FZX v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-05-03

Background

FZX (the Applicant) applied to this Tribunal on 30 August 2022 for review of a decision by the Commissioner of Police, NSW Police Force (the Respondent) to revoke his category AB firearms licence.
The Applicant was issued with his most recent firearms licence on 12 November 2017, with an expiry date of 12 November 2022 for the genuine reason of recreational hunting/vermin control. The licence was suspended by the Respondent on 6 October 2020 and was revoked on 2 June 2021.
The Applicant sought internal review of that decision on 9 July 2021 and on 1 June 2022, the Respondent upheld the decision to revoke the Applicant's licence.
This matter was heard by the Tribunal on 3 May 2023. No issue was raised in respect of the Tribunal's jurisdiction to hear the matter.

Applicable legislation

The general principles and objects of the Firearms Act 1996 (the Act) are relevantly set out in s 3 as follows: (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 supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) …

Tribunal proceedings

Prior to the hearing, the Applicant made an application to set aside a summons issued by the Respondent on Ms Gareth Wild as well as a summons issued on Mr Steve Bonanno. This application was considered on the papers by Senior Member Little and on 9 February 2023, the application was refused. No documents were produced by Ms Wild. The Applicant subsequently claimed privilege over the material produced by Mr Bonanno, and this claim was considered by me on 20 March 2023. At the hearing of the application, the Applicant limited his claim of privilege to only a small number of documents. Following submissions by both parties, the Applicant's claim of privilege was not successful and oral reasons for my decision were provided at the hearing.
The substantive hearing was heard before me on 3 May 2023. In these reasons, in order to protect the anonymity of certain third persons, I will refer to them by reference to their relationship with the Applicant rather than by name, or by reference to them being a third person.

Evidence

The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1), various documents obtained by way of summons from Steve Bonanno, counsellor (exhibit R1), a statement from the Applicant's wife dated 23 December 2012 (exhibit R3) and the Applicant's traffic record (exhibit R4).
The Applicant did not provide a statement in the matter and did not seek to give evidence. At the outset of the hearing, the Applicant indicated that he would not call any witnesses and that he relied on the paperwork provided. The material relied upon by the Applicant consisted of a bundle of documents, including documents relating to his gun club attendances and membership and the purchase of a property (exhibit A1). The Applicant also relied on a Land Tax Assessment for the 2023 Tax Year (exhibit A2) and a letter from Mr Tim Murphy dated 20 February 2023 advising that the Applicant had permission to shoot on Mr Murphy's property in Victoria during the period from March 2000 to March 2018 (exhibit A3).

Submissions

The Respondent relied on written submissions dated 30 December 2022. No copy could be located on the Registry file and a copy was handed up by Mr Regener, the solicitor for the Respondent, during the hearing. Supplementary written submissions dated 5 April 2023 were also relied upon by the Respondent. The Applicant relied on his written response that was filed on 20 March 2023 as well as his response that was filed on 28 April 2023. The parties indicated that each had received the documents and submissions from the other party.
The Applicant and Mr Regener made oral submissions at the hearing.

Role of the Tribunal

Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the 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.
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]. Accordingly, the objects and purposes of the Act are relevant.

Issues

The Respondent contended that it was correct to revoke the Applicant's firearms licence on the basis that it would be contrary to the public interest for the Applicant to hold the licence. The Respondent relied on the following in relation to this ground: 1. There are real doubts about whether the Applicant ever had (or currently has) a genuine reason for having a firearms licence; 2. The Applicant resides some four hours drive away from the property at which his firearms were stored and clause 28B(1) of the Regulation provides that the holder of a licence must not store a firearm in a dwelling unless it is an inhabited dwelling. 3. The Applicant has a problem controlling his behaviour when intoxicated and has a history of engaging in verbal abuse and history of domestic disharmony. 4. In his re-application for his firearms licence on 9 August 2017, the Applicant declared that he had never had his firearms licence suspended, cancelled or revoked, when his licence had been suspended some five years earlier.
It was also contended that the Applicant was not, and is not, a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety or to the peace and that there is reasonable cause to believe that the Applicant may not exercise continuous and reasonable control over his firearms because of his: 1. way of living or domestic circumstances; and 2. his intemperate habits.

Public interest

The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They 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, [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [7].
Other cases have pointed out that 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, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery SM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

Genuine reason

Section 12 of the Act provides that a licence to possess and use a firearm must not be issued unless the Respondent is satisfied that the applicant for the licence has a genuine reason for possessing or using the firearm. Section 12(4) provides that an applicant for a licence has a genuine reason for possessing or using a firearm if the Applicant - (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
The Table to s 12 provides that for the reason of recreational hunting/vermin control, the Applicant must - (a) be the owner or occupier of rural land, or (b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or (b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or (c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations.
The evidence establishes that the Applicant held a One Shooter licence from 20 October 1990 to 18 November 1998. He then held a category AB licence from 9 November 1998, that was subject to two suspensions, until it was revoked on 2 June 2021. The first licence application that was before me relating to the Applicant was lodged by him on 1 October 2003. In this application, the Applicant's genuine reason for the category AB licence was for recreational hunting/vermin control and indicated that the Applicant was a member of the SSAA. The Applicant's subsequent licence re-applications, which were lodged on 25 March 2008, 3 September 2012 and 11 September 2017, also refer to the genuine reason of recreational hunting/vermin control. It was not disputed by the Applicant that recreational hunting/vermin control was the genuine reason for him possessing and using firearms.
The Respondent relied upon a letter from the SSAA dated 31 May 2022 (part exhibit R1) (SSAA letter) and I take this to be the Sporting Shooters Association of Australia (NSW) (SSAA), that states that the Applicant joined the SSAA on 26 June 1998 and his membership expired on 30 June 2012. The letter indicates that "Hunting" requires two attendances for each "Attendance Year", being a 12 month period from 1 April to 31 March the following year. The table in the letter indicates that "Data Not Available" for the Attendance Years 1998/1999 to 2007/2008. For the Attendance Years from 2008/2009 to 2022/2023 the number of attendances for the Applicant in the activity of "Hunting" is "0".
The Internal Review decision made by a delegate of the Respondent on 1 June 2022 (part exhibit R1) found that the SSAA NSW letter demonstrated that the Applicant had not held relevant club membership since 2012 or participated in mandatory shooting activities in connection to his genuine reason, since his licence was issued. It later states that the Applicant's "clear disregard for legislative requirements for a period of more than 15 years (in respect to [the Applicant's] genuine reasons for having a licence) raises concerns about [the Applicant's] understanding of the responsibilities for a firearms licence holder, particularly for such a lengthy period of time."
The Respondent submitted that according to the SSAA letter, the Applicant has not attended a single hunting shoot since at least 2008/2009. It was noted that whilst records are apparently not available prior to that period, the material from the Applicant indicates that as of November 2002, the Applicant had not attended club shoots. The document referred to is a letter from the SSAA to the Applicant dated 21 December 2002 (part exhibit A1). The letter notes that as of 30 November 2002, the SSAA records indicated that the Applicant had attended "no club activities" since April 1, 2002. The letter noted that where the Applicant had sent the Firearms Registry a copy of a letter from a landowner giving permission to hunt on their property, he would not need to make the two hunting activities. The letter went on to state: "If you have not recorded sufficient attendances to date, you will need to make sure they are completed by March 31St, 2003 to ensure that the Association can advise the Registry that you have met the minimum attendance requirements."
In his bundle of documents (exhibit A1), the Applicant provided copies of various receipts and bank statements covering the period March 2003 to August 2006. The Applicant submitted that he relied on the receipts for payment of the two range hires to meet the requirements of 'genuine reason'. Secondarily, he stated that he had provided copies of bank statements showing two separate transactions to the SSAA for separate amounts and on separate months each year. Of those transactions, the Applicant submitted that one was for two range hires and the second one was for annual membership. The Respondent submitted that the bank statements and receipts would not satisfy the Tribunal that the legislative criteria have been met.
The Applicant also provided a letter from Mr Tim Murphy dated 20 February 2023 (exhibit A3) indicating that the Applicant had permission to shoot on his rural property in Victoria and that Mr Murphy regularly sought his assistance to control vermin on the property from March 2000 to March 2018. The Applicant did not give evidence at the proceedings and there was no evidence as to whether he was the holder of a firearms licence in Victoria during the period from March 2000 to March 2018 or whether he had previously provided a letter from Mr Murphy to the Firearms Registry. Section 12 of the Act provides that the production of proof of permission by the owner of rural land to shoot on rural land satisfies the genuine reason requirement for recreational hunting/vermin control. I find however that the letter from Mr Murphy relates to rural land in Victoria, and not in NSW and does not assist me in my determination of this matter under the Act. Accordingly, I give the letter no weight in my decision.
On the basis of the SSAA letter, I accept that the Applicant was a member of the SSAA for the period 26 June 1998 to 30 June 2012 and that as of 31 May 2022, data for any hunting attendances by the Applicant from 1998/1999 to 2007/2008 was not available. As there is no evidence before me as to the Applicant's genuine reason for holding a firearms licence prior to the Attendance Year commencing on 1 April 2002 and ending on 31 March 2003, I give no consideration to his genuine reason prior to that time and make no finding in relation to that period.
Having regard to the copies of the receipts from the Applicant dated 3 March 2003 (part exhibit A1), together with a further payment on 29 March 2003 to the SSAA shown on the bank statement, I am satisfied on the balance of probabilities that the Applicant was a member of the SSAA and complied with the attendance requirements for the 2002/2003 Attendance Year.
The Applicant's bank statements indicates that a card payment was made to the SSAA on 3 March 2004. No further evidence was adduced by the Applicant in relation to this payment and no evidence was adduced of any other payment made to the SSAA in the 2003/2004 Attendance Year or to specific attendances by the Applicant. Whilst I have accepted that the Applicant was a member of the SSAA during this period, in the absence of specific evidence from the Applicant as to what the payment related to and the details of his attendances during this period, I am not satisfied that the Applicant complied with the attendance requirements for the 2003/2004 Attendance Year.
The evidence for the 2004/2005 Attendance Year is similar, with two transactions shown as paid to the SSAA on 8 March 2005. Whilst I have accepted that the Applicant was a member of the SSAA during this period, in the absence of specific evidence from the Applicant as to what the individual payments were for and the details of his attendance, I am not satisfied that the Applicant complied with the attendance requirements for the 2004/2005 Attendance Year.
The evidence for the 2005/2006 Attendance Year consists of a bank statement showing two payments to the SSAA on 31 March 2006 together with a Subscription Renewal (Second Notice) for the Applicant with the SSAA showing an amount of $70 due by 30 June 2006. The copy of the Renewal has a handwritten notation that the amount was paid by Post Billpay on 10 March 2006. Whilst I have accepted that the Applicant was a member of the SSAA during this period, in the absence of specific evidence from the Applicant as to what the individual payments were for and the details of his attendance, I am not satisfied that the Applicant complied with the attendance requirements for the 2005/2006 Attendance Year.
The evidence for the 2006/2007 Attendance Year consists of a bank statement showing one payment to the SSAA on 11 August 2006. Whilst I have accepted that the Applicant was a member of the SSAA for this Attendance Year, in the absence of specific evidence from the Applicant as to what this payment was for and the details of his attendance during this period, I am not satisfied that the Applicant complied with the attendance requirements for the 2006/2007 Attendance Year.
No evidence was adduced by the Applicant in relation to his attendance during the 2007/2008 Attendance Year or the 2008/2009 Attendance Year. Again, whilst I accept that the Applicant was a member of the SSAA during these periods, I am not satisfied that the Applicant complied with the attendance requirements for the 2007/2008 or the 2008/2009 Attendance Years.
Whilst the Applicant did not give evidence in the proceedings, it was not in dispute that he and his wife had purchased a property in Yarrawonga, near Mudgee, (the Yarrawonga property) on 11 November 2009. Section 12 of the Act provides that an applicant will have a genuine reason for a firearm if he or she is the owner or occupier of rural land. The Respondent submitted that it was not apparent that the Yarrawonga property is "rural" land.
In his submissions, the Applicant referred to the Yarrawonga property as being 25 acres (10 hectares) but did not adduce any evidence in relation to the size of the property. The Respondent submitted that the Yarrawonga property is at least a four-hour drive from the Applicant's residence in Sydney and the Applicant stated this to be the case in his internal review request (part exhibit R1). The Applicant relied on a copy of a Land Tax Assessment for the 2023 Tax Year that indicates that the Yarrawonga property is exempt from land tax as it "exempt land zoned rural or non-urban used for primary production." I have also had regard to the reference in the Applicant's internal review request, in which he refers to the Yarrawonga property as being remote.
Having regard to the Land Tax exemption for the Yarrawonga property; its location some four hours' drive from Sydney; and the uncontested reference by the Applicant to it being remote, I find that the Yarrawonga property is rural land and that the Applicant has been the joint owner of it since 11 November 2009. Accordingly, I am satisfied that the Applicant had a genuine reason for possessing and using firearms from 11 November 2009 until 6 October 2020.
In his submissions, the Applicant referred to the previous suspension of his firearms licence and subsequent 'rescission' of that decision in 2013. The Applicant contended that if he had not met the requirements in relation to a genuine reason at that time, then surely the Firearms Registry would have confirmed that he was meeting the requirements prior to rescinding their suspension decision. He went on to submit as follows: Their review in 2013 had every opportunity to expose that I had not met the obligations for holding a licence, then the question to ask is why they rescinded their decision. The reason is clear, I had been meeting those requirements at that time as the SSAA data would have confirmed for them.
I am unable to ascertain what enquiries were carried out by the Respondent prior to the re-instatement of the Applicant's firearms licence on 23 April 2013. However, on all of the evidence before me at this time, and in the absence of evidence from the Applicant on this issue, I find that the Applicant has not established that he had a genuine reason for possessing or using a firearms licence in the period from 1 April 2003 up until the purchase of the Yarrawonga property on 11 November 2009.

Storage of firearms

Whilst it was not in dispute that the Applicant has jointly owned the Yarrawonga property since 11 November 2009, there was no evidence before the Tribunal as to when the Applicant first commenced using it to store his firearms. It is apparent from the re-applications for the Applicant's firearms licence signed by him on 28 August 2012 (2012 re-application) and 29 August 2017 (2017 re-application) that the Yarrawonga property was the safe storage address for the Applicant's firearms at least from 28 August 2012 up until the firearms were seized on 6 October 2020, subject to the suspension of the Applicant's firearms licence in 2013. The 2012 re-application and the 2017 re-application both indicate that the Applicant's residential address is in Sydney (Sydney address). The NSW Police Force COPS Event Ref No E 78760786 created on 1 October 2020 (2020 COPS Event) refers to the Applicant and his wife residing at the Sydney address, and this is the same address as shown on the Land Tax Assessment Notice for the 2023 Tax Year.
Clause 28B of the Regulation relevantly provides as follows: (1) The holder of a licence or permit must not store a firearm in a dwelling unless it is an inhabited dwelling. Maximum penalty - 50 penalty units if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol, or 20 penalty units in any other case. (2) The holder of a licence or permit must not store a firearm on premises other than a dwelling unless - (a) the premises are in a proximity to an inhabited dwelling that allows the premises to be easily observed by the holder of the licence or permit, or by a person on behalf of the holder of the licence or permit, from the inhabited dwelling, or (b) the holder is a licensed firearms dealer and the premises are commercial premises from which the holder carries on the business of, or at which the holder carries on activities as, a firearms dealer, or (c) the requirements of subclause (3) are complied with. Maximum penalty - 50 penalty units if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol, or 20 penalty units in any other case. (3) For the purposes of subclause (2)(c), the requirements are as follows - (a) the firearm must be - (i) stored in a safe of an approved type, and (ii) fitted with a trigger or barrel lock that prevents the firearm from being discharged, and (iii) secured individually on, or in, a locked device within the safe, (b) the safe must be fitted with an alarm of an approved type that is monitored off-site, (c) the premises on which the firearm is stored must have an intruder alarm and duress facilities that are monitored off-site and are of an approved type. (4) In this clause - inhabited dwelling, in relation to the storage of a firearm by the holder of a licence or permit, means - (a) a dwelling that is the principal place of residence of a person, whether or not the person is the holder of the licence or permit, or (b) a dwelling at which a person resides while the firearm is stored there, whether or not the person is the holder of the licence or permit. permit means a permit that authorises the possession of a firearm.
The NSW Police Force COPS Event Ref No E 50588471 created on 23 December 2012 (2012 COPS Event) records that police were called by the Applicant's wife to attend the Yarrawonga property on that date and the report indicates that the Applicant and his wife lived at the Sydney address and referred to the Yarrawonga property as a "weekender". There is reference to the Applicant attending the "weekender" at Yarrawonga at least one weekend every fortnight and during most holidays. The police seized the Applicant's firearms licence, his firearm and ammunition from the Applicant at the Yarrawonga property on that date.
NSW Police Force COPS Event Ref No E 54311871 created on 2 February 2014 (2014 COPS Event) indicates that police attended the Sydney address and spoke to the Applicant on that day. It was recorded that the Applicant was the holder of a firearms licence and owned four rifles stored in Mudgee. The Yarrawonga Property is situated outside of Mudgee and was referred to during the hearing as the "Mudgee" property. I find that the reference to Mudgee in the 2014 COPS Event is a reference to the Yarrawonga property.
The 2020 COPS Event relates to an incident at the Applicant's Sydney address on 30 September 2020 and 1 October 2020 and records that police attended and spoke to the Applicant on 30 September 2020. It was recorded that the Applicant advised that he had four long-arm firearms at the Yarrawonga property in a secure safe. Details of the location of the safe at the property were recorded, including that the "gun safe key" was located in the cutlery drawer of the kitchen at the Yarrawonga property. The 2020 COPS Event indicates that at about 1.30 pm on 1 October 2020, police attended the Sydney address to serve a firearms suspension notice on the Applicant and were advised that he had not yet returned home and that his wife believed that it was likely he had driven to the Yarrawonga property. After failing to locate the Applicant by mobile phone and text message, police requested the Gulgong Police Station to serve the firearms suspension notice, seize the firearms and enquire about safe storage.
There is a further entry on 6 October 2020 by an officer from Gulgong Police Station indicating that at 11.10 am on that day, police attended the Yarrawonga property and spoke to the Applicant. It was recorded that police seized the Applicant's four firearms and firearms licence and issued him with a firearms suspension notice. It was also recorded that police conducted a general check on the Applicant's safe storage and that the Applicant indicated that he would keep his gun safe key with him at all times and store it at his "residential" Sydney address.
Whilst the Applicant disputed some aspects of the incidents referred to in the three COPS Events, he did not dispute that the police attended the Yarrawonga property and his Sydney address in response to the incidents, that the Sydney address was his principal place of residence and that his firearms were stored on each occasion at the Yarrawonga property, which was owned by him and his wife. In any event, he gave no evidence in relation to these issues. The details contained in the three COPS Events and outlined above are consistent with the details in the 2012 re-application and the 2017 re-application.
Having regard to the evidence, particularly the 2012 re-application and the 2017 re-application, I find that the Applicant's principal place of residence, relevantly from at least 28 August 2012 to 6 October 2020, was his Sydney address and not the Yarrawonga property. No evidence was adduced that the Yarrawonga property was the principal place of residence for any other person throughout this period. It was not disputed that the Applicant stored his firearms at the Yarrawonga property on an ongoing basis between at least 28 August 2012 and 6 October 2020 (other than during the period that his firearms licence was suspended in 2013), and I accept this to be the case. No evidence was adduced that any person resided at the Yarrawonga property at all times that the firearms were stored there.
I find that the safe storage address, namely the Yarrawonga property, was a dwelling used by the Applicant and his family as a "weekender" or holiday home and was not his principal place of residence. I find that the premises in which the Applicant's firearms were stored at the Yarrawonga property to be a dwelling. In the absence of any evidence that it was the principal place of residence for any person, or that any person resided in the dwelling throughout the period that the Applicant's firearms were stored there, I find, at least for the period from 28 August 2012 to 6 October 2020, that it was not an inhabited dwelling for the purposes of clause 28B of the Regulation. Accordingly, I am satisfied that the Applicant did not comply with the provisions of clause 28B(1) of the Regulation whilst his firearms were stored at the Yarrawonga property during this period. In making this finding, I accept that the Respondent was aware that the Yarrawonga property was the Applicant's safe storage address and that whilst police attended the Yarrawonga property in 2012, there is no evidence of any safe storage inspection by the Respondent prior to 6 October 2020.
As set out above, clause 28B(2) provides that the holder of a licence must not store a firearm on premises other that a dwelling unless a number of criteria are met, including that the premises are in a proximity to an inhabited dwelling that allows for observation from the inhabited dwelling. I have found that the Yarrawonga property in which the Applicant's firearms were stored to be a dwelling, even thought it was not an inhabited dwelling under the Act. It follows that the Yarrawonga property cannot be "premises other than a dwelling" and that subclause (2) does not apply. Even if the subclause was found to apply to this matter, there is no evidence before me to establish that the criteria in the Regulation had been met.
The 2020 COPS Event records that on 1 October 2020 the Applicant advised police that the Yarrawonga property was "locked and secured and there is no key nearby. The premises (sic) is surrounded by a locked gated fence approximately 50 meters from the house". The Applicant orally submitted at the hearing that a neighbour has a complete view of the home on the Yarrawonga property and had the Applicant's permission to enter the premises. However, the Applicant did not adduce any evidence, whether by giving evidence himself; providing photos of the Yarrawonga property and the neighbouring property; or by providing a statement from the neighbour, including as to the view from the neighbouring property or the means by which the Applicant could enter the Yarrawonga property. It is clear from his submissions in the document filed on 28 April 2023 that the Applicant was aware that the "Failure to store Firearms at an inhabited dwelling" was a matter relied upon by the Respondent.

2017 re-application

It was not disputed by the Applicant that his firearms licence was suspended on 7 January 2013 and that the suspension was lifted on 23 April 2013. In his 2017 re-application, Part F is headed "PERSONAL HISTORY" and it is stated that the Applicant "MUST" complete the section and "Mark an X in one box for each question". The heading is in bold. In response to the first question "Have you in in NSW or elsewhere: a) Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?", there is an "X" marked in the "NO" box. It was not disputed that the Applicant signed the 2017 re-application that appeared under Part G that is headed "DECLARATION". The Declaration includes the following "I understand that it is a serious offence under the [Act] to make a statement or provide information that I know is false or misleading and I certify that all the information contained in this application is true and correct in every detail."
The evidence clearly establishes that as of 29 August 2017, the date that the Applicant completed the 2017 re-application, he had previously had his firearms licence suspended in 2013 and that the correct response to this question was "YES". The Respondent submitted that the Applicant failed to disclose a full account of his history. It was further submitted that the efficient operation of the firearms legislative scheme depends on applicants providing true and correct information in a comprehensive manner and the Firearms Registry being able to rely on the accuracy of information supplied by licensees and applicants. It was further submitted that an applicant's conduct and lack of understanding of the need for accuracy, candour and frankness are factors that can be considered when assessing whether it is in the public interest for an applicant to continue to hold a licence. The Respondent submitted that the Applicant failed to demonstrate these qualities.
It is apparent from the Internal Review - Statement of Reasons (part exhibit R1) that the issue of his incorrect statement in his 2017 re-application was referred to in that decision. It is clear from his submissions in the document filed on 28 April 2023 that the Applicant was aware that the "Failure to complete a Renewal form correctly" was a matter relied upon by the Respondent in these proceedings. He did not however further address this issue in the written submissions or by way of evidence. In oral submissions the Applicant indicated that his response was a genuine mistake and suggested that the document may have been pre-filled and that he may have rapidly filled it out. He submitted that he was not seeking to gain a benefit from the response and was not trying to trick or subvert the process and that it was an honest mistake.
The Applicant's response in his 2017 re-application was clearly false as he knew that his licence had previously been suspended. Whilst the provision of false information in an application under the Act may in certain circumstances amount to a criminal offence, no such action was taken against the Applicant in this matter.
In Saxby v Commissioner of Police [2021] NSWCATAD 275 (Saxby), Senior Member Naida Isenberg made a number of observations in relation to the provision of false and misleading information under the Act and said at [74]: 74. If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. It is difficult to conclude that the Applicant did not knowingly intend to provide false information. The medical evidence shows a pattern of his requiring detailed psychiatric management. There can be no contention that it was an error, because his need for psychiatric intervention, sometimes as frequently as weekly, could not possibly have merely slipped his mind. 75. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years. 76. In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery.
In the decision of Cook v Commissioner of Police [2021] NSWCATAD 204 (Cook), Senior Member Naida Isenberg said at [36]: 36. If Mr Cook had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. As I said very recently in Balle v Commissioner of Police [2021] NSWCATAD 187(Balle) at [14] it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence.
Whilst the Applicant submitted that the "NO" response may have been pre-filled, there was no evidence in support of this submission. To the contrary, the instructions in Part F that the applicant "MUST" complete this section and mark an "X" in one box for each question, suggest that this part of the form was not pre-filled. Further, the six "X" responses in Part F in the Applicant's 2017 re-application are not identical to each other as would be expected in a pre-filled form. Accordingly, on the evidence before me I find that the "X" response to the question regarding suspension of the firearms licence was placed in the "NO" box by the Applicant and that the subsequent declaration was signed and dated by him.
The Applicant did not dispute that he was aware of the suspension of his firearms licence in 2013 and I find that he was so aware. In the absence of detailed evidence as to the circumstances in which the form was completed by the Applicant, and in particular the response to this question, I am unable to find that the Applicant's response in the 2017 re-application was a genuine or honest mistake.
Whilst the Applicant submitted that he was not seeking to gain a benefit from the response, I accept Senior Member Naida Isenberg's comment referred to above in Saxby at [75] that the firearms licensing system necessarily depends on applicants providing true and correct information in a comprehensible manner. The Applicant had held a firearms licence since 1990 and had completed previous application and re-application forms, including the 2012 re-application form that contained the same question. The Applicant's suspension occurred in 2013 and it would be expected that an applicant would carefully consider a subsequent re-application and the information that was required to be provided, especially given the Declaration in the document. I find on the evidence before me, that the Applicant's response in Part F of the 2017 re-application in which he answered "NO" to having a firearms licence suspended was knowingly false. I agree with Senior Member Naida Isenberg's comments at [36] in Cook that "it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence."

Other matters

The Respondent relied upon the circumstances set out in the three COPS Events to submit that the Applicant has a problem controlling his behaviour when intoxicated and has a history of engaging in verbal abuse and history of domestic disharmony. It was submitted that it is not in the public interest for a person with the Applicant's evident history of engaging in verbal abuse and domestic disharmony to be granted the privilege of holding a firearms licence.
It was further submitted that a person with evident anger management issues, that appear to be exhibited when intoxicated, is not a fit and proper person to hold a firearms licence. The Respondent also contended that there is reasonable cause to believe that the Applicant may not exercise continuous and reasonable control over his firearms because of (a) the Applicant's way of living or domestic circumstances and (b) the Applicant's intemperate habits.

Events relating to 23 December 2012

The 2012 COPS Event records that on 23 December 2012, police attended the Yarrawonga property following a telephone call from the Applicant's wife to report that she had just had a verbal argument with the Applicant who "has since accessed a registered firearm secured on the property and has threatened self -harm." In addition to the 2012 COPS Event, the Respondent relied upon a number of pages from the notebook of Sergeant Thomas from Mudgee Police Station who attended in response to the call. The notebook contains a statement from the Applicant's wife signed by her at 10.27 pm on 23 December 2012. A typed statement by the Applicant's wife to the same effect was also in evidence, although that statement was not signed.
The statement recorded that around 9.10 pm that evening, she and the Applicant had been involved in a dispute and that the Applicant had taken his loaded firearm from the gun cabinet, put his keys on the bench and left the building. The Applicant's wife then called the police. She stated that after about 10 to 15 minutes she called police again to get an "ETA" as the Applicant had returned. He apparently had a spare set of keys and entered the premises and locked the gun away before taking food and water outside. In her statement, the Applicant's wife indicated that the Applicant "has a history of doing this and has threatened me + threatened self-harm in the past but did not on this occasion". She then refers to relationship counselling that they were undergoing at the time and that the counsellor was aware of the Applicant's depression and threats of self-harm with his gun. She stated that friends had removed the gun from the Applicant when he acted in a similar matter on 1 January 2012.
The Officer's handwritten notes and the 2012 COPS Event indicate that the Applicant denied having threatened self-harm by using his firearm and also denied allegations of previous threats of self-harm. Police informed the Applicant that as a result of the verbal argument the Applicant's firearm would be seized and the Applicant's firearms licence, firearm and ammunition was subsequently surrendered to police. The parties were advised that a non-urgent Apprehended Violence Order (AVO) would be applied for and that a Notice of Suspension of the Applicant's firearms licence would occur. It was recorded that the Applicant's wife and the Applicant had both consumed intoxicating liquor at the Yarrawonga property prior to the verbal argument. It was recorded that the Applicant's wife was not affected by liquor and that the Applicant was "slightly affected". There is no evidence before the Tribunal that a provisional AVO (PAVO) was issued.
As a result of this incident, the Applicant's firearms licence was suspended on 7 January 2013. Subsequently, a risk assessment report from Ms Wild, psychologist was provided to the Respondent on behalf of the Applicant and on 23 April 2013, the suspension of the Applicant's firearms licence was lifted. In her report, Ms Wild indicated that she first saw the Applicant and his wife for relationship counselling on 14 June 2011 and that she had seen the Applicant for nine sessions. She stated that the Applicant has not been diagnosed with a psychological disorder, although in early 2012 he had experienced high levels of stress. She stated that to her knowledge, the Applicant had no history of posing a threat to himself or others.
In her report, Ms Wild stated: "Although Police records state that [the Applicant] made previous threats to attempt suicide using a firearm, this appears to be a misinterpretation by [the Applicant's] wife due to the influence of alcohol. [The Applicant] states that following a domestic dispute with his wife on 23rd December 2012, he decide (sic) to take a walk around their property. As it was dark he took his firearm as protection against the wild pigs, which roam, in the area. [The Applicant's] wife misinterpreted these actions and called the police. '[The Applicant] stated that he has never threatened to kill himself nor to hurt others with his firearm…It is my opinion that [the Applicant] poses no safety risk to himself or others should his firearms licence be returned."
It is not clear from Ms Wild's report whether or not the Applicant's wife continued with the counselling after the first session or whether the sessions were with the Applicant only. No further material from Ms Wild was in evidence before the Tribunal and she did not give evidence.

Consideration of events relating to 23 December 2012

The Applicant's wife did not give evidence and was not required for cross-examination. It is clear from the evidence that the Applicant's wife did not tell police that the Applicant threatened self-harm on 23 December 2012, and I accept that he did not do so. In her statement, the Applicant's wife was referring to past threats by the Applicant of harm to her, self-harm, and to an incident that occurred on 1 January 2012 relating to a firearm. Whilst there is nothing to suggest that the contents of the statement from the Applicant's wife are not truthful, there is little detail within the statement, and in the absence of further evidence being adduced, I am unable to make a finding that the Applicant suffered from depression at that time or that he had threatened self-harm, or attempted to self-harm in any way.
I accept that the Applicant was involved in a verbal argument with his wife on 23 December 2012 at the Yarrawonga property and that the police were called. In the absence of the Applicant giving evidence and in light of the references in the 2012 COPS Event to both parties having consumed alcohol, and in particular the reference to the Applicant being "slightly affected", I do not accept the Applicant's contention in the internal review request that he was not affected by alcohol on that occasion.
In light of the statement from the Applicant's wife, it does not appear from the report of Ms Wild that she discussed the incident of 23 December 2012 with the Applicant's wife or was provided with a copy of her statement. There is reference in Ms Wild's report to a "misinterpretation" by the Applicant's wife due to the influence of alcohol. This appears to be contrary to the 2012 COPS Event which recorded that she was "not affected by liquor" and that the Applicant was "slightly affected". It would appear from Ms Wild's report that she has solely, or at least primarily, relied on the Applicant's reporting of the incident on 23 December 2012, in preparing her report, which is not consistent with the factual findings that I have made. As a consequence, and in light of the age of Ms Wild's report, I give it limited weight in my decision.

The events of 2 February 2014

The 2014 COPS Event refers to an incident at the Applicant's Sydney address on 2 February 2014 in which police attended following a telephone call from the Applicant indicating that his partner had physically assaulted him. The 2014 COPS Event refers to the Applicant's wife as being the Victim/PN1 and the Applicant as being the Victim/PN2. It is recorded that the Applicant had been consuming beer and carrying out some home renovations and that his wife had also consumed alcohol. A verbal argument then ensued between the Applicant and his wife, and it was alleged that they both physically pushed each other. Police observed minor injuries but reported that none of the injuries were of any significance. The Applicant advised police that he had called them because he had been blamed last time there was an altercation and he did not want to have any further arguments.
Neither party agreed to supply a statement to police and indicated that they would not attend court if any police action was taken. The 2014 COPS Event records that when police requested the firearms licence from the Applicant, he became argumentative but did then hand it over and was apologetic. It was recorded that both parties were affected by alcoholic liquor and no further action was taken by police. The Applicant was recorded as advising police that he would not stay at the Sydney address for the evening until such time as both he and his wife had "sobered up and cooled off." It was also recorded that the Applicant's firearms licence was seized for a "cooling off period".

Consideration of events of 2 February 2014

No evidence, other than the 2014 COPS Event, was adduced in relation to the incident that occurred on 2 February 2014 and the document was largely not disputed by the Applicant except that he denied any physical action by him. On the basis of the evidence before me, I am satisfied that both parties were affected by alcohol; that a verbal argument took place; that police attended the Sydney address following a call made by the Applicant; that the Applicant's firearms licence was seized for "a cooling off period"; and the Applicant left the property until both parties had "sobered" up and "cooled off".

Events relating to 30 September 2020/1 October 2020

The 2020 COPS Event records that police attended the Applicant's Sydney address on 30 September 2020 following a call from his wife in relation to an incident at that address and that minors were present. It was reported that since arriving home at about 8.00pm there had been an ongoing argument between the Applicant and his wife which escalated to a physical altercation between the two in relation to a phone at approximately 11.30pm. The Applicants wife called police at this time. On arrival, the police did not observe any injuries to any person. It was recorded that the Applicant stated that he had one beer and three glasses of wine since returning home and police reported that he was "well affected" by alcohol, was "slurring" and that alcohol could be smelled on his breath. The Applicant's t-shirt was observed to be torn.
Police were advised by a third party that the Applicant and his wife had been arguing throughout the night. It was reported by the third party that the Applicant had been the main aggressor and had been overheard yelling abuse at his wife and calling her names such as "slut" and "bitch". The 2020 COPS Event records that the Applicant appeared agitated and was argumentative with police and made attempts to reignite the verbal argument with his wife. The Applicant was detained and taken to the police station for the purpose of an AVO application. Police were advised that the Applicant sometimes becomes physically aggressive during arguments in particular when under the influence of alcohol. It was recorded that police formed the view that alcohol was a contributing factor to domestic violence within the household and that an AVO was necessary.
Following this incident, it is recorded that police attended the Sydney address on 1 October 2020 to serve a firearms suspension notice. Police activated their body worn video and were advised by the Applicant's wife that she did not wish to proceed with the matter further and that police had only been called to de-escalate the situation. It was recorded that she told police that there had been an issue in relation to a mobile phone, and that she was grabbed and pushed on her arm but that was all. She advised police that the Applicant had likely headed to the Yarrawonga property as this was "typical behaviour" after they engage in heated arguments. As referred to previously, as a result of this incident, police from Gulgong Police Station later issued the Applicant with a firearms suspension notice at the Yarrawonga property and seized his firearms and his firearms licence. The Applicant's firearms licence was revoked on 2 June 2021.
There is no evidence of any AVO being issued against the Applicant for this, or any other incident. The Notice of Suspension refers to an "ADVO (provisional)" being applied for on 1 October 2020. In his undated letter seeking the removal of his suspension, the Applicant indicated that the "orders taken out by NSW Police were dismissed by a Judge on 28th October 2020" (part exhibit R1). The Statement of Reasons for the Internal Review refer to the Applicant being subject to at least one PAVO.

Consideration of events relating to 30 September 2020/1 October 2020

The Applicant did not give evidence and did not dispute the 2020 COPS Event, other than to deny that he was physically aggressive. In the internal review request, the Applicant stated that he was not and has never been aggressive towards his wife or any other family member of member of the public. He stated that his only physical action was defending himself as his wife attempted to grab at him. There is no further evidence by him as to the physical action he took. I accept that the Applicant took some physical action against his wife during this incident but on the evidence before me, I am unable to make any further findings in relation to his actions. I accept all other matters as set out in the 2020 COPS Event and referred to above, including that the Applicant was "well" affected by alcohol, was the primary aggressor and was verbally abusive to his wife over a period of hours, including calling her names. I find that the Applicant was subsequently taken to the police station and subject to a PAVO, but that no AVO was issued. There are no current AVO's or PAVO's in respect of the Applicant.

Counselling

In his request for an internal review, the Applicant stated that "I do recognise that alcohol has played a negative role within my domestic life as such I have been in regular counselling sessions since October 2020. See attached letter from my counsellor confirming this." Included in the evidence (part exhibit R1) was a copy of a letter from Mr Steve Bonanno dated 28 June 2021 and addressed to "Whom it May Concern" confirming the Applicant had completed thirteen counselling sessions since 12 October 2020.
The Respondent relied on a number of documents from Mr Bonanno that were obtained by way of summons over objection from the Applicant (exhibit R2). The Applicant did not provide a report from Mr Bonanno and Mr Bonanno did not give evidence. It appears from his letter that Mr Bonanno is a counsellor and there is no evidence that he is a registered health practitioner, such as a psychologist. The documents from Mr Bonanno appear to be typewritten notes of his sessions with the Applicant and other than the Applicant's internal review request referred to above, there is no evidence from the Applicant in relation to these sessions.
The documents from Mr Bonanno include a page headed "2020-11-30 Tony" and it appears that this is a reference to the date of 30 November 2020. There is reference to "GOALS; Self-management of behaviours that harm relationships" and that the client explored the "theoretical model of the Cycle of Abuse". There is document that appears to be a reference to 23 December 2020, with a heading "Start Anger Management Counselling", and the goals include "[b]egin Anger management with Tony as sole client". Under a heading "Future Actions", there is a dot point "Return to the question = should I have been drinking because I made a pact not to drink because it makes me angry." There is reference in the material to the Applicant about the behaviours that he wants to change, namely "Yelling, hurtful verbal abuse". There is also reference in the material to blame shifting, verbal abuse and physical intimidation. On 23 July 2023, in a "recap session", the Counsellor Summary records "DV was a turning point, and feedback that initiated therapy was both from family and AVO". On 24 March 2021 there is a reference to "Counsellor reflected that client was positioning himself as the victim, despite evidence that shows his actions scared/intimidated others."

Traffic history

The Applicant's traffic record (exhibit R4) was in evidence before me. The traffic record was not disputed by the Applicant, and I accept that he has a number of traffic infringements from 21 April 1986 to 11 January 2020. The traffic record also includes a criminal offence of driving with a low range concentration of alcohol on 7 August 2012 (2012 offence) that was dealt with by the Local Court. The 2012 offence was found to be proved but dismissed upon the Applicant being of good behaviour.

Consideration of other matters

I accept that the Applicant underwent counselling with Mr Bonanno over a period of 13 sessions in 2020 and 2021. The Applicant denied any mental health issues and I am satisfied that the evidence before the Tribunal does not support a finding that he suffers from any mental health impairment or condition.
I find that the Applicant had been drinking alcohol during, or prior to the three incidents referred to in the 2012, 2014 and 2020 COPS Events and that there is a link to the Applicant drinking alcohol in a domestic environment and being verbally argumentative and abusive. On each of the three occasions, police were called to attend and did so. I have found that in the incident on 30 September 2020 that he was the main aggressor and that he was verbally abusive towards his wife, resulting in a PAVO taken out against him by police. Whilst the Respondent did not submit that the Applicant's traffic history was sufficiently serious as to justify the revocation of his licence, it is clear that the 2012 offence is another example of the Applicant's use of alcohol in a matter involving police.
The Applicant submitted that the various incidents were just "outliers" in his life and that everyone has "barneys". He accepted the 2012 offence but submitted that it had occurred approximately ten years previously and that he had modified his behaviour since that time. In his Internal Review Request the Applicant stated he has taken positive actions by continued counselling sessions and he believed that this had a positive effect on his personal behaviour. He submitted that it was clear that he has never represented a firearms threat to his family or the greater community and "as such it is this pattern of behaviour that needs to be referenced in the review, not some simple joining of two events 9 years apart to justify a decision".
I accept the submission from Mr Regener that it is commendable that the Applicant has sought assistance from a counsellor and also that he has recognised that alcohol has played a negative role within his domestic life. However, the Applicant submitted that whilst the course referred to by Mr Bonanno was termed an anger management course, it was really a course about communication skills and directed towards not being aggressive in communication. The Applicant did not provide a statement in the proceedings and did not give evidence. There is no report from Mr Bonanno before the Tribunal, and he did not give evidence. Of note, the Applicant did not adduce any evidence from his wife. There was no evidence as to the Applicant's current domestic circumstances or in relation to his alcohol intake, particularly in a domestic setting. Whilst the Applicant submitted that the three incidents in 2012, 2014 and 2020 were "outliers" and that he has modified his behaviour, there is little evidence to support this.
The Tribunal in Fielden v Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 at [56] held that "[f]irearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement." In Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103], Senior Member Montgomery stated: There is no suggestion that the Applicant has ever misused firearms or that he has ever threatened to do so. However, I accept that there is general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms. Taking a balanced view of the risk to the public, it is my view that there are real grounds for concern in this matter. The licensing regime 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. I cannot be satisfied that the risk to the public would be reduced to a minimum if the Applicant has access to firearms.
In Chen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 167, Senior Member Leal held at [101] that two events of domestic disturbances grounded the finding that there was a history of domestic disputation between the applicant and his wife, "such that I have reasonable cause to believe that Mr Chen may not personally exercise continuous and responsible control over his firearms because of his domestic circumstances."
The current evidence before the Tribunal does not lead to a finding that the Applicant has misused firearms or has threatened to do so. However, I am satisfied that the three incidents referred to above establish that he has a history of domestic disharmony and disputation.

CONCLUSION

I have previously found that the Applicant has failed to provide evidence that he had a genuine reason for holding a firearms licence during the period 1 April 2003 up until the purchase of the Yarrawonga property on 11 November 2009. I have found that for the period that the Applicant's licence was not suspended, and the Yarrawonga property was his safe storage address, the Applicant failed to comply with the provisions of clause 28B of the Regulation. I have also found that the Applicant knowingly provided a false response in his 2017 re-application in that he answered "NO" as to whether he had his firearms licence suspended, when his licence has been suspended from 7 January 2013 to 23 April 2013. Whilst there have been no convictions in relation to these matters, the conduct amounts to contraventions of the Act and the Regulation by the Applicant.
Having regard to the objects and the principles of the Act, I conclude that on these grounds alone, the issue of a firearms licence to the Applicant at the current time would be contrary to the public interest.
Whilst I have accepted that the Yarrawonga property is a rural property, the Applicant has not provided any evidence as to his current or future requirement for a firearm in relation to this property. It is an underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. Accordingly, the consideration of the Applicant's private interests in this matter are outweighed by the public interest.
I have found that the Applicant has a history of domestic disharmony, which includes him using alcohol and being verbally aggressive, and which has resulted in police being called on three separate occasions. In my view, this history poses a real and appreciable risk to the public should the Applicant be given access to firearms. On the current evidence, I cannot be satisfied that there would be virtually no risk if the Applicant was to have access to firearms. Accordingly, I accept the Respondent's submission that it is not in the public interest for a person with the Applicant's history to be granted the privilege of holding a firearms licence.
This conclusion serves to add further weight to my finding set out above and accordingly, I am satisfied that it is not in the public interest for the Applicant to hold a firearms licence at this time. The Applicant is not precluded from applying for a firearms licence in the future and adducing further evidence in support of that application.
Having made this finding, it is not necessary for me to consider the further grounds raised by the Respondent.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 05 March 2024

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Judgment (23 paragraphs)

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