the Tribunal is satisfied that various identity documents in the name of Peter John Roche. were found when the police searched Mr Bladen's car The Medicare card was due for expiry in August 2015. The Tribunal is satisfied that Mr Bladen had used the name Roche for purposes that had suited him, at the times that he had made applications for firearms licences and permits in the name of Larry Bladen.
The Tribunal is not satisfied that Mr Bladen was honest with the Tribunal when he told the Tribunal that literacy problems had prevented him from completing the forms appropriately or that he didn't think the name Roche was relevant.

Relevant legislation Firearms Act and Regulations

The Commissioner has power to revoke a firearms licence set out in Subsection 24(2) of the Firearms Act. The section provides that a licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (Tribunal's bolding of relevant subsections)
Section 70 of the Firearms Act provides: Section 70 False or misleading applications A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.
Clause 19 of the Firearms Regulation 2006 provides: 19 Revocation of licence-additional reasons 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.

Consideration

The Tribunal is satisfied that Mr Bladen had contravened a provision of the Firearms Act under subsection 24(2)(b)(ii) as it was found proved that he had breached section 70 of the Firearms Act by providing applications were false or misleading - despite having no conviction recorded.
The Tribunal accepts the submissions made by the Respondent that the Respondent exercised its discretion appropriately to revoke Mr Bladen's firearms licence on this ground. It is clear from the application forms that a person's identity is fundamental to an application and to providing the Respondent with relevant information upon which a decision to grant or refuse a licence may be based.
The Tribunal is also satisfied in terms of subsection 24(2)(d) of the Firearms Act and clause 19 of the Regulations that it is not in the public interest for Mr Bladen to continue to hold a firearms licence in circumstances where the licence has been obtained on the basis of an application that is misleading in a material particular - that is Mr Bladen's other identity. The system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act.
It is not relevant that Mr Bladen has not been prosecuted in the past for any offence involving the use of a firearm. Given that Mr Bladen has on four occasions determined that he did not need to comply with aspects of the licensing scheme, the Tribunal cannot be certain that there is virtually no risk that he will decide it is unnecessary to comply with other aspects of licensing - thereby presenting a risk to public safety.
The Tribunal affirms the decision of the Respondent to revoke Mr Bladen's firearms licence. 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: 18 November 2015

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