The Applicant was charged and found guilty on 8 June 2011 of the offence of allow unauthorised person possess firearm-not prohibited firearm/pistol
The evidence at pages 35 to 37 of exhibit R5 discloses that the Applicant was found guilty by the Local Court of the above offence and without proceeding to conviction the court directed him to enter into a good behaviour bond for 12 months pursuant to s 10 (1) (b) of the Sentencing Act. The Applicant accepted that bond.
The Respondent relied on s 24 (2) (b) (ii) in relation to this event. The section relevantly provides:
24 Revocation of licence
(2) A licence may be revoked:
(a)…, or
(b) if the licensee:
(i) …, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) …
The Respondent submitted at [61] and [62]:
[61] The Respondent relies on a number of provisions of the Act and Regulations to support his decision to revoke the Licence. In particular:
(a) the Applicant was found guilty of four offences against section 7(2)(a) of the Act on 27 June 2001;
(b) the Applicant was found guilty of an offence under section 39(1)(c) of the Act on 8 June 2011; and
(c) the Applicant was found guilty and convicted of an offence under section 51 (1)(b) of the Act on 18 March 2015.
[62] Further, the Respondent submits that the Applicant has, as a result of providing information that he knows is false or misleading in a material particular in his 2005 Licence Application, 2010 Licence Application and 2012 Licence Application, contravened section 70 of the Act.
In respect of the submission in [61(a)] I observe that annexure 2 of the s 58 documents, contains a document entitled Criminal History in respect of the Applicant and records, in respect of the Applicant, four counts of "unauthorised use of firearm" s 7 (2) (A) (sic) Firearms Act 1996 and "Dismissed s10". The Applicant conceded the accuracy of the Respondent's evidence and I accept that evidence.
Relevantly s 7 (2) (a) states:
7 Offence of unauthorised possession or use of pistols or prohibited firearms
(1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.
Maximum penalty: imprisonment for 14 years.
(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:
(a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or
(b)…
I find that s 24 (2) (b) (ii) applies in respect of these four breaches of the Act.
In respect of the submission in [61(b)] that the Applicant was found guilty of an offence under s 39 (1) (c) I note that that section provides:
Part 4 Safe keeping of firearms
39 General requirement
(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.
I dealt with that issue at [42] to [44] above.
In respect of the submission in [61(c)] that the Applicant was found guilty and convicted of an offence under s 51 (1) (b) in March 2015, I note that I dealt with that issue at [18] above.
[2]
Public interest versus private interest
The Respondent relied on s 24 (2) (d) and clause 19. They are:
Section 24
(2) A licence may be revoked:
(a)…
(b)…
(c)…or
(d) for any other reason prescribed by the regulations
Clause 19
The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
I accept that a discretion exists in relation to a revocation decision by the Commissioner on public interest grounds.
The only substantive ground the Applicant provided to the Tribunal in support of the application to review the Decision was that, as manager of his father's farm, the Applicant needed the Licence in order to control feral pests and humanely destroy stock that were sick or injured.
I accept that the grounds submitted by the Applicant may well constitute genuine reasons for obtaining a personal firearms licence. However, the Applicant provided no evidence in support of his Application. No information was provided to the Tribunal as to why it was necessary for the Applicant to personally control feral pests or humanely destroy stock on the farm rather than those functions being exercised by some other person with an appropriate firearms licence.
The statutory principles and objects of the Act and the importance of the legislation in improving public safety by imposing strict controls on the possession, use and storage of firearms as well as licensing requirements are at [14] and [15] above.
The Respondent referred at [71] to [80] to the importance of the public interest in complying with the requirements of the Act. The Respondent relied on several decisions of the former Administrative Decisions Tribunal (ADT) and a decision of the High Court in support of his submission. This was not disputed by the Applicant.
I observe that a discussion of relevant case law with respect to public interest was set out by the ADT in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 including the following:
69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:
"The purpose of the reference to 'public interest' is to ensure that private interests are not 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."
70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions….
Section 3 provides that the first of the underlying principles of the Act is that firearm possession "is conditional on the overriding need to ensure public safety".
In the often quoted decision of Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, DP Hennessy said at [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.
There is no dispute that the firearms licence issued to the Applicant on 22 March 2010 was revoked on 27 July 2011. The revocation decision was the subject of an internal review by the Commissioner which affirmed the decision. In his application for an internal review five years ago the Applicant's grounds were "to control large and small vertebrate pest animals and kangaroos under contract. I need my firearms licence to allow me to do this." Those grounds are substantially identical to the Applicant's grounds in these proceedings.
The evidence is that in 2012 the Applicant again applied for a firearms licence and was granted the Licence. Notwithstanding the several occasions on which the Applicant's firearms licence has been suspended or revoked and the occasions on which courts have found that alleged offences by the Applicant against provisions of the firearms legislation have been proven, the Applicant has continued, whether deliberately or negligently, to disregard his statutory obligations which were legislated to ensure public safety.
Even if the Tribunal saw fit to reverse the Commissioner's decision to revoke the Licence, it would expire in November 2017. The mandatory provisions would then apply and no further firearms licence could be issued to the Applicant before 2025. In these circumstances, it does not seem reasonable to me that the Applicant's personal interest in retaining the Licence should override the public interest in ensuring public safety.
I have had regard to the material before me, the findings I made above, and the importance to the public that holders of firearm licences comply with their statutory obligations.
Section 3 of the Act provides that an underlying principle of the Act is to confirm that firearm possession and use is a privilege which is conditional on the overriding need to ensure public safety. The Act imposes strict controls on the safe and responsible possession, use and storage of firearms. The Applicant's long and repeated history of failing to comply with his statutory obligations does not enable me to be satisfied that there is virtually no risk to the public should he retain his Licence.
[3]
Confidential information and submissions
[not for publication]
[not for publication]
[not for publication]
[not for publication]
[not for publication]
[not for publication]
[4]
Decision
The correct and preferable decision of the Tribunal is to affirm the decision under review.
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: 17 May 2016
Parties
Applicant/Plaintiff:
Farrell
Respondent/Defendant:
Commissioner of Police
Cases Cited (2)
Conviction of a firearms offence on 18 March 2015
The evidence at pages 27 to 30 of exhibit R5 discloses that the Applicant pleaded guilty to an offence pursuant to s 51 (1) (b) of sell firearm without inspecting prescribed documents between 28 March and 6 June 2013. On 18 March 2015 the Applicant was convicted and fined $300. Section 51 relevantly provides:
51 Restrictions on supply of firearms
(1) A person (the supplier) must not supply, or knowingly take part in the supply of, a firearm to another person unless:
(a) the other person is authorised to possess the firearm by a licence or permit, and the other person is authorised to possess the firearm by a licence or permit, and …
(b) the following documents have been produced to, and inspected by, the supplier:
(i) the other person's licence or permit, and
(ii)…
Maximum penalty: imprisonment for 5 years.
…
The evidence at pages 29 and 30 of exhibit R5 is that the Applicant arranged the sale of a firearm which was registered to his father who had agreed to the sale. The Applicant delivered the firearm to a person who was going to deliver it to the purchaser. Two days later the purchaser paid the Applicant for the firearm. The Applicant did not inspect all documents required by s 51. The Applicant did not dispute the accuracy of the Respondent's evidence and conceded the conviction.
The Respondent submitted that the conviction has the effect that a firearms licence must not be issued to the Applicant for at least 10 years after the conviction. The relevant legislation is found in s 11 (5) and subclause 5 (1) (a) (i) of the Regulations which are as follows:
Firearms Act 1996
11 General restrictions on issue of licences
(5) A licence must not be issued to a person who:
…
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
…
Firearms Regulation 2006
Part 2 Licences and permits - general provisions
5 Offences that disqualify applicants
(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
…
The relevant definition of "possession of a firearm" is found in s 4 which provides
possession of a firearm includes any case in which a person knowingly:
(a) has custody of the firearm, or
(b) has the firearm in the custody of another person, or….
I find that the offence for which the Applicant was convicted was an offence relating to the possession of a firearm. Accordingly s 11 (5) (b) applies and the Applicant is effectively stopped from applying for a firearm licence before 18 March 2025.
The Respondent conceded that the revocation of the Licence is not mandatory in these circumstances, it is within the discretion of the Commissioner, and in these proceedings, the Tribunal. The Respondent also conceded that the Applicant has indicated a genuine need for a firearms licence. However, the Respondent also submitted:
51 Where circumstances that would require the Respondent to refuse to grant a licence arise in the context of a discretion to revoke a licence, the Respondent submits that discretion should only be exercised in favour of the licensee retaining the relevant licence in the most exceptional of circumstances. To this end, we note the comments of Higgins JM in Maloney v Commissioner of Police, NSW Police, who said:
Although the Commissioner has a discretion in this regard where the conviction occurred after the licence has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.
52. The Tribunal also considered whether or not the discretion to revoke a licence under section 24(2)(a) should be exercised in Kalinic v The Commissioner of Police [2006] NSWADT 227. The Tribunal, after considering the decisions of Botros34 and Maloney,35said at [23]:
In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.
53 Further, the Tribunal has recognised previously that a decision maker should not shy away from exercising discretion adversely to an individual merely on the grounds that they may suffer hardship and/or inconvenience.
54 Relevantly, in Kalinic, the Applicant submitted that the "special circumstances" were "protecting the general fauna, the wildlife" and the Applicant's "obligation to keep feral animals down". The Tribunal rejected that that they were special circumstances.
The Respondent submits that the circumstances of the current matter are not exceptional. The Tribunal should reject any suggestion that the Applicant has special circumstances for holding a firearms licence because of his "need... to control large and small vertebrate pests on the land"' and to "human[e]ly destroy stock such as sheep and cows that are sick or injured".
The Respondent also relied on s 24 (2)(a) which provides:
24 (2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind.
I observe that in Kalinic, Montgomery JM said at [24]:
This is a difficult matter in that the Local Court has treated Mr Kalinic's convictions as on the lower end of the scale. He received a $200 fine for an offence where the potential penalty is two years in gaol and five and a half thousand dollar fine. Nevertheless, the repercussions for Mr Kalinic as they relate to his firearms licence are very severe. I am satisfied that this is what Parliament intended.
The Local Court treated the Applicant's conviction as on the lower end of the scale. He was fined $300 for an offence with a potential penalty of five years' imprisonment. However, the Applicant provided no evidence as to any special or exceptional circumstances nor any evidence as to any reason why his role in destroying feral animals or humanely destroy stock could not be carried out by some other appropriately licensed person.
I agree with the approach taken by Higgins JM and Montgomery JM. Having regard to the circumstances of the conviction in March 2015 and the undisputed evidence leading to that conviction I find that there are no special or exceptional circumstances persuading me that the discretion should be exercised in favour of the Applicant.