Clements v Commissioner of Police, NSW Police Force

2017 suspension

1. The Respondent suspended Mr Clements' firearms licence on 9 December 2017 after he was alleged to threaten self-harm during interactions with Comcare.
2. The Commissioner decided to lift the suspension on 18 September 2018, following receipt of a psychologist's report.

The events of 4 June 2021

1. It is not in dispute that on 4 June 2021 Mr Clements received a message from his son stating that he wanted to kill himself.
2. The Computerised Operational Policing System (COPS) records record that Police attended Mr Clements' home shortly after the text message was sent. There were eight firearms registered to Mr Clements and that address was the registered safe storage address. Mr Clements' wife told Police that the son did not have access to these firearms.
3. Police record that when the son attended hospital and was assessed, he disclosed that he did have access to Mr Clements' firearms and that he "took a firearm away from the house with the intent to commit suicide". Police returned to speak with Mr Clements' wife and she confirmed that the son did take a firearm and later returned it. She stated that the son no longer had access to the firearms.
4. Police suspended both firearms licences and seized all eight firearms.

Decision under review

1. The Commissioner of Police ('Commissioner') decided on 11 May 2022 to revoke Mr Clements' firearms licence. In making the decision, the Adjudicator considered the 4 June 2021 incident to be serious in nature and observed that it could have resulted in "tragic circumstances". The Adjudicator concluded that Mr Clements had not taken all reasonable precautions to prevent his firearms coming into the possession of an unauthorised person and that it would not be in the public interest for Mr Clements to continue to hold a firearms licence.
2. Mr Clements sought an internal review of the revocation decision and on 31 May 2023 the Commissioner affirmed the decision. The Senior Adjudicator considered a series of incidents and drew the conclusion that Mr Clements had a "careless attitude". Particular focus was put upon allegations about Mr Clements that:

• His firearms were stolen in 2002
• His motor vehicles were stolen in 2004 and 2006
• He allowed his firearms licence to expire while in possession of firearms in 2008
• He did not comply with the requirement to notify the Commissioner of changes to his residential or safe storage address.
• He left a company phone that held sensitive information on a bus in 2012

1. The Senior Adjudicator took into account that Mr Clements' genuine reason for the licence was recreational hunting/vermin control and described this as a "recreational pursuit". Also considered was the fact that Mr Clements' son still lived with him and had previously gained unauthorised access to Mr Clements' firearms meant there was "high potential in putting yourself, your family and the public's safety at significant risk".
2. The Senior Adjudicator considered a proposal made by Mr Clements that he store the firearms at another address so his son could not have access to them. The Senior Adjudicator considered Mr Clements had previously disregarded or been careless about his obligations and so there would be a risk that his son might again be able to gain access to the firearms.
3. The Senior Adjudicator also considered Mr Clements' traffic record and in particular his speeding offences and considered that this was relevant to whether or not Mr Clements showed a disregard for laws designed to ensure public safety.
4. The decision of the Senior Adjudicator was to affirm the revocation decision on the basis that it was not in the public interest for Mr Clements to continue to hold a firearms licence.
5. Mr Clements then sought review of the decision by this Tribunal by lodgement of an application for review on 26 June 2023.

Administrative review jurisdiction

1. The Tribunal's jurisdiction to review a decision of the Commissioner of Police to revoke a firearms licence is derived from subsection 75(1)(c) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.
2. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: refer to section 63 of the Administrative Decisions Review Act 1997. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
3. The Tribunal is to approach the issue of whether the applicant's firearms licence should be revoked afresh, without any presumption as to the correctness of the decision under review: see for example McDonald v Guardianship and Administration Board [1993] 1 VR 521 at [530].

Relevant legislation

1. The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW. Unless otherwise stated, references to legislation in these reasons for decision are references to the Firearms Act 1996.

Objects and principles

1. The underlying principles set out in section 3(1) the Firearms Act 1996 include: …(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,…
2. The objects of the Firearms Act 1996 in section 3(2) include …(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…

Revocation of licence

1. Section 24(2) of the Act says: 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.

Continuous and responsible control - domestic circumstances

1. A licence may be revoked for any reason for which the license would be refused a licence: section 24(2)(a). One such reason is set out in section 11(4)(a) of the Firearms Act 1996: (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or

Public interest

1. A licence may be revoked for any other reason prescribed by the regulations (section 24(2)(d)). One reason found at clause 20 of the Firearms Regulation 2017 is 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.

Safe storage - breach of licence condition or contravention of Act

1. A licence may be revoked if the licensee contravenes a condition of the licence (section 24(2)(b)(iii)). According to section 19(2)(a) of the Firearms Act 1996 each licence is subject to the condition that: (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act
2. A licence may also be revoked if there is a contravention of provision of the Act whether or not the licensee has been convicted of an offence for the contravention (section 24(2)(b)(ii)). There is also a criminal offence in section 39(1) of the Firearms Act 1996: (1) A person who possesses a firearm must take all reasonable precautions to ensure - (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty - 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. Note. Reference to a pistol includes a prohibited pistol.

Notify change of residential or safe storage address

1. Other contraventions of provisions of the Act (as per section 24(2)(b)(ii)) include a failure to comply with the notification requirements of the Act. A licensee is required to notify the Commissioner of any change of residential address (s.69): A licensee or the holder of a permit must, if there is any change in the licensee's or permit holder's place of residence, provide the Commissioner with the particulars of the change of address within 7 days after the change occurs. Maximum penalty - 50 penalty units.
2. A licensee is also required to notify the Commissioner of any change of address where firearms kept (clause 17(3) of the Firearms Regulation 2007): (3) If there is any change in the address of the premises on which the holder of a licence or permit keeps any firearm, the holder of the licence or permit must, within 14 days after the change occurs, give the Commissioner notice in writing or in such other manner as may be approved - (a) specifying the address of the new premises on which the firearm is to be kept when not actually being used, and (b) specifying particulars of the arrangements that have been made by the licence or permit holder for the safe keeping and storage of the firearm on those premises, and (c) certifying that those arrangements comply with the requirements of the Act and this Regulation concerning the safe keeping and storage of the firearm. Maximum penalty - 50 penalty units.

Evidence

1. Mr Clements gave oral evidence at the hearing. The Respondent relied on the documentary evidence.

Licence history

1. Mr Clements said he thought he had held a firearms licence longer than since 1992, the year identified in the licence history provided by the Respondent. He said it was possible he held a paper issued licence in the 1980s.

Changes of address

1. Mr Winram, solicitor for the Respondent, asked detailed questions about various addresses associated with Mr Clements. A summary of this evidence including the evidence relied on by the Respondent follows.

• [XXXX] Burroway Rd: Mr Clements said he leased that property but never resided there.
• Narwonah Rd: Mr Clements said he lived at this farming property from about 1994 to 2002. COPS records on 13 October 2000 refer to Mr Clements as the leaseholder of this property. COPS records dated 19 August 2002 state that Mr Clements reported a break and enter at the Narwonah Rd property between 11 August 2002 and 19 August 2002. He made another report about an attempt to break into the same property between 31 August 2002 or 1 September 2002. Mr Clements said that he had effectively moved out or was in the process of moving at that time and was confident the Police knew that. By September 2002 his family have moved out.
• [XXX] Burroway Rd: Mr Clements said he then moved to [XXX] Burroway Rd which was a ten acre property with a house on it. He said as far as he was aware he notified the Firearms Registry of this change of residential address. The application for a firearms licence completed by on 10 November 2003 listed Burroway Road as Mr Clements' residential and safe storage address. COPS records on 18 March 2004 show that Police conducted enquiries for the purposes of firearms audits and discovered that Mr Clements had moved from the Narwonah Rd address and was now living at the [XXX] Burroway Rd address. Mr Clements said he believed he had notified Police of this change of address, describing this as quite likely and "possible". He conceded that if there was evidence to the contrary, he could not argue with that. He said it was so long ago he would not have retained copies of any forms advising of his change of address.
• Cotton Lane address: Mr Clements said that he moved to the Cotton Lane address in 2005. He said he believed he notified the Firearms Registry of this change of address. He said Police conducted a firearms safety inspection at this address, although the Respondent has not been able to find any records to that effect. Mr Clements filled in an Application for a Personal Firearms Licence form on 10 November 2008 noting the Cotton Lane address as his residential address and safe storage address. Mr Winram asked Mr Clements whether this was the first time he had notified Police that he had moved to the Cotton Lane address and he said, "possibly it is". He said if that was the evidence he would not argue with it. COPS records on 27 February 2011 record Police attending at the Cotton Lane address in order to conduct a safe storage and firearms inspection. Mr Clements agreed and also that Police had sighted seven firearms during the inspection.
• Warrior Street address: Mr Clements said he moved to the Warrior Street address during 2011. He said he was overwhelmed with his workload and away in Canberra for much of the time. His wife and son remained at the Warrior Street address. Mr Clements conceded that it was possible he did not advise the Firearms Registry of the move to Warrior Street. He said he understood that he did inform the Registry but thought that the Respondent had evidence to the contrary. He said that he had not retained records due to the length of time. Later in the hearing Mr Clements explained that around the time of the 2017 incident described below he was living at the Varley Avenue address because of work commitments and going home to the Warrior Street address on weekends. He spent more time away than at home at that time.
• Mr Winram took Mr Clements to application to reapply for a firearms licence he completed online and lodged on 18 February 2019. That application lists a Varley Avenue address as his residential address and the Warrior Street address as his safe storage address. Mr Clements said that the Varley Street address was an address he used for work. He never held firearms there. He said he understood that he did inform the Firearms Registry that he moved to Warrior Street but said if the Respondent had evidence to the contrary, he would not argue with that. Mr Clements said he left the Warrior Street property in April 2022 and moved to his current address at Rose Street.

Firearms stolen in 2002

1. It is not in dispute that Mr Clements contacted Police to report that between 11 August 2002 and 19 August 2002 someone had entered the Narwonah Rd property by forcing open a ground floor rear window. He reported that ten firearms had been stolen. Mr Clements agreed that the firearms were three bolt action rifles, two air rifles, one self-loading rifle, one lever action rifle, one single barrel shotgun, one single barrel rifle and one self-loading shotgun.
2. Mr Clements made a second report to Police notifying them that between 31 August 2002 and 1 September 2002 someone had forced open the front screen door but did not enter the Narwonah property, perhaps because they were disturbed by guard dogs.
3. In oral evidence, Mr Clements confirmed that he was the owner of all of the firearms except for two that were owned by his wife. He agreed that in 2017 Police contacted him to advise that one of the firearms was recovered but the nine were never found.
4. Mr Clements said that the offenders had used a blow torch and took the safe in order to get the firearms.

Motor vehicles stolen 2004 and 2006

1. COPS records show that Police contacted Mr Clements in the early hours of 5 November 2004 to inform him that his motor vehicle had been stolen and it had been recovered by Police. Police recorded Mr Clements to have said it appeared that the offenders had entered the house through an unlocked front door and that they took two sets of keys and a mobile phone from the sideboard in the kitchen.
2. Mr Clements said that his car was locked and the front door was locked. It was a sliding door at the back that couldn't be locked as it was not in good repair. He was renting the property at [XXX] Burroway Rd and did not own it. In written evidence Mr Clements conceded that it was a house in a rural area and that "and, yes, we didn't lock the back door at night".
3. COPS records also show that on 5 May 2006 Mr Clements' motor vehicle was stolen. The car was reported found with the engine running, a smashed window and a dipstick in the ignition.
4. Mr Clements explained that the car was stolen when on loan to a friend.

Expiry of firearms licence in 2008

1. The Respondent alleges that Mr Clements' firearms licence expired on 12 November 2008, leaving him with firearms in his possession while unauthorised to possess them.
2. Mr Clements explained that he had applied in time for the reissue of the licence but that it could take six to ten months or even a year to receive the renewed licence. He said his wife managed these sorts of things. He said that he was covered during the period it took the Firearms Registry to process the renewal.
3. The Respondent's records show that the Application for a Personal Firearms Licence was signed by Mr Clements on 10 November 2008 and the Genuine Reason Form - Recreational Hunting / Vermin Control was signed on 11 November 2008. Both forms were stamped as received by the Firearms Registry on 17 November 2008.
4. During the hearing, I made a direction that a summons be issued to a MP for production of documents Mr Clements identified as correspondence from Firearms Registry advising individual constituents that they would be covered while they awaited the re-issue of their firearms licence if they had submitted an application for renewal. Mr Winram acknowledged that the clause 19 of the current regulations, the Firearms Regulation 2017, provided that if a person makes an application for a subsequent licence before the licence expires the authority of the old licence continues until the re-application is determined. Given this concession, the direction for the summons was set aside. Mr Clements was clear in his view that he thought he was covered because he had submitted a renewal application.
5. I made directions following the hearing to provide an opportunity for the parties to file any evidence and submissions about this issue.
6. In written submissions filed after the hearing, the Respondent argued that if Mr Clements posted the forms on 11 November 2008 they would not have been taken to have been received by the Firearms Registry until 15 November 2008. He would therefore not be entitled to coverage by clause 18 of the then Firearms Regulation 2006, which provided at that time: 18 Pending application for subsequent licence or permit (cf 1997 cl 16) (1) If: (a) a person applies for a subsequent licence or permit before the term of the person's current licence or permit expires (referred to in this clause as the old licence or permit), and (b) the application has not been dealt with by the time the old licence or permit expires, the authority conferred by the old licence or permit continues until such time as the person is notified of the issue of, or refusal of, the subsequent licence or permit.
7. The Respondent submitted that the making of an application for a licence required the lodging of an application in the approved form with a police officer at the nearest police station to the applicant's residence and by paying the prescribed fee, as per section 10 of the Firearms Act 1996 and clause 6 of the Firearms (General Regulation) 1997. However, the 1997 Regulation was repealed on 1 September 2006. The relevant regulation is clause 7 of the Firearms Regulation 2006 which stated that: 7 Licence applications (cf 1997 cl 6) For the purposes of section 10 (1) of the Act, the manner of making an application for a licence is by sending or lodging the application in the approved form to or at the Firearms Registry of the NSW Police Force or such other place as may be approved.
8. In any event, the argument of the Respondent is that the application was not in fact made before the expiry of the licence on 12 November 2008 and therefore Mr Clements was not covered by the old licence by operation of clause 18 and the authority conferred by the old licence did not continue.
9. Mr Clements, in written submissions provided after the hearing, argued that the application received by the Firearms Registry on 17 November 2008 had in fact been made prior to the expiry of the old licence on 12 November 2008. He had made it on 10 November 2008 and he had submitted it before the expiry of the old licence on 12 November 2008.
10. The Respondent produced information from the RTA following the hearing:

• An RTA process history record for photo advices sent to the Applicant on 22 December 2008.
• An RTA process history record from when Mr Clements was photographed which suggests Mr Clements paid a fee of $200 on 9 February 2009.

Lost mobile phone in 2012

1. Mr Clements contacted Police in 2012 to advice that he left his company mobile phone on a bus. He advised that the phone contained sensitive information including the contact details and emails of Members of Parliament.
2. Mr Clements did not dispute this evidence but explained that the phone was a secure Blackberry phone and was said the be "unbreakable" in terms of its security. He realised shortly after alighting from the bus that it was missing but by then it had been taken.

2017 Comcare conversation and whether the Applicant was rude, argumentative or hostile

1. COPS records state that on 28 November 2017 Police received a report from a Comcare staff member citing concerns for Mr Clements' welfare. Mr Clements had received an email from Comcare which advised that he had been overpaid. He is alleged to have replied to Comcare staff by saying "I will just shoot myself if that helps" and also "IM TIRED AND ITS ALL TRIGGERED AGAIN, TELL ME IF I SHOULD JUST FINISH MYSELF".
2. In response, Police made efforts to locate Mr Clements. Officers attended the Cotton Lane address as this was the latest address on the Integrated Licencing System (ILS) and the storage address for Mr Clements' firearms. When the knocked on the door the owners confirmed Mr Clements was no longer residing there.
3. After making further enquiries, Police attended the Warrior Street address and spoke with Mr Clements' wife on 30 November 2017. She explained Mr Clements was away for work and that keys to the firearms safe were "somewhere in the house" and she would need to search to find them. She later found the keys and Police seized all firearms in the safe.
4. Mr Clements spoke with Police by phone on 1 December 2017 and Police explained they must serve him with a notice of suspension of his licence and to seize all his firearms, ammunition and his firearms licence. Police described Mr Clements as "quite rude and dismissive to Police" during this phone call.
5. File note records from the Firearms Registry record that on 1 December 2017 Mr Clements spoke with a staff member who wrote that Mr Clements gave "several conflicting addresses". The Registry had Cotton Lane as his residential address, but Mr Clements advised he was living at the Warrior St address. The staff member observed that Mr Clements' driver's licence had Varley Avenue as his address. When asked about this, the officer records that Mr Clements "became agitated, rude & argumentative to speak to". The file note stated that Mr Clements said he had several addresses and does not consider any of them to be his main residence. The officer updated the safe storage address and residential address to Warrior Street. The officer recorded that when they sought to transfer the call for Mr Clements to discuss his licence suspension he hung up.
6. Police record that on 9 December 2017 they spoke in person to Mr Clements and served him with the Notice of Suspension. When they raised his alleged comments to Comcare, Police described Mr Clements as being "very hostile" and that he said "No! That's none of your business!"
7. Mr Clements gave his response to the comments to Comcare and also the suggestions that he had been rude, difficult or argumentative with Police or Firearms Registry staff. He explained that at the time of the communication with Comcare, he was under particular pressure due to unfair dismissal proceedings. He was under considerable pressure to settle the matter. He said he regretted making the comments to Comcare. He said that he made the comment not because he actually wanted to shoot himself but "more to express disgust" at their tactic.
8. Mr Clements denied being rude and aggressive to Firearms Registry staff, and said it was the officer who had "badgered" him. He said that he had to explain to the officer that he was living at another address for work purposes and it was a struggle to identify a primary address. He said he explained that "more than three times" and became "sick of the conversation" and that she had not properly engaged with the conversation.
9. Mr Clements denied being rude or aggressive with Police. He had calmly assured them he was not at risk of self-harm. He asked Police to leave and submitted that he was assertive rather than aggressive. He said his relationship with the Police had always been good.

Requirement for medical assessment and lifting of the suspension in 2018

1. As a result of the comments Mr Clements made to Comcare, the Firearms Registry wrote to him on 15 January 2018 and requested he seek an assessment from a psychiatrist or psychologist through his GP.
2. Mr Clements carried out the request and provided an assessment report from Mr Stuart Tweedale, a registered psychologist, dated 9 July 2018. Mr Tweedale made the following observations or conclusions:

• Mr Clements told him that he had no suicidal intent or access to any means of ending his life when he made the comments to Comcare.
• After the incident involving Comcare, he sought support through his GP and obtained a Mental Health Care Plan on 28 January 2018. He commenced seeing Mr Tweedale for "management of his low mood and negative and anxious thought pattern" and had attended three treatment sessions, the last of which was on 10 May 2018, prior to the assessment appointment on 2 July 2018.
• Mr Tweedale assessed Mr Clements as meeting the criteria for Major Depressive Disorder, Single Episode, Moderate on 14 February 2018. By 2 July 2018, Mr Tweedale was of the view that Mr Clements no longer met these criteria. Administration of the DASS21 placed Mr Clements within the normal range for depression and stress and the mild range for anxiety. Mr Tweedale formed the opinion that this impairment would not affect Mr Clements' fitness to possess and use firearms.
• Mr Clements has experienced improvements in his functioning due to increased exercise and activity; increased insight into unhelpful thoughts and behaviour; and starting a new job. He said that Mr Clements had improved in his concentration and mood.
• Mr Tweedale stated that Mr Clements was willing to engage in "safety planning" and would be willing to re-engage with professional services if he recognised that he was not coping well in the future.
• Mr Tweedale expressed the opinion that Mr Clements previous mental health condition and comments to Comcare did impact on his ability to exercise continuous and responsible control over firearms.

1. Mr Clements gave evidence that he was prescribed the medication Inderal for anxiety. According to Mr Tweedale's report, he was prescribed this medication to take as required and that he had used it infrequently.
2. The Firearms Registry decided to lift the suspension of Mr Clements' licence on 18 September 2018.

Events of 4 June 2021

1. These events are referred to above at [7]-[10].
2. Mr Clements said that his firearms were held in the safe at the Warrior Street address. Both he and his wife had keys to the safe. He said his son found his wife's keys in a cupboard. Mr Clements said that his keys were not used or found by his son. His son had time to search for the keys when he was home alone.
3. Mr Clements said his son was admitted as a voluntary patient under the Mental Health Act 2007 on the evening of 4 June 2021. He was later transferred to another hospital where he remained for three days. This has been his only admission for mental health concerns.
4. Mr Clements described his son as suicidal and that the events of that evening are "still deeply shocking" to his family. He said that they "lived in fear we could lose him for 18 months". He said the son was well nowadays.
5. He agreed with COPS records that a total of eight firearms were seized by Police when they suspended Mr Clements' and his wife's firearms licences.

Mr Clements' subsequent letter to Police and whether there was a second letter

1. Following the 4 June 2021 incident, Mr Clements sent a letter addressed to the NSW Police Commissioner. The letter stated it was to be delivered to the police station licensing sergeant. A similar letter was written by Mr Clements' wife and dated 17 June 2021.
2. Mr Clements stated in the letter that his son has accessed the safe using his wife's keys and removed a shotgun belonging to his wife.
3. Mr Clements said that he wrote a second letter correcting that. He said that for almost 20 years he had operated on the assumption that the firearm was his wife's but in fact all the firearms in the safe were registered in his own name.
4. Following the hearing, I set a timetable in order to provide the opportunity for the parties to provide certain additional documents and submissions. This included a copy of the letter Mr Clements said he delivered to the police station correcting this information. He did provide a copy of such a letter, which was also undated, together with a screenshot from his computer folder showing it was created on 30 June 2021. Mr Clements stated in correspondence filed and served following the hearing that he provided this letter to the police station. In the letter he also stated that if his licence was restored, the firearms would be moved to "another family premises owned and occupied by a licenced firearms user".
5. In contrast, the Commissioner's instructions were that the only letters received at the police station between 17 June 2021 and 17 July 2021 that the Commissioner had a copy of was the first letter.

Traffic history

1. Mr Clements driving history for the period 1980 to 2022 shows numerous speeding offences, as many as 25 such offences over that period. There are also offences for make an unlawful U turn, not wear seat belt and drive using hand-held mobile phone. Driver's licence suspensions in 2007, 2016, 2022 were not implemented as he entered 12 month good behaviour conditions.
2. A three month suspension was issued for an offence on 11 February 2005 of exceed speed limit by more than 30 km/h but not more than 45 km/h. Mr Clements appealed the suspension and was ultimately required to serve a 14 day suspension.
3. The traffic record was printed on 4 July 2023 and the last offence listed in dated 10 October 2021.
4. Mr Clements acknowledged his traffic history and stated that he was "not proud" of it. He pointed out that he drives long distances every year, an estimated 60,000 kilometres per year. He retrofitted cruise control to the car in late 2021.

Safe storage and firearms inspections

1. I note from the COPS records that on 5 April 2004 Police conducted a safe keeping inspection at [XXX] Burroway Road. Police inspected the gun safe and it was found to be compliant. Police noted that at that time Mr Clements did not own any firearms as they had been previously stolen.
2. On 27 February 2011 Police conducted a safe storage and firearms inspection at the Cotton Lane address. Firearms storage and safe inspection requirements were found to be compliant. Police sighted seven firearms.

Possible special condition

1. Mr Clements wrote to the local Police Commander on 30 Jun 2021 proposing that whatever the outcome, he would move his firearms and safe to "another family premises" until his son returns to mental health or perhaps not even then.
2. Mr Clements explained that the proposal would be that the firearms and safe would be located at his other son's house. That son has a firearms licence and would hold the keys. Mr Clements would not have keys to that house or the safe.
3. The Senior Adjudicator considered the suggestion that Mr Clements move the firearms to another address to ensure his son does not have access. However, this suggestion was rejected. The Senior Adjudicator said: "…it is difficult to place confidence in your assertions due to your previous demonstration of disregard or carelessness. On this basis I am not satisfied that this would address the risk for the potential for your son to (again) gain his own access to the firearms."
4. The Respondent addressed the prospect of a special condition "requiring that [Mr Clements'] firearms not be stored at any location that the Applicant's son resides at, or frequents". However, the Respondent's position was that any such condition would not alleviate the risk to public safety if Mr Clements' firearms licence was reinstated.
5. I note that the Licensing Officer from the Police District wrote what appears to be an internal memorandum responding to a request from Mr Clements for reinstatement of his licence. The officer raises a potential question about whether Mr Clements required a licence given he lives in town and the genuine reason for the licence is recreational hunting and vermin control. The officer stated that if the appropriate delegate within the Firearms Registry determines to reinstate the licence, Police requested a special condition that firearms not be stored at Warrior St or any future address where the son who had accessed the firearms is residing with them. The memorandum is "supported with conditions" by the Officer in Charge at the police station.

Submissions

1. Mr Clements explained that on 4 June 2021 his son had located his wife's hidden keys to the firearms safe. The incident was devastating and had a lasting impact. He disputed that he was careless with firearms, pointing out that he passed the inspection on each of two occasions.
2. Mr Clements provided statistics from the Australian Institute of Criminology which showed firearms theft is more highly concentrated in outer regional areas and that thefts had increased in outer regional and remote areas over the period 2008 to 2018.
3. Mr Clements addressed whether the Tribunal on the evidence before it should conclude that there was reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. He argued that there was no basis for concluding that he had not stored his firearms in accordance with legislative requirements.
4. Mr Clements explained his son getting access to a firearm in the following terms: Given our son lives in our home, there would have been times when he was home alone and would have had time to search for the keys to the gun safe.
5. He maintained that all reasonable precautions had been taken to prevent unauthorised access, citing the decision of the Tribunal in Artridge v Commissioner of Police [2021] NSWCATAD 188. In that case, Senior Member Ransome at [41] concluded that the mere fact that thieves found keys that were secreted in a container (refer to [38]) with no known evidence others knew where they were and where firearms were then stolen from a locked safe "does not of itself lead to an inevitable conclusion that he has not taken reasonable precautions to prevent the theft of the firearms" (at [41]).
6. Mr Clements also referred to the case of CSC v Commissioner of Police [2016] NSWCATAD 211 where Senior Member Isenberg pointed out that if the Parliament had intended that a person who possesses a firearm must take "all possible precautions" rather than "all reasonable precautions" to ensure the safekeeping of a firearm then section 39 (at [48]) then than would have been reflected in the provision.
7. Mr Clements refutes the suggestion that he was rude and argumentative with NSW Police or the staff of the Firearms Registry. He attributed these observations to an idiosyncratic or particular communication style, referring to it as his "natural communication style". He cited the decision of Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 where the Tribunal observed that Mr Potts was a person who held political and religious views that were offensive to many people and he had a propensity to test authority in order to provoke and test responses. By all other measures, Mr Potts was a law-abiding member of the community. The Tribunal considered that Mr Potts would go as far as he could without overstepping legal boundaries and after considering this concluded that he did not pose a risk to the public if allowed to continue to hold a firearms licence (refer to [52]-[56]).
8. Mr Clements volunteered that there continues to be a risk to his son's safety if firearms continue to be stored in his home. He proposed that his firearms be stored at an alternative address to which his son does not have access. He described this as a "safe and practical option" and supported by local police.
9. Mr Clements submitted that he is a law abiding firearms owner. He described himself as rigorous in ensuring firearms are securely stored and very careful with firearms.
10. The Respondent's case is that it would be contrary to the public interest for Mr Clements to continue to hold a firearms licence. The Respondent asserts that the Tribunal should draw this conclusion because:

• Mr Clements contravened the safe storage requirements of the Firearms Act 1996 and a condition of his licence that he must comply with the relevant safe keeping and storage requirements under the Act;
• Mr Clements showed a "careless attitude" towards the obligations imposed by the firearms legislation;
• Mr Clements' domestic circumstances provide reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms;
• Mr Clements has an extensive history of traffic infringements; and
• Mr Clements has shown a "hostile and rude attitude" toward police and NSW Firearms Registry employees.

1. Each of the arguments raised by the Respondent in submissions is addressed below.

Assessment of the evidence and findings of fact

1. I accept that in 2002 ten firearms were stolen from the Narwonah Rd property. I find that the offender or offenders achieved this by forcing open a ground floor window and using a blow torch to take the entire safe.
2. I find that on or about 5 November 2004 offenders entered the [XXX] Burroway Rd house through an unlocked back door and took two sets of keys and a mobile phone from the sideboard in the kitchen. They then took Mr Clements' motor vehicle.
3. There is no evidence before me as to whether Mr Clements owned firearms at that point in time. I accept that as at 5 April 2004, when Police conducted a safe keeping inspection at [XXX] Burroway Road, Mr Clements did not own any firearms.
4. I do not think it is relevant to this application that Mr Clements' car was stolen when on loan to a friend in 2006. I therefore exclude this matter from my consideration.
5. I am satisfied that on the basis of the 2018 psychological report that Mr Clements' mental health is no longer of concern. I note that the Respondent did not argue otherwise.
6. I accept Mr Clements' evidence about the Blackberry left on a bus in 2012, that is, that it was not able to be accessed due to security measures on this device.
7. I am satisfied that on 4 June 2021 Mr Clements' son found his wife's keys to the firearms safe, unlocked the safe and removed a firearm. I also find that this was in the context of the son experiencing mental health concerns, including expressing a wish to commit suicide.
8. I am satisfied that Mr Clements is painfully aware of the gravity of the situation. It was an incredibly serious set of circumstances and I agree with the comment of the Adjudicator on 11 May 2022 that the situation could have resulted in tragic circumstances.
9. On balance, I am satisfied that Mr Clements wrote to the Police in order to correct information he had earlier given that the firearm removed by his son was registered to his wife. The fact that the Respondent has not been able to locate a copy of the second letter does not in my view mean it was not provided to Police. I do not accept that Mr Clements had intentionally misled police about the firearm belonging to his wife.
10. I am satisfied that Mr Clements contravened the Firearms Act 1996 by failing to advise the Commissioner of his change of residential address within 7 days, in breach of section 69 and his safe storage address within 14 days in breach of clause 17(3) of the Firearms Regulation 2017:

• Mr Clements did not advise the Commissioner his change of address when he moved from Narwonah Road to [XXX] Burroway Road in 2002.
• Mr Clements did not advise the Commissioner of his change of address when he moved from [XXX] Burroway Road to Cotton Lane in 2005.
• Mr Clements did not advise the Commissioner of his change of address when he moved to the Warrior St address in 2011.

1. I considered whether Mr Clements was in possession of firearms following the expiry of his licence on 12 November 2008. I find that Mr Clements sent a completed Application for a Personal Firearms Licence form to the Firearms Registry on 11 November 2008 as this was the date of the Genuine Reason Form and both forms were date stamped by the Firearms Registry on 17 November 2008, which leads me to conclude on balance that the forms were sent in together. I note that 17 November 2008 was a Monday.
2. As to whether Mr Clements was covered by clause 18 such that he had ongoing authority to possess firearms pending the outcome of his licence application, the question, according to clause 7 of the Firearms Regulation 2006 that applied at the time, which reads: For the purposes of section 10 (1) of the Act, the manner of making an application for a licence is by sending or lodging the application in the approved form to or at the Firearms Registry of the NSW Police Force or such other place as may be approved.
3. The issue is whether Mr Clements had sent the form to the Firearms Registry or lodged the application at the Firearms Registry.
4. I interpret clause 7 to mean that Mr Clements must have sent the form or lodged the application so that it is received by the Firearms Registry. The clause contemplates two ways in which the Firearms Registry is to receive the form, either by post or in person at the Firearms Registry.
5. The Respondent submitted that the Firearms Registry would not be taken to have received the form until 15 November 2008. I accept that the form sent on 11 November 2008 would not have been received by the Registry prior to the expiry of the licence on 12 November 2008. The result of this conclusion is that Mr Clements was not covered by clause 18 of the Firearms Regulation 2006 and therefore the authority of the old licence did not continue until the issue of the subsequent licence on 9 February 2009. Mr Clements therefore was in possession of firearms contrary to section 7A of the Firearms Act 1996.
6. I do accept that Mr Clements believed that despite his licence being due to expire on 12 November 2008, he thought he was covered by the fact that he applied for renewal of the licence and was therefore authorised to continue to possess firearms while he waited determination of the renewal application.
7. I turned to the assertion made by the Respondent that Mr Clements displayed a hostile and rude attitude towards police and Firearms Registry staff.
8. The conversation with an officer of the Firearms Registry on 1 December 2017 describes Mr Clements as "agitated , rude & argumentative" and when being transferred to another section of the Registry he hung up on the call. Mr Clements described what appears to have been a rather circular conversation about the various addresses and he eventually became "sick of the conversation".
9. The COPS record of the phone call to Mr Clements on 1 December 2017 merely records that Mr Clements was "quite rude and dismissive". Police also record that when they spoke in person to Mr Clements on 9 December 2017 that he was "very short" with them and had "no time" for police. Mr Clements explained that his view of the conversation was that he calmly assured Police that he was not at risk of self-harm and that the was being assertive by asking them to leave, but not aggressive.

Application of the law

1. The Tribunal in conducting an administrative review of the revocation decision, has a discretion to exercise under section 24(2) of the Firearms Act 1996, as is indicated by the use of "may" in that subsection (refer to [24] above).
2. The question for the Tribunal is how the discretion should be exercised. That is, standing in the shoes of the Commissioner, whether or not the Tribunal should affirm or vary the revocation decision or set it aside and make a new decision or remit the matter for reconsideration (refer to section 63(3) of the Administrative Review Decisions Act 1997).
3. It is notable that section 24(2)(a) allows a discretion to revoke for any reason a licensee would be required to be refused a licence.
4. One aspect that might affect how the Tribunal exercises the discretion is the licensing history of that an applicant. As the Tribunal identified in McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 at [35]: "In the case of a person who already holds a licence, the Commissioner can consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in favour of the applicant."
5. The discretion to affirm the revocation should be exercised in such a way as to promote the principles and objects of the Firearms Act 1996: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23].
6. One of the underlying principles set out at paragraph (a) of section 3(1) of the Firearms Act 1996 states that "firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety".

Is there reasonable cause to believe that Mr Clement may not personally exercise continuous and responsible control over firearms?

1. The event that prompted the suspension of Mr Clements' licence was the incident involving his son on 4 June 2021. I consider the incident to be vary serious in nature and that it could have had a catastrophic outcome for Mr Clements' son. However, what I must consider for the purposes of the administrative review is the question set out in section 11(4)(a) of the Act, and that is whether I have reasonable cause to believe that Mr Clements may not personally exercise continuous and responsible control over firearms because his son continues to live with him.
2. Mr Clements cited LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]. In that case the Tribunal said that findings needed to be made about the applicant's domestic circumstances (at [45]). This approach was repeated in another case cited by Mr Clements, Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214 where Senior Member Isenburg stated at [14]: …the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.
3. There has to be an objective basis for the reasonable belief, founded in factual findings about an applicant's domestic circumstances. I agree that to have "reasonable cause to believe" involves more than "mere suspicion or conjecture", as Senior Member Montgomery put it in Conway v Commissioner of Police [2023] NSWCATAD 183 at [27].
4. I agree with the Respondent that it was Mr Clements' responsibility as a firearms licensee and registered owner of all the firearms in the safe to ensure all keys were secured or in a place where they could not be found, notwithstanding that his wife also held a firearms licence and a set of keys to the safe at the time.
5. There is no evidence that the firearms taken by the son was not stored safely in a locked safe. I found the case of Artridge v Commissioner of Police [2021] NSWCATAD 188 of particular assistance. In that case, four firearms had been stolen from a safe located in a shed. Keys to the safe were kept in a magnetised container under a shelf in the shed. The container was "not visible to a casual observer" and it was moved from to time to keep its location secret. Some effort would have been required to locate the container. The Tribunal then observed at [42]: While with hindsight it may have been more prudent to keep the keys elsewhere, that is not sufficient to establish that Mr Artridge has not taken all reasonable precautions to prevent the theft of the firearms.
6. It is difficult to conclude on the available evidence that Mr Clements failed to take all reasonable precautions to prevent his son finding the keys. The keys were hidden. His son had time to search for the keys when he was home alone.
7. I am therefore not satisfied on the evidence before me that Mr Clements failed to take reasonable precautions to prevent the incident that occurred with his son.

Did Mr Clements contravene the safe storage requirements of the Act or condition of his licence

1. The Respondent relied on the decision of Senior Member Higgins in Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1. In that case Ms Bevan breached the safe storage requirements in section 39 of the Act and the corresponding licence condition when she removed firearms from a steel storage cabinet and placed them into a lockup carry box case awaiting arrival of police.
2. However, in Mr Clements' case, I am not satisfied that Mr Clements that committed a breach of safe storage requirements arising from the 2021 incident involving his son. There was therefore no contravention in respect of meeting the safe storage requirements of the Act, which Senior Member Higgins described as fundamental in nature, giving rise the comment cited by the Respondent: …Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(1)(a) of the Act).
3. The Respondent also relies on the fact that firearms were stolen from the Narwonah Rd property in 2002. However, I note that the theft occurred in circumstances where a ground floor window was forced open and a blow torch to take the safe. There is no evidence that any of the actions or arrangements Mr Clements had in place for the safe storage of the ten firearms did not comply with safe storage requirements or contributed to the theft.
4. The Respondent argues that the Applicant's conduct in failing to take all reasonable precautions to ensure his firearms were safely kept the firearms were at risk of and actually stolen. The Respondent points out that it would have been reasonable for Mr Clements to lock his external doors to ensure his firearms were safely stored. As I have found at [100] above what was stolen on that occasion was two sets of keys, a mobile phone and also Mr Clements' motor vehicle. There is no evidence that Mr Clements owned any firearms at that time, given that seven months prior at the safe keeping inspection he did not own any firearms. I am not satisfied on the evidence before me that Mr Clements breached the firearms legislation on 5 November 2004.

Contravention of the requirement to notify of change of residential and safe storage addresses

1. Of concern is Mr Clements' failure to notify the Commissioner of his change of residential and safe storage addresses. This is a contravention of section 69 and clause 17(3) of the Firearms Regulation 2017. The requirements to notify the Commissioner of these changes are not merely administrative. They go to the effective administration of the firearms licensing scheme.
2. One of the objects of the Firearms Act 1996 is "to establish an integrated licensing and registration scheme for all firearms": section 3(2)(b). That system cannot function properly if the required notifications about residential and safe storage addresses are not made.
3. I agree with the submission made by the Respondent that having correct information about a licensee's residential address allows Police to respond to incidents involving firearms and to make sure that licence holders are residing in NSW. Whether firearms are stored at the place a person resides also affects the safe storage requirements, as set out in clause 28B of the Firearms Regulation 2017.
4. These contraventions also had a practical effect in the present case. Police had difficulty locating Mr Clements to find him following the 28 November 2017 Comcare conversation because the latest address and safe storage address on the Integrated Licencing System (ILS) was incorrect. On Mr Clements own evidence he moved to Warrior Street in 2011. This period is significant.
5. I find that Police had difficulty locating Mr Clements in the period following the Comcare conversation on 28 November 2017 in order to serve a suspension notice and to check on his welfare. They attended the Cotton Lane address as this was the latest address on the Integrated Licencing System (ILS) and the storage address for Mr Clements' firearms. After making further inquiries, they established on 30 November 2017 that Mr Clements was in fact living attended the Warrior Street address.
6. The underlying principles of the Firearms Act 1996 include that the possession and use of firearms is a privilege conditional on the overriding need to ensure public safety: section 3(1)(a). Up to date records about the residential address of licence holders and the safe storage address of firearms is essential to ensuring public safety.

Other factors

1. I found Mr Clements was in possession of firearms following the expiry of his firearms licence on 12 November 2008 and that the authority conferred by the old licence did not continue. I was satisfied that Mr Clements in fact believed he was covered. Despite that fact, he was in breach of a fundamental requirement of the Act, that is that a person must not possess or use a firearm without a licence or permit: refer to section 7A of the Act.
2. Added to this, is the significant list of driving offences in Mr Clements' driving history. This is relevant as the Tribunal has previously indicated that repeated breaches of these laws indicates a disregard for a regulatory scheme aimed at ensuring public safety: refer to Keegan-Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]. I do note that Mr Clements has not had any traffic offences since 2021.

Public interest and whether the discretion to revoke should be exercised

1. The Respondent's case was that all of the facts and circumstances would lead the Tribunal to be satisfied that is not in the public interest for Mr Clements to continue to hold a licence: refer to section 24(2)(d) of the Firearms Act 1996 and clause 20 of the Firearms Regulation 2017.
2. The public interest is a broad concept and incorporates issues beyond character: Commissioner of Police v Toleafoa [1999] NSWCATAP 9 at [25]. Considerations can include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
3. I am satisfied that the public would be very concerned if licensees who have repeatedly contravened the requirements to notify the Commissioner of residential and safe storage addresses were permitted to continue to hold a firearms licence. This would undermine the confidence in the licensing system.
4. I also consider that Mr Clements' lack of understanding about the fact that he did not have authority to possess and use firearms beyond the expiry of his licence on 12 November 2008 to weigh in favour of affirming the revocation. Added to this is Mr Clements extensive traffic history, albeit one where he has not had driving offences since October 2021.
5. I returned again to the comments of the Tribunal identified in McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 at [35], cited at [124] above. I recognised Mr Clements' lengthy history of holding a firearms licence, in excess of 30 years. However, I do not consider the notification contraventions in respect of residential and safe storage addresses to be "an isolated breach". These contraventions were repeated and significant and as such cannot be disregarded.
6. After considering the circumstances of this matter, I am satisfied that it is not in the public interest for the Applicant to continue to hold a firearms licence. I am therefore satisfied that I should exercise the discretion to revoke Mr Clements' licence.

ORDERS 1. The decision made by the Commissioner of Police on 11 May 2022 to revoke Mr Clements' 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: 13 February 2025