Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182
Source
Original judgment source is linked above.
Catchwords
Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182Commissioner of Police, New South Wales Police Force v Hogan [2024] NSWCATAP 77Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Ford v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 87Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366Joseph v Commissioner of Police New South Wales Police Force [2017] NSWCA 31Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Nehme v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 292
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
The applicant Mr Gavin John Gasnier applied to this tribunal on 8 December 2023 seeking administrative review of decisions by the respondent Commissioner to revoke his category ABD firearms licence under the Firearms Act 1996 and his permit under the Weapons Prohibition Act 1998 (WP Act).
The applicant has been authorized for firearms since at least 1992, when he held a minor's permit, and has held a licence under the current legislation for approximately 10 years. His most recent licence was a renewal issued on 1 August 2020, to expire on 1 August 2025.
His licence was suspended on 3 April 2023 following the issuance of an infringement notice for failure to comply with a move on direction and certain obstructive behaviour at Queanbeyan police station on 1 April in the course of police efforts to obtain a breath sample for analysis (the machine was allegedly malfunctioning). He was charged with the offences of hindering or resisting police in the execution of their duty and refusal or failure to submit to a breath analysis. He was fined $500 on the first charge and acquitted of the second following a hearing. On appeal to the Gosford District Court on 7 December 2023, the sentence was varied and the applicant became subject to a conditional release order (CRO) without conviction for a period of 12 months concluding on 6 December 2024.
On 17 July 2023 his son Jay attempted suicide with a rope and had to be revived by police, being then transported to Canberra Hospital. On 13 September 2023 the applicant's licence and permit, which had been suspended on 6 May 2023 following the 1 April 2023 incident, were revoked on the basis of his Local Court conviction for the offence of hindering or resisting police in the execution of duty.
The applicant requested an internal review, which on 24 November 2023 affirmed the decision to revoke the firearms licence and weapons permit. The matter came on for hearing in the tribunal on 10 May 2023.
[3]
Applicable legislation
Section 24(2) of the Firearms Act provides inter alia that a licence may be revoked:
1. for any reason for which the licensee would be required to be refused a licence of the same kind, or…
2. if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
3. for any other reason prescribed by the regulations.
Clause 20 of the Regulation states that "the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".
Section 11(3)(a) of the Firearms Act provides that 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.
Further, s 11(4)(a) provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances.
Again, a licence must not be issued to a person who is subject to a conditional release order imposed in New South Wales: s 11(5)(d)(iii). The Commissioner may also refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest: s 11(7). Revocation of a licence is discretionary, as the as the Commissioner "may" decide to revoke: s 24(2).
The corresponding provisions of the WP Act are almost identical to those in the Firearms Act: s 18(2), ss 10(2), 10(3) and 10(4). As with firearms licences, permit revocation is a discretionary act.
The issues in this application are thus whether the correct and preferable decision is to affirm, set aside or vary the decision, and specifically whether (1) the applicant is a fit and proper person and can be trusted to have possession of firearms or prohibited weapons without danger to public safety or to the peace or (2) whether by reason of his domestic circumstances there is reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms and (3) whether it would be contrary to the public interest for him to continue to hold a licence or permit.
[4]
The evidence
The respondent did not adduce any oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.
[5]
Mr Gavin Gasnier (applicant)
In oral evidence by AVL at the hearing, the applicant adopted his detailed (undated) statement (exhibit A1) which appeared to be structured in part as a reply to the findings of fact in the internal review decision (exhibit R1, pp 195 - 199). In it he stated as regards his traffic offences between 1993 and 1999 that in 1993 he was 18 years old, and in 1999 was 24. He made bad decisions, as young people do, and learned lessons through the consequences of his poor actions. He discovered that being an adult came with responsibilities. It took a little while, but he grew up, learned lessons and became a better person for it.
In relation to the move-on direction on 23 December 2021, he said that there had been a disagreement with the hotel licensee over personal issues relating to an elderly man he and his wife had been taking care of. He was told to leave, which he did, and crossed the street, ordering an Uber to take him home. The pickup spot was on the other side of the street, so he crossed the street, which placed him outside the hotel. The police arrived quickly and told him to move on once again. At that point he cancelled the Uber and walked to a friend's place nearby, but at no stage re-entered the hotel. Within a couple of days he was reconciled with the publican. He was not proud of his conduct that night and understood that trying to resolve a problem when both parties are intoxicated is futile.
On 1 April 2023 he was at home when he received a call from his wife asking if he could collect her and a girlfriend from Walsh's Hotel, as they had dinner and a few drinks and could not drive. He believed he was OK to drive as he had consumed three beers over a 3½ hour period. He waited approximately an hour and a half for the girls and shortly before leaving had another beer, believing that to be acceptable as enough time had elapsed since his last drink. He was obviously wrong and failed a roadside breath test.
At Queanbeyan police station he was directed to blow into the breathalyzer machine but was told that he had not blown hard enough and have would have to do it again. The next attempt was also unsuccessful. He started recording the conversation, with the knowledge of the police, and asked questions about the functioning of the machine, as he was concerned that it was not working correctly. He was panicking a little as he thought the machine was going to decide his fate, but he was not sure it was working correctly.
[6]
Respondent's submissions
The respondent relied on written submissions filed on 5 April 2024 which after setting out the background to the case and the applicable law highlighted several significant events leading to the cancellation of the applicant's licence and permit:
1. the 23 December 2021 incident at the Queanbeyan Hotel because of which the applicant was issued with an infringement notice for failing to comply with a move on direction;
2. the 1 to 2 April 2023 episode in which the applicant returned an RBT reading of 0.116 and behaved in an argumentative and uncooperative manner when undergoing breath testing at Queanbeyan police station, resulting in his being charged with hindering or resisting police in the execution of duty and refusing or failing to submit to breath analysis. He was acquitted of the second charge after hearing and following a severity appeal was placed on a CRO for 12 months concluding on 6 December 2024 on the first charge. His firearms licence and WP Act permit were revoked following the District Court appeal on 13 September 2023; and
3. his accident on 5 November 2023 when he lost control of his vehicle and ploughed into the front yard of a house, damaging his car. He returned an RBT reading of 0.129, but as a result of the sample not being taken in accordance with the legislation, the sample could not be analysed and no further action was taken.
The applicant also had a poor driving record, including multiple PCA offences, indicating a serious inability to consider and observe legal regulations imposed for public safety reasons. In particular, since 1992 he had committed 15 speeding offences (including three times between 1 August 2022 and 11 January 2023), negligent driving, driving while using a handheld telephone, driving while disqualified, failing to display a P plate and other contraventions. He had also been involved in an accident while driving under the influence of alcohol. A poor driving record was relevant to fitness and propriety.
As a result of those violations, his driver licence was suspended on three occasions in 2007 and 2010 and had been disqualified from driving on five occasions between 1993 and 1999.
The mental health of the applicant's son Jay was also of concern in view of his suicide attempt on 17 July 2023 when he was found inert and with no pulse with a rope around his neck following a breakup with his girlfriend. Police applied CPR, which caused him to resume breathing and he was taken to Canberra Hospital. Although Jay no longer resides at the applicant's residence, there was still an unacceptable risk to public safety from the applicant's use and possession of firearms as a result of his working arrangements, which included the applicant's close association with Jay, as they work together and see each other every day, and Jay's mental health issues, including his history of suicidal ideation.
[7]
Approach
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c), and similarly under s 35(1)(c) of the WP Act. The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3)(a) states that 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". Section 11(4)(a) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[8]
Fit and proper person
The first ground on which the respondent contends that the revocations should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence or a prohibited weapons permit. Section 11(3)(a) of the Firearms Act and s 10(2)(a) of the WP Act state that a licence or permit 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 (or prohibited weapons) without danger to public safety or to the peace", or under s 11(4)(a) of the Firearms Act the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances.
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[9]
23 December 2021 - Move on direction
The respondent highlights three incidents as indicative of the applicant's character, especially when under the influence of alcohol. The first one is the subject of a brief event report (E5522318, 23 December 2021, exhibit R1, p 34) which states that about 10:30 pm police were called to the Queanbeyan Hotel as the applicant "had re-entered the area of the licensed premises after being provided a move on direction about 10:15 pm". He was given a criminal infringement notice for failing to comply with a direction under the Law Enforcement (Powers and Responsibilities) Act 2002.
The applicant's account is that he was spoken to by police on the far side of the street opposite the hotel after an argument with the licensee, but had crossed back over to the hotel side because he had called an Uber to take him home, and the hotel was the Uber pickup spot. But as it was close to Christmas, Uber was busy and he had to wait about 15 minutes. He had not re-entered the hotel, and indeed the police report says only that he re-entered "the area of the licensed premises".
In support of his account the applicant refers to the character reference written by Mr Matthew Griffin, licensee of the Hotel Queanbeyan, dated 18 April 2024. The reference reads in part like a witness statement, describing the circumstances as follows:
On that night Gavin was asked to leave the hotel and ended up in an argument with me. The police were called by the hotel staff, when the police arrived the argument was over and Gavin was across the road from the hotel. The police spoke with Gavin and left, Gavin remained on the other side of Crawford Street and some time later crossed the street which placed him outside the hotel. The police were called a second time and arrived a brief time later. Gavin was instructed to leave, which he did. At no stage did he attempt to re-enter the hotel and I later found out that he had crossed the road to catch an Uber as that was the pickup spot.
Mr Griffin adds that he spoke with the applicant within four days after the incident, and he had been welcome back to the hotel since then. "I have witnessed Gavin consume alcohol on several occasions and never found him to be abusive, violent, rude or not in control of his actions".
The applicant stated that he regretted how he had handled the matter and had learned from that incident that one should not attempt to resolve a problem when intoxicated. While the applicant should have moved on or perhaps waited for the Uber on the far side of the street, having received a move on direction, the incident does not merit substantial weight in the consideration of fitness and propriety.
[10]
1 to 2 April 2023 - Hindering police
The police had approached the applicant's station wagon during a traffic stop to administer an RBT test and asked him if he had consumed any alcohol, to which he replied "yes". He returned a test result of 0.116, a middle range PCA and was taken to Queanbeyan police station for a breath analysis (event E 76505637, id., 36 - 37). While in police custody, he failed to provide an adequate sample of breath suitable for analysis, becoming "increasingly argumentative and obnoxious, repeatedly asking the same questions over again in an attempt to incite police".
Police saw him turning on his telephone's record function and record the conversation with police. He failed to provide a second breath sample and as a result the machine timed out for a period of 15 minutes. Because of what they described as his increasingly aggressive behaviour, they moved a chair out of the room but as they did so, he seized his mobile phone from the chair, refusing to hand it over to police. He straightened his arms in an attempt to keep his telephone hidden, but eventually police took possession of it. He continued to resist and hinder police by stiffening his body and pulling away from them. "Further police were required to assist in restraining the accused as he was extremely aggressive". He was charged with failing to supply a sufficient breath sample.
His explanation was that he had been at home when he received a call from his wife asking if he could collect her and a girlfriend from Walsh's Hotel as they had dinner and a few drinks and were unable to drive. He agreed to pick them up, believing that he was safe to drive as he had consumed three mid-strength beers over a 3½ hour period. While waiting 1½ hours for his wife at the hotel he had another beer, mistakenly thinking that enough time had elapsed since his last drink.
At the traffic stop police took his licence and telephone, returning them when they arrived at the police station. After blowing into the machine, he was told that he had not blown hard enough and would need to repeat the process, which he did some three or four minutes later. He was then told that his second attempt was unsuccessful also and the machine had timed out for 15 minutes. During that time he questioned the police on why the time between the first and the second attempts was only three or four minutes, yet between the second and third attempts was 15 minutes. He started recording the conversation, with police acquiescence.
[11]
5 November 2023 - Drink-driving accident
On 6 November 2023 at about 1:53 am, the applicant lost control of his vehicle while rounding a corner and ploughed through bush, colliding with the side of a house. He later told police that he had swerved to avoid two kangaroos on the roadway (event E 354328298, exhibit R1, pp 48 - 49). He admitted to the residents of the house that he had been drinking earlier in the night, and they contacted police.
The front wheels of his vehicle were damaged and police said he had attempted to drive his vehicle away from the scene, but because of the damage was unable to go far and parked nearby on the roadside.
The attending police asked him if he had been drinking, to which he responded by shaking his head. Police noticed what appeared to be beer spilt in the driver's foot well. A roadside breath test gave a reading of 0.129 (a mid-range PCA result). He was arrested and taken to Queanbeyan Hospital where he supplied blood and urine samples that were sent for analysis. As a result of the samples not being taken in accordance with the legislation, the samples could not be analysed and no further action was taken against the applicant.
The respondent pointed out in cross-examination that the quantity he admitted to consuming after the Peak View concert was similar to that which he had drunk on 1 April of the same year, when an RBT reading of 0.116 had been recorded. He agreed, but said he had thought he was not over the limit because of the length of time over which the beverages had been consumed. Now he knows that is not correct, as a result of the traffic offenders' course.
The applicant's version of events was that he had indeed swerved to avoid two kangaroos and that the liquid on the floor of his vehicle was rainwater that had come inside the vehicle as a result of heavy rain that night. He had not attempted to drive away from the scene but had reversed about 20 m so as to park in a safe location, where he had waited for police. He said he had consumed four beers at the concert at Peak View and two Jack Daniels and Cola afterwards, over a period of from 7:00 pm to 1:30 or 2:00 am.
He had thought that given the time lapse he was below the legal limit, but as he had not undergone the traffic offenders' course at that stage, he did not know that such was not the case. He had been tired from driving and had not had any dinner, which might have affected the result, as might his age. Now he does not drink every day and does not drink at all when driving.
[12]
Traffic record
The applicant has a very poor traffic record which, as was noted above, includes 15 speeding offences (including three times between 1 August 2022 and 11 January 2023), three licence suspensions and no fewer than five licence disqualifications. His most recent violation was on 11 January 2023, for exceeding the speed limit by between 10 and 20 km/h. The respondent submitted that the applicant's driving record indicates a serious inability to consider and observe legal regulations that are imposed for public safety reasons and, further, indicates a lack of responsibility for public safety.
He acknowledges that his driving record is poor and that he can offer no excuses. He points out that he spends between two and 12 hours a day, seven days a week, on the road in cars, heavy vehicles and motorcycles. He now treats cars and motorcycles exactly the same as a heavy vehicle and will not have a single alcoholic drink of any description if he plans to drive. He understands that his driving record might indicate otherwise, but he honestly had no intention of breaking the law in either of the two PCA incidents in 2023. He had genuinely believed he was fit to drive.
He tendered a certificate of completion of a Traffic Offender Intervention Program conducted by Road Since Australia Ltd dated 26 February 2024, in which he added in the participant comments section that he had gained "A much broader understanding of how many people are actually affected by my decisions and actions on the road. The understanding that trying to guess if I am OK to drive after consuming alcohol is a flawed system with many variables that can affect my BAC. I will no longer consume any alcohol at all if I am planning to drive and if I am planning to drink I will have a definite plan in place to get home" (part exhibit A1).
The applicant also produced a certificate of successful completion of an Alcohol and Other Drugs Awareness program course dated 26 February 2024 (ibid.). He points out that since completing the traffic offender program he has not recorded any traffic violations.
[13]
The references
The applicant tendered some 13 mostly recent character references (at least two of which, as was noted above, also doubled is corroborative witness statements). They were written by a wide range of Southern Highlands residents and primary producers, a Shire Councillor, a regional council technical officer, work associates, social contacts, voluntary aid workers and users of his company's electrical contracting and feral animal control services.
It is not necessary to detail their contents but they are all from people who have known the applicant for a substantial period of years in a wide range of capacities and they are unanimous about his professionalism, sense of responsibility, devotion to his family, equable temperament and integrity. For example, Mr Paul Koroday describes how he provided free electrical contracting services in the construction of the new building for the Treehouse children's special needs centre in Queanbeyan. He has also been an active participant in fundraising campaigns for the Braidwood Apex Club.
Mr Matt Chidgey states that the applicant has performed essential services on his three properties in humane stock treatment and control of wild pigs and other vermin, and bio-security generally. Mr Scott Shea, manager of Foxlow property and Mundango Station at Braidwood makes similar comments. Several farmers and graziers stress that his contract shooting and related activities have provided an effective remedy where other methods such as exclusion fencing and baiting have proved ineffective or more harmful than beneficial. Some producers had suffered losses of 90 percent of lambs and crops.
Mr Jeff Burnell, a former board member of the Queanbeyan Children's Special Needs Group pays tribute to the applicant's involvement in fundraising activity for the group, donating auction items, a venue when needed and countless hours of his own time, and he "continues to do so. Gavin is such a giving and caring person who is enjoyable to be around and always happy". He had worked with the applicant in a hotel for years and in that time witnessed him defuse and calm potentially violent situations. He remained calm in the face of abuse and threats and remained completely passive even when threats of violence had been directed towards him.
Specifically relevant is Mr Burnell's observation that "When drinking and socialising Gavin always arranged a lift home and at work he would always organise transport for our patrons who had been drinking, sometimes even driving them home himself. He had always displayed a sensible attitude towards drink-driving". None of the referees was required for cross-examination.
[14]
Fitness and propriety - evaluation
The applicant is a man aged 49 who has no criminal convictions and no history of violence or threatened violence towards others. He has been married for 24 years and his children live and work in the region. He has been licensed for firearms under the present legislation for over 10 years without contravening any aspect of the regulatory scheme and without attracting adverse notice for any careless or inappropriate use or storage of firearms. He has no history of mental health problems or of drug abuse
He did receive a criminal infringement notice (CIN) over the move-on incident at the Queanbeyan Hotel on 23 December 2021 when he waited for 15 minutes for an Uber at the Uber pickup point outside the hotel after receiving a move-on direction following an argument with the licensee, Mr Matthew Griffin, but states that he did not attempt to re-enter the hotel (nor does the event report assert that he did). Mr Griffin corroborates his version of events and adds that he spoke with the applicant within four days of the incident and he had been welcome back to the hotel since then. He adds, "I have witnessed Gavin consume alcohol on several occasions and never found him to be abusive, violent, rude or not in control of his actions".
The applicant now regrets how he handled the situation and believes that the incident taught him a lesson about problem resolution. In my view the episode does not merit substantial weight in the evaluation of fitness and propriety.
His conduct in hindering police at Queanbeyan police station on 1 - 2 April 2023 following his failing a roadside RBT test is more serious. He conceded that his behaviour could have been regarded as "argumentative". Whether his discussion with attending police was intended to be provocative or, as he represented it, a panicked reaction to his concerns about the possible malfunctioning of the breath analysis machine, there is no doubt that his determined physical resistance to surrendering his telephone by stiffening his body, while not involving any actual violence towards the officers, was intended to hinder their execution of their duty. The combined efforts of four officers were required to bring the incident to a conclusion.
He has expressed keen remorse over the fracas, but it remains a discreditable episode in his life which also links with his accident on 5 November 2023, when he swerved to avoid two kangaroos and ploughed through some bush, ending against the side of a house. As the damage to his front wheels had made the vehicle undrivable, he reversed back up the road for about 20 m and parked, awaiting police. His RBT reading of 0.129 indicated a mid-range PCA infringement and resulted from consuming a quantity similar to that which had resulted in his 0.116 reading in April of the same year. While it was not disputed that roadside test readings are less accurate than those from a breath analysis machine at a police station, there can be little doubt that he was likely to have been over the limit.
[15]
Applicant's domestic circumstances
On 17 July 2023 the applicant's son Jay ended a relationship. He became upset and sent a photograph to his girlfriend's mobile telephone showing himself in a noose tied to a fence with the caption "I'll marry you in the next life baby. I promise to be better" (exhibit R1, pp 44 - 45). The girlfriend and her friends contacted his family, who attempted to locate him using an identifiable feature known to the family in the background of the photograph.
About an hour later, Jay called 000 and told an operator that he was going to hang himself and was only calling so someone could find him. The applicant said he and his family had organized a search of the town and surrounding bushland. Emergency services located Jay sitting against a fence with a rope tied in a noose around his neck. As he was not moving, was cold to the touch and had no pulse, police cut him out of the noose and applied CPR. He revived and was taken to Canberra Hospital.
The applicant's residential address at Karabar is his nominated safe storage address. Although Jay no longer lives at the applicant's residence, the respondent submits that there is still an unacceptable risk to public safety from the applicant's use and possession of firearms as a result of the applicant's working arrangements. That was because of, first, his close association with Jay, including that they work together and see each other every day and, secondly, his mental health problems including what the respondent called his history of suicidal ideation.
The applicant said that Jay had received some form of mental health assessment at the hospital on the night of the attempt but did not undergo treatment following his discharge. He has no history of mental health problems, other than ADHD, and assures the applicant that the episode was "a one-off". He no longer lives with the applicant and Mrs Gasnier but with his girlfriend about an 8-minute drive away.
There is, however, no expert evidence before the tribunal about Jay's current mental status or any documentary record such as a hospital discharge summary. There is no information about his ADHD condition, such as whether it is continuing or whether it could recur or what, if any, behavioural effects it might have. As the rope incident was clearly a serious and nearly fatal attempt at self-harm and not mere suicidal ideation, something more would be needed before the tribunal could conclude that his relationship with the applicant would not present any real or appreciable risk to public safety, as that concept is understood in Webb v Commissioner of Police [2004] NSWADT 110, [32].
[16]
The public interest
The other ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence or permit. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to 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.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [32], Montgomery JM 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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[17]
Orders
1. Decision under review set aside.
2. A category ABD firearms licence and a silencer permit are to be issued to the applicant, such licence and permit to be subject to a condition to the effect that no firearms or prohibited weapons held pursuant to the licence or permit may be stored at any location where Jay Gasnier resides or frequents.
[18]
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: 21 May 2024
Parties
Applicant/Plaintiff:
Gasnier
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
The police asked him for his telephone, but he thought they could only want it in order to delete the recording, and as they attempted to take his telephone, he held onto it long enough to lock the screen. That was the chain of events that led to his being charged with resisting or hindering police. He regrets his actions but had been convinced that the telephone recording showed that there were inconsistencies in the breath analysis machine's operation that he needed to preserve as evidence. If he had his time over again he would handle the same situation very differently. He disputes, however, that he displayed "extreme aggressiveness" and believes the recording shows that.
Referring to his son Jay's suicide attempt on 17 July 2023, he said that he and his wife had been notified by Jay's girlfriend and friends that she had received a photo of him with a rope around his neck and that she had called emergency services. He organized a search for Jay all over Queanbeyan and in surrounding bushland without success. It had been a massive shock for him and his family, as Jay had never done anything like that before and there had been no warning, except that they knew he had broken up with his girlfriend and was upset. He has spoken a great deal with Jay about it as they work together and therefore spend a great deal of time together. Jay assures him it was a one-off and could not explain why he had done what he did, viewing it as a very poor choice that he made. He had not personally contacted emergency services because he had been told that Jay's girlfriend had already done so.
Jay no longer lives at their house, but with his girlfriend not far away. When he lived at home neither he nor anyone else had access to the applicant's firearms. He was the only one with the combination to the safes. If he thought there was any chance of a family member doing something silly with a firearm, the guns would be gone and stored somewhere else without hesitation.
The revocation decision had stopped operation of a nine-year old company in which he and his wife had invested $280,000, caused job losses for 3 full-time employees since April 2023, two of whom have three children, and a wife and a home and all the responsibilities that come with them. The loss of his licence has basically been a $280,000 fine plus over 30 percent to 40 percent drop in income.
He had not been convicted of any crime in New South Wales or elsewhere and was not subject to an AVO or IAVO, or a community corrections order, a conditional release order or a firearms prohibition order. He is not a violent or aggressive person, quite the opposite. He is calm, patient and pretty laid-back. He is self-employed and currently employs six staff, contributing to the community through local sporting club sponsorships, fundraising activities, donations of time and services for local special needs children, local farms and weekly takes out an elderly man whom he and his wife care for. He is not a threat or danger to the community, but someone who contributes positively to the community.
In his later statement dated 19 April 2024 (exhibit A2) he wrote that in relation to the hindering police charge, he disagreed that he was violent towards the police at all. He remained seated, did not swear or raise his voice or make any attempt to push the police away or fight them off. He simply held onto his phone long enough to lock it, believing that the audio evidence on it was important for defending his PCA charge. He was confused as to why the police would allow him to have his telephone and acknowledge that he was recording their conversation, but would later demand it back and cease the recording.
In relation to his domestic circumstances, he is happily married and has been for 24 years, and works 6 to 7 days a week. He does not consume alcohol on a daily basis, nor does he smoke or take any type of drug. Occasionally he attends a community event, a local hotel or restaurant for dinner and sometimes drinks with his wife, friends or family. He feels his way of living is respectful, honest and caring. His wife works full-time, his eldest son works full-time for the AFP and his two younger sons are both full-time apprentice tradesman. His mother-in-law also resides in the house and has constant interactions with her grandchildren, his wife and himself. Their home is a happy place and there are no issues of domestic violence, substance abuse or neglect. He is proud of his family and their home and finds it offensive that the police say he may not personally exercise continuous and responsible control over firearms because of his domestic circumstances. Police had inspected his safe storage arrangements and he could not understand why they were considered insufficient to prevent access by Jay.
As regards the incident on 5 November 2023 when it is alleged he attempted to drive his vehicle away from the scene of a mid-range PCA test, but because of the damage to his car was unable to go far and parked on the side of the road, he said it was completely incorrect. About half an hour after the accident he moved his car away from the house and out to the side of the road as there were two broken boundary fences on stock paddocks and he would need to recover the vehicle the next day, but would not have been able to do so in the area where the vehicle was located. He reversed out of the yard about 20 m along the road and parked on the road reserve in a safe location. He had to do so in order to turn the car in the direction he wanted, because the vehicle suffered damage to the front wheels and did not steer correctly. He did not attempt to leave the scene but did attempt to contact the tenant of the house to obtain clarification of that fact. However, that tenant no longer lives on the premises.
He had consumed alcohol earlier that night, but it was an amount he believed to be less than the allowable standard drinks in the time it was consumed. He had four mid-strength beers in a 3½ hour period, then drove 40 minutes to a friend's house where he consumed two cans of Jack Daniels and Coke, the second just before leaving the friend's house. He did not think he would be over the legal limit. He had had very little sleep the night before and had missed dinner at the concert he had attended as he had arrived late, which may have contributed to the roadside reading.
He had no intention of drinking or driving that night and had a swag in his vehicle to camp for the night. He was offered a drink from a few people and ended up drinking four mid-strength beers. The night became bitterly cold and windy and around 11 pm it started raining. He was offered a warm bed at a friend's house and accepted the offer. They left the concert and headed to a friend's place at Jerangle and after sitting around with friends there for about two hours, he left to head to where he planned to spend the night, approximately 14 km away. On the way there, two kangaroos jumped from the side of the road into his path. He swerved to avoid them and lost control.
Police said they observed what appeared to be beer spilled in the driver's foot well of the vehicle, but it was rainwater caught in the deep-dish rubber mat in his vehicle. After returning a reading of 0.129, he was arrested and taken to Queanbeyan Hospital. The policeman at the hospital told him he seemed fine and displayed no signs of intoxication. He told the applicant that he would receive information in 2 to 3 weeks on the test results, but he received no notification of the results until he was notified in connexion with the present proceedings. He was never charged with an offence and believed he would have been under the legal limit and that the roadside test was high because he had recently imbibed alcohol. He had said he was not on a CRO because he understood he was on a good behaviour bond, but was mistaken and had no intent to deceive.
He is aware that his driving record is poor and offered no excuses. He spends between two and 12 hours a day, seven days a week on the road in cars, heavy vehicles and motorcycles. He now will not have a single alcoholic drink of any description if he plans to drive. The events since April 2023 made him realize he needed to improve as the series of events had caused a huge amount of stress, anxiety and financial pressure, as well as sadness. He would no longer make decisions that jeopardize his family, his friends, his staff, his community, himself or his reputation.
In oral evidence by AVL he said he is self-employed as an electrician and operates a business called Advanced Animal Control, which advertises professional shooting services, real-time automated trapping systems and automatic alarm and notification services. He has been licensed for firearms for a long time, with no issues. Losing his licence showed him how important it was and he realized he had been silly and immature. He needs a licence for his livelihood and has changed his habits after taking the driver course and takes only one drink. He makes extensive use of cruise control.
In cross-examination he said that the incident on 23 December 2021 at the Queanbeyan Hotel resulted from an argument with the licensee over him and his wife caring for an old man who lives at the hotel and has no superannuation. He had crossed the road after being asked to leave, but after returning across the road did not attempt to re-enter the premises. The police had spoken to him twice, across the road and back at the hotel. The first time was when he was asked to leave the hotel. The police had arrived after the dispute with the licensee, about 15 minutes later. The police spoke to him after he had crossed the road, telling him to move on. He then called for an Uber and 15 minutes later it arrived, as it was near Christmas and they were busy.
In relation to the 1 April 2023 incident, there was only one drink difference between his estimate of his consumption and the account of the police. He had consumed three beers at home over a period of 3½ hours, one at the hotel but possibly two, making four or five in a period of 5 hours. He had waited for his wife for 1½ hours, conversing with people he knew at the hotel as he had previously been its licensee, and had one beer before he left. He agreed that his RBT reading had been 0.116. He disagreed that that he had consumed more than five drinks before the RBT test. The breath analysis machine had been faulty and had timed out. While he was waiting for the timeout period to end, he had placed his telephone on a chair recording, as the police knew. He had asked them questions because he was anxious about the machine not functioning and agreed that his attitude could have been viewed as argumentative.
When the sergeant had pushed the chair out of the way he had snatched his telephone and held it back, as he had been panicking. There had been a scuffle after the sergeant asked for the telephone again, but he had not grabbed the hand of the police officer. When the officer's own telephone had fallen to the floor, he agreed that he had placed his foot on it. He had pleaded not guilty to the charge, but was found guilty, convicted and fined $500, but after appealing to the District Court was instead placed on a CRO without conviction for 12 months, which is still in force. He agreed that he had been uncooperative about his telephone and should have handed it over, but he had thought it was important to keep it for his defence.
Following Jay's suicide attempt or 17 July 2023, Jay no longer lives at home but resides in Queanbeyan about a seven or eight minute drive away. The applicant sees him most days as he works with him, and sees him at home two or three times a week. Jay had received mental health treatment at the time of the incident but no counselling after that, takes no medications and he says it was a one-off incident. He seems well and has no diagnosis of a mental health problem, apart from ADHD from childhood.
His other RBT incident occurred when his vehicle collided with the front yard of a house. His wheels had been damaged. He did not try to drive away, but moved the vehicle away from the house. He was not sure that his reading on that occasion was 0.129. He agreed that he had said he had drunk 5 beers between 6:30 and 11:30 pm. He had 4 beers at the concert, and two Jack Daniels and Cola afterwards, between 7:00 and 1:30 or 2:00. The concert had been at Peak View and he had planned to stay at the fire shed, but not to drink. He had had no dinner and was tired from driving.
In the April incident he had consumed 5 beers and returned a reading of 0.116, and in November 4 beers and two Jack Daniels and Cola, which he agreed was a similar amount, but had mistakenly thought he was not over the legal limit. Lack of sleep and food, and his age, could affect the RBT reading. He had thought that one beer per hour was safe. Now, however, he does not drink when he is driving. At the time of the November incident he had not had dinner and not much sleep, but had not done the course and was unaware of how the limit could be exceeded, so he did not know that he was likely to have exceeded it. He agreed that the quantity he had consumed was similar to that at the time of the April incident, but he had been of the view that one drink per hour was safe.
He agreed that his driving record was poor, with 15 speeding violations, a PCA in 1993 and another in 1995, but said it was a long time ago. He acknowledged the two PCAs in April and November 2023 and the negligent driving accident in 2021.
He was an electrician by trade and had worked in that calling from 2006, and before that had been a hotel licensee. He was now a self-employed businessman with five staff. His company Advanced Animal Control was established in 2015 and until the middle of 2023 that entailed entail the use of firearms. He had operated both the electrician and the animal control businesses until 2023, spending about 60 percent of his time on the electrician side and 40 percent on the animal control work, but the proportions fluctuated. The two businesses use the same ABN.
In April 2023 he had 9 staff but had lost four because of his licence and permit revocations, although two of those had found other employment, and one works part-time. Five of his staff are still with him and some of them have firearms licences, but the business is quiet currently.
In re-examination he referred to the reference from Matthew Griffin, licensee of the Hotel Queanbeyan, which describes the incident on 23 December 2021 (part exhibit A2). He had completed the Drug and Alcohol program and since completing the Traffic Offenders course on 26 February 2024 he had incurred no traffic violations.
The applicant also tendered a number of character references, the contents of which are outlined below.
The respondent submitted that the applicant's private interests in holding a licence or prohibited weapons permit, being his business, employment and as a contract shooter, were outweighed by the risks to public safety that would flow from the conduct described. The tribunal was required to look at the applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the applicant was a significant guide in assessing likely future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87, [59].
Where the tribunal must assess the likelihood of future non-compliance with the legislative scheme by reference to relevant prior conduct (Brosowski v Commissioner of Police [2003] NSWADT 182, [41]), it could not be satisfied that the applicant's conduct would not be repeated, or that his reason for holding a licence or permit outweighed the need to ensure public safety.
The respondent submitted that the tribunal should not be satisfied that the applicant's conduct would not be repeated, particularly with respect to his consumption of alcohol, which was a consistent theme in his offending. Further, it would be contrary to the public interest for the applicant to hold a firearms licence or weapons permit until the CRO expires in December 2024.
In oral submissions at the hearing the respondent reiterated those points, drawing attention to his long driving history displaying a disregard of public safety, his CRO for hindering police and the two PCA contraventions in 2023. No charges had been brought in respect of those incidents, but he registered 0.116 in April 2023 and 0.129 in November of the same year. While RBT results are not as reliable as machine readings, on balance it was probable that he was engaging in mid-range drink-driving.
He had undertaken a traffic offenders' course and a drug and alcohol course, but they were recent and insufficient time had elapsed for the tribunal to conclude that he had reformed. Even after exceeding the PCA level in April 2023, following which his firearms licence and WP Act permit had been revoked, he engaged in the same conduct in November of that year. He should have been aware of the situation and was therefore careless or reckless Further, he is still subject to a CRO for a prescribed offence, which would entail a mandatory refusal were he to apply for a licence. Consequently the discretion under s 24(2)(a) and the equivalent in the WP Act should be exercised in favour of affirming the decision.
His failure to cooperate with police in their attempts to obtain a breath analysis reading was relevant. His animal control business was only part of his income stream. Some of his staff had left after his licence and permit had been revoked, but some had obtained other employment. In reply the respondent pointed out that in Commissioner of Police, New South Wales Police Force v Hogan [2024] NSWCATAP 77, [55], the Appeal Panel had acknowledged that while exceptional or special circumstances were not prerequisites to exercising the discretion in an applicant's favour, something more than a prior history of compliance with the legislation was required. There had to be a clear basis to justify exercising the discretion in that way.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
He had asked police about the machine's functioning as he was concerned it was not working correctly. He was panicking a little as he thought the machine was going to decide his fate, but he was not sure that it was working correctly. "The police took this as me trying to upset them and asked for my phone back. I questioned why they wanted it now after they had returned it to me earlier and they asked for it a couple more times. I was thinking in my panicked state that they could only have wanted to delete the recording and as police attempted to physically take my phone, I held onto it long enough to lock the screen" (part exhibit A1).
The CCTV video recording shows him for most of the time remaining seated and talking to police, at times gesticulating slightly. As there was no audio, the recording does not show whether or not his questioning was provocative. When the sergeant moved to take away the chair, however, he seized his telephone from the chair and the scuffle ensued. The applicant is not seen to use any violence against the officers, nor is any such violence alleged, and the report's description of his "extremely aggressive" conduct could perhaps more accurately be rendered as "extreme passive resistance" through making his body rigid and resisting attempts to take the telephone. But he used considerable force and it took the combined efforts of the two officers, together with assistance from two other officers, to subdue and handcuff him, before placing him in the holding cell. In all, a discreditable episode about which he now expresses regret and remorse, saying that he should have handed over the telephone at once.
As a result of this incident the applicant was charged with hindering police in the execution of duty and refusal or failure to provide a breath sample. As was described above, he was acquitted of the latter charge after hearing and the proceedings for the hindering charge culminated in his being made subject to the CRO, which remains in force until 6 December 2024. The hindering conduct was an offence under division 8A of part 3 of the Crimes Act 1900 and therefore a prescribed offence for the purposes of s 11(5)(b) of the Firearms Act and s 10(3)(c)(iii) of the WP Act. Until the CRO expires, the Commissioner is required to refuse any licence or permit applications by the applicant. In the circumstances the Commissioner has a discretion to revoke the applicant's licence or permit because of the CRO.
Quite apart from the CRO, the respondent submits that the applicant's uncooperative conduct on that occasion was concerning, especially as the underlying conduct on which the applicant was found guilty related to consumption of alcohol, which was a consistent theme in the applicant's offending.
Even if, as he testified, the applicant was "panicking" because the breath analysis machine did not appear to be working correctly (which may have been the case, as no PCA or DUI charge was laid), causing a scuffle in a police station with two, and later four, officers in the execution of their duty was disorderly conduct of a kind that weighs against a positive finding of fitness and propriety. It is all the more so as the conduct is relatively recent and the CRO imposed as a result of it is still in force.
Mr David Schramm in his character reference corroborates the applicant's evidence about his beer intake at the Peak View concert, saying that he gave the applicant three or four of his mid-strength beers and that the concert finished between 11:30 and midnight.
The two PCA incidents in 2023 are related to his poor driving record which, as noted above, has led to no fewer than three licence suspensions and five cancellations. It is well established that traffic history is relevant to the grant or revocation of a firearms licence: Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145. In Nehme v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 292, [76] - [77], Montgomery SM commented:
In this matter, the Applicant's traffic history is extensive. There can be no doubt that this history is significant. As I noted in Busutel v Commissioner of Police [[2022] NSWCATAD 384] in the circumstances where the Applicant's history is significant, more would be required than the mere passage of time to show that the Applicant has changed his ways and undergone reformation of character.
The Applicant's history in the present matter… suggests that conformity with the regulations intended to promote public safety and considering the public interest, such as traffic laws have not been a priority for him. This is inconsistent with the expectations of a firearms licence fee as set out in the objects and provisions of the Act.
The applicant maintains since completing and the Traffic Offender Intervention Program on 26 February 2024 and the Alcohol and Other Drugs Awareness program on the same date he has become much more aware of his responsibilities as a road user and now never drinks when he is intending to drive. He has not committed any traffic infringements or come under adverse notice since completing those courses, but only a few months have elapsed since then.
He was, however, a frank and open witness who candidly made concessions against interest. Taking that with his unusually comprehensive and emphatically supportive array of referees' reports from a variety of people in the area who know him well, I think that his assertions over a new and responsible attitude to driving and alcohol consumption can be accepted. The considerations set out below in relation to the public interest are also relevant to fitness and propriety.
The applicant remains subject to the CRO for a prescribed offence until 6 December 2024. If he were to apply for a licence today, the Commissioner would be required by s 11(5)(d)(iii) to refuse it. That circumstance gives rise to a discretionary power in the Commissioner, and on review this tribunal, to revoke the applicant's licence (and permit). The Appeal Panel in Commissioner of Police, New South Wales Police Force v Hogan [2024] NSWCATAP 77 declared that although it was not necessary to show special or exceptional circumstances before exercising the discretion not to treat a relevant conviction (or, presumably, a CRO) as the basis for revocation, some circumstance or justification was needed: "That justification would not be present merely because the offence was a first offence or because the person had a history of compliance with the Act. To do so would be akin to giving every licensee a single opportunity to breach the conditions of the licence or the Act" (id., [55]).
The appellant in Hogan had committed multiple safe storage contraventions, although his prior record had been unblemished. In the present case, however, the applicant's record in relation to firearms legislation compliance remains pristine, as the Crimes Act offence for which he was made subject to the CRO was not directly related to firearms use or storage. Further, he has unusually strong support from unchallenged character referees, as well as performing what several primary producers in the area value as an essential service in livestock management and bio-security. He is thus not relying purely on his prior clean record as the appellant in Hogan did. I am satisfied that he is now a fit and proper person to be entrusted with a firearms licence or weapons permit, and I so find.
As the evidence stands, there could be an unacceptable risk to public safety if any firearms or weapons possessed by the applicant were stored on premises where Jay resides or which he frequents. Although he no longer lives at his parents' address, he is in regular contact with the applicant as an employee and also visits the family home two or three times a week. Any licence or permit issued to the applicant should therefore contain a condition to the effect that no firearms or weapons held by the applicant under a licence or permit are to be stored where Jay resides or frequents.
The respondent submitted that the tribunal must assess the likelihood of future non-compliance with the firearms legislative scheme by reference to relevant prior conduct (Brosowski v Commissioner of Police [2003] NSWADT 182, [41]) and could not be satisfied that the applicant's conduct will not be repeated or that his reason for holding a firearms licence or a weapons permit outweighs the need to ensure public safety.
For the reasons set out above in connexion with fitness and propriety, I do not think that the restoration of the applicant's licence and permit would create a real or appreciable risk to public safety, subject to what is said below about a licence and permit condition. Further, while the applicant is not himself a primary producer, there is definite and unchallenged evidence from a number of primary producers in the region that his business Advanced Animal Control performs an essential service in helping to maintain bio-security and protecting primary industry. Loss of his licence has impaired his ability to deliver needed services, besides resulting in employment losses. Being without his licence and permit for over 12 months has no doubt helped to bring home to him the importance of compliance with regulatory systems designed to safeguard public safety.
His holding of the weapons permit for a silencer - these days more accurately called a suppressor or sound moderator - also forms part of the service he offers. In an earlier case it appeared that in the culling of animals, a suppressor functions, not by silencing the sound of the shot (which it apparently does not do effectively), but by making it more difficult for an animal to determine where the shot has come from. That enables the culling process to be both more effective and more humane (Allen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 224, [33] - [37]; affd. Commissioner of Police, New South Wales Police Force v Allen [2016] NSWCATAP 148).
I therefore conclude that the correct and preferable decision is to set aside the decision under review and order that a category ABD firearms licence and a silencer permit be issued to the applicant, subject to a condition that no firearms or prohibited weapons held pursuant to the licence or permit may be stored at any location where Jay Gasnier resides or frequents. Such a condition will no doubt cause the applicant some inconvenience, but personal inconvenience cannot prevail over the protection of public safety.