Francis v Commissioner of Police, NSW Police Force

Evidence Before the Tribunal

1. Mr Francis tendered a sworn statement and gave evidence at the hearing. Attached to his statement were copies of a title search and council certificate showing Mr Francis as the co-owner of a rural property in New South Wales. Mr Francis was an honest and co-operative witness under cross-examination who calmly answered the questions put to him without hesitation or embellishment.
2. Both Mr Francis and the Commissioner also sought to rely upon a bundle of documents lodged by the Commissioner pursuant to the Administrative Decisions Review Act, s 58 (s 58 Bundle). The s 58 Bundle comprised material in the following: 1. Mr Francis' firearms licence history; 2. NSW Police record of traffic offences committed by Mr Francis from about July 1980 until about August 2021; 3. NSW Police records concerning two burglaries, each at different locations, each location being the home of Mr Francis at the time. The first of those burglaries was in 2009 and the second was in 2020. In each incident, Mr Francis had firearms stolen. The earlier of these reports includes information about the identification and recovery of some stolen items including some of the firearms which had been stolen. 4. NSW Police records of four firearms compliance audits or "safe storage inspections" undertaken in 2004, 2010, 2012 and 2013 and at four different locations, each location being Mr Francis' home at the date of the inspection. In each case the inspecting police concluded that Mr Francis had fully complied with his obligations for the safe storage of his firearms. 5. NSW Police records concerning an incident in 2015 in which Mr Francis and another person were tasked by an owner of a rural property to conduct aerial pig shooting from a helicopter. In that incident, the helicopter appears to have strayed over neighbouring properties and homes and complaints were received to police. The NSW Police records show that no action was taken against Mr Francis after the matter had been investigated and it is clear that Mr Francis was not the pilot of the helicopter. 6. Mr Francis' applications for a personal firearms licence in 2014 and in 2019, the notice of revocation of his firearms licence and some brief the correspondence between by the Firearms Registry of the NSW Police Force and Mr Francis concerning the revocation of the licence. 7. Correspondence from the Sporting Shooter's Association of NSW and the Triple 0 Pistol Club (pistol club) about Mr Francis' attendance and logging of shooting activities up to about March 2021. 8. Mr Francis' request for internal review of the revocation decision, the Commissioner's decision on review and related correspondence.

Material Facts

1. Mr Francis was re-issued with a Category ABH firearms licence on 7 October 2019 for the genuine reasons of target shooting, hunting and vermin control. The licence was to expire in 2024. Prior to this renewal, Mr Francis had held a Category AB licence for the purposes of target shooting and recreational hunting/vermin control and a Category H licence allowing him to use a pistol for the purpose of target shooting for many years.
2. Mr Francis has no criminal convictions. He does, however, have a lengthy record of traffic offences. The Commissioner tendered evidence of traffic offences dating back to 1980 when Mr Francis was first granted his provisional driving licence.
3. In addition to the road traffic offences recorded in the Commissioner's written submissions, Mr Francis was also fined in 2012 and again in 2018 for failing to carry life jackets on a boat under his control.

Helicopter Incident

1. In 2015, police officers received reports from residents at Gravesend, locality in the New England district of New South Wales, concerning a helicopter flying over properties and near homes. There was no dispute that Mr Francis was on board the helicopter together with the pilot and another person. Mr Francis and the other person had been asked by the owner of some rural land to conduct aerial pig shooting to deal with an outbreak of feral pigs.
2. Police later discovered that that the land-owner on which the pig-shoot was to take place had failed to tell his neighbours of the aerial shooting beforehand and, in the course of undertaking that task, it is apparent that the helicopter flew over houses and other properties.
3. After investigating the matter, police determined they would take no further action against the pilot, Mr Francis or the other person in the helicopter.
4. At hearing, Mr Francis was cross-examined about whether he was in some way capable of directing the navigation of the helicopter. Mr Francis' evidence was that the helicopter pilot was the local person and he was reliant on the pilot's navigation and piloting decisions. I accept Mr Francis' evidence as it is it is unlikely a helicopter pilot would lack the command and agency of his or her craft to the extent that he or she would be overruled by a passenger.
5. While it is obviously dangerous and troubling that a helicopter with two armed shooters should pass over residences in the manner reported to the police, there is insufficient evidence to allow the Tribunal to arrive at the conclusion that the dangerous aspects of that flight were within the control of or were at the urging of Mr Francis. As a consequence, I do not regard the so-called helicopter incident as relevant to the present application.

The Burglaries

1. Of greater moment to the Tribunal's consideration in these proceedings are the two robberies which took place in 2009 and 2020 in which firearms were stolen from Mr Francis' home. It is principally these incidents which impact on the consideration of whether the Tribunal can be satisfied that Mr Francis has and will continue to meet the requirements set out in the Firearms Act, Part 4 for the safe storage of firearms.

First Burglary

1. In 2009, Mr Francis was living in a residential suburb in the upper north shore of Sydney. Mr Francis stored at his home, eight firearms; five shot guns and three pistols and ammunition in two gun safes. The first gun safe for long-arm firearms was a two-tier safe which allowed for the separate storage of ammunition. The second safe was for the storage of pistols.
2. In early May 2009, Mr Francis' home was broken into and among items stolen were eight firearms and ammunition taken from the two gun safes.
3. The police report of the burglary was in evidence, the report states, in part: [Mr Francis] advised police that no forced entry could be seen throughout the residence. This was confirmed by a search of the house by officers.
4. Later, the police report states: Police are sceptical as to the validity of [Mr Francis'] claims, due to no signs of forced entry into the premises or to the bottom section of the rifle safe and floor pistol safe. …
5. Mr Francis gives evidence in a written statement tendered and adopted by him at trial. He denies in his evidence that there was no evidence of forced entry, stating that both the gun safes had been "destroyed" and were not able to be re-used such that his insurer had replaced them entirely after the incident.
6. The s 58 Bundle includes a summary of an interview Mr Francis gave to police a day or two after the burglary. In that summary of interview, Mr Francis is reported to have told police that, after waking later than usual after a night out, he noticed the top gun safe was ajar and that brass padlock securing the bottom portion of the gun safe was unlocked. Mr Francis subsequently disputes such a mild characterisation of the condition of the gun safes. It is his evidence before the Tribunal that the guns safes were damaged so seriously that his insurer replaced them under his policy. In any event, on observing the gun safes being open or tampered with or damaged, he then checked and discovered the theft of his firearms.
7. The summary of interview in the s 58 Bundle also records that Mr Francis reportedly told police he kept the keys to his gun safe in his bedside table. Despite this troubling statement, it is apparent from the police report that the keys were in position and did not appear to have been used to unlock the gun safe or the padlock. Had there been an allegation that the gun safes were opened with keys, I consider it probably that this would have been recorded in the police records and action taken against Mr Francis.
8. Accordingly, the Tribunal accepts that there was damage and signs of forced entry to one of the gun safes at least. There is no evidence from Mr Francis to suggest any other part of the residence - apart from the safes - showed signs of forced entry.
9. In about mid-August 2009 - about three months' after the first burglary - five of the eight stolen firearms were recovered at Centennial Park. According to the records contained in s 58 Bundle, it appeared to the police, noting their condition and the absence of rust or silt, that the firearms had been thrown from a bridge over a pond at the Alison Road side of the park only recently before they were detected. The remaining three firearms were recovered by police some years later, in June 2012, together with other property Mr Francis had reported as being stolen. The ammunition stolen in the course of the 2009 burglary has not been located or recovered.
10. Before the first burglary, the gun safe from which the firearms were stolen in 2009 had not been the subject of a safe storage inspection. Mr Francis' had been subject to a safe storage inspection in 2004 but that inspection occurred at a former residence. The newly replaced gun safe at the site of the first burglary was inspected by police in September 2010 and no concerns were raised by Police at that time.
11. What can be ascertained from the above is that: 1. before the first burglary in May 2009, Mr Francis kept is firearms locked in an appropriately manufactured gun safe; 2. Mr Francis stored a set of keys to the gun safe at his bedside but it is unclear precisely how the keys were stored or whether they were concealed; 3. Mr Francis' gun safe was broken into and damaged as a result of the burglary in May 2009; 4. Despite the police report that the keys to the gun safes were kept by Mr Francis at his bedside, the keys were not used to access the gun safes in the course of the first burglary.
12. Accordingly, there was no evidence before the Tribunal to suggest that in 2009 Mr Francis could have done anything more than he in fact did in securing and safely storing his firearms. The storage of the keys at the bedside, while troubling, was not material to the theft.

Second Burglary

1. A second theft of firearms in Mr Francis's control occurred sometime between November 2019 and January 2020. The exact date is not able to be determined for reasons which will become clear below.
2. In January 2020 Mr Francis was living in a mixed residential and retail complex in a northern suburb of Sydney, near the Hawkesbury River. The unit complex had been his home for almost ten years though he had moved between units within the complex in about 2013. In each unit in the complex, Mr Francis had installed a gun safe where he stored his firearms. Police inspected the storage of the firearms in the first unit in 2012 and in the second unit in 2013. No matters were raised by police as a result of those inspections and there was no evidence before the Tribunal to suggest that there had been a safe storage inspection in the period between July 2013 and February 2020.
3. In a period of about 14 months between about November 2018 and January 2020, Mr Francis told police he was away from his residence for long periods during the week and had been away from his unit entirely in the three months between about November 2019 and January 2020 while he set up a business. His absence from home accounts for the large window of time when the theft may have occurred. I note that, since June 2021, firearms are only to be stored in a dwelling which is inhabited; Firearm Regulation 2017, r 28B.
4. According to Mr Francis' statement tendered at hearing, he told police when he reported the burglary in mid-January 2020 that, about three months prior to detecting the theft (in about November 2019) he had come home and noticed a hinge broken on his back sliding door to the balcony and that a blue tub was missing. As the Commissioner points out in submissions, the fact that Mr Francis did not at that time check on his firearms and only revealed the incident in passing to police in January 2020, is concerning.
5. There is no explanation provided by Mr Francis as to why he did not, on seeing the broken hinge, go and check his gun safe. The lack of any explanation about this is all the more surprising given his previous experience of having had firearms stolen in the course of a break-in.
6. In the week prior to reporting theft, Mr Francis had been contacted by NSW Police to arrange a safe storage inspection. It appears that this may have been the prompt for Mr Francis to check his gun safes in preparation for the inspection. Mr Francis told police at the time that he detected the theft when he was in the process of moving out of his unit. Whatever circumstance prompted him to check, it was mid-January 2020 when he noticed two pistols and a revolver were missing from one gun safe though the rifles and ammunition, stored in a different safe, were untouched.
7. On discovering his firearms were missing, Mr Francis reported a theft to police and in doing so admitted he had not checked on the whereabouts of the pistols and the revolver for as long as 14 months prior. Given Mr Francis' failure to check on his hand guns in that period means that, possibly, the theft had occurred at an earlier date than November 2019 - that date being when he had found the broken hinge to the sliding door of the balcony but did not check the gun safes.
8. Mr Francis was interviewed by police in relation to the second theft again in February 2020. A summary of his electronically recorded interview is contained in the s 58 Bundle. In the summary of the interview, Mr Francis is reported as telling police that the key to the gun safe was kept on a hook in a wardrobe above a shelf in the same wardrobe as the gun safe. Mr Francis explained to police that a person would have to "look very hard" to find the keys. In his statement tendered at hearing, Mr Francis says the keys were concealed and that police had not raised any concerns about the location of the keys when they had previously inspected his gun storage.
9. Mr Francis told police, according to the summary records, that only he and the owner or manager of the unit complex had access to keys to the gun safe. Unlike the first burglary, there is no evidence that the gun safes were damaged in the course of the second burglary. Police, in their investigation summary contained in the s 58 Bundle inferred from the lack of damage that the safes were either unlocked using keys or were not locked in the first place.
10. At the end of the February 2020 interview, police seized Mr Francis' remaining firearms, being three rifles and ammunition. Some months later, arising from this second robbery and his admission that he had not checked on his pistols for over a year, Mr Francis' firearms licence was revoked.

The SSAA and Pistol Club Correspondence

1. The s 58 Bundle included a letter dated 10 September 2020 from the treasurer of the pistol club of which Mr Francis had formerly been a member. The pistol club letter summarised Mr Francis' record of attendance at its firing range. The letter shows Mr Francis last attended the range in 2011 and then only on two occasions.
2. The letter then recounts in vague terms a dispute between the pistol club or the pistol club's secretary and Mr Francis concerning safety procedures relating to a guest at the firing range. The letter also stated that, were he to re-apply for membership, such application would not be successfully considered by the club.
3. The Commissioner elected not to call the any officer of the pistol club to give evidence concerning the content of the letter and the Tribunal was not assisted by the vague recount contained in the letter. Mr Francis expressly denied all allegations against him regarding safety which had been made in the letter and, having regard to the manner in which he gave evidence and further in the absence of a proper recount from the pistol club, I accept as true Mr Francis' denials concerning unsafe conduct while attending the pistol club.
4. The s 58 Bundle also included a letter from the Membership Services Manager of the Sporting Shooters Association of Australia NSW (SSAA). That letter provides a summary of the SSAA's records of Mr Francis' attendance records for each attendance year ending 31 March. For reasons which are not immediately clear, the SSAA letter purports to include a record of attendance in a year which post-dates the letter. Nonetheless, the letter does advise that: 1. Mr Francis first became an SSAA member in May 1999 until 29 February 2020, though his membership has not been continuous throughout that period; 2. the minimum number of annual attendances required for target shooting is 4 attendances, and for hunting the minimum number of attendances is 2 this which accords with the requirements set out in Firearms Regulations 2017, r 107 and r 108 respectively; 3. in the years ended 31 March 2020, 2017 and 2016 the SSAA recorded only one attendance by Mr Francis for target shooting and one attendance for hunting; and 4. in the years ended 31 March 2019, 2018, 2015, 2014 and 2013 the SSAA recorded no attendances at all.

Category AB Licence Only

1. In his request for internal review and again at hearing, Mr Francis sought to be granted a firearms licence which permits him to use and store only long-arm firearms. He does not want a Category H licence since, in his opinion, the target of both burglaries was to obtain hand guns and he wishes to eliminate that risk.

Commissioner's Decision to Revoke the Firearms Licence

1. The Commissioner revoked Mr Francis firearms licence on 17 June 2020 on two grounds: 1. Firstly, the Commissioner considered it was not in the public interest for Mr Francis to continue to hold a firearms licence; and 2. Secondly, the Commissioner considered that Mr Francis no longer had a genuine reason for the possession or use of a firearm.
2. The basis for these grounds was also two-fold; 1. the Commissioner determined that Mr Francis had not had sight or used his pistols for more than 14 months; and 2. Mr Francis had been negligent in the storage of his firearms such that three firearms, including the pistols, had been stolen from his storage safe.

Consideration

1. Mr Francis' concession concerning the holding of a Category H licence was, in my respectful opinion, properly made. He should not hold a Category H licence and he should not be permitted to use pistols since he has shown no genuine reason for having such licence.
2. The Commissioner maintained at hearing that Mr Francis should not be permitted a firearms licence, even one which was limited in the manner proposed by Mr Francis.
3. Mr Francis was represented by counsel and through his counsel made the global submission that restoring his licence would not enliven any recognised risk or be contrary to the public interest. The basis for that submission was, in summary that: 1. Mr Francis had a significant history of owning and possessing firearms with approval of the police. 2. Mr Francis has passed all audits concerning safe storage of his firearms. 3. His intention to store his rifles in a suitable safe in a location which is discrete but which he has access to on a daily basis, 4. Mr Francis had no antecedents for dishonesty and his account of facts, therefore, should be accepted. In particular: 1. his recollection concerning the behaviour of his guest at the pistol club. Mr Francis states his guest was allowed to attend and wore appropriate safety equipment - directly controverting the report provided by the club for the purposes of these proceedings; 2. his evidence about informing the police of seeing signs of forced entry three months' prior to the first burglary should be accepted. 1. Additionally, it was submitted that: 1. Mr Francis having no criminal record and in particular no record of any violent or aggressive conduct he is, in all respects, a fit and proper person; and 2. after the second burglary, police considered it appropriate to return the remaining firearms and ammunition to Mr Francis, and that they would not have done so had there been any perception of risk to public safety posed by his possession of those firearms and ammunition.
4. I will address relevant matters in each of the parties' submissions in the following passages.

Lack of a Genuine Reason

1. The Commissioner submitted that Mr Francis did not have a genuine reason to store or use firearms. The basis of that submissions was that: 1. Mr Francis had demonstrated he did not have a genuine reason to continue to be permitted to use and store pistols; and 2. his failure to meet the "legislated level of participation" in respect of both the long arm firearms and the pistols is evidenced by the membership and attendance records tendered at hearing from the SSAA and the pistol club; and 3. despite being the owner of rural property, he still lacked a genuine reasons to be permitted to use or store a firearm.
2. It is clear that Mr Francis no longer has a genuine reason to be permitted to use or store pistols. That issue has been conceded by him.
3. The SSAA and pistol club correspondence was not contradicted by Mr Francis concerning issues of attendance. I am therefore I am satisfied that Mr Francis did not achieve appropriate levels of participation to satisfy the requirement of having a firearms' licence for the genuine reason of sports/target shooting. He has failed to abide by the attendance requirements and further, his explanation for such failure is lacking.
4. It is likewise clear from the SSAA and pistol club correspondence that Mr Francis has not met his obligations with respect to participation or activities in any of the last ten years such as to allow him to retain a firearms licence for the genuine reason of sport/target shooting as defined in the table to the Firearms Act, s 12.
5. It is also submitted by the Commissioner that, based on the SSAA correspondence, Mr Francis may not have met the requirements in prior years for the genuine reason of hunting/vermin control.
6. At hearing Mr Francis through his counsel again stated the position was that he wished only to retain a Category AB licence which will allow him to control vermin on a rural property of which he is now the co-owner.
7. I do not agree with the Commissioner's submission that Mr Francis currently lacks a genuine reason of recreational hunting/vermin control pursuant to the Firearms Act, s 12. To the contrary, Mr Francis has established on the evidence that, at least from early 2020, he has owned rural property and his evidence concerning the need for vermin control was not contradicted or seriously tested at hearing. However, establishing a genuine reason to have a firearms licence does not, alone, determine eligibility.
8. The Commissioner further submitted, based on a written submissions made by his solicitor in the internal review, that rather than having a genuine reason, Mr Francis requires the long arm firearms for personal protection or security. The solicitor's submission, to which the Commissioner refers, stated: Our client has a need to protect himself and the property. This [being infestation of a rural property with wild dogs] is a severe problem in the local area.
9. Person protection, the protection of others and the protection of property are not listed among the genuine reasons in the Firearms Act, s 12. Firearms Act, s 11(8) provides that the regulations may provide other mandatory and discretionary grounds for refusing to issue a licence. Relevantly, the Firearms Regulation 2017, r 12(2) provides that: The Commissioner may refuse to issue a permit authorising the possession or use of a firearm if the Commissioner is satisfied that the applicant intends to possess or use the firearm for personal protection or the protection of any other person or for the protection of property.
10. I consider the solicitor's submission which is extracted at paragraph 69 above refer to a desire to control vermin on a rural property and not to a wish for personal security. There seems to have been some unfortunate phrasing in that letter which the Commissioner was entitled to be concerned about and raise in submissions. Having heard from Mr Francis and considered the context of the passage extracted above, I am not satisfied, in accordance with the terms of Firearms Regulation 2017, r 12(2), that Mr Francis intends to possess or use a firearm for personal protection, the protection of others or the protection of property at large.

Contravention of the Act and/or Regulations

1. Mr Francis' failed to notify the Commissioner of a cessation of a genuine reason for holding a Category H licence within 14 days of such cessation. This failure was as breach of his obligations as a licence holder pursuant to Firearms Regulations 2017, r 16. That circumstance alone, however, would not be sufficient to revoke Mr Francis' firearms licence.
2. The Commissioner submits that Mr Francis made a declaration in his licence renewal applications in 2014 and 2019 that he satisfied the legislative requirements of gun ownership and could produce evidence of the genuine reasons specified in his application and or renewal. However, as the Commissioner notes, the evidence, particularly the correspondence from the SSAA and the pistol club contradicts those declarations. The correspondence from the SSAA and the pistol club suggests Mr Francis repeatedly failed to record having met the minimum level of participation prescribed by regulations.
3. Whether he in fact failed to meet the participation levels or failed to report properly is another question. Mr Francis' evidence was, for example that in the 2019 year he was using his rifles most weeks. However, the failure of proper record-keeping does not assist Mr Francis. His evidence about using his rifles most weeks in 2019 is contradicted by his evidence that, at least between about November 2019 and January 2020, he did not attend the unit where his guns were stored at all. I do not consider Mr Francis was attempting to dissemble in his evidence on this point but the contradictory account merely underlines the importance of proper record-keeping of when firearms are used.
4. The Commissioner, to underline the seriousness of this issue, referred to the Tribunal to the Firearms Act, s 70 which provides that knowingly making a statement in connection with an application under the Firearms Act or the regulations which is false or misleading in a material particular is an offence with a maximum penalty of 14 years imprisonment if the application relates to a pistol or 5 years imprisonment in any other case. However, the Commissioner does not assert that Mr Francis knowingly made a false or misleading statement.
5. I am satisfied that Mr Francis failed to make an accurate declaration on both his 2014 and 2019 applications for renewal and in relation to being able to produce evidence of having the genuine reason of sports/target shooting, to hold his firearms licence. Mr Francis does not give any account as to why he made inaccurate declarations. In the circumstances, I cannot be satisfied as to Mr Francis level of knowledge concerning this and I make no finding with respect to Firearms Act, s 70.
6. In those circumstances, I accept the Commissioner's submission that, while each contravention may not give rise to a need to revoke Mr Francis' firearms licence, the totality of the contraventions are such that revocation of the licence may be properly considered as a basis for revocation of a licence pursuant to the Firearms Act, s 24(2)(b)(ii).

Whether the Applicant is a Fit and Proper Person - Traffic and Boating Offences

1. Contrary to Mr Francis' submission that he should be considered a fit and proper person, the Commissioner submitted that Mr Francis was not a fit and proper person and a danger to public safety. The Commissioner's submission was based on: 1. Mr Francis' record of traffic and boating offences; and 2. his failure to ensure minimum club participation levels required; as well as 3. his "negligence in failing to notice his firearms were stolen".
2. A licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace Firearms Act, s 11(3). The Commissioner revoke a licence for the same reason Firearms Act, s 24(2)(a).
3. A person is a "fit and proper person" by reference to their honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28).
4. In the current case, the record of traffic offences contained in the s 58 Bundle was relied upon by the Commissioner to show that Mr Francis' repeated breaches of traffic laws and regulations which showed, according to the Commissioner, that he had a disregard for regulatory schemes aimed at ensuring public safety; Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [99] - [102]; Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at [81].
5. Mr Francis by his counsel submitted at hearing that the traffic offences and boating offences do not assist the Tribunal in determining whether Mr Francis is a fit and proper person to hold a firearms licence.
6. The traffic offence history shows the most serious speeding and other traffic offences took place in the period between 1980 and 1990 being Mr Francis' first ten years of driving. Mr Francis' driving offences in that time reflect conduct which was lamentably common among young or inexperienced drivers of that period. Consideration of these offences does not to assist the Tribunal's in assessing Mr Francis' current attitude towards public safety.
7. By contrast, the traffic offence history from about September 2001 to present is more recent and more relevant to such an assessment. Mr Francis was fined for speeding offences on 13 occasions and was fined twice for disobeying traffic signs, twice for failure to carry sufficient lifejackets and twice for driving an unregistered motor vehicle. Therefore, in the 20-year period from September 2001 to August 2021, Mr Francis was issued with infringement notices on about 21 occasions.
8. Traffic offences relating to school zones are quite recent; the first appears in January 2008, the last in November 2020. The traffic offences in school zones include speeding and one infringement for "disobey parking sign". These offences were described in the Commissioner's written submissions as being "particularly egregious". All but one of the speeding offences related to school zones involve speed exceeding no more than 10 km/h, one offence in July 2012 was for speeding not more than 20 km/h.
9. Mr Francis' breaches of traffics laws, particularly as they relate to school zones may indicate a lack of proper regard for the safety of others, however his offending is not as frequent or as serious to place him at the same level as the applicants in Kammoun and Keegan-Jaques or, for that matter, the applicants in El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103, Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269 or Tannous v Commissioner of Police [2011] NSWADT 116. The applicants in those cases, in additional to lengthy serious histories of traffic offences, had criminal convictions or were charged criminal conduct which reinforced the findings that the applicants in those cases had little regard for legislative and regulatory schemes aimed at ensuring public safety.
10. Having regard to the nature, seriousness and extent of Mr Francis' traffic offences and having regard to the absence of any criminal or other conduct on his part, I do not consider his history of traffic offences alone leads to a finding that Mr Francis has a lack of proper regard for the safety of others.

Failure to Safely Store Firearms

1. The Commissioner submits that Mr Francis had not taken all reasonable precautions to safely store his firearms; and he was not capable of meeting storage and safety requirements for his firearms.
2. As noted above the Firearms Act, Part 4 provides the legislative framework for the safe storage of firearms. Relevantly, a person in possession of a firearm is required to take all reasonable precautions to ensure its safe-keeping, to ensure the firearm is not stolen; Firearms Act, s 39. A person holding a firearms licence is required store any firearms in their possession by reference to the type of firearm and the type of licence; Firearms Act, s 40, s 41. In particular, pistols are required, when not in use, to be stored in a steel safe with ammunition being stored elsewhere. Rifles are required, when not in use to be stored in an approved receptacle.
3. It was uncontroversial fact that, in this case, Mr Francis had always stored his firearms in an appropriate receptacle. His storage arrangements were the subject of numerous inspections or audits by the police over many years. It was Mr Francis' evidence that police had been aware of the manner in which he stored the keys to the gun safes and that no issue was raised with him about the key storage being insufficient. The thrust of the Commissioner's concern was that Mr Francis had failed to store his firearms safely, including by having the keys to his gun safe in close proximity to the safe,
4. As stated above, I do not consider there was anything further Mr Francis could have done with respect to preventing the first burglary. It is the circumstances of the second burglary which cause the Tribunal to be dissatisfied with Mr Francis' adherence to his obligations to take all reasonable precautions to safely store his firearms. The second burglary, as I have found, most likely involved the gun safe being accessed with the keys stored at his home while Mr Francis was away from that residence over an extended period.
5. I am satisfied that in the circumstances of the second burglary Mr Francis contravened the Firearms Act, s 39 and such contravention is a basis for revocation of his licence under the Firearms Act, s 24(2)(B)(ii).

Negligence Causing a Firearm to be Stolen

1. The Firearms Act, s 24(2)(c1) provides that a licence may be revoked if the Commissioner is satisfied that the licensee, through fraud or negligence on the part of the licensee, has caused a firearm to be lost or stolen.
2. Despite making submissions to the effect that the first and second burglaries had arisen because of negligence on the part of Mr Francis, neither the Commissioner at first instance nor in submissions before the Tribunal raised sought to rely on this provision.
3. Since proceedings such as these require the Tribunal to determine the correct or preferrable decision having regard to the material then before it including, among other things, any applicable written law; Administrative Decisions Review Act 1997 (NSW), s 63(1). It is therefore required that I consider the operation of s 24(2)(c1) even where it has not been specifically relied upon by either party.
4. In submissions, the Commissioner states that it was Mr Francis' negligence which led to the two burglaries.
5. With regard to the first burglary, the Commissioner's submissions do not clearly explain what actions of Mr Francis are said to be negligent and which of those negligent actions created the circumstances by which the firearms could be stolen from Mr Francis' gun safe. There is a suggestion in the Commissioner's submissions that the negligence in 2009 was the inappropriate storage of keys to the safe however in circumstances where the safes were damaged it is apparent that the keys had not been used and I cannot find there was any negligence on the part of Mr Francis which gave rise to the first burglary.
6. Accordingly, I do not consider the circumstances of the first burglary alone could warrant a finding that Mr Francis was not a fit and proper person to hold a firearms licence or that revocation pursuant to the Firearms Act, s 24(2)(c1) would arise on the basis of the first burglary.
7. With regard to the second burglary, it may be inferred from the fact that there was no sign of forced entry into the gun safe that the person who took Mr Francis' hand guns had managed to locate the keys to the gun safe and make away, undetected, with the hand guns. I find that, on the balance of probabilities, that this in fact was what occurred.
8. Accordingly, I have concluded that Mr Francis was negligent in the manner in which he stored his firearms in the 14 month period up to mid-January 2020. His negligence arose from two matters; 1. firstly, his failure to properly secure the keys to the gun safe in a manner which ensured they could not be located by others; and 2. secondly his failure to check his pistol safe regularly or at all over a period of about 14 months. The negligence of this second matter is particularly heightened in circumstances where, according to his evidence, Mr Francis was taking his long-arms from the adjacent safe most weeks to go shooting on his rural property.
9. At hearing, Mr Francis' evidence was that he intended to continue to store the keys to his gun safe in much the same way as he had done so since at least 2020. He would keep his firearms in a safe secured discretely at his home in a place which he had access to every day. He gave no evidence of changing the manner in which he intended to store the keys to the gun safes. The effect of his evidence and the submissions made on his behalf was that he would continue to use the system of gun storage in a manner which was largely unchanged and that this arrangement to be sufficient with the added feature that his new living arrangements, which involved living at a new residence which would be constantly occupied by Mr Francis and members of his family.
10. The Commissioner submits with regard to the second burglary that it was Mr Francis' negligence in failing to notice when his firearms were stolen resulted in it being difficult for police to investigate the theft and further, reduced the chances that the firearms would be recovered. I agree with that submission and consider that Mr Francis' failure to properly supervise his pistols led to a situation where he could not account for their whereabouts when he finally detected the theft. This failure led to the stolen pistols remaining unaccounted for at the time of the hearing.
11. Firearms which are unaccounted for are a significant risk to public safety; Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD 87 at [54]. Having firearms which are unaccounted for in the community is inimical to the objects of the Firearms Act which, in part, seeks to improve public safety by imposing strict controls on the possession and use of firearms.
12. Mr Francis' proposal, that he no longer store or use pistols is squarely aimed at addressing this issue. However, Mr Francis' proposal does not address the fundamental problem of safe and responsible storage which must include proper protection of keys to his gun safes. His evidence showed little reflection or desire to improve his system of storage despite being him having been the subject of two burglaries where firearms were taken. To the extent there was any reflection on what could have been done to reduce the risk of further theft, Mr Francis pointed to the fact that the pistols seemed to be the items most attractive to thieves. While it is undoubtedly true that short arm firearms can be more readily concealed and as such would pose a greater risk of theft, I do not consider Mr Francis relinquishing his wish to store pistols is sufficient to ensure the safe storage of firearms and therefore the protection of public safety in this case.

Conclusion

1. I make the following findings and conclusions: 1. as the owner of a rural property, Mr Francis has a genuine reason for possession and use of a firearm; 2. Mr Francis' failure to ensure safe and secure storage of his pistols, including ensuring that the keys to his gun safe could not be accessed by anyone other than himself, and the failure to regularly check on the condition of his firearms for about 14 months up to January 2020 amounted to negligence; 3. Mr Francis' negligence failing to ensure safe and secure storage of his pistols, including ensuring the keys to his gun safe were unable to be accessed by anyone other than himself, gave rise to the theft of three pistols some time before January 2020 in the course of what I have referred to above as the second burglary. 4. as a consequence of his actions, there are now three pistols which remain unaccounted for and are these firearms pose a danger to public safety. 5. the arrangement proposed by Mr Francis regarding the future storage and possession of firearms are not sufficient to meet the legislative requirement to ensure or improve public safety with respect to firearms. 6. Mr Francis' record of adhering to compliance and reporting requirements both with respect to firearms and other regulatory schemes has been so poor as to warrant revocation of his firearms licence in addition to the insufficiency concerning the safe storage of his firearms.
2. Firearm possession and use is a privilege conditional on the overriding need to ensure public safety; Firearms Act, s 3(1)(a).
3. In the circumstances of this application and having regard to the objectives and principles as set out in the Firearms Act, s 3, I am satisfied that the correct and preferrable decision was that Mr Francis' firearms licence should have been revoked pursuant to the Firearms Act, s 24(2)(c1) and s 24(2)(b)(ii).

Orders

1. I make the following order: 1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2022