Commissioner of Police, NSW Police Force v Arnold

NCAT Appeal Panel|2023-09-15

Introduction

On 31 May 2023, the Tribunal decided to grant the Respondent a Category AB firearms licence (the Decision). The Decision set aside an earlier decision of the Respondent refusing to grant the licence on the basis that it was not in the public interest for him to hold a licence.
The Respondent has a criminal record comprising, in particular, two counts of Aggravated Break and Enter and Commit Serious Indictable Offence contrary to s 112(2) of the Crimes Act 1900 (NSW) committed on 7 April 2009 (the April 2009 Offences). The offences involved violence and intimidating behaviour towards the Respondent's ex-wife and her then partner.
The Tribunal was satisfied that the Respondent's past conduct did not give rise to a real and appreciable risk to public safety if he were to hold a firearms licence: at [58]. The Tribunal was also satisfied that the Respondent was a fit and proper person who could be trusted to have possession of firearms without danger to public safety or the peace: at [48].
Accordingly, the Tribunal did not find that it would be contrary to the public interest for a licence to be issued: at [58].
The Appellant, the Commissioner of Police, NSW Police Force, appeals on two grounds: first, that the Tribunal misconstrued or failed properly to consider the evidence concerning the Respondent's criminal conduct in April 2009 and, second, the Tribunal erred in inferring that the authors of the character references tendered by the Respondent were aware of the Respondent's criminal history.
This is our reasons for decision in respect of the appeal.

Appellant's s 58 bundle of documents

The Appellant's s 58 bundle of documents (the Bundle) before the Tribunal contained evidence relating to the Respondent's April 2009 Offences.
The Respondent's criminal history was tendered which recorded that on 9 September 2009 at the Broken Hill District Court, the Respondent was sentenced to a term of nine months' imprisonment for two counts of Aggravated Break and Enter and Commit Serious Indictable Offence contrary to s 112(2) of the Crimes Act. That offence carries a maximum penalty of 20 years imprisonment.
The Appellant tendered a Court Attendance Notice of the Broken Hill District Court on 9 September 2009. That Notice stated that the Respondent had been charged with two offences of Aggravated Break and Enter and Commit Serious Indictable Offence, specifically being the offence of intimidation of Nicole Arnold and intimidation of Todd Collie as a Serious Indictable Offence committed on 7 April 2009.
Third, the Appellant tendered a Police Facts Sheet for the Broken Hill District Court on 9 September 2009 which set out the alleged facts of the two aggravated break, enter and commit serious indictable offences.
The Facts Sheet referred to the fact that Ms Arnold and the Respondent had entered into an agreement where they would communicate via third parties for visitation for their children and that the Respondent was no longer allowed to enter the property where the offences took place. It was noted that Ms Arnold had changed the locks.
The Facts Sheet goes on to state the following: "About 8.30pm on the 7th April 2009, Ms ARNOLD and Mr COLLIE were lying on the bed in the main bedroom of Ms ARNOLD'S house watching television. The bedroom is situated at the front of the house with the front main door in an alcove beside the main bedroom. Ms ARNOLD heard a banging on the window of her bedroom, she guessed the banging was the accused, and told him she wasn't going to let him into the house. Ms ARNOLD heard a bang on the front door and walked from the bedroom into the hallway which is only a short distance from the front door. Ms ARNOLD said to the accused she wasn't going to let him in. The accused punched a window pane that runs down the side of the main door. The glass shattered showering Ms ARNOLD in glass and cut the right hand and fingers of the accused. Ms ARNOLD and Mr COLLIE watched the accused reach into the house through the now smashed window and unlock the front door. The accused entered the house and grabbed Ms ARNOLD by both arms and threw her to the ground. Ms ARNOLD stood up and the accused again through Ms Arnold to the ground. The accused put his hand around Mr COLLIE's throat and threatened him, 'TO WATCH HIS BACK'. The accused left and Ms ARNOLD shut the front door and sat on the bed in the main bedroom crying. About an hour later Ms ARNOLD attended the Broken Hill Police Station and provide a signed statement about what had occurred. On at least two occasions Ms ARNOLD vomited while speaking with police from shock and fear."
The Appellant's written submissions to the Tribunal below, citing the Facts Sheet, stated that the Appellant had broken "into his wife's home, assaulted her and threatened her new partner on 7 April 2009".
In oral submissions, the Appellant told the Tribunal that it should accept "what was contained in the fact sheet" as to what occurred on 7 April 2009.

Respondent's evidence relating to the April 2009 Offences

The Respondent did not file any documents relating to the April 2009 Offences. He was cross-examined about the matter by the Appellant and was also asked questions by the Tribunal.
As to the circumstances of his attendance at the property, the Respondent gave evidence that he attended the property for the purpose of retrieving a chainsaw from the shed following a request from a friend to borrow the chainsaw. He gave evidence that he saw a car in the driveway which he recognised, and this caused him to wish to enter the home and confront his ex-wife. He said he saw his ex-wife in bed with Mr Collie and then banged on the door and later broke the glass in the door to gain entry.
It was put to him in cross-examination that the real reason he attended was that he was aware of his ex-wife's relationship with Mr Collie and wished to confront them. The Respondent denied this.
Under cross-examination the Respondent repeatedly said that upon entering the house he did not assault anybody. Later he admitted that he did push Ms Arnold causing her to fall to the ground, but he denied throwing her to the ground. He denied that he threw Ms Arnold to the ground twice.
The Respondent under cross-examination also denied that he put his hand around Mr Collie's throat. According to the Respondent, he merely "pointed at him in the face". He did admit to telling Mr Collie to "watch his back".
In denying that he committed any assault, the Respondent said: "But even after I broke the door, like there was no assault. I thought about the situation umm ...after I broke the door I realised that I was doing the wrong thing. And I guess a violent person from there would have assaulted both parties, where I turned around and walked back out."
Whilst the Respondent agreed that he had become angry and aggressive, he also stated: "Yes. But still not. Aggressive and angry enough to break a door. But not aggressive and angry enough to actually cause harm to somebody."
The Respondent also sought to blame Ms Arnold's prior behaviour as a cause of his own conduct that evening. He stated, for example: "It was the events leading up to that night and a lot of built up stress and anger of what she was doing, um, which yeah unfortunately and mistakenly made, well, well didn't make me do it but lead me to do what I did that night which I, you know, I do regret and I am very sorry for it. … I understand that she would have been upset. Um to be honest I think she would be more upset because she finally got caught out. Umm. It was something that I had been asking her about for some time which she was denying and it all sort of come to a head that night and I believe she would have been quite upset and stressed and in shock and scared and what other emotions she's told the police. Umm. I don't believe it was because she was so scared of me that she was in shock and vomiting. I actually believe that, that she had finally been caught out and that everyone would know that what she had been up to."

Respondent's character references

The Respondent relied on five written character references. No person was called to give evidence at the hearing as to the Respondent's character. The particulars of the reference authors were as follows: 1. Jason Milne: construction business owner known to the Respondent in his capacity as a co-worker, subcontractor and close friend for 13 years; 2. Damien Sabey: emergency services officer and long-time member of the Broken Hill Pistol Club, known to the Respondent as a close friend and school mate for 45 years; 3. Kelly O'Connell: known to the Respondent "in a close relationship" for more than 18 years; 4. Whitney Brown: a colleague known to the Respondent as a mentee for approximately 15 years; 5. Jeff Morris: Chief supervisor to the Respondent in current employment, known as a friend for 30 years and work colleague for 10 years.
Only the letter of Mr Sabey included any reference to the Respondent having a criminal history. That reference was as follows: "Since the offence in 2009 Dean has … [particulars of the Respondent's achievements and character]."
In his oral evidence, the Respondent said Ms O'Connell was his "ex-sister-in-law". The Tribunal asked the Respondent whether the authors, Ms O'Connell and Mr Morris, knew anything about the charges and events in the material relied upon by the Commissioner. The Respondent said: "Um these people know very well what's happened … They know me as a person, and they literally definitely know the night of the aggravated break and enter charge."
The Respondent also said Ms Brown was aware of the "aggravated break and enter". The Respondent gave no evidence about the intimidation charge nor of the details of the awareness the authors of the references may have had about the "break and enter charge".

The application to lead new evidence on appeal

The Appellant seeks to rely upon further evidence as follows: 1. Witness statements of the Respondent's ex-wife Ms Arnold (dated 7 April 2009) and Mr Collie (dated 9 April 2009); and 2. A Pre-Sentence Report in relation to the 2009 sentence proceedings prepared by Broken Hill District Probation and Parole Officer dated 27 August 2009.
Those statements are broadly consistent with the Facts Sheet. The relevant additional material in this statement consists of accounts of the Respondent being abusive and using expletives to both of Ms Arnold and Mr Collie and, in particular, yelling to Mr Collie, "you're fucking dead cunt. Watch your fucking back you're fucking dead cunt".
The statements also indicate that the Respondent walked out the front door punching the screen door as he walked past it and yelling and screaming as he walked out of the driveway.
According to the Appellant, the Pre-Sentence Report is significant in that it contains no denial or qualification of the conduct detailed in the witnesses' statements and the police facts. It also does not contain any account of the purpose of going to the property, being the retrieval of the chainsaw for a friend.
Finally, the Appellant submits the Report is significant in that the Respondent indicates his remorse about his actions without seeking to qualify or deny any part of the evidence against him.
The Appellant seeks leave to rely on this further evidence in support of the grounds of appeal. The Appellant made no submissions as to why the further evidence was not tendered at the hearing.
The grant of leave to lead new evidence is discretionary. The Appeal Panel must be "affirmatively satisfied" that having regard to the findings of the Tribunal at first instance, the further evidence "is likely to produce a different result": see DMP v Sydney Local Health District [2022] NSWCATAP 357 at [11].
We are not "affirmatively satisfied" of this. The new material takes the matter somewhat further than the Facts Sheet, but not significantly so.
In such circumstances, we decline the application to lead new evidence on appeal.

The Appeal

Decisions of the Tribunal such as the Decision before us are internally appealable decisions and appeals can be made as of right where there is a question of law and, otherwise, with the leave of the Appeal Panel: see s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of questions of law.
The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84]. For a grant of leave to be given by the Appeal Panel, the Appellant must demonstrate more than the Tribunal was arguably wrong: see Pholi v Wearne [2014] NSWCATAP 78 at [32].
Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve one of the following matters: 1. Issues of principle; 2. Questions of public importance or matters of administration or policy, which might be of a general application; or 3. An injustice which is reasonably clear, in the sense of going merely beyond what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or 4. A factual error that was unreasonably arrived at and clearly mistaken; or 5. The Tribunal has gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there; SAB v SEM [2013] NSWCA 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45].

Appellant's submissions

The Appellant submits the Tribunal erred in its treatment of the evidence of the April 2009 Offences. The Appellant puts forward particulars in respect of this ground of appeal: 1. At [52] of the Decision the Tribunal erroneously concluded that the Appellant had not provided the "particulars of the charge such as the Facts Sheet". 2. The Appellant submits that the s 58 material included particulars of the offences. The Court Attendance Notice identified that the two offences of intimidation were included as part of the two Aggravated Break, Enter and Commit Serious Indictable Offence charges, and the Facts Sheet described at length the particulars to the charges. 3. The Appellant submits that the Tribunal at [11] and [42] erroneously treated the Respondent's conduct towards Ms Arnold and Mr Collie after he had broken and entered into the property as "allegations" only. 4. The Tribunal stated, erroneously, that "it is unclear that this allegation [pushing Ms Arnold] and the allegation that he grabbed Mr Collie by the throat and threatened him formed part of the charge… he was not separately charged with assault[s]".
The Appellant submits that the material tendered established that the Respondent had been sentenced for conduct which included two offences of intimidation after the breaking and entering of the property, as part of the two counts of Aggravated Break and Enter and Commit Serious Indictable Offences contrary to s 112(2) of the Crimes Act. The material clearly identified the conduct as not just allegations but as part of the charges for which the Respondent was convicted.
The Appellant submits that it is clear from the Facts Sheet that the Respondent was convicted of charges which included particulars to the effect that Ms Arnold was thrown to the ground twice and Mr Collie had his throat grabbed by the Respondent. Whilst these charges could have been separated as common assaults, they were included in the charges of Serious Indictable Offence being that of intimidation.
The criminal history tendered by the Appellant recorded that there had been two withdrawn offences of Aggravated Break and Enter with intent to Commit a Serious Indictable Offence, contrary to s 113(2) of the Crimes Act. As the Appellant explains those lesser offences, which were withdrawn, carry a maximum penalty of 14 years imprisonment.
On the other hand, the offences under s112(2) of the Crimes Act for which the Respondent was convicted related to two counts of Aggravated Break, Enter and Commit Serious Indictable Offences, being that of intimidation, carried the higher maximum penalty of 20 years of imprisonment.
According to the Appellant, this explains why those charges were withdrawn in order to replace them with more serious charges for which the Respondent was convicted.
The Appellant submits that the Tribunal erred and overlooked this evidence and erroneously took the view that there was merely a Break and Enter charge without any charges or convictions in respect of using any violence including assaults.
As the Appellant put it: "the Tribunal's focus on the absence of any assault charges demonstrates the lack of attention to the particulars of the Break and Enter charges as incorporating intimidation charges, and the conduct that comprises those intimidations, which the Respondent had himself accepted responsibility for by pleading guilty to charges" which included assaults on Ms Arnold and Mr Collie.
Third, Appellant submits, the Tribunal erroneously preferred the evidence of the Respondent about the nature and extent of the April 2009 Offences over the versions set out in the Police Fact Sheet and did so without any reasons being provided.
The Appellant submits the Tribunal erroneously failed to take into account the relevant consideration, namely, that on 7 April 2009 the Respondent committed serious assault upon Ms Arnold and Mr Collie, which had been proven as intimidation offences and for which the Respondent was convicted and pleaded guilty.
According to the Appellant, the Tribunal failed to appreciate the Respondent had been sentenced for not only breaking and entering Ms Arnold's home, but also for committing two Serious Indictable Offences once inside the property. While the Tribunal stated (at [13]), that the Respondent had been charged with sentence for two counts Aggravated Break, Enter and Commit Serious Indictable Offences, the reasons contained no reference to intimidation, nor any consideration of what those Serious Indictable Offences were.
As put by the Appellant, in not appreciating the complete extent of the offences for which the Respondent had been sentenced, the Tribunal failed to consider the impact of the Respondent's subsequent denials of the proven assault/intimidation in the assessment of the Respondent being a fit and proper person.
In conclusion, the Appellant submits that having regard to the serious assaults by the Respondent described in the statements that formed part of the sentence in 2009, compared with the Respondent's denial of such conduct before the Tribunal in 2023, the Tribunal's assessment of whether the Respondent was a fit and proper person, and/or the public interest, likely would have been assessed against him and the Appellant's decision to refuse him a firearms licence affirmed.

Respondent's submissions

In respect of ground one of the appeal, the Respondent indicated to us that as he was not a lawyer he was not in a position to make any submissions in response to the Appellant's contentions. He did not dispute the basic proposition being put forward by the Appellant that the Facts Sheet was put before the Court on his sentence following his plea of guilty and formed the particulars of the charges.
Mr Arnold agrees that if we find error we should determine the issue ourselves and determine whether he is fit and proper person to have a licence.

Consideration

At [39] of the Decision, the Tribunal recorded that the Appellant submitted that the 2009 incident raises significant concerns about the risks posed by the Respondent's behaviour and his disregard of the law. In particular, the Tribunal records the Appellant's submission, "the evidence is of an applicant resorting to violence when confronted with a stressful situation, and that he has not taken responsibility for any of his offending".
The Tribunal in response to this submission, stated the following at [41], [42], [46] and [47]: "[41] 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.' [42] 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). … [46] 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. [47] 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."
Of particular concern is the Tribunal's last three sentences at [42] as follows: "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)."
These three sentences contain a number of fundamental and obvious errors.
These errors can be listed as follows: 1. The Appellant did provide the Facts Sheet which contained some excerpts of the statements of Ms Arnold and Mr Collie to the effect that the Respondent had thrown Ms Arnold to the ground twice and had grabbed Mr Collie's throat and threatened him with the words "to watch his back'' 2. The Appellant had tendered particulars of the two charges, including by tender of the Facts Sheet; 3. The "push" of Ms Arnold was not a mere "allegation'' but was part of the Facts Sheet which, it can be inferred, was provided to the Court as particulars of the charges on sentence, and included the statement of fact that Ms Arnold was thrown to the ground twice by the Appellant; 4. Similarly, the proposition that the Respondent had "grabbed Mr C and threatened" him was not a mere allegation. It, along with the throwing of Ms Arnold to the ground twice, did form part of the two charges for which the Respondent pleaded guilty to and was convicted; and 5. The statement that the Respondent was not separately charged with assault(s), in the context of the other statements by the Tribunal, suggests that the Tribunal failed to appreciate that the serious charges for which the Respondent was convicted included assaults on both Ms Arnold and Mr Collie as particulars of those charges.
We accept the Appellant's submission that the above errors were highly material to the conclusion of the Tribunal and its satisfaction with the Appellant as a fit and proper person who can be trusted with possession of firearms without endangering the public safety or the peace.
We also accept the Appellant's submission that the above errors were material to the Tribunal's assessment of the credibility of the Respondent who gave evidence denying the substance of the particulars of the charges to which he pleaded guilty in 2009. The errors identified above meant that the Tribunal did not, it would appear, see any inconsistency between the Respondent's evidence under cross-examination and the facts to which he pleaded at his sentence.
The Appellant submitted that this ground of appeal raised both a question of law and issues of fact. To the extent that leave to appeal may be required, the Appellant submitted that the Appeal Panel should grant leave.
In order to amount to an error of law, it must be demonstrated that there was no evidence to justify the conclusion of the Tribunal or, alternatively, that no reasonable tribunal could have come to the conclusion that it did: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13 and (8).
To the extent required, we are of the view that leave to appeal should be granted.
In our view, the factual errors identified above by us as to the Respondent's violent offending in April 2009 were findings which were unreasonably arrived at and clearly mistaken. These errors are readily apparent and were central to the Tribunal's conclusions. In light of these conclusions, we are satisfied that it would be unjust to allow the Decision to stand.
Accordingly, we uphold this ground of appeal and in our view, the Tribunal's Decision should be set aside.

The consequence of the Decision being set aside

The Appellant submits that the Appeal Panel can and should substitute its own decision pursuant to s 81(1)(c) of the NCAT Act in the event that we set aside the Decision. The Respondent agrees with this if we set aside the Decision.
In our view the just, quick and cheap resolution of the dispute between the parties is for us to substitute our own decision for that of the Tribunal taking into account all of the material before us and the submissions of the parties.
In light of our conclusions, it is not necessary for us to decide ground 2 of the appeal, being an alternative further ground put forward by the Appellant identifying other errors in the findings of the Tribunal with respect to the Tribunal's treatment of the character references tendered by the Respondent.

The applicable principles

The principles and objects of the Firearms Act 1996 (NSW) (the Act) are set out in s 3 as follows: 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 supply 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.
Section 11(3) of the Act provides relevantly as follows: (3) A licence must not be issued unless - (a) the Commissioner is 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, and … (5) A licence must not be issued to a person who - … (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or ...
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 where Hennessey ADCJ at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk": see, for example, cited in Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 at [30] ("Rial"); see also Martin v Commissioner of Police, NSW Police Force [2017] NSWCATAD 97 at [64] - [66] cited in Rial at [32].
The question is whether there is in all the circumstances a real and appreciable risk to the public if the person has access to firearms: see Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32]; Rial at [32]. These considerations have been held to apply to the assessment of both a person's status as a fit and proper person and the public interest: see Masterson v Commissioner of Police, NSW Police Force [2017] NSWCATAP 206 at [130] - [134].
The public interest test involves, but is not limited to, looking at the Respondent's conduct and not the fact of the conviction or otherwise: Joseph v NSW Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] - [64]. It has been repeatedly stated that "in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence where there is no misuse of a firearm": see Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103] cited in Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60].

The April 2009 Offences

The Appellant has tendered the Facts Sheet relating to the April 2009 Offences. We have set out above the relevant portions of the Fact Sheet. The Facts Sheet is based upon the contemporaneous statement of Ms Arnold and Mr Collie.
In the absence of any submissions from the Respondent, we infer that the Facts Sheet was provided to the sentencing judge and formed the particulars of the charges to which the Court acted upon in sentencing the Respondent. Accordingly, the Respondent at this time fully acknowledged and admitted the statement of facts as set out in the Facts Sheet.
The objective circumstances of the April 2009 Offences involve serious violence towards his ex-wife and her partner. The Respondent ignored his ex-wife's pleas for the Respondent to leave the premises, choosing instead to break the glass in the front door and enter without consent of his ex-wife, assault her twice and then assault and threaten Mr Collie.
We prefer the evidence provided in the Facts Sheet, being based upon the contemporaneous statements of the witnesses, Ms Arnold and Mr Collie, over the Respondent's evidence in the Tribunal many years later. The fact that the Respondent sought to deny the facts of his previous offending causes us to doubt the Respondent's credibility as a witness overall and also causes us to doubt his general good character.
We also note in his evidence the Respondent sought to attribute to his ex-wife some of his offending, and the upset he accepted his ex-wife felt, rather than to his own violence. Such attitude by the Respondent must cast real doubt on the sincerity of his expressions of remorse. They show a lack of proper insight into his past conduct and cause us to have some concerns about his likely future conduct in similar circumstances of personal stress with access to firearms.

The Respondent's other criminal history

The Respondent's previous criminal record and the Respondent's evidence about those matters was summarised by the Tribunal, which we accept, as follows at [24] - [27]: "[24] 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 [25] 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. [26] 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. [27] 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."
The previous criminal record of the Respondent in our mind highlights two aspects of the Respondent's character.
We note the Respondent has engaged in violent conduct, albeit a long time ago. He sought to blame some of his conduct upon the influence of a girlfriend who he described as being "not good" for him. The attempt to blame his girlfriend is similar to his evidence about the behaviour of his ex-wife being a factor in his violent behaviour in 2009.
Again, the failure to take full responsibility for his own conduct and seek to blame those with whom he had a relationship at the time, causes us to have some concern about his character.

Traffic record

Since the April 2009 Offences, the Respondent has come to the attention of the police in respect of certain traffic offences, some of which are fairly serious. These offences and the Respondent's evidence in respect of them were summarised by the Tribunal in terms which we accept, at [28] - [32]: "[28] He said the person from that time is 'unrecognisable to [him] now'. [29] 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). [30] 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. [31] 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. [32] 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."
These offences again cause us to have doubts about the Respondent's character. Three of the offences are fairly serious: failure to stop after a serious accident; driving while unlicensed and driving with middle range concentration of alcohol. They show a lack of full respect for the law and his obligations under the law.
We note that the Respondent in his oral evidence attempted to give excuses and downplay the seriousness of those offences. Given our assessment of his credibility as a witness, we are not satisfied that he has given a full and frank account of the circumstances of those offences.
Further, we note that in respect of the 2017 offence, the Respondent again appears to be denying the objective facts that make up the offence, namely, that he was intoxicated at the time with a reading of 0.123. This appears to repeat a pattern of downplaying the seriousness of his offending and even to deny the facts about his offending despite pleas of guilty. Again, this causes us to have doubts about the Respondent's character.

References

We have summarised some of the key features of the references tendered by the Respondent above.
The Appellant submits that little weight should be placed on the references as none of them indicate on their face full knowledge of the Respondent's criminal history. In this regard the Appellant relies on Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [41]: "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 main favourable features in the references were summarised by the Tribunal at [36] as follows: "[36] 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."
Ms Kelly O'Connell, who the Respondent said was his ex-wife's sister, says she has known the Respondent for 18 years and regards him as "responsible, honest and dependable". She wrote of the children becoming upstanding citizens "like their father" and observed that he had 100% of their care since 2019.
We have taken these references into account. On the other hand, only Mr Sabey refers to "the offence in 2009" without any indication as his knowledge of the facts of the offending. We note that Ms O'Connell and Mr Morris were said by the Respondent in evidence to be persons who "definitely know the night of the aggravated break and enter charge".
In our view, in light of our opinion as to the Respondent's creditworthiness, we are not satisfied that any of the referees, apart from Ms O'Connell, had a full appreciation of the nature of the Respondent's previous offending and this does detract somewhat from the force of those references.

Respondent's submissions

During the hearing we invited the Respondent to make whatever submissions he wished to make on the question of whether he should be granted a licence.
In summary his submissions were as follows:

He understands the seriousness of the charges from that night. He did break in, push his ex-wife and point his finger in the face of her boyfriend. He is remorseful.
It was an emotional, extremely difficult and stressful time. "There was infidelity which she of course denies". "It was a long time ago and I am not that person".
In 2019 the Respondent obtained 100% custody of our children. "It is strange that one government agency could treat me as responsible enough to look after 2 children and give me 100% custody but another agency sees me differently. I love my kids and they are everything to me".
The Respondent has a long term job and his work sees him as a responsible and fit and proper person to make decisions and he is in charge of other people.
The Respondent had no firearms offences in the 17 years he held a gun licence. It was used for sport and recreation and never to intimidate anyone. The Respondent wants to share his love for guns with his children and grandchildren. His father and grandfather are leaving him their guns and he wants to pass those on to his children and grandchildren. The sport has a family significance. "I would never use it for any other purpose".
As to the references, the Respondent said, "I didn't know they should address whether they knew about the offences and I didn't tell them what content to include. I just asked for references to support me getting my gun licence back after my offence".
The Respondent said he is very close to his ex-sister in law. He sees her about once a week as she has three daughters around the same ages as his children and he is like a father to her children.

We have taken on board all of the above submissions as well as his submissions previously made before the Tribunal below.
We note the Respondent sought to place particular emphasis on the fact that in 2019 he was granted full custody of his children and previously he had 50% custody of the children. The Respondent submits that in the absence of full knowledge as to why he attained full custody of the children it would not be appropriate to give significant weight to this factor.
We agree that without knowledge of what was before the decision-maker on the custody application we are not able to place significant weight on this fact. We nevertheless accept and put some weight on the fact that the Respondent is a caring and devoted father to his children.

Conclusion

Pursuant to s 11(3) of the Act, we have to be satisfied the applicant is a fit and proper person and can be trusted with the possession of firearms without danger to public safety or to the peace. The expression "fit and proper person" 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: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 (Toohey and Gaudron JJ); [1990] HCA 33.
Overall, and substantially for the reasons given above, we are not able to be satisfied that the Respondent is a fit and proper person who can be trusted have possession of firearms without danger to public safety or the peace. The Respondent's history with respect to all of his offending including his traffic history, and particularly the 2009 incident, does raise sufficient concerns in our minds about the risks posed by the Respondent's behaviour and his disregard for the law.
The evidence reveals the Respondent resorting to domestic violence when confronted with a stressful domestic situation and this may occur again in the future. We note that the Respondent did indicate that he had undergone some form of anger management, but we have no details of any such program or course.
In particular, we are concerned that the Respondent in his evidence has sought to downplay the seriousness of his offending 14 years previously and has also sought to downplay the seriousness of his traffic offending. These matters cast some doubt on the sincerity of his expressions of remorse and his insight into his past conduct. They raise some concerns about his likely future conduct in similar circumstances of relationship or interpersonal stress with access to firearms.
His evidence as a whole gives raise to some concerns about the Respondent's credibility and character, as well as his attitude towards domestic violence. In the result, we are unable to be satisfied that the Respondent is a fit and proper person to hold a licence, nor can we be satisfied that it is in the public interest to issue a firearms licence to the Respondent.
In the result, the orders of the Tribunal below will be set aside and in lieu thereof the decision under review will be affirmed.

Disposition

The orders of the Tribunal are: 1. To the extent required, grant leave to appeal. 2. Appeal allowed. 3. Set aside the orders of the Tribunal of 31 May 2023 and in lieu thereof order that the decision under review 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: 29 September 2023

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