Dombkins v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 45 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Dombkins v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 45

NCAT Administrative and Equal Opportunity|2023-04-24

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Court

NCAT Administrative and Equal Opportunity

Decision date

2023-04-24

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

REASONS FOR DECISION

This is an application by Gregory Dombkins seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to revoke his category A firearms licence. The decision to revoke the licence was made on 13 December 2021. Mr Dombkins made an application for internal review and the revocation decision was affirmed on 18 November 2022. He then made this application to the Tribunal for administrative review.
The position of the Commissioner is that Mr Dombkins is no longer a fit and proper person to hold a firearms licence and it is not in the public interest for him to hold a firearms licence. The Commissioner relies on the following matters in support of her decision to revoke Mr Dombkins' firearms licence: 1. On 30 November 2018 (17 days after Mr Dombkins' firearms licence had expired) police became aware that his firearm was not stored at his nominated safe storage address (a gun club in Newcastle). Police subsequently seized the firearm from Mr Dombkins' home. At the home the firearm was not stored in a safe that met the requirements for safe storage approved by the Commissioner. 2. On 29 November 2021 police attended Mr Dombkins' home to conduct a safe storage inspection (a new forearms licence having been issued to him in January 2021). Mr Dombkins' licence was suspended and his firearm seized as the storage did not meet safe storage requirements. 3. A further safe storage inspection was conducted on 16 November 2022. The Commissioner states that again Mr Dombkins' storage did not meet safe storage requirements. 4. Mr Dombkins has demonstrated a continuing failure to comply with safe storage requirements and is either incapable of storing his firearm safely or does not know how to safely store his firearm. 5. Mr Dombkins' adverse driving history indicates he has a general disregard for the law.
Mr Dombkins acknowledges that he failed a safe storage inspection in the past. He states, however that his storage is now compliant, that he is of good character and can be trusted with firearms.

[2]

The application for review

The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.
In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
Under s 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal is to properly consider all relevant materials and ignore all irrelevant matters: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [82]. However, the Tribunal is required to base its findings of fact on "logically probative material": Meacham at [83] referring to Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68 and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93] at [5]-[8], [15]-[17]. There is no onus proof: Meacham at [75].

[6]

29 November 2021

Mr Dombkins was issued with a new Category A firearms licence on 4 January 2021. He nominated his home address as the safe storage address. On 29 November 2021 Senior Constable Moon and another officer, Senior Constable Staniland, attended Mr Dombkins home to conduct a prearranged safe storage inspection. The firearm was stored in a disused refrigerator located in the rear garage. The refrigerator had one hasp and staple lock secured with a padlock on the front and side of the refrigerator. The firearm was stored inside the refrigerator in a wooden box and the box was screwed into steel supports through the side wall of the refrigerator.
The body-worn video shows that Senior Constable Staniland explained to Mr Dombkins that three locks were required and the safe needed to be screwed or bolted into the concrete floor with four screws or bolts affixed internally as there was no wall behind the safe. Mr Dombkins, when questioned, said he was not aware of these requirements. He said he had told the person he bought the gun from what he was going to do and that person said "that sounds fine to me". Mr Dombkins also commented that the firearm was an air rifle and that it was "not a shot gun".
In his internal review statement Mr Dombkins states that he thought he had stored his firearm correctly after doing some searches on the internet. He states he looked at a website for another jurisdiction and didn't realise that the requirements are different in NSW. He also states he has poor reading and comprehension skills, is not computer literate and did not realise he was not on the right website. In his most recent statement he says that he received no direction from police, other than in general terms, on how to store his rifle.
Mr Dombkins states he spent many hours making modifications to the refrigerator after this inspection. He states that Senior Constable Staniland had told him that, if he made the necessary modifications to the storage, a further inspection would be undertaken. He says he made many phone calls to organise a further inspection but his calls were not responded to. Mr Dombkins states that he believes Senior Constable Staniland should have helped him comply with his obligations. He is particularly critical of the fact that when Senior Constable Staniland attended his property on 14 December 2021 to serve the revocation notice he refused to inspect his safe storage.

[7]

16 November 2022

During the course of the internal review of the decision to revoke Mr Dombkins' firearms licence Senior Constables Moon and Staniland conducted a further safe storage inspection on 16 November 2022. The safe, namely the refrigerator, was in the same location but now had three hasp and staple locks fitted with padlocks. Mr Dombkins had screwed dynabolts through the feet of the refrigerator into the cement. The dynabolts were not screwed through the internal floor of the refrigerator. When police asked to see the dynabolts, Mr Dombkins removed two screws from a plate at the bottom front of the refrigerator which revealed the bolts through the feet. Police did not consider that the safe met safe storage requirements as the bolts could be accessed by removing the panel. Senior Constable Moon states that the anchor point could then be unscrewed and the refrigerator removed. He also states that, at the time of the inspection, the safe was located near tools which could be used to force it open.
The body-worn camera of this inspection shows Mr Dombkins making suggestions about what he could do to make the safe compliant. Senior Constable Staniland generally agreed with the suggestions. Mr Dombkins states that Senior Constable Staniland agreed to have another inspection in a week. He states that Senior Constable then said words to the following effect: "All you had to do was ring me and ask me for advice on how to make the storage container compliant." This interaction is not recorded on the body-worn video.
Mr Dombkins states that he believes his safe storage was compliant at the time of this inspection. He acknowledges that the dynabolts were screwed through the feet of the refrigerator and not through the bottom plate, but states that it would be virtually impossible, because of the lack of clearance, for someone to use an angle grinder to cut off the dynabolts encased within the steel legs of the refrigerator. He states the safe is not easily penetrable and not easily removable.
Mr Dombkins states that, although he believes the storage was compliant at the time of the inspection, he has now turned the refrigerator upside down, placed a steel plate internally in what is now the bottom of the safe and secured it with four dynabolts to the cement floor. The three padlocks are still fixed to the refrigerator and he believes the safe is now compliant. He has provided photographs of his modifications.
Mr Dombkins states that Senior Constable Staniland told him that he would come back for a further inspection within a week. Mr Dombkins states that he then tried to arrange with Senior Constable Staniland a further inspection of his safe storage but he was unable to contact him. He also states that he spoke to a police officer from the Licencing Unit who told him that the storage looked compliant. The officer gave Mr Dombkins an appointment card for an inspection on 7 December 2022 but the appointment was not kept by police.
Senior Constable Moon advises that Senior Constable Staniland is absent from work due to ill health. I note that he therefore has not been able to make a statement in these proceedings. Senior Constable Moon states he did not have any conversations with Mr Dombkins after the 29 November 2021 and 16 November 2022 inspections and was not informed by Senior Constable Staniland of any such conversation he had had with Mr Dombkins.

[11]

The relevant law

Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual": Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 at [30]; Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
Section 3 also provides that public safety is improved by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms. The general requirements for safe keeping of firearms are set out in s 39(1) of the Firearms Act: (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 …
Mr Dombkins held a category A licence and further requirements for that category are set out in s 40(1): (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
The Commissioner has issued guidelines which set out the minimum approved requirements for receptacles and locking mechanisms for Category A and B safe storage. Of relevance to this matter, the Commissioner has determined: If the receptacle used for storing the firearms weighs less than 150kg (when empty), the receptacle must be secured to the structure of the building. The receptacle should be secured by way of expanding anchor bolts (or similar) fixed internally through the base and/or back of the receptacle. The securing points should not be visible or accessible externally from the receptacle.
A firearms licence may be revoked for the reasons set out in s 24 of the Firearms Act. In particular, a firearms licence may be revoked if the holder contravenes any provision of the Firearms Act whether or not the person has been convicted of an offence for the contravention. A licence may also be revoked if a licence holder contravenes any condition on the licence. In addition, a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. A firearms licence may also be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. The Commissioner is given a broad power to refuse licences, including if it is not in the public interest for the person to hold the licence: s11(7) Firearms Act. The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
The Commissioner submits that Mr Dombkins' contraventions of safe storage requirements, that he possessed a firearm without a licence and his disregard for the law as also evidenced by his poor driving history mean that he is no longer a fit and proper person to hold a firearms licence and it is not in the public interest for him to hold the licence.

[12]

Fit and proper

As to what is meant by "fit and proper", in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
The determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder: Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [25]. Furthermore, in the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an 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": Commissioner of Police v EMB [2021] NSWCATAP 63 at [45].
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184 at [40].

[13]

The public interest

What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
The expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community: Commissioner of Police v EMB [2021] NSWCATAP 63 at [60].
As noted above, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

[14]

Safe storage

The "public interest" has been held to require that all licensees are aware of, and comply with, the legislative requirements: Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 at [41]. These requirements include safe storage requirements.
In Uzelac v Commissioner of Police [2003] NSWADT 226 at [19] Deputy President Hennessey said in relation to setting aside a decision revoking a licence based on failure to store firearms safely that an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. She went on to say that the principal issue is whether there is a risk to public safety if the applicant retains a licence. Relevant considerations included: 1. the reason for failing to store the firearm safely; 2. the length of time the firearm was not stored safely; 3. the potential or real danger posed by the failure to store the firearm safely; 4. the person's previous conduct in relation to storage of firearms and any related matters; and 5. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future and 6. the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.
The Deputy President then added, "In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety".
In Davos v Commissioner of Police, NSW Police Force [2013] NSWADT 7 at [117] the Tribunal stated: The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.
The safe storage of forearms is one of the fundamental obligations placed upon a licence holder. For the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case": Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 at [19].

[15]

Consideration

I accept that Mr Dombkins has a genuine desire to comply with his obligations under the Firearms Act with respect to the storage of his rifle. I also accept that in general he is a man of good character and is well regarded by others in the community as attested to by his referees. Mr Dombkins does not have a criminal history, no allegations have been made against him of violence and his driving history, while it discloses several offences, does not indicate that he is a habitual offender. The vast majority of his offences occurred more than 10 years ago, some as long as 40 years ago. While I do not wish to downplay the significance of his driving offences, in my view they do not, in the absence of other matters, indicate that he has a general disregard for the law.
Mr Dombkins held a firearms licence from 2002 to its expiry in 2018. During that period there were no adverse incidents with respect to his use of firearms.
The primary issue in these proceedings relates to the safe storage of firearms. Mr Dombkins admits that, at the time police attended his home on 6 December 2018, his rifle was not stored in accordance with safe keeping requirements. Of concern is that at that time Mr Dombkins was completely unaware of safe storage requirements despite having held a licence for 16 years. He also was not aware that, as his licence had expired, he was not permitted to be in possession of firearms. In addition, he had not notified the Firearms Registry of a change in his safe storage address. While I accept that Mr Dombkins had previously stored his rifle at the gun club and not at his home or other location, that fact does not explain why, as a licenced firearms holder he was unaware of his responsibilities.
It is clear that at the time his firearm was seized on 6 December 2018 Mr Dombkins contravened several provisions of the Firearms Act and the Firearms Regulation by failing to notify of his change of address, by failing to store the firearm in accordance with requirements and by being in possession of a firearm while he was unlicensed. A condition of Mr Dombkins' licence was that he comply with the relevant safe keeping and storage requirements under the Firearms Act: see s 19 Firearms Act. Mr Dombkins was also in breach of this condition.
Nevertheless, Mr Dombkins was issued with a new firearms licence on 4 January 2021. Following a safe storage inspection on 29 November 2021, police again formed a view that Mr Dombkins' safe storage was unsatisfactory. The evidence outlined above is to the effect that Mr Dombkins was still not aware of the relevant safe storage requirements for his rifle and he had made no real attempt to find out. He states he told the person from whom he had bought the gun what he was planning to do and the person told him "that sounds fine to me". He also states he looked on the internet for guidance. He apparently did not contact the Firearms Registry or look at the Registry's website which clearly sets out the safe storage requirements for a Category A firearm.
Mr Dombkins states that he has poor literacy and computer skills and indicates that this is why he could not comply with the safe storage requirements. It may be the case that Mr Dombkins' does not have high literacy and computer skills, but that is not a reason to excuse non-compliance. It is clear that again Mr Dombkins had contravened the safe storage requirements in the Firearms Act and a condition of his firearms licence.
Mr Dombkins maintains that by the time of the inspection on 16 November 2022 his safe was compliant. As noted above, the Commissioner has approved certain receptacles and minimum locking requirements for Category A firearms as required under s 40 of the Firearms Act. Those requirements in relation to the safe used by Mr Dombkins require that it be secured by way of expanding anchor bolts (or similar) fixed internally through the base and/or back of the receptacle. In addition, the securing points should not be visible or accessible externally from the receptacle. I do not consider that I should depart from the requirements approved by the Commissioner.
I accept Mr Dombkins' statement that it would be difficult for a person to access the dynabolts which he had placed through the feet of the refrigerator. That does not mean, however, that it would not be possible. I am satisfied that bolting the refrigerator to the floor through the feet which are accessible by the removal of a panel does not equate to securing the safe internally to the floor. The dynabolts screwed through the feet were clearly accessible externally. I agree with the Commissioner that Mr Dombkins' safe storage did not meet requirements at this inspection.
Of great concern is that in his evidence Mr Dombkins complains that he was not given enough assistance to ensure his safe storage met the necessary requirements. The body worn video and police statements indicate that he was provided with some information. That information, delivered verbally, was not necessarily comprehensive but it did not need to be. The obligation to safely store firearms is placed on the licence holder and it is the licence holder who must ensure that he or she meets those obligations. Although others may provide advice, no-one else bears that responsibility and it is up to the licence holder to proactively seek out the information. That Mr Dombkins has failed on three occasions to meet safe storage requirements is a strong indication that he does not know how to store his firearms safely.
Mr Dombkins states that he had made further modifications to the safe and it is now compliant. He has provided photographs of those modifications. There has been no inspection of the safe since the modifications were made, a fact about which Mr Dombkins complains. I note that those modifications were made after the licence was revoked. Whether or not the safe is now compliant is a matter of conjecture but may be a relevant matter, along with Mr Dombkins' improved knowledge of his obligations, if he were to make an application for a new licence in the future. I do not, however, consider it to be a significant issue in my consideration of whether the correct and preferable decision is to revoke the licence taking into account Mr Dombkins' history.
Mr Dombkins has contravened several provisions of the Firearms Act and the conditions of his licence over a lengthy period. It would have been expected that, after being issued with an infringement notice in December 2018, there would have been no further incidents. He was issued with a new licence in January 2021 but failed to store his firearm safely for a period of 11 months at which time the licence was revoked. The fact that his firearm could have been accessed by others during that period is a clear risk to public safety. That Mr Dombkins told police at this time that he was unaware of the requirements is also very concerning.
As I stated above, I believe that Mr Dombkins genuinely wishes to comply with the safe storage requirements. However, he again failed to do so 12 months after the second infringement. In those circumstances, I cannot be satisfied that Mr Dombkins truly understands his obligations or has the ability to comply with them. I also understand that Mr Dombkins wishes to continue his sport, but his interest in doing so cannot outweigh any public safety concerns.
I cannot be satisfied that after considering all relevant matters permitting Mr Dombkins to have a firearms licence would be consistent with a need to reduce any risks to public safety to a minimum. For this reason and in view of my conclusions with regard to Mr Dombkins' contraventions of the Firearms Act and his licence conditions, I am not satisfied that he is a fit and proper person to hold a firearms licence or that it is in the public interest for him to do so.
It follows that the correct and preferable decision is to affirm the decision of the Commissioner to revoke Mr Dombkins' firearms licence.