Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63Constantin 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) NSWADT [2011] NSWADT AP 6DMC v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 219Esterman v Commissioner of police, New South Wales Police Force [2014] NSWCATOD 70Hook v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 250Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan Jaques v Commissioner of Police [2017] NSWCATAD 145Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Moefili v State Parole Authority [2009] NSWSC 1146
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1
Petas v Commissioner of Police, New South Wales Police Force [2013] NSWADT 137
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (15 paragraphs)
[1]
reasons for decision
The applicant Mr Nathan J Hailes applied to this tribunal on 22 September 2021 for review of a decision by the respondent Commissioner dated 14 July 2021 to refuse his application for a category AB firearms licence on the ground that it would be against the public interest for a licence to be issued to him. The applicant had not previously held a firearms licence and on 9 June 2021 applied for a category AB licence on the basis of club target shooting and also for a category H licence on the same ground, which was also refused.
The letter of refusal pointed out that the applicant had accumulated a substantial number of serious traffic offences, including negligent driving, driving under the influence of alcohol or drug, exceeding the speed limit by more than 45 km/h and driving with a high range concentration of alcohol. He had also supplied false or misleading information to police on two separate occasions and received an eight months suspended term of imprisonment for driving while disqualified.
He had been declared an habitual offender by Roads and Maritime Services and was disqualified from driving for ten years from 3 March 2007 to 27 March 2014. He had had one other habitual offender declaration quashed by the Local Court. His last conviction, driving with a high range concentration of alcohol, was recorded at Orange Local Court on 24 June 2019, and he was made subject to a mandatory alcohol interlock condition (which has now expired).
The refusal letter stated that his obvious propensity to disregard traffic safety and management legislation and his repeated breach of the conditions of his licence indicated a pattern of behaviour demonstrating a disregard for, or an unwillingness to abide by, laws and regimes aimed at promoting public safety, including his own.
On 17 August 2021, Mr Hailes applied for an internal review of the Commissioner's decision to refuse the category AB licence application. As the Commissioner did not decide the application within the time allowed, the internal review was deemed to have been refused.
[2]
Applicable legislation
Among the objects of the Firearms Act 1996 ('the Act') is the provision that strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: s 3(2)(d). It is an offence under s 7A of the Act to possess or use a firearm unless the person is authorised to do so by a licence or permit. A category A or B licence authorises the licensee to possess or use the firearm to which the licence applies, but only for the purposes established by the licensee as being the genuine reason for possessing or using it: s 8(1).
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 a firearm without danger to public safety or to the peace: s 11(3)(a). Under s 11(7), the Commissioner has a discretion to refuse to issue a licence if the Commissioner considers that issuing it would be contrary to the public interest.
The issues in this application are thus whether the applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for a firearms licence to be issued to him.
[3]
The evidence
The respondent did not call any oral evidence, but relied instead on the documentary material, including the s 58 documents (exhibit R1), a police fact sheet for an offence committed by the applicant (exhibit R2) and two transcripts of 2001 ERISP recorded police interviews (exhibit R3 and R4).
[4]
Mr Nathan Hailes
At the hearing the applicant adopted his signed statement (part exhibit A1) in which he said that he was not the troubled youth that he was 20 years ago when the majority of his offences occurred. He was fully aware that his police record does not read well and accepts full responsibility for his past actions, whether they be good or bad, as it had set him on the path of becoming the person he is today. He could not control the past but he could control his future going forward.
Being sentenced to jail in 2001, although extremely traumatizing, was the blessing that set him on the right path. He realised that was not the life he wanted to lead or be involved in and consequently had made a concerted effort to turn his life around. He fully owns all his mistakes and lessons that came with those mistakes. He knew he had become a better person and had moved on from the poor lifestyle decisions he had made and the people he had surrounded himself with.
By no means was he trying to make excuses for his actions, but to provide some context around each of the charges. When convicted of negligent driving in 1995, he was on his P plates and working delivering pizzas. He went through a roundabout in the wet and slid out. A police officer pulled him over and he was fined for negligent driving.
The break and enter in 1996 occurred under the influence of drugs and alcohol. He thought it would be a good idea with his friends to break into a Teddy Bear factory and place the Teddy Bears around Cook Park in Orange. There was a Teddy Bear Picnic the following day for children, and he thought it would make the day special for them. Obviously in hindsight that was not appropriate. No conviction was recorded but he was placed on a 2-year bond and fined $500.
The 1998 PCA offence occurred after he had consumed two beers at a family lunch and exceeded the speed limit as he was racing another car from traffic lights. He saw the police car and voluntarily pulled over. In 1999 he was found in possession of marijuana. The 2001 charges of supplying false information and driving while unlicensed were from the period when he had started hanging around with the wrong crowd and taking drugs. This was the period in his life when it really started to go downhill. He was using one of his friend's licences, as he had not renewed his licence since 1998 because of unpaid fines. He was declared an habitual offender and his licence was cancelled for 10 years.
[5]
Respondent's submissions
The respondent relied on comprehensive written submissions filed on 22 December 2021. After outlining the background of the case and the legal framework, the submissions contended that traffic laws and the firearms legislation are both directed towards ensuring public safety, and the applicant's repeated breach of traffic laws and regulations indicated a disregard for a regulatory scheme aimed at ensuring public safety: Kammoun v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 273, [99], [102].
Thus, an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing: Keegan Jaques v Commissioner of Police [2017] NSWCATAD 145, [81]. In this case, the applicant's traffic record and criminal history revealed an extensive list of traffic related infringements and an essentially appalling disregard for traffic laws and regulations, namely 14 detected offences since October 1995, including a disqualification from driving from 21 January 2001 until 21 March 2014.
Although the frequency of the applicant's traffic infringements had reduced since his licence was reinstated in 2014, the seriousness of his offences had not subsided. Most seriously, the applicant was convicted of driving with a high range concentration of alcohol on 24 June 2019 and consequently faced a 6 months' disqualification, a 12-month community correction order and a mandatory interlock order for 24 months. It was concerning that his troubled driving history and extensive disqualification period had not acted as a sufficient deterrent to cause the offending behaviour to cease. The applicant also had an extensive criminal history. While the majority of it is from 10 to 20 years ago, the applicant's past history is far from insignificant.
Of particular significance was the 2001 incident in which he was found guilty on 14 September 2001 of demanding property with menaces with intent to steal. He was sentenced to one year imprisonment with a non-parole period of 5 months. The fact sheet showed that along with three accomplices, two of whom were listed on the COPS database as Rebels OMCG members, he participated in a violent home invasion which left the victim with injuries consistent with assault occasioning actual bodily harm. A quantity of firearms and ammunition was also stolen.
[6]
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 refusal of a licence or permit: s 75(1)(a). 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) 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)(c) 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 intemperate habits or being of unsound mind.
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.
[7]
Fit and proper person
The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 11(3)(a) provides that a licence must not be issued unless the Commissioner (and by derivation the tribunal) is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace.
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.
[8]
Mr Nigel Hailes
The applicant specifically relied on a character reference from his father, Mr Nigel Hailes, of Millthorpe (near Orange), dated 29 July 2021 (part exhibit A1), which after introducing himself, began, "As an adolescent his behaviour drove me to despair". But 18 years ago, following the birth of his eldest daughter, he settled down and focused on family life. In order to improve his income, he changed his employment from aircraft maintenance to working in the mining industry. Over 15 years he progressed through the ranks to become a supervisor responsible for a crew of 16 co-workers.
Two and a half years ago he fell from grace with a conviction for drink-driving. He is reminded of and deeply regrets the event every day, having been subject to an interlock order. The upshot of that is that apart from an occasional light beer, he no longer drinks. Notwithstanding that matter, it is inaccurate to characterize him as reckless or irresponsible. The environment he works in is classified as hazardous, with safety and safety culture a primary focus. Part of his work entails training staff to achieve safe outcomes. He and his crew excel at meeting benchmarks.
In his career Mr Hailes has spent more than 40 years managing risk and making decisions based entirely on the need for a safe result. Deciding whether a student pilot is ready to make his first solo or releasing an aircraft back into service following maintenance are examples of what he is talking about. He has an unblemished record.
He has supervised Nathan shooting at the range many times. His demeanour and observance of range protocols have been exemplary. He has successfully completed all the required firearms safety training and has proven to be an adept marksman. Mr Hailes firmly believes that he would pose no risk if granted a licence.
[9]
Mr Josh Dutton
Mr Josh Dutton, Branch Manager Orange for the Freo Group Pty Ltd wrote on 5 August 2021 that he was aware that the applicant's firearms licence application was refused because of previous driving offences. In relation to the red-light camera, he was aware of Nathan not wanting to injure his dog after its life-saving surgery. That was very out of character for him, since becoming a father of three young children. He had shown great contrition for the decision he made and has been very remorseful following the events that have impacted his life.
Mr Dutton wrote that he took pleasure in offering a character reference for a man he had known for 25 or more years and sees regularly at least every fortnight. He has a young family and they both interact with their children as close peers and support each other in fatherhood. Nathan is a far different man now to the person he knew 20 years ago, with his family, and is a great role model for his teenage daughter and two young children. He is a very hard-working man and loving father, whom Mr Dutton would have no hesitation in employing or vouching for through personal or professional character within his business at Freo Cranes. He has watched Nathan's development into a supervisor, leading and mentoring a safe and productive team at Newcrest. He is a trustworthy, honest man who is committed to his personal growth and to providing a safe and loving home for his family. He would be extremely unlikely to ever commit an offence again.
Mr Dutton had spoken at great length with Nathan about the safe use, storage and transport of firearms, of which he has extensive knowledge, as it is a sport he shares closely with his father and gives him an opportunity to share valuable time with Nigel. Mr Dutton has great faith that Nathan would be an advocate [sic] for this licence and would handle all associated responsibilities with great care and maturity.
[10]
Ms Nicole Barrett
Ms Nicole Barrett has known the applicant and they have been close friends for more than eight years. She has spent time with Nathan and his family and they currently see Nathan every month. She can vouch for his great character. She is aware of his drink driving charge, which was extremely out of character. After speaking with Nathan at length when it occurred, he is remorseful, embarrassed and has learned a valuable lesson. He has had no traffic infringements since that offence.
Nathan is a very hard worker. He recently received a promotion at his long-term career with Newcrest Mining and is now a supervisor. That shows how responsible and trustworthy he is. Nathan is also a father to 3 wonderful children. He is a trustworthy, hard-working, honest man who made a mistake and has paid the price. In her opinion Nathan would be extremely unlikely to reoffend.
Ms Barrett is aware of the applicant's traffic offences, and is also aware of the background to them. He had his much loved family pet (his dog Sid) in the car, who had just received an operation and was still under anaesthesia. At that moment Sid had a negative reaction coming out of it which briefly took Nathan's focus from driving, but when he realized the lights were already orange, it was too late for him to brake safely and he passed through it. It also is something Nathan regrets and realises he should have just pulled over and waited until his dog was settled before continuing. He has learned a valuable lesson from that incident.
Nathan is aware of the risks and moral obligations of owning a firearm and has prepared accordingly. She believes Nathan will handle a firearm with great care and maturity.
[11]
Mr Timothy Blanksby
Mr Blanksby is the Ore Processing Operations Superintendent at Cadia Valley Operations with Newcrest Mining Ltd. On 6 August 2021 he wrote that he has known the applicant since moving to Orange in March 2017. Nathan currently performs the role of Ore Processing Shift Production Supervisor. During Mr Blanksby's time at Cadia he has been Nathan's next up the line manager and currently his direct line manager. He is aware that his firearms licence application had been declined, and writes to support his appeal and attest to his character. Nathan had openly discussed his previous offences with Mr Blanksby on numerous occasions. He speaks of them with a great deal of remorse and a determination to better himself moving forward. He admits and accepts full responsibility for his more recent indiscretion, and not only has he shown great personal growth, he also reflects on past experiences to mentor those around him.
During his time working with Nathan, he had demonstrated intelligence and probity. His behaviour and adherence to company policy and practice had justified Mr Blanksby's decision to promote him twice, from Senior Process Technician to Leading Hand and then to his position as Shift Production Supervisor. In his current role, he is responsible for the safety, production and costs of his entire shift team in the ore processing operations department. That is a role that carries a high level of responsibility, stress and accountability. Nathan executes plans, implements policies and procedures to achieve the required safety production deliverables.
Nathan leads his team with a great deal of integrity and honesty. During backshifts (weekends and night shifts), Nathan acts as Mr Blanksby's delegate for all areas within ore production operations. He is confident and has complete trust that Nathan will carry out those duties, always acting with the utmost professionalism and in the business's best interests.
[12]
Mr Matt Warner
Mr Matt Warner, who is Manager, Fixed Plant Maintenance at the Newcrest Mining Ltd Cadia mine, wrote on 9 August 2021 that he first met the applicant in 2005 at Cadia Valley Operations. In his senior role as maintenance manager of Cadia, he has watched Nathan's development over the past 15 years - starting as a contractor and now an operational supervisor of the crew of 16 members.
Nathan is a passionate person who genuinely cares about people, and caring about people is one of Cadia's core values. His commitment to a culture where health and safety are at the forefront of everything that they do is reflected in his crew's learning and development. Nathan strives to create a safe environment in which his crew feels secure to be the best that they can be and where everyone can go home safe and healthy every day. That responsibility is magnified during maintenance shuts, where Nathan, as supervisor, can regularly be responsible for the health and safety of over 800 people or more during those periods on the site.
Nathan had made mistakes of which he is incredibly remorseful and has been willing to do whatever it takes to make reparation. During his time of knowing Nathan, Mr Warner had witnessed a genuine maturity over the years since he became the father of three beautiful children. He believes that this maturity and his commitment to his family has been an impetus to his work level progression over the years and to the leader that Mr Warner observes daily on site. Like the other referees, Mr Warner was not required for cross-examination.
The veracity of the references is not disputed and their content speaks for itself. It is not uncommon for an applicant with a troubled past to claim to have turned his life around, but this is a case where the evidence presents unanimous and cogent support for that proposition. All the referees who have known the applicant for a long time attest to the radical changes in his life since the shock of his jail sentence for the 2001 offence and his newfound maturity and reorientation of his consciousness brought about by the birth of his first child, and subsequently of two other daughters. His focus is now on his family and on being a role model for his children. He is deeply remorseful for his past misdeeds and has shown consistent determination to reconstruct his life going forward.
While the favourable opinions of respectable friends, family and associates are helpful, concrete actions are a stronger indicator of rehabilitation and off future conduct. Here the evidence of Mr Blanksby, the applicant's line manager at the Newcrest Cadia mine, is that he has been impressed by Nathan's sense of responsibility and acceptance of accountability. His behaviour and adherence to company practices have been exemplary, such that Mr Blanksby has twice promoted him. Thus in his 15 years with Newcrest he has progressed from the rank of contractor to senior technician to leading hand to ore processing shift supervisor responsible for a team of 15 to 18 staff. On night and weekend shifts he is regularly appointed as Mr Blanksby's delegate, thus making him in effect acting ore processing operations superintendent. Mr Blanksby is aware of the applicant's troubled past and of his deep remorse over his behaviour in those times and has noticed that he uses his own experiences and mistakes when mentoring his own staff.
[13]
Public interest
The second ground on which the respondent argues for licence refusal is that it is not in the public interest for the applicant to hold a licence, within the meaning of s 11(7).
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.
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] 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].
[14]
Order
1. Decision under review set aside.
2. A category AB firearms licence is to be issued to the applicant.
[15]
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: 02 February 2022
The charges that got him sent to jail in 2001 were something he still regrets. Putting himself in that position was the dumbest decision he had ever made. He was originally charged with aggravated robbery and larceny, which were both subsequently reduced to demanding property with menaces with intent to steal. That was the lowest point in his life when he was sent to jail and also the jolt he needed to turn his life around. He realized then that those drugs and alcohol and the people he was surrounding himself with were not the way he wanted to live his life.
In 2004 he drove while disqualified and was charged. His daughter, who had just been born, had been rushed to hospital that week for emergency surgery for a hernia. That day she would not settle down, and he made the wrong decision to drive to the chemist in Blayney to get her pain relief. In 2012 he returned to court to appeal against the severity of his sentences. During that time, he had done 4 years as an aircraft maintenance engineer and had been employed full-time with NML [Newcrest Mines Ltd] from 2007. He had gained all his high-risk licences for earthmoving equipment and also had his student pilot licence. The judge noted how hard he had worked to turn his life around and overturned the severity of his sentence, making him able to regain his licence in 2014.
In 2019 he was charged with high range DUI. He had finished his night shift that morning and retired to bed. He had a fellow crewmember's farewell dinner that night. He slept for a few hours and then got up to work on his car, in which he had just installed a new clutch and gearbox after just rebuilding the car and getting it on the road. They went to dinner where he had a small meal and exceeded his alcohol limit. On leaving, he stood opposite the pub waiting for a taxi for around 15 minutes and got cold. That was when he made a very poor decision to drive. When the officer pulled up next to him, he informed him that he would pull up around the corner, which he did. When the officer approached the car, the applicant admitted to him that he had been drinking and would be over the limit. After the court appearance he had a mandatory interlock installed in his car.
As regards the 2020 red light violation, his dog had been at the Coleton veterinary clinic for a procedure, and he was returning home to Orange. He was fully aware of all the red-light cameras along the road, as he had driven it several times that day and had seen the signs. His dog was on the back seat and was still very groggy from the anaesthetic. He had started to stir and began whimpering and shaking when the light turned orange. This was in an 80 km/h zone and he did not want to hit his brakes to stop and cause the dog any more injuries.
Since his time in prison, he had made a concerted effort to rehabilitate himself, as could be seen through his work ethic and the position he holds in the mines as a supervisor. He had shown over the past years that he is a responsible person who can lead and supervise a crew of up to 15 people on a daily basis, where safety is paramount and where everybody can go home safe and healthy every day.
The applicant also adopted a letter he had written to the tribunal dated 17 August 2021 (part exhibit A1) in which he said that on the basis of his driving record, he could see how the decision to refuse his application had been made. He also understood the overriding need to ensure public safety with firearms by imposing strict controls on the possession and use of firearms. Inherent in the licensing requirements was that persons who have access to firearms must act responsibly, carefully and in accordance with the legislation.
He was writing to try to convey how badly he felt about his driving record. Most of his offences occurred over 20 years ago when he was a different person, young, naïve and hanging around the wrong influences. His personal life was a "train wreck". He had no matters on his driving record for over 15 years until 2½ years ago when he was charged and convicted for drunk driving in 2019. He had had no excuses for his past behaviour; accepted full responsibility was very remorseful for his actions, having truly learned his lesson.
He wished to apply for a firearms licence because his best friend (who is his father) is now 73 years old. They used to go fishing and camping a great deal, but because of his age it had become more difficult for him. His passion is the shooting club he belongs to and the applicant would love to be able to spend time with him and join in with his hobby. His position as a supervisor at the Cadia mines gave him an appreciation for following the rules and regulations for keeping a crew of 16 people safe in a high-risk environment.
In oral evidence at the hearing, the applicant reiterated those points and explained that he was employed as a supervisor at the Newcrest company's Cadia mine, which is one of the world's largest copper and gold mines, and is expected soon to be producing molybdenum as well. He was the supervisor of a team of 15 workers, and all their operations were safety-centred because of the dangerous environment. They had developed a strong safety culture. His 2019 traffic violation had been a major letdown for him. Asked by Mr Kable about his serious charges in 2001, he replied that he had become involved with shady characters at a time when he was young and inexperienced. He had no idea that the events leading to those charges would turn out as they did.
As regards the OMCG (outlaw motorcycle gang) connexion, he said that one of the group, Walter Press, had been his best friend at school, which was how he came to mix with the others. He himself had never been an OMCG member or nominee and he now had no contact with the Rebels OMCG or Walter Press. His 2019 DUI violation was out of character, as he seldom drinks now -- he had been out to dinner and became cold while waiting outside for a cab. He had been enrolled in a mandatory interlock program, which placed in his vehicle a device into which he had to blow before starting the car each time. If it detects an excess quantity of alcohol it blocks the ignition and records the breach. During the two-year period the interlock had been installed he had no breaches.
Cross-examined by Mr Deards on behalf of the Commissioner, the applicant explained that he sought a licence because he wished to go shooting with his 73 year-old father. They had formerly done much together, especially fishing. They used to chase cod, which involved fishing from the rocks, which his father could no longer manage. He agreed that they could engage in other kinds of fishing, but said sitting on the riverbank they would not really catch fish.
He denied having any present association with the Rebels OMCG, but at one time he had been closely associated with Walter Press. He knew what OMCGs got up to - violence, drugs, and he supposed guns. He himself had used drugs, but that was over 20 years ago. He had also sold drugs at that time. He had lived for a time with Shannon Wheeler during a period when he had been "couch-hopping". Shannon was an OMCG member, but not a branch president.
On 13 April 2001 he had been present at the Rebels clubhouse. Asked whether he would need special standing with the Rebels in order to be admitted, he said that was not necessary if one knew a member. They had been drinking from 9:00 pm before the assault on Andrew Mc Mahon the following morning. He knew that the fact sheet recorded that the complainant had been seriously assaulted with a pick handle and robbed, including of a number of guns. He did not remember all of that, but the fact sheet says so and he was not able to deny it.
He had been in McMahon's bedroom, but only to tell a co-defendant named Adam Reilly [or Riley] to get out. He agreed he had been in possession of a .38 shell in his pocket. He believed one of the guns had been recovered but he himself did not believe that all the things listed had been taken. He considered Andrew McMahon to be a liar and a junkie (ERISP transcript 15 April 2001 Q214, Q236, Q237, exhibit R3).
He had gone to jail at Oberon for that offence. He denied trying to sell two .45 pistols and a .38 while in jail. He had never tried to sell firearms. He had no recollection of ever purchasing any .45 rounds and said he would have been unable to do so because he had no licence. Specifically, he denied attempting to buy .45 rounds at Daves Hock Shop in Orange. Nor had he ever threatened to shoot the licensee of the Millthorpe hotel in the head with a .45.
The ERISP transcript of the 15 April 2001 police interview (id., Q 93, Q 166-167) was correct when he was quoted as saying that he had drunk $200 worth of liquor on the night in question. He had an alcohol problem at the time and his recollection of the events was hazy.
He agreed that he could make silly decisions when he was intoxicated. He agreed that his criminal history and traffic record as set out in exhibit R1 were correct. The 2019 PCA occurred after he had been drinking with dinner, six or seven glasses over two hours. He had waited outside for a cab, but when none came after 15 minutes and he was feeling the cold, he drove although he knew he was over the limit. He agreed that by doing so he was endangering the public.
In re-examination he explained that after the 2019 PCA he had made the decision to undertake a Traffic Offender course, which he had completed. At work at the moment they all have drug and alcohol tests every day before work. He now seldom drinks.
The applicant also relied on six character references, which are outlined later in these reasons. The referees were not required for cross-examination.
The applicant's assertion in relation to the 2001 offence that he was hanging around with "the wrong crowd" was not an accurate representation for describing his association with members of an OMCG. OMCGs were a scourge on society and their influence in someone's life could have significant consequences. The existence of OMCGs was notorious, as was the threat they posed to the public and those who oppose them: Moefili v State Parole Authority [2009] NSWSC 1146; Stealth Enterprises Pty Ltd (t/as Gentlemen's Club) v Calliden Insurance Ltd [2015] NSWSC 1270. The applicant's record showed that he lacked the maturity to possess the firearm. It could not be said that the risk posed by the applicant if he had a firearms licence could be regarded as minimal, fanciful or theoretical. It could not be said that he is a fit and proper person to hold a licence in the circumstances.
As regards the public interest, the respondent submitted that the licensing regime under the Act is emphatically concerned with protecting the public and making decisions that are consistent with the need to reduce any risks to a minimum: Petas v Commissioner of Police, New South Wales Police [2013] NSWADT 137, [36]. It would be contrary to the public interest for the applicant to hold a licence for a number of reasons. The most notable issue in the matter was the applicant's history of traffic infringements which led to an extended period of disqualification had evidently had not deterred him from engaging in further risky behaviours since his licence was restored. Those infringements directly related to public safety and raised doubts regarding his ability to abide by the rules and regulations necessary to possess a firearms licence: see Keegan Jaques [57], [81].
In this case, the applicant's propensity to disobey traffic laws and regulations had led to his being declared an habitual offender by Roads and Maritime Services twice. The second declaration was later quashed: but it is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64].
It would not be in the public interest for the applicant to hold a firearms licence, given his criminal record and his historical links to an OMCG. The public interest is an inherently broad concept designed to give the broader interests of the community priority over private interests. The applicant's private desire to have a licence to partake in social activities cannot be prioritized over community concerns that a person with such a criminal record could have access to a firearm.
In oral submissions at the hearing Mr Deards reiterated those points, noting with some délicatesse that the applicant's father's condition was not a pressing matter like needing a licence for work, and they could engage in other activities together. In any event a personal interest could not override the requirements of public safety.
On the question of truthfulness, DMC v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 219, [57] gave weight to the level of cooperation and frankness with the authorities. The applicant could be reluctant to come forward if a firearm were lost or stolen.
His high range PCA was most serious, as was his past association with an OMCG and the home invasion in 2001. Even though he had broken with the Rebels there was a danger to the public if he could be coerced by them in relation to firearms, which could happen if he were intoxicated, and the 2019 PCA showed that was a real concern.
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].
In the context of firearms licensing, the tribunal is required to form a positive state of satisfaction that an 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": Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63, [45].
The first matter raised by the respondent that is adverse to the applicant's position is what the respondent describes as "an essentially appalling disregard for the traffic laws and regulations", noting Montgomery SM's comment in Kammoun that "the Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety" [37]). Thus, an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues: Keegan Jaques, [81].
The applicant's traffic record includes the following violations, in reverse chronological order:
Disobeying traffic lights (camera detected), 31 August 2020
Driving with high range concentration of alcohol, 24 June 2019
Habitual offender declaration, 2 March 2004
Driving while disqualified, 2 March 2004
Habitual offender declaration, 14 September 2001
Driving under the influence of alcohol or drug, 14 September 2001
Driving after licence cancelled or refused, 14 September 2001
Supplying false or misleading information, 14 September 2001
Driving after licence cancelled or refused, 29 March 2001
Exceeding the speed limit by more than 45 km/h, 9 October 1998
Driving with special range concentration of alcohol, 23 July 1998
Negligent driving, 2 October 1995.
As the respondent pointed out, that extensive history should be read in light of the fact that the applicant was disqualified from driving from 21 January 2001 until 21 March 2014. The frequency of his infringements has reduced since the licence was reinstated in 2014, but that record of improvement was blotted by the high range PCA violation on 24 June 2019 followed by a 6-month disqualification, 12-month community correction order and a mandatory interlock order for 24 months. It is most fortunate that the applicant's style of driving does not appear to have resulted in any person being injured.
In addition to his bad driving record, the applicant between 1996 and 2001 accumulated a significant criminal history (exhibit R4, annexure 4). At the hearing the applicant conceded that the criminal history and traffic history set out in exhibit R1 were correct. In 1996 he was convicted of breaking, entering and stealing and placed on a 2-year bond. In 1999 and 2000 he was convicted of drug possession, and in 2000 of goods in custody.
His most serious offence occurred on 14 April 2001 and resulted in his being found guilty on 14 September 2001 of demanding property with menaces with intent to steal. He was sentenced to one year of imprisonment with a non-parole period of 5 months. The offence involved the applicant, with three co-defendants, two of whom were apparently Rebels OMCG members, joining in a violent home invasion which left the victim with injuries apparently constituting assault occasioning actual bodily harm.
According to the fact sheet (exhibit R2) the four participants arrived at the front door of Andrew McMahon's residence in Orange at about 8:00 a.m., one of them carrying a pick or mattock handle. All the parties were known to one another and McMahon admitted them to the premises. Once inside, one of the defendants, Walter Press, began to argue with the victim about the ownership of a motor vehicle, saying "Sign your car over to us. It's payment for traffic fines and the Harley-Davidson". The victim replied, "Fine, take the f***** thing then". Press then told the victim to sign a handwritten note indicating that he was the owner of the car from January to 14 April 2001. During the argument, another defendant, Shannon Wheeler, struck the victim in the mouth and broke a seven-ounce spirit class over his head, saying "It's payback for all the money you've cost us". Shortly afterwards, Press approached the victim, who was now on his knees in the hallway, and struck him over the head and hand with the pick handle. Wheeler then told Press to stop his assault with the handle, at which point the victim was kicked in the head and body a number of times by Press. Then Press again struck the victim on the head with the pick handle. The victim said that Wheeler and Press were demanding, "Where's your drugs? Where's your guns?" (Event report E 11445817). As a result of the assault, McMahon suffered a cut behind his left ear requiring 3 sutures, bruising and minor lacerations to his face and body.
It was not suggested that the applicant had assaulted the victim (exhibit R3, Q 220 - 221) or threatened him in any way. A substantial quantity of property was stolen, however, including two firearms, a .22 magazine and silencer, two telescopic sights and a large quantity of ammunition. In some reports there is also a mention of an 1871 model Colt revolver. McMahon was not licensed to possess any firearms.
The applicant stated that he had drunk so much that he had no recollection of the events after about 2:30 or 3:00 a.m. and in particular knew nothing about the guns, but did admit that he found a .38 shell (possibly a spent cartridge case, consistently with common usage) in his pocket. When told about the theft of the .38 ammunition, he commented that that would explain his having the shell in his pocket.
The applicant claimed that he was associating with the wrong crowd at the time, and knew Rebels members only because Walter Press had been his best friend at school. That does not, however, mitigate the seriousness of the offence, and as Schmidt J pointed out in Stealth Enterprises, the criminal activities of biker gangs are widely known in the community.
The applicant maintains that the shock of being imprisoned in 2001 was a turning point in his life and led him to resolve to leave such associations behind. His evidence was that he has since then had no contact with the Rebels, or Walter Press in particular. Indeed, he has had no non-traffic offences on his record after that date. His traffic record has also improved since then, except for the PCA violation in 2019. His explanation for that offence is not persuasive, but his remorse over the episode appears to be genuine, as he thereupon undertook a Traffic Offenders course, has had no contraventions of any kind since August 2020 and did not commit any breaches of his interlock restrictions. Further, he has a number of particularly strong character references, the contents of which were not challenged. The first is Mr Nigel Hailes.
Mr Warner, maintenance supervisor at the Cadia mine, has watched the applicant's development from contractor to processing operations supervisor with a team of 16 workers reporting to him. In times of maintenance shutdowns, he can be responsible for up to 800 people. Mr Warner attests to his total commitment to health and safety procedures and safeguards. It seems unlikely that a major mining company such as Newcrest would retain, and repeatedly promote to more responsible positions, a person who could not be relied upon to uphold health and safety standards and work towards maintaining a safety culture in a high-risk environment.
Tangible results of this kind constitute probative evidence of genuine reform and rehabilitation. In this case they are also consistent with accepted criminological studies that have long shown that the propensity for delinquency declines sharply after the age of 25 (D. Weatherburn, S. Rahman, The Vanishing Criminal: Causes of Decline in Australia's Crime Rate, Melbourne University Press 2021, Ch. 5). The applicant's worst offences occurred when he was aged between 18 and 24, and he is now 44. His behaviour began to improve markedly after 2001, subject to the two isolated lapses in 2019 and 2020, for which he has demonstrated remorse and contrition, including by completing a Traffic Offenders course.
The applicant has no record of violent behaviour or threats of violence, including in the 2001 episode. Alcohol abuse was a definite factor in his earlier misconduct, but he has recognized the danger and now seldom drinks, saying that it no longer agrees with him. It appears that he has long been free of illicit drugs.
Exactly what his role was in the 2001 offence as regards the theft of Mr McMahon's unlicensed firearms is not clear. Clearly, he was legally liable as a participant in a criminal common purpose, but according to his own account, by reason of his state of intoxication at the time, he has no recollection of anything to do with the guns at all. No firearms or firearm parts were found in his possession.
Subject to that, he has no firearms offences and developed a keen respect for firearms safety procedures and safeguards while accompanying, and joining with, his father at the local target shooting range for many years. In light of the totality of the evidence, it thus appears that the applicant is now a fit and proper person to hold a firearms licence, and I so find.
In relation to the public interest in this matter, the respondent contended that, "The most notable issue in this matter, and the most significant factor behind the revocation [scil. refusal] of the applicant's licence, is the applicant's history of traffic infringements which led to an extensive period of disqualification and evidently has not deterred him from engaging in further risky behaviours since his licence was restored". His traffic record is indeed relevant to the question of risk to public safety in the context of firearms licensing: Kammoun, [96].
In this case, the respondent continued, the applicant's propensity to disobey traffic laws had led to his being declared an habitual offender by Roads and Maritime Services twice. Although the second declaration was later quashed, the respondent correctly pointed out the tribunal is to take into account matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct, rather than the conviction, that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30].
It would be contrary to the public interest, the respondent continued, for the applicant to hold a firearms licence, given his criminal record. Consideration must also be given to the applicant's historical links to an OMCG.
For the reasons set out above in relation to fitness and propriety, I do not think the applicant's driving record, the worst aspects of which occurred some 20 years ago, would now warrant an adverse finding on the public interest, especially given the marked (but not uninterrupted) improvement in his record since his licence was restored in 2014. His association with the Rebels OMCG arose from the fact that his best friend from school had become a member, but the applicant says he totally severed all links after the 2001 incident and there is no evidence to the contrary. The applicant himself has never been an OMCG member or a postulant for membership.
His other criminal convictions are matters of more serious concern and would probably disqualify him from holding a licence if they were recent. But as was outlined above, his sentence in 2001 and the birth of his first child in 2003 demonstrably brought about a radical improvement in his conduct and motivation. He states that he has completely broken with the Rebels OMCG, including with his former friend Walter Press.
He went to work in the Cadia mines full-time in 2007 in order to generate the higher income that he needed to support his family. His responsible and safety-oriented attitude has led to his three successive promotions to progressively higher positions, and his two supervising managers make strongly supportive observations about his sense of responsibility, character and conduct.
He has considerable experience with firearms gained by accompanying and joining with his father at the local rifle range and by all accounts has scrupulously followed safety procedures. He is a member of the Sporting Shooters' Association of Australia (SSAA) and completed the SSAA safe shooting course in June 2021 (part exhibit R1). In the language of Webb, [32], there would be no "real and appreciable risk" to public safety created by issuing a firearms licence to him. In my view it would not be contrary to the public interest for a category AB licence to be issued to the applicant, and I so find. The decision under review is to be set aside.