Fasitsas v Commissioner of Police, NSW Police Force - [2023] NSWCATAD 190 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Fasitsas v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 190

NCAT Administrative and Equal Opportunity|2023-07-13

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Court

NCAT Administrative and Equal Opportunity

Decision date

2023-07-13

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

REASONS FOR DECISION

The Applicant Anna Fasitsas held a Category ABG firearms licence from April 2012 to May 2017 and again from January 2018. On 3 August 2021 that licence was suspended, and on 9 November 2022, the Respondent decided to revoke the Applicant's firearms licence.
On 19 December 2022 an internal review application was lodged on the Applicant's behalf, but, as the Applicant was not notified of the outcome of the internal review decision within 21 days, the internal review was taken to be finalised: s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act). Nonetheless, on 6 March 2023 an internal review was conducted, and the decision was affirmed. The Applicant now seeks review by this Tribunal.

[2]

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 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 sales 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.

[8]

Does the Applicant have a genuine reason for a firearms licence?

As discussed above, the SSAA's attendance records with respect to the Applicant reveal that: 1. for the period 1 April 2012 to 31 March 2013, the Applicant participated in only one hunting and one target shooting activity, in contravention of clauses 107, 108 and 109 of the Regulation; 2. between 1 April 2013 and 31 March 2019, the Applicant did not participate in any hunting, target shooting or collecting activity, in contravention of clauses 107, 108 and 109 of the Regulation; 3. for the period 1 April 2019 to 31 March 2020, the Applicant participated in one collecting activity, one target shooting activity and two hunting shooting activities in contravention of clause 107 of the Regulation.
In cross examination the Applicant was taken to each participation year in the SSAA's records. The Applicant did not agree that she had only undertaken 6 shooting activities between 2011 and 2023. In respect of the 2011/12 year where she was recorded as having attended on no occasion, the Applicant did not agree that this was an accurate record of her participation and said she could not understand why more attendances had not been recorded. In relation to subsequent years, she acknowledged that the record noted her attendance on a total of 6 occasions. She said that she had attended a number of national AGMs of the SSAA and numerous "expos and shows". She agreed she did not fire any firearms at these activities but understood that attendance was restricted to those with a firearms licence. She observed that during the period "2016 to 2018" she was without her firearm which had been seized by Police. She also said that during 2020, because of COVID restrictions, there was a 2-year "grace" period, by which I understood her to mean that, for a period, participation requirements were suspended; the Respondent did not cavil with this assertion.
The Applicant agreed with respect to the 2019/20 year, in which she was recorded as undertaking one collecting activity, one target shooting activity and two hunting shooting activities, that she may have "missed a few". As to whether she was a member of a collectors' group she said she had read books in relation to collecting old firearms at first, and thought it was something her kids might be interested in. She did not refer to any attendances, other than those she had mentioned generally as "expos and shows".
In her statement she wrote that because her firearm is stored at her father's and he is mostly at work, she uses the firearms at the range. This does not however increase the number of occasions she attended to shoot at the range, and only described what firearm she may have used on the rare occasions she was there.
The Applicant's father wrote that between 2012 and 2016 the Applicant accompanied him on 6 or 7 hunting trips in the Bathurst area. There was no indication when those trips may have been, such as whether they were clustered or spread throughout the period.
Mr Roberts wrote that he had known the Applicant for several years and she had "shown [him] the ropes" at the firing range and shared her knowledge of firearms, safety protocols and best practices. It was unclear when this occurred and, in any event, his statement did not appear to relate to more than one attendance at the range.
In her statement and in her evidence the Applicant said that her 4 children (3 of whom suffer autism) keep her very busy, so she has rarely used her firearm. She is sole parent, has a dog training business and is a part time student. This may explain, but does not excuse, her failure to attend the range as required.
I am satisfied that the Applicant did not meet her participation requirements in respect of each category of licence held. Hence, she cannot be said to have a maintained her genuine reason for each category of her licence.

[9]

Did the Applicant fail to notify changes in relation to safe storage of her firearm?

In her application for her 2012 licence, the Applicant nominated an address in Regentville, as her safe storage address.
When Police were investigating the domestic violence incident in February 2016 the Applicant told Police that her firearm was now stored at her father's address, at Mount Vernon. It is unclear for how long it had been stored at that address, but, in any event, she did not notify the Firearms Registry of the change.
In her application for her 2018 licence, the Applicant nominated an address in Ashcroft, which was her father's home. On 24 December 2018, the Applicant notified the Firearms Registry that her safe storage address was now an address in Mount Vernon, having previously been an address in Lawson. There was no record of the Applicant having informed Police that her safekeeping address was at any time at the Lawson address.
On or about 23 November 2020, the Applicant's father notified the Firearms Registry that his safe storage address was now an address in Kingsgrove, noting that others, presumably his daughter, stored firearms at the address, as, in her evidence the Applicant said that her firearm had always been stored at her father's home. The Applicant, however, did not notify the Firearms Registry that she also had changed her safe storage address to Kingsgrove.
The Applicant said that in 2018 her father told her she needed to tell the Firearms Registry that her firearm was to be stored at his new address, and she had done so. She agreed in cross examination that because she had had the change noted in 2018, she should have been aware of her obligation in relation to the change in 2021, and said it was an oversight that she had not notified the Firearms Registry when her father had moved again in 2021.
I am satisfied that the Applicant has failed to notify the Firearms Registry of a change to her safe storage address on at least two, and possibly three occasions, contrary to cl 17 of the Regulation.

[10]

Is the Applicant a fit and proper person to hold a firearms licence and do her living or domestic circumstances give reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms?

Section 11(3) of the Act requires that the Tribunal be 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.
The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. The Respondent submitted, in particular, that the Applicant has been the victim of multiple domestic violence incidents said to be in the course of 2 separate domestic relationships, including, most recently, at the hands of a person who lives on the same street as the Applicant. It was submitted that the Applicant's living and domestic circumstances give rise to a concern that the Applicant may not personally exercise continuous and responsible control over firearms.

[11]

Domestic incidents with the Applicant's then husband

The Applicant said in her evidence that she and her husband had married in 2004 and they had 4 sons. According to Police reports, on 9 February 2016, the Applicant and her then husband (husband) who were under financial stress, as neither was employed, were driving towards their home when they began arguing. On arriving home, they got out of their vehicle. As the husband walked behind the vehicle, the vehicle rolled down the driveway and over his left foot. He believed that the Applicant had intentionally caused this and they continued arguing. Subsequently, Police were called by one of their children. When the Police arrived, the husband was reportedly aggressive towards Police and was escorted from the home in handcuffs. Both parties, when spoken to by Police, were vague about details as to what had occurred and provided conflicting versions of events.
On 23 February 2016, Police received a call reporting that the Applicant was fighting with the husband, and that he was bashing her and had smashed windows. Meanwhile, the Applicant attended St Marys Police Station where she reportedly was belligerent and rude to Police, and stormed out of the station to return home. When Police spoke with the Applicant, she stated only that a heated argument had occurred. She did not appear to have sustained any injuries but Police observed two smashed windows at the home. Both parties said that their children had smashed the windows a few weeks beforehand.
On 8 April 2016, the Applicant attended Police to report an alleged violent physical and sexual assault that had occurred on 3 April 2016 following an argument with the husband. As a result, on 12 April 2016 the husband was issued with an Interim Apprehended Violence Order (IAVO) for the protection of the Applicant and a final Apprehended Violence Order was later issued that expired on 27 November 2022. The Applicant said she had not seen the husband since the events of 3 April 2016 and he has also had no contact with the children at all in the intervening years.
As a result of the first reported incident in February 2016, the Applicant's firearms licence was seized. The firearm was held by Police until the Applicant retrieved it on 29 April 2020, although it was reportedly available for release to her 28 days after the incident.

[12]

Domestic incident with Mr ED and his breach of ADVO

On 25 January 2021, the Applicant and Mr ED, reportedly the Applicant's partner of about 4-5 years, were drinking alcohol with the Applicant's cousin at the Applicant's home. According to Police records, at around 3:30am on 26 January 2021, the Applicant and Mr ED had an argument, and the cousin messaged his mother to call the Police to attend the premises. Police attended about 30 minutes later, and the Applicant and Mr ED and the cousin said that the Applicant and Mr ED had engaged in a heated verbal argument. As a result, Police requested Mr ED to return to his residence, located on the same street, which he did.
In her evidence the Applicant denied that she had been in a relationship with Mr ED, claiming that he was only a neighbour. In her statement she wrote, though, that she had been "casually seeing" Mr ED. The Applicant said she could not recall Police attending her home on the Australia Day weekend in 2021.
On 3 August 2021, Mr ED attended the Applicant's residence to pick up his BBQ. According to Police records, as he was leaving there was an argument between him and the Applicant and he accused the Applicant of being unfaithful, sleeping around with other men and called her a 'slut'. They argued and he then kicked the front gate open, causing the latch to come loose, before allegedly slapping the Applicant on the face. The Applicant then ran inside her house, shutting the front door. Mr ED kicked in the front door, breaking the door jam. He continued to argue with the Applicant until she told him to leave, which he did. The Applicant then contacted Police. When Police arrived, she reportedly told them that Mr ED was only a neighbour and not her partner. Later, she reportedly told Police that they had been in a romantic relationship for a few years. In her evidence she denied she had been in a relationship with Mr ED, and said she had known him for a few years since she had lived in the street.
Police arrested Mr ED, and as a result of this incident, Police seized the Applicant's firearm which was stored at her father's and suspended the Applicant's firearms licence.
Mr ED was charged with "intentionally or recklessly destroy/damage property domestic violence related" contrary to s 195(1)(a) of the Crimes Act 1900 and on 23 June 2022, was convicted and sentenced to a Community Correction Order for a period of 15 months. He was issued with a Provisional Apprehended Violence Order for the protection of the Applicant, which was replaced with a full Apprehended Violence Order on 10 August 2021 which is in place until 22 June 2024.
On 22 September 2021, the Applicant reported to Police that Mr ED had breached the AVO by contacting her on nine occasions between 10 August 2021 and 10 September 2021. On 23 September 2021, Police attended Mr ED's home where he was arrested for breach of the AVO. Mr ED reportedly became aggressive, went into the kitchen, opened the kitchen drawer and was ripping out utensils, causing Police to believe they were in danger, and they armed their tasers. Capsicum spray was deployed and it took four police officers to restrain him, as he continued to resist arrest.
The Applicant said in her evidence that Mr ED continues to live near her - across the road and 4 doors up. She said she has had no further conversation with him since the events described above and he has not sought to engage her in conversation either.

[13]

Conclusion in relation to domestic circumstances

In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearms. Domestic violence is clearly at the heart of s 11(4)(a) of the Act, and the Tribunal has considered many times circumstances where the licence holder is not the perpetrator of the domestic violence: see for example, Mekhitarian v Commissioner of Police [2022] NSWCATAD 198 and Lee v Commissioner of Police [2020] NSWCATAD 144 (Lee).
There was no dispute that the Applicant has no criminal history. It is unfortunate that she found herself in a violent relationship with the husband. There was no contention that she had retaliated by resorting to violence herself, and in particular, she had not relied on her firearm to defend herself. I observe though that this course would not have been open to her in any event as, at the time, her firearm was stored at her father's. There was also no evidence that her husband had sought access to her firearm during their relationship nor that he was associated with others who may have desired such access. I also observe that the Applicant has had nothing whatever to do with her ex-husband since the events of 2016, now over 7 years ago.
It is also unfortunate that the Applicant had an association with Mr ED. The Police, on 2 occasions they attended her home in response to complaints about Mr ED, recorded that they were told, presumably by the Applicant who was the complainant, that they had been in a relationship for 4-5 years. She denied a relationship in her evidence. I accept that the Applicant and Mr ED may never have co-habited, but that does not preclude them having been in a form of domestic relationship. While the Applicant denied that they were in a relationship, I have reservations that they were not more than mere neighbours as the Applicant contended. I accept though, that nowadays they do not even converse, notwithstanding the proximity of their homes. In that regard, I note that Mr ED remains subject to an ADVO which will not expire until June 2024.
Again, there was no contention that the Applicant had retaliated against Mr ED's physical abuse by resorting to violence. There was also no evidence that Mr ED had sought access to her firearm nor that he was associated with others who may have desired access. I also observe that the Applicant appears to currently have nothing to do with Mr ED.
I am satisfied on the basis of the Applicant's evidence that her regrettable interactions with her former husband and Mr ED are now in the past. Furthermore, I accept that her firearm has always been stored at her father's various premises, and access to it, by her or others, is therefore very limited.
For these reasons, I am comfortably satisfied that the Applicant's living or domestic circumstances do not give reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms. I find she is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.

[14]

Public interest

The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and cl 20 of the Regulation. The term "public interest" is not expressly defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. 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 a discretion adversely to an individual.
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant 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].
The discretion to make a decision in the public interest 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]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. 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 at [94].
There are a number of features of the Applicant's conduct, each of which, on its own may not have sufficed, on public interest grounds, to preclude the Applicant from continuing to hold a firearms licence, but these, together, give rise to concern in the context of public protection and safety and, particularly, public confidence in the administration of the licensing system.

[15]

Failure to comply with obligations under the Act

It is trite to say that holders of firearms licences must understand the requirements of the Act and Regulation, and must also act in accordance with those requirements: Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at [41]. See also Lukas v Commissioner of Police [2021] NSWCATAD 268 at [73]. The Applicant failed to meet her participation requirements in respect of each category of licence over a period of several years. She also failed to keep the Firearms Registry informed as to the storage of her firearm over a period of several years.
In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
The Applicant's contraventions in the present matter were not merely a "technical" breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations over a period of several years. Her continued failure to comply cannot be disregarded as a mere oversight: per Todororovski v The Commissioner of Police [2019] NSWCATAD 192 at [130].
The solicitor for the Applicant referred in submissions to my decision in Aloschi v Commissioner of Police [2021] NSWCATAD 64 (Aloschi). There, the Applicant, even though not a member of a gun club, was still able to satisfy the 'genuine reason' for his licence on production of authority to shoot, and provided evidence that he had done so. The same occurred in Lee, to which I was also referred by the Applicant's solicitor, where the Applicant fell "shy" of the requisite number of shoots, but there was evidence that he had undertaken hunting activities. In this matter though, there was scant evidence of hunting activities with her father, and this did not overcome the participation failures.
In Kogias v Commissioner of Police [2020] NSWCATAD 297, SM Walker stated at [101] 101. Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b).
The Applicant failed in her participation requirements and in her obligation to inform the Firearms Registry as to the safe storage of her firearm. The public expectation is that the privileged holders of firearms licences will comply with their statutory obligations; the confidence in the scheme depends on meeting that expectation.

[17]

Conclusion in relation to public interest

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 (Martin), 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.
The Applicant said in her statement and in her evidence that she seeks a firearms licence because she hopes to go shooting with her sons; her youngest son, who is aged 9 and is not, like his brothers, on the autism spectrum, is interested in family history and she would like to take him shooting, as both her parents held firearms licences. As a child, she would go shooting with her father and sometimes watch him compete in competitions. Her father had given her his father's .22 rifle and this is her sole firearm. (She now proposes to transfer it to her father.) She said she would like to get involved in women's shooting and target shooting in particular and to go on hunting trips. She said she thought collecting old firearms might be something her kids might be interested in as well.
Private interests such as wishing to continue a family activity and wishing to participate in sports involving shooting, 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. As I have observed many times, 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].
I also observe that the Applicant, when engaging with Police in relation to the domestic violence matters, while perhaps distressed by the events, did not appear, from the Police records, to have been forthright with Police about the events which gave rise to Police intervention: see [46-47] above. This added to my concern that her respect for the regulatory scheme and those charged with enforcing it, has been lacking.
I note the proposal that a condition be imposed on the Applicant's licence that her firearm be stored at her father's. This may have been relevant in respect of the Applicant's domestic circumstances but does not address her failure to comply with her statutory obligations.