Hailes v Commissioner of Police

reasons for decision

1. 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.
2. 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.
3. 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).
4. 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.
5. 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.

Applicable legislation

1. 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).
2. 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.
3. 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.

The evidence

1. 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).

Mr Nathan Hailes

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Respondent's submissions

1. 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].
2. 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.
3. 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.
4. 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.

Approach

1. 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.
2. 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.
3. 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.
4. 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.

Fit and proper person

1. 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.
2. 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.
3. 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.

Mr Nigel Hailes

1. 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.
2. 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.
3. 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.
4. 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.

Mr Josh Dutton

1. 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.
2. 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.
3. 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.

Ms Nicole Barrett

1. 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.
2. 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.
3. 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.
4. 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.

Mr Timothy Blanksby

1. 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.
2. 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.
3. 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.

Mr Matt Warner

1. 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.
2. 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.
3. 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.
4. 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.

Public interest

1. 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).
2. 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.
3. 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.
4. 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.
5. 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].
6. 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].

Order 1. Decision under review set aside. 2. A category AB firearms licence is to be issued to the applicant.

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