Goninan v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-05-16

Background

Warren James Goninan applied for a Category A firearms licence. The reason he applied for the licence was to control vermin on a rural property he owns.
Mr Goninan previously held firearms licences of Category AB and Category H but in 2012 two incidents occurred resulting in him being convicted of a number of firearms, drink driving and other driving offences. Consequently, in 2013 his firearms licence was revoked.
The Commissioner of Police refused Mr Goninan's application for a fresh firearms licence on 30 November 2023 because the Commissioner was not satisfied it would be in the public interest to grant the licence. The Commissioner conducted an internal review of the decision at Mr Goninan's request and on 10 January 2024 the Commissioner affirmed the decision.
Mr Goninan seeks review of the decision to refuse him a firearms licence.

Material before the Tribunal

Mr Goninan's application for review attaching the internal review decision was before the Tribunal (exhibit A1). Mr Goninan provided a written submission and two references (exhibit A2). At the hearing on 16 May 2024 Mr Goninan gave evidence, was cross examined and made oral submissions.
The Commissioner provided a bundle of documents (exhibit R1) as well as written submissions (exhibit R2). The Commissioner also made oral submissions at the hearing.

Applicant's case

Mr Goninan contends he should be granted a firearms licence on the basis that he has made positive changes to his life, has learnt his lesson since 2012, has read up on firearms licensing requirements and it has been over 10 years since his firearms offence convictions. He would like a firearms licence to control vermin on a rural property he owns.

Respondent's case

The Commissioner contends the correct and preferable decision is to refuse the firearms licence application on the basis: 1. Mr Goninan is not a fit and property person to hold a licence (relying on s 11(3) of the Firearms Act 1996 (the Act)); 2. granting a licence would not be in the public interest (relying on s 11(7) of the Act); and 3. information provided in the firearms licence application was false and misleading and known to be so (noting s 70 of the Act).

Jurisdiction

The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 75 of the Firearms Act 1996 provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

Relevant Legislation

The underlying principles of the Act are set out in s 3 and include: (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…
Section 11 of the Act allows the Commissioner to issue or refuse a firearms licence application relevantly providing: (3) A licence must not be issued unless - (a) 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, and … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 70 of the Act establishes an offence for knowingly providing information that is false or misleading relating to a firearms licence application with a significant imprisonment maximum penalty.

Firearms licences

Mr Goninan held a Category AB firearms licence from April 1999 which was renewed in April 2004. In 2009 he was granted a firearms licence Category B and Category H for recreational hunting/vermin control and for sporting shooting. This licence was suspended in August 2012 and revoked in August 2013.

2012 incidents

In August 2012 Mr Goninan was stopped for a random breath test. There were two loaded pistols and further ammunition on the passenger seat of his vehicle. He told the police the firearms were for vermin control on his property, but they were the pistols he possessed for sporting shooting. Shortly afterwards his registered firearms were seized by police at his residence and an unregistered firearm was also discovered and seized. Mr Goninan was subsequently convicted of:

a 'Drive with high range PCA' offence for which he was fined $800 and given a bond and a two year driving disqualification; and
a 'Convey pistol fail to comply with safety requirements in regs' offence for which he was fined $550. He was also given a bond of 12 months for a 'Possess unregistered firearm' offence.

In December 2012 Mr Goninan was stopped while driving an unregistered motorbike while his driver's licence was disqualified. He was subsequently convicted of:

a 'Drive with high range PCA' offence for which he was fined $1000 and was given 100 hours of community service and a three year driving disqualification;
a 'Drive on road while licence suspended' offence for which he was fined $330 and was given a bond and a two year driving disqualification; and
' Use uninsured motor vehicle' and 'Use unregistered registrable class A motor vehicle' offences for which he received convictions with no penalty.

Mr Goninan gave evidence these two incidents occurred at a difficult time in his life where his marriage was ending and he lost his job.

Other offences

In 2017 Mr Goninan was convicted of a low range drink driving offence. Following that conviction, he was required to use an alcohol interlock device on his vehicle for 12 months which had to be recalibrated in Dubbo, a significant distance from his home and other rural property, every three months.
Mr Goninan has been convicted of drink driving offences five times between 2008 - 2017, three of the occasions are outlined above. Of those five occasions, twice was for high range drink driving, twice for low range drink driving and once for mid-range drink driving.
In addition to the 2012 driving offences described at [15] - [16] above, Mr Goninan also has a further 14 offences on his driving record, most recently for speeding in 2021.

Application form

When applying for the firearms licence, Mr Goninan answered 'no' to the question 'At any time in the past 10 years, have you been convicted of a criminal offence in New South Wales or elsewhere?'. Mr Goninan gave evidence his 2017 conviction had slipped his mind at the time he completed the application form and he was not reminded of that conviction until he received exhibit R2 from the Commissioner.

References

Mr Goninan provided character references from his sister and a close friend. Both references focus mainly on Mr Goninan's need to control vermin at his rural property and that it has been 10 years since the firearms offences. Neither mention the 2017 offence. In those circumstances the references are of little assistance to the Tribunal.

Public safety and risk

Under the Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. This risk consideration applies to both the fit and proper person and public interest test: Martin at [69].

Is the Applicant a fit and proper person to hold a licence?

Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to 'the activities in issue': Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in 'light of the nature and purpose' of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].
For firearms licences, the Tribunal is required to form 'a positive state of satisfaction' that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45].
At the time of the first 2012 incident Mr Goninan's evidence was that he was unaware of the obligations he held under his firearms licence, despite holding firearms licences over many years, to maintain safe storage of his firearms, in particular that firearms should not be left loaded in the open on a seat in his vehicle. He also had custody of an unregistered firearm. Since that time Mr Goninan has not undertaken any formal education on firearms safety requirements and has instead 'read up' on 'the Firearms Act' and another document he described as a 'code'.
Considering all the circumstances; particularly given: Mr Goninan's prior conduct involved multiple breaches of firearms legislation, and that he contended some breaches occurred because he was not aware of his obligations, also that firearms legislation prioritises public safety over an applicant's purpose for making an application for a firearms licence, and that Mr Goninan has not completed any formal education on firearms safety; I am not satisfied Mr Goninan is a fit and proper person under s 11(3)(a) of the Act who can be trusted to possess firearms without danger to public safety.

Is it in the public interest for the Applicant to hold a licence?

The term public interest is not defined in the Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
I accept the submission of the Commissioner that the effective and efficient operation of the firearms licensing scheme requires an applicant to provide true and correct information to the Firearms registry, particularly when making an application. While I accept the evidence of Mr Goninan that he made a mistake and forgot about the 2017 offence when filling out the firearms licence application form, rather than knowing making a false declaration, his failure to ensure his history was accurately disclosed, and the consequent impact on registry operation is relevant to the public interest consideration under s 11(7) of the Act.
Further, the public interest considerations in s 11(7) of the Act can include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]): Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).
Therefore the matters considered at [27] - [28] above are also relevant to the consideration of public interest.
On the material before the Tribunal, considering the conduct of Mr Goninan as a whole, he has demonstrated a disregard for the law and for regulatory schemes which are designed to protect public safety, both in relation to firearms and driving: see Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]. Further, he has not provided evidence, beyond some reading, of positive steps taken to address or remedy his history of offences.
In all the circumstances I therefore cannot be satisfied Mr Goninan would not pose a risk to public safety if he was granted a firearms licence because I cannot be satisfied he would comply with the strict requirements of a firearms licence.
Therefore it is not in the public interest under s 11(7) of the Act for Mr Goninan to hold a firearms licence.
It follows that the correct and preferable decision is to affirm the decision of the Commissioner to refuse the application for a firearms licence.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2024

At a glance

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Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (7)