Farran v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-09-26

The Applicant's background

At the time of the hearing, the Applicant was 28 years old. He lives with his parents in the family home in Lurnea where he grew up. He has recently bought a house in another suburb (which is currently rented) and hopes to move there in the next year or two with his partner. He is in a stable relationship.
He is Lebanese by background and he and his family are part of the Lebanese community.
From approximately 2016 to 2018 he worked in a plumbing business.
He is currently a full-time carer for his aunt, who suffered from cancer and the tragic passing of his late uncle; she heavily relies on him for assistance with obtaining her medical treatment and day-to-day life. At the hearing, he said that he was also currently working in a courier business, which commenced in 2019.
He has been involved with the handling and delivery of LPG, acetylene gas and other inflammatory equipment not only to shops and homes but also to "military RAAF, Richmond". He has also delivered special gas to hospitals and vets. He has met the requirements, including the required background checks, to undertake these jobs "without any issues". He says he has been tasked with responsibilities that require "an immense level of professionalism and sensitivity, with which I have never had a complaint".
His sister, partner, brother-in-law and other family members attest to him being a loving and family oriented individual. They say they have no concerns in respect of his being issued a firearms licence.
His friend, a child-care educator, provided an Affidavit attesting to his hospitality, care of others, good manners and being a person who showed respect. She concluded her view of him to be a "responsible, mature and law-abiding citizen". She said she was aware of his application for a firearm license.
The Applicant has no criminal history apart from the traffic offences set out below. Nor do any of his family members.

Driving offences

The Applicant has a long history of driving offences: 1. On 11 September 2014, the Applicant used his mobile phone whilst driving when not permitted. He was fined $311. 2. On 20 May 2015, the Applicant exceeded the speed limit by more than 20 km/h but not more than 30 km/h. He was fined $436. 3. On 3 July 2015, the Applicant disobeyed left turn / right turn / no turns sign at an intersection, and was fined $248. 4. His provisional licence was suspended for three months from 8 September 2015 until 7 December 2015. 5. On 22 April 2016 he failed to comply with the conditions of his provisional licence by driving a high performance vehicle. He was fined $600. 6. His provisional licence was suspended again from 23 August 2016 to 22 November 2016. 7. On 12 June 2017 and again on 8 November 2017, he failed to display his P-plates. He was fined $253 and $257 respectively. 8. On 24 October 2018 he was charged with exceeding the speed limit by more than 10 km/h but not more than 20 km/h and was fined $275. 9. On 9 March 2021 he received an infringement for colliding into the rear of another vehicle. 10. On 2 April 2022, he was stopped by police after he was seen racing another vehicle in Rosebery. He was charged with speeding in excess of 45 km/h over the speed limit. He was disqualified from driving for 6 months. 11. On 1 October 2023 he was issued with an infringement notice for exceeding the speed limit by more than 10 km/h. Double demits provisions were in place at that time. 12. His licence was suspended again for the period from 5 December 2023 until 4 March 2024 for the offences of 9 March 2021, 2 April 2022 and 1 October 2023.
There is no record of any offences since his licence was reinstated after the final suspension lifted in March 2024.
The Applicant conceded his driving record was "not the best". He says that his recent "no demerit" history shows his capacity to be a responsible citizen and his demonstration of an increased maturity level.
The Applicant said that doesn't drive fast cars anymore; he sold the "racing" car and now drives a Hilux ute. He says (and his partner also states in her Affidavit) that he is much more cautious and aware of obeying the road rules and not speeding; her partner says he reminds her all the time of the importance of the road rules and the need to obey them. She says he "gives her a speech before driving almost every occasion reminding me of the implications of losing even a single demerit."
The Applicant has no history of mental health issues, violent or aggressive behaviour, drug offences or drink-driving offences. He says that he no longer drinks alcohol. I accept the evidence of his family and friends that he is a caring person and always there to help his family and his friends.

Matters or incidents involving Associates

A Confidential Hearing was held in the absence of the Applicant and his lawyer, at which the confidential evidence and submissions (written and oral) were presented to the Tribunal. Paragraphs marked "Not for Publication" in these reasons are subject to confidentiality orders made below.
The Associates are dealt with below by number rather than name, in the order raised in the Respondent's open submissions and the Applicant's Affidavit dated 17 September 2024.
[Not for Publication]

Person 1

Person 1 was a local neighbour of the Applicant who lived "across the street". Person 1 relocated in or around 2019 to another suburb ("a couple of suburbs over"), and has since relocated again. But he still returns to see his parents, who continue to live in Lurnea.
In June 2022, police were in the Granville area targeting illicit drugs, organised crime and completing relevant compliance checks. Person 1 was spotted driving a car and was stopped by the police who were aware he was the subject of a firearms prohibition order (FPO) at the time, and suspected he may have been in the area for the "wrong reasons". The Applicant was also in the vehicle. Police conducted searches with "nil found".
The Applicant explained the incident by saying that Person 1 had been visiting his mother who lived across the street that day and, upon seeing the Applicant, Person 1 asked him if he wished to join him for dinner. He said that he only interacted with Person 1 due to the fact he lived across the street, that he knew him well enough to have dinner with him, and that it would have been viewed as "disrespectful" to refuse the invitation to dinner. As the Applicant recalled, he was in the car with Person 1 after leaving the restaurant when they were stopped by the police. He said that he was "completely unaware of their criminal ties or knowledge of any of the illegal associations". At no point in time did he know that Person 1 had an FPO against him and that was "the first time I had come to find out".
The Respondent says that the Applicant has ongoing contact with Person 1 although they are not "close friends".
The Applicant says he no longer keeps in touch with him, and "since that day I have distanced myself from [Person 1] and anyone else with that type of criminal antecedents as I have never been involved in that type of lifestyle".
[Not for publication]

Person 2

In September 2018, police were patrolling the Lurnea area when they observed a vehicle parked near a sports ground. That vehicle was owned by the Applicant. Police observed the Applicant walk from a dark area of the park, look towards the direction of police and "swiftly enter the drivers seat of the vehicle". They then approached the vehicle and observed the Applicant sitting with Person 2. The Applicant and Person 2 informed police they were there to meet a friend. At the hearing, the Applicant said they were in the park because "he didn't want to be picked up from his parent's place".
A search of the vehicle was conducted with nil items found.
The Respondent says that event reports recorded that Person 2 had recent intelligence regarding his connection to break and enter offences.
The Applicant explained that Person 2 was his employer's brother at the time, and co-owned the plumbing business where the Applicant was working. The Applicant also provided a letter from Person 2 who confirmed this to be the case.
[Not for Publication]

Person 3

Person 3 was also a neighbour of the Applicant, who lived "right across the street" from the Applicant's house, but has since relocated.
The Applicant said at the hearing that he was a friend and the same age.
There were two incidents noted by the Respondent in respect of Person 3.
On 25 April 2017, at 1 am, there was an event involving the Applicant and Person 3 at The Star Casino. In response to a reported drug overdose, the police located paramedics on the scene and found the Applicant seated in a wheelchair, being held by two security guards, apparently unconscious. Person 3 was lying on the floor about 1 metre away, unconscious and being attended to. The Applicant was conveyed by ambulance to hospital, after reportedly becoming aggressive.
The Applicant explained in his Affidavit and oral evidence that his own illness resulted from a drink spike and not a drug overdose. He said that he has done "no illicit drugs ever". He said he returned to the venue the following day to make enquiries and speak to management about the incident, and that the venue management "came to the conclusion" that both he and Person 3 were victims of drink spike as there was video footage depicting them both drinking from the same cup left on the table. Neither the footage, nor other corroborating evidence, was before the Tribunal. The Applicant said that there were no charges, nor was he at any time banned from attending the venue in the future.
Police records show that the Applicant was again seen with Person 3 on 7 February 2018. Police were called to an attempted home invasion at a location in Fairfield. Police later received information that a vehicle had been parked at the location for approximately one hour. Police attended the location and spoke with the Applicant and Person 2, who were inside the vehicle. The Police found prescription medication belonging to the Applicant. The Applicant said the prescription was for him, and the Respondent's submissions confirm that a medical certificate confirming the prescription was provided. No charges were laid.
[Not for Publication]
There is no evidence that Person 3 and the Applicant have had contact since the time of the incidents recorded above. The Applicant says that since he had witnessed him to be in possession of illegal cocaine, he has "tried to distance himself" and has ceased association with him.

Person 4

Person 4 died in 2021, from a suspected overdose in 2021. The Respondent accepts there is no ongoing risk regarding Person 4 personally, but the following evidence was presented by way of relevance to the Respondent's decision.
Person 4 was also a neighbour of the Applicant. The relevant incident occurred in April 2017, when police approached the Applicant and Person 4 who were seated in a car parked on the side of a road, with the Applicant in the driver seat and Person 4 in the passenger seat. A drug search of the vehicle was conducted, and two bags of cocaine were found on Person 4's seat and near the gear stick. Person 4 admitted they were his, and he was charged and convicted of possessing a prohibited drug.
The Applicant says that he met Person 4 for the first time (and last time) through some mutual friends at a dinner that evening. Person 4 was drunk, and requested the Applicant to drive his car to drop him as he "was the only sober person in that get-together". Out of courtesy, the Applicant agreed. He was shocked and surprised when Person 4 panicked upon the car being approached by police, and the Applicant observed him pulling out cocaine bags from his pocket in an attempt to quickly hide them, but ended up spilling the white powdery substance instead.
[Not for Publication]

Stockland Mall incident

On 3 September 2016, police attended Stocklands Mall following a security complain in relation to five men, including the Applicant, who were said to be handing out pamphlets and yelling at persons who would not collect them. When security attempted to take the pamphlets from them and requested that they leave the location, they responded "nah fuck off". The event report states that police checks revealed that one of the males was known for offences relating to possession of weapons and was the subject of intelligence relating to firearms. No charges were laid.

Link to modified vehicle and firearm

On 12 June 2017, police conducted a traffic stop of the Applicant. He was driving a white Toyota and was issued with a traffic infringement notice for failing to display his P-plates.
The vehicle was, according to the Respondent's submissions, linked to a later investigation by Police.
The Applicant lent the car to his friend, a solicitor with whom he had been friends with since school days (Friend). The Friend was stopped for breath testing on 8 July 2017 and was charged for driving the Applicant's car while his own licence was suspended, possessing a prohibited drug and dealing with property proceeds of crime.
2 days later, on 10 July 2017, the Applicant was stopped driving the vehicle, and police conducted a thorough search, locating a .357 Magnum revolver behind the air conditioning vent after removing panelling and the centre console. The firearm was loaded with five live rounds of ammunition.
The Applicant says that no charges were laid, nor is there any evidence to suggest the Applicant was involved in any way with the gun. He does not know how the weapon came to be in the car. He said that he had only purchased the car a short time before the first incident from "a guy on Facebook", who he did not know. He had no idea there was a gun located in the car, and was unaware of any suspicions by police regarding the vehicle.

Change in social behaviour

The Applicant submits that the above events happened a number of years, and he has matured and has a new perspective.
The Applicant says that he now socialises far less than he did in the past. He is looking to settle down. He strongly denies he has a "proclivity to associate with individuals with criminal histories" as submitted by the Respondent. He says that the incidents were isolated, he was never involved in any element of illegality, and indeed was never aware of any criminal history of those persons when the events occurred.

Public interest - relevant principles

As noted above, while the Respondent (and here the Tribunal) have a broad discretion to issue a licence, s 11(7) gives the Respondent a power to refuse to issue a licence if it is considered that the issue of the licence would be contrary to the public interest.
It is well-settled that "the public interest", although not defined, is to be considered relative to the objects of the Firearms Act. The underlying principles stated in s 3(1) emphasise that firearm possession and use is a privilege, conditional on the overriding need to ensure public safety: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise its discretion adversely to, or in favour of, an individual.
The discretion is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. The "public interest" factor allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
Here, the Applicant seeks a firearms licence for recreational and vermin shooting with his friends. Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. These matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
When assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141] and Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41].

Consideration

I have noted the character references which speak positively about the Applicant as an individual. I am satisfied that the Applicant is a fit and proper person to hold a firearms licence, a matter not relevantly disputed by the Respondent.
Therefore, the issue for determination is whether it would be contrary to the public interest to grant the licence. The two matters requiring consideration are addressed below.

Driving Offences

The Applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in determining whether a firearms licence should be granted because it demonstrates a disregard for public safety as well as a disregard for a regulatory scheme aimed at ensuring public safety: see Tannous v Commissioner of Police [2011] NSWADT 116 at [32] and [37], Himo v Commissioner of Police [2021] NSWCATAD 321 at [102].
Each case turns on its own facts, and matters present in the cases cited above may be relevant, or not, in this case. In any event, I have assessed the matter in light of the events that occurred, the duration of the offences, and the remorse shown by the Applicant.
The Applicant is not proud of his previous traffic infringements, and is viewed by his family and friends as having reset himself on the right path (e.g. affidavits of his father at [10], elder sister at [11]). He no longer owns a "racing" type of car, will be looking to settle into a new home, and is in a stable relationship. His partner deposes that he has expressed remorse and sadness over his poor driving record and now reminds her of the importance of complying with traffic rules. I note the Applicant's evidence of his compliance with legislation applicable to his work in transporting and delivering products, and observance with the relevant safety policies and procedures. I accept that young men do silly things they later regret, and that a person's brains continue to develop and mature.
I am heartened by the Applicant's expression of remorse, and his endeavours to reset his approach. However, I disagree with the Applicant's submissions that there has been "too much emphasis" on his traffic record. The extent and nature of the driving offences are substantial. The fact that he continued to reoffend shortly after earlier periods of disqualification is concerning. His participation in illegal street racing, which occurred 2 years ago and involved speed exceeding 45km/h over the limit, is exceedingly dangerous. It evidences a disregard at that time for not only the road rules, but for public safety.
His last suspension only ended in March 2024, and I have concluded that more time is required to pass before the Tribunal can be sufficiently satisfied that he has a clear and demonstrated commitment to observing the law and rules such that there is no appreciable risk to public safety.

Associates

In respect of the Associates, I am confident that the Applicant is now mindful of his associations and contacts, and will pay greater attention to ensure no issues arise in the future. I also: 1. have no relevant concerns regarding the events at Stockland Mall or at the Star Casino; 2. have no relevant concerns regarding the Friend; 3. accept the Applicant has no ongoing interactions of concern with Person 3; and 4. accept that the Applicant met Person 4 for the "first and last time" in 2017. In any event, Person 4 is dead, and the Respondent accepts that the incident involving him is of "low weight".
I have reviewed various other cases referred to in the parties' written and oral submissions but each turns on its own facts, in accordance with the principles set out above. In this case, I accept that the relevant persons of concern are neither related to the Applicant, nor do they live with him. There is no evidence of recent substantial contact or interaction between them and the Applicant. Nonetheless, having regard to all of the evidence (including in the Confidential Materials not disclosed to the Applicant or in these reasons), the Tribunal is satisfied that there exists a risk to public safety because his current living arrangements bring him into close proximity with one or more persons of concern (albeit as visitors to a neighbour, and not as residents).
[Not for Publication]
Accordingly, even taking into account the Applicant's current circumstances and approach, his commitments to "no interaction" or contact with the persons, and even if observed, there remains a real and appreciable risk to public safety which is neither merely "minimal", "speculative" or "theoretical", nor is it "virtually nil". As more time passes without contact, and/or the Applicant moves location, the risk may lessen or pass, but that is a matter for determination at the relevant time if another application is made in the future.
My conclusion is not intended to cast doubt on the Applicant's character, nor his intent. But, as found in Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] given the breadth of the Respondent's discretion and the overriding object of public safety, there is no basis for differentiating between the conduct of an applicant themselves and the conduct of another which may impact on public safety in the context of a firearms licence.

Conclusion

At this time, on the material that is before me, I find that there is a real and appreciable risk to public safety if the Applicant were to be granted the Category AB firearms licence.
Therefore, I also have decided that the correct and preferable decision is that it would be "contrary to the public interest" for the licence to be issued to the Applicant, and for the application to be refused under s 11(7) of the Firearms Act.

Orders

I make the following orders: 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) , the transcript and recording of the confidential hearing in the proceeding on 26 September 2024 and the contents of all paragraphs in these Reasons marked '[Not for Publication]' are not to be published or released to the Applicant, his legal representatives, or the public.

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: 25 November 2024

Firearms Act, the Administrative Decisions Review Act 1997(NSW)

Jurisdiction and Role of the Tribunal

The Tribunal has jurisdiction to hear this application under the provisions of the Firearms Act, the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
The role of the Tribunal is to decide what is the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law: s 63 of the ADR Act. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal makes its own decision in place of the Respondent's, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1 FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10.

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (4)

Cases Cited (9)