This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Respondent). The delegate determined to revoke the Applicant's category AB firearm licence by way of a decision dated 9 November 2023.
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Background
The Applicant was issued with a firearms licence on 24 February 2011. The reason for the licence was for recreational hunting/ vermin control. He reapplied for that licence by application dated 1 April 2015. The most recent application was on 26 May 2021 again with the purpose of recreational hunting/ vermin control.
On 24 October 2000, the Applicant's provisional drivers' licence was issued.
On 12 January 2001, when the Applicant was 17 years old, he came to the adverse attention of the police for domestic violence following a report by his mother. The report records that on that day, the Applicant's mother attended the police station and made a signed statement to the effect that:
[The Applicant's] behaviour had been getting worse over the last four years and even more so over the last 12 months. She informed me that the [Applicant] has put holes in the 2 doors from banging on them so hard with his first. He has been abusing her with foul language and has threatened to get a knife or a gun and put her and her husband six foot under the ground if she told his friends about his behaviour.
The Applicant's mother also alleged that there were previous incidents where the Applicant had twisted his sister's arm for money to buy cigarettes, has intimidated or harassed his mother to give him money, and has pushed her into an open dishwasher which caused her to suffer bruising to both arms.
The Applicant's mother requested that no police action be taken in relation to the assault but asked for an AVO against the Applicant.
On 1 February 2001, an interim AVO was issued on 1 February 2001, naming the Applicant's mother and sister as victims.
On 10 March 2001, the Applicant was charged with exceeding the speed limit by not more than 15km/hr and not complying with the conditions of his provisional licence (by not displaying "P signs").
On 13 July 2001, the interim AVO was revoked.
On 13 April 2002 and 18 April 2002, the Applicant was again charged with not complying with the conditions of his provisional licence (by not displaying "P signs")
On 18 April 2002, the Applicant was charged with not wearing a seatbelt.
In June 2003, the Applicant was charged with exceeding the speed limit by not more than 10km/hr and again not complying with the conditions of his provisional licence (by not displaying "P signs")
On 2 September 2009, the Applicant was charged with driving using a mobile phone.
On 4 April 2011, the Applicant was charged with driving using a mobile phone.
On 18 July 2012, the Applicant was charged with exceeding the speed limit by not more than 10km/hr.
On 20 August 2020, the Applicant was charged with driving using a mobile phone.
On 17 July 2013, the Applicant was charged with exceeding the speed limit by not more than 10km/hr in a school zone.
On 30 December 2016, the Applicant was charged with exceeding the speed limit by not more than 10km/hr whilst driving a heavy vehicle.
On 30 September 2017, the Applicant was charged with exceeding the speed limit by not more than 10km/hr.
On 1 December 2020 and 31 December 2020, the Applicant was charged with exceeding the speed limit by not more than 10km/hr. The former was while driving a heavy vehicle.
In July 2020, the Applicant was charged with exceeding the speed limit by not more than 10km/hr and driving with an expired licence.
On 15 March 2021, the Applicant was charged with exceeding the speed limit by not more than 10km/hr whilst driving a heavy vehicle and fined.
On 12 May 2021, the police noted that the address recorded for the Applicant with the Roads and Maritime Service had been updated but that the address with the Firearms Registry had not and recorded in a report that it was likely that an offence had been committed with the firearms being at the new address and that investigation was required. The police also recorded in that report that the Applicant had allowed his licence to expire.
On 24 and 25 May 2021, the Applicant's firearms were seized due to the expiry of his licence. The Applicant delivered them to the police. The police report indicates that the Applicant had begun a new firearms licence application but the system did not work and he forgot about it. It also indicates that the Applicant had assumed that in updating his address with the Roads and Maritime Service, that this would update his address for the Firearms Registry. The report further notes:
The [Applicant] has been compliant with all requests by Police and had made attempts to renew his licence however was failed by technology. For this reason, Police believe his licence should be re-issued upon application.
On 5 August 2021, police conducted a safe storage check and found that the Applicant's safe was not compliant as it was missing two bolts. The Applicant's safe storage address was incorrect and despite the events of May 2021, the address had not been updated.
On 11 March 2022, the Applicant was again charged with exceeding the speed limit by not more than 10km/hr and fined.
On 2 April 2023, the Applicant was charged was charged with driving with middle range prescribed concentration of alcohol (PCA). On 22 June 2023, the Applicant was disqualified from driving and ordered to take part in the Alcohol interlock program for 12 months.
On that same evening, police attended the Applicant's residence and spoke to the applicant's wife who alleged that the Applicant had acted violently towards her on 19 March 2023. The Applicant also informs the Tribunal that on 2 April 2023, the Applicant and his wife had been arguing.
The police report records that:
1. the incident occurred in circumstances where the Applicant's wife had recently discovered that the Applicant was having an affair with another woman, which caused a great strain on their relationship.
2. On 19 March 2023 at 8.00 pm, the Applicant's wife became involved in an argument with the Applicant after she saw him texting the woman with whom he had, had extra martial relations. The Applicant admits that this is true but alleges that the bruises on his wife were a result of him helping her up when she collapsed in an "emotional wreck".
3. According to the report, the Applicant's wife agreed to leave and began to pack her belongings. They began to have a discussion about the children, when the Applicant grabbed her with both of his arms and pushed her, causing her to fall to the floor. The Applicant's wife again agreed to leave and asked the applicant not to wake up the children and to arrange for them to attend school in the morning. The Applicant proceeded to wake up the children and lead them to the vehicle. The Applicant accepts that he woke the children and told them to follow their mother. The Applicant grabbed his wife's handbag and threw it across the lawn and its contents fell out.
4. The Applicant's wife attempted to retrieve the pet dogs and bird. The Applicant would not let her take the pets and said he would shoot the dogs. The Applicant's wife alleges that he grabbed her again and pushed her causing her to fall to the ground.
5. The Applicant's wife then left the residence with the children who were now awake but decided to return as she had concerns regarding the Applicant's welfare as he had made threats of self-harm.
The Applicant participated in a recorded interview with police. In that interview, the Applicant alleged that he pushed his wife to try and get his wife away from him. According to the report, the police were unable to determine who was the first to put hands on the other but noted that alcohol was a contributing factor with the Applicant admitting to consuming a full bottle of scotch on a daily basis.
The report also records that the Applicant had made threats of suicide on multiple occasions. The Applicant was assessed by NSW Ambulance Officers, but he was deemed not to be a mental health risk at that time. The custody management record states that the Applicant denied any threats of self-harm and refused treatment. Police considered that there was not enough information to compulsorily detain him under the Mental Health Act.
The Applicant informs the Tribunal that:
1. on the evening of 2 April 2023, he went to the emergency department at the hospital in regards to his drinking but after waiting purportedly four hours, went home without treatment or speaking to a doctor.
2. a few days later, he saw his GP who allegedly told the Applicant that he showed no withdrawal symptoms.
As a result of the incident, the applicant's firearms were seized. Police also seized the firearms belonging to the Applicant's wife.
On 3 April 2023, an interim AVO was obtained for the protection of the Applicant's wife and their children. The interim AVO was withdrawn on 15 September 2023. The records available to police do not indicate why the interim AVO was withdrawn.
At 6am on 4 April 2023, police attended the Applicant's residence again after receiving a call from the Applicant expressing concerns for his wife's welfare. During the call to police, the Applicant advised that his wife had attempted suicide a week ago by overdosing on pills. The Applicant informed police that he received a message from his wife which said,
"3" time lucky".
The Applicant believed this was a reference to another overdose attempt.
Police spoke with the Applicant's wife and asked her what the message meant. She responded, "I will take pills like last time". She informed police that she has a lot of personal issues happening at the moment and that she was struggling. She was subsequently compulsorily detained under s 22 of the Mental Health Act (NSW) and conveyed by police to a health service for further assessment and treatment in relation to mental health concerns.
On 22 June 2023, the applicant was convicted of mid-range drink driving in relation to the incident on 2 April 2023.
On 5 July 2023, police received another call from the Applicant with concerns for his wife's welfare. The Applicant informs the Tribunal that the Applicant and his wife were in a hotel room when an argument broke out. The Applicant left but after receiving texts from his wife, returned. The Applicant's wife was about to leave with keys in her hand, but to block his wife, the Applicant jumped into the vehicle. The Applicant's wife then started walking down the street and "getting in front of cars".
The police report states that, during the call, the Applicant reported that he "crash tackled" his wife to the ground as she was trying to run into traffic. The Applicant admitted to tackling his wife because he did not know what else to do. He reported that she is thinking about and threatening to kill herself. The event report records that the Applicant and his wife had a verbal argument over the Applicant's infidelity prior to the incident. The Applicant reported that his wife has had mental health issues before and he believed she may be trying to run away or hurt herself because of this. Police were unable to get a version of the events from the Applicant's wife as she did not wish to speak with police. The Applicant's firearms licence was subsequently revoked on 24 July 2023.
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Confidential evidence
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[4]
Applicable legislation
This is an application for administrative review pursuant to s 75(1)(c) of the Act.
The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The decision of Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasises that strict controls on the possession and use of firearms are imposed for this reason. The underlying principles of the Act are outlined in section 3. Relevantly they are:
1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
2. to improve public safety:
1. by imposing strict controls on the possession and use of firearms, and
2. by promoting the safe and responsible storage and use of firearms.
The discretion provided in the legislation, should be exercised in a way which promotes the principles and objects of the Act: Cusumano v Commissioner of Police [2001] NSWADT 50.
The issues that arise in these proceedings are:
1. whether there is 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 or the Applicant's intemperate habits. In this respect, section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(4)(a) and (c) reference an applicant's way of living or domestic circumstances and the applicant's intemperate habits respectively.
2. whether it is in the public interest for the Applicant to hold a firearms licence or more precisely, whether it is not in the public interest for the Applicant to continue to hold a licence. In this respect, section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 provides 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.
There are many cases, not only in this Tribunal but elsewhere, that have discussed the public interest concept.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 an Appeal Panel of the former Administrative Decisions Tribunal (ADT) said at [25]:
The 'public interest' is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 is another decision of the Appeal Panel of the former ADT. At [33] the Panel said:
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.
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:
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 Commission's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
As an Appeal Panel of this Tribunal explained in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24]-[25]:
The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the 'overriding need to ensure public safety': Firearms Act s 3(1)(a). Public safety is improved by 'imposing strict controls on the possession and use of firearms' and by 'promoting the safe and responsible storage and use of firearms': Firearms Act s 3(1)(b). The objects of the Act include 'to establish an integrated licensing and registration scheme for all firearms;' 'to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;' and 'to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms': Firearms Act, s 3(2)(b), (c) and (d).
In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.
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Tribunal review
The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it or set it aside and substitute another.
Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the [Commissioner's] decision is correct: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).
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Submissions and evidence
The submissions on behalf of the Applicant, in summary, were:
1. The Applicant had "started the merit program which was recommended by another solicitor for my driving licence". However, the Applicant did not complete the program because, according to the Applicant "4 weeks into the program the lecturer became ill and may case had gone back to court and I requested an interlock system" and because of "advice of [his] other solicitor", he did not need to take part anymore because my licence "had a date to it".
2. The Applicant and his wife had begun to see a marriage counsellor but did not complete the sessions as the marriage counsellor told them he was going on holiday.
3. At the time of the hearing, the Applicant and his wife were communicating better and he had restricted his alcohol consumption to 2 or 3 cans and only on Friday, Saturday and Sunday. In this respect, it was submitted that because the Applicant's drinking habits had changed, that this aspect of his life had now changed.
4. The Applicant described the circumstances in March 2023 as being a one-off incident because of his infidelity and it was not indicative of his personality. The Applicant indicated he was remorseful about those events and about.
5. There was no definitive identification of any mental health issue that the Applicant was suffering and with respect to the Applicant's wife, she is getting treatment. In this respect, in the Applicant's oral evidence, he informed the Tribunal that his wife takes medication and sees her GP once a month. Reference was made to Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 at [32].
6. He was always safe with his firearms, he does not do drugs and had held firearms for a considerable length of time which supports that he is safe to retain a firearms licence.
7. With respect to the changes to address and the absence of two bolts in the firearms safe, the Applicant had admitted his mistake which was understandable because he assumed correcting it with RMS would correct it for NSW agencies including the Firearms Registry. With respect to the safe, the Applicant had it rectified.
8. With respect to the traffic offences - that the offences do to rise high enough to be of concern and they do not cross the threshold. In this respect reference was made to Tannous v Commissioner of Police [2011] NSWADT 116.
9. The Applicant indicated that it was "not a problem" to have the firearms stored at a different address.
10. In summary, when looked at overall there is not a real and appreciable risk
The Applicant relies on the following evidence and submissions in addition to oral submissions and his oral evidence:
1. The Application for administrative review filed 6 December 2023 and marked "A1".
2. The documents entitled "Applicant's evidence" marked "A2".
3. Letters of reference from:
1. The Applicant's wife dated 11 June 2024 marked "A3" which states in part:
In the last 16 months [the Applicant] has taken the appropriate steps in getting the help required to get him back to being a better person and getting our marriage and family back to being happy and healthy. Apart from losing his licence 12 months after several court dates being adjourned and having to have an interlock device installed in his vehicles. He has also attended the Merit program, we have been to interrelate for marriage counselling and he has been to see a local GP for medical advice for alcoholism and depression.
Since last July, [the Applicant] hardly drinks and not at all midweek. He may have 2 or 3 drinks a day after work on Friday or over the weekend.
1. Mr Adam Perkins (who has retained the Applicant as a concreter for close to 10 large projects) dated 24 April 2023 marked "A4" wo descried the Applicant as having an "outstanding nature"; "honest and hardworking" and a "changed man" from the time that charges were brought against him.
2. Mr Brenton Birkin (who is a co-worker of the Applicant) dated 26 April 2023 marked "A5" and describe the Applicant as a person of "good moral character, loving family and a hard worker".
The submissions on behalf of the Applicant, in summary, were that it is not in the public interest for the Applicant to have access to a firearms in circumstances where:
1. There are allegations of domestic violence against the Applicant;
2. The Applicant has been convicted of drunk driving;
3. Both, the Applicant and his wife, have exhibited attempts to self-harm or suicidal behaviour; and
4. The evidence and submissions of the Applicant are insufficient to satisfy the Tribunal that these risks have been addressed.
The Respondent also contends that the above circumstances also gives reasonable cause to believe that the Applicant may not exercise continuous and responsible control over firearms because of his domestic circumstances.
The Respondent relies on the following evidence and submissions in addition to the cross-examination of the Applicant:
1. Written submissions filed 13 June 2024 and marked "R1".
2. Section 58 bundle marked "R2".
3. Supplementary s 58 bundle marked "R3".
4. Magistrates Early Referral Into Treatment (MERIT) information brochure marked "R4".
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Consideration
I affirm the decision of the Respondent for the reasons below.
The evidence supports that the police have intervened in a number of incidents, including recent incidents involving the Applicant and his wife. These incidents involved:
1. Allegations of violence leading to an interim AVO against the Applicant;
2. Multiple traffic offences which have occurred throughout the time that the Applicant has held a driving licence including charges of mid-range drink driving and evidence supporting heavy alcohol consumption;
3. Non-compliance with firearm regulation; and
4. Reports that the Applicant and his wife have made threats of self-harm.
With respect to the allegations of domestic violence, the Tribunal has accepted that domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where there is no misuse of a firearm: Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103]. The Tribunal has also recognised that allegations of domestic violence frequently do not result in convictions and AVOs are often withdrawn because the alleged victims do not wish to proceed: Manning v Commissioner of Police [2020] NSWCATAD 111 at [51]. The Tribunal may still properly take into account the incidents of domestic violence, whether they give rise to an AVO or not.
With respect to the evidence related to the Applicant's driving offences and non-compliance with firearms regulation, they support that the Applicant has a disregard for public safety and the regulatory regime aimed at ensuring public safety: Tannous v Commissioner of Police [2011] NSWADT 116 at [32]. With respect to the Applicant's compliance with firearm regulation, this disregard is also evident. While I accept that the Applicant assumed that updating his address with the RMS would also update his address with other State agencies, his evidence that he forgot to renew his licence while still possessing firearms and having a firearms' safe that was non-compliant is unsatisfactory.
With respect to the Applicant's mental health and the mental health of his wife, the evidence (including the references) does not satisfy me that the circumstances have changed or been remedied so as to remove the associated risk of having firearms in that environment. While the Applicant makes vague references to counselling sessions (which he admits, he and his wife did not complete), that his wife is taking some sort of medication daily (without details of the same) and describes his relationship with his wife as being improved, the evidence is insufficient to satisfy me that the risk of having firearms in such an environment are mitigated or eradicated.
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In all the circumstances, I am satisfied that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms and for the above reasons, it would be contrary t the public interest to allow the Applicant to hold a firearms licence.
I affirm the decision.
[8]
Anonymisation
The factual findings contained in this decision disclose the domestic and medical history of non-parties including that of the Applicant's wife. The information is of a personal and highly sensitive nature. Irrespective of the fact that the Applicant's former partner's name (and the name of the Applicant's children) is not disclosed in this Decision, the identification of the Applicant would allow identification of those non-parties given their relationship with the Applicant and make the personal and highly sensitive information publicly available. This outcome should be avoided, and those non-parties protected. Accordingly, I find that the name of the Applicant should be anonymised pursuant to s64(1)(a) of the CAT Act.
[9]
Orders
The orders I make are as follows:
1. The decision to refuse the Applicant's firearms licence is affirmed.
2. The publication of the Applicant's name in these reasons is prohibited.
3. Except pursuant to order below, the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.
4. A copy of these reasons, without redaction, shall be released to the Respondent.
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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: 29 October 2024