Hawatt v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-03-02

REASONS FOR DECISION

This is an application for the review of the refusal by the respondent to issue the applicant a firearms licence.
The applicant lodged an application for a firearms licence under the Firearms Act 1989 with the respondent on 3 October 2019. After 12 months had passed, the respondent had not determined the application. On 13 October 2020 the applicant lodged an application for review with the Tribunal. On 3 November 2020 the respondent issued its decision and refused the application for a licence under s 11(3)(a) and (7) of the Firearms Act.

Relevant legislation

Section 75 provides: "75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d) the refusal of or failure by the Commissioner to register a firearm, (e) the cancellation of the registration of a firearm by the Commissioner, (f) a firearms prohibition order made against the person, (g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph. (1A) Despite subsection (1), a person may not apply for a review of a firearms prohibition order made against the person if the person would be required under section 11 (5) or 29 (3) to be refused a licence or permit (a disqualified person) had the person not been subject to a firearms prohibition order. (1B) However, the decision to make a firearms prohibition order against a disqualified person is taken to be an administratively reviewable decision for the purposes of section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 and that section applies, with such modifications as are necessary, in relation to the decision to make such an order. (2) Despite subsection (1), a regulation referred to in subsection (1) (g) may limit the class of persons who may make an application for an administrative review of a decision referred to in that paragraph. (3) The Minister is not to recommend the making of a regulation containing provisions for the purposes of subsection (1) (g) unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions. (4) The following provisions of the Administrative Decisions Review Act 1997 do not apply to an application to the Civil and Administrative Tribunal for an administrative review of a decision referred to in subsection (1) (a) or (c) that was made on the grounds referred to in section 11 (5A) or 29 (3A) - (a) Part 2 of Chapter 3, (b) section 58. (5) In determining an application for an administrative review of any such decision, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013) - (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and (b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative."

Issues for determination

The respondent submits that the application should be refused on the grounds that: 1. The applicant is not a fit and proper person to be issued a licence within the meaning of s 11(3)(a); because of his criminal and driving history, and 2. It would be contrary to the public interest to issue the licence (s 11(7)).
The applicant submits that he is a fit and proper person and that his possession of a firearms licence would not present any risk to the public.

The applicant's licence history

Mr Hawatt was born in 1987. He owns and operates a business as a builder and water tank manufacturer. Ten years ago he legally changed his name to Bassam Merby and then recently he changed it back to Omar Hawatt.
He was issued with a firearms licence on 6 December 2010. This licence expired on 27 January 2016. On 21 March 2016 he applied again for a licence. This was refused on 3 November 2016. Following an internal review he appealed the refusal to this Tribunal on 1 May 2017 but withdrew it in 2018. On 1 October 2019 he again applied for a licence. It is this application which is the subject of the review.
In its decision on 3 November 2020 the respondent refused his application in reliance on prior conduct relating to firearms and his traffic record.

The applicant's criminal and traffic record

The applicant has a poor driving record. In 2007 he was fined $1000 and was disqualified for holding a licence for 12 months for dangerous driving. In the same year he was convicted of driving while disqualified on 2 occasions. His licence was suspended for 2 years.
In 2008-9 he was fined twice for using an uninsured motor vehicle, was fined for not wearing a helmet on a motorbike, and was again convicted of driving while disqualified for which he was fined $1500 and disqualified from holding a licence for 2 years until 5 July 2012. In that year he was also convicted of obtaining a licence by misrepresentation, possessing a licence obtained by misrepresentation (4 counts), using an uninsured motor vehicle, driving dangerously, and 4 counts of driving while disqualified. He was sentenced to 20 months imprisonment with a non-parole period of 10 months and fined. On appeal to the District Court this was reduced to cumulative sentences of periodic detention ending on 17 August 2011.
In 2009 an interim AVO was issued against the applicant but this was revoked.
In 2016 the applicant was charged with possessing an unauthorised firearm and not having approved storage for firearms. One charge was withdrawn and the other was dismissed.
In 2016-7 the applicant was fined for exceeding the speed limit by not more than 10 kmh, not stopping at a red light and driving with an insecure or overhanging load. This caused his licence to be suspended for 3 months. Due to other offences his licence was suspended again for three months from 2 May 2017.
His licence was suspended due to fine default from 15 February 2018, although it appears this may have been an error. On 24 July 2018 he was charged with making an unlawful U-turn and driving while his licence was suspended. On 24 August 2018 the second charge was dismissed under s10 with a good behaviour bond. On 27 July 2018 the applicant was stopped by police after they observed him perform an illegal U turn. According to police records which the applicant did not challenge, police requested his drivers licence to which he said: "I don't have it on me." Checks revealed that his licence was suspended on 15 February 2018 for fine default. The applicant said "I thought I sorted it out. I have been paying into the payment plan." He told police he had to drive for work.
On 19 November 2019 he was charged with exceeding the speed limit by more than 10 kmh but not more than 20 kmh.
On 30 March 2020 he was detected using his mobile phone while driving. On 31 March 2020 his licence was again suspended due to demerit points until 4 August 2020. On 21 September 2020 he was fined for exceeding the speed limit by not more than 10kmh in a school zone.
On 13 January 2021 he was issued with a traffic infringement notice for exceeding the speed limit by more than 20kmh.
I have also had regard to two firearms offences with which the applicant was charged and which were later either withdrawn or dismissed. The events took place on 23 April 2016. The applicant did not dispute the accounts given in the Police fact sheets, which state that he was stopped by police driving while his driver's licence was suspended. The applicant said he was unaware of his suspension but was on a fine payment plan. Police also noted that his firearms licence expired on 27 January 2016. The applicant told police he was unaware of this and had not used a firearm for months. Two firearms in a locked box in the vehicle were seized.
I note that an application for a new firearms licence was received by the respondent from the applicant on 21 March 2016 and a copy was in evidence.
When the applicant's firearms licence expired, he remained in possession of unauthorised firearms, according to police records which were tendered by the respondent. When stopped by police, according to the facts sheet, he claimed his father was looking after them but at the time they were in a locked box on the vehicle he was driving.
In a statement made by the applicant in earlier Tribunal proceedings, he said that his application for the firearms licence was completed by other persons not himself. He now knew that was wrong and he was responsible for answering the questions on the forms. He acknowledged that his firearms were stored in his father's safe for a period while he was unlicenced. The firearms offences were dismissed with a not guilty verdict at Singleton Local Court on 30 September 2016.

Mr Hawatt's evidence

Mr Hawatt agreed that he had been issued with fines for speeding and using his mobile phone. He said he was disappointed in himself and remorseful for his behaviour. He had undertaken two programs for traffic offenders in 2017 and 2021.
He said the 2021 speeding offence occurred when he was driving his family to Forster for a holiday. They were on the freeway and music was playing and did not realise he was speeding. Also he said it was a new car and it was very sensitive to pressure on the accelerator.
He said he spent a large part of his life driving, and drove about 1000km a week for his business. He said that his conduct had changed since 2008, he was no longer driving recklessly. He did not justify his speeding but said he had come a long way and was a different person to what he had been 10 years previously. He had two children, one of whom had autism and his mind was sometimes on family issues when he was driving. He was expecting a third child. He stated: "There is no question I have been undeserving of a firearms licence in the past, but I have now turned over a new leaf, and far more mature than I was and am making this application to the tribunal in the belief that I deserve another chance to show my responsibility."
He said he was a professional hunter and guided other hunters. He was usually out hunting once a month for about 5 days at a time. At present he hunted with a bow and arrow or took videos. He had a firearms licence for 5 years without incident. His wife also had a firearms licence.
A report by Psychologist Michael Kruger-Davis was tendered. Mr Kruger-Davis interviewed Mr Hawatt by telephone on two occasions and reviewed the s 58 documents. He completed a mental status examination and suicide risk assessment. He noted the reckless driving occurred at a time when Mr Hawatt was between 18 and 25 years of age. Prior to 25, in males the executive function of the brain is not fully developed. He noted that as a practicing Muslim Mr Hawatt does not drink alcohol.
He expressed the view that Mr Hawatt expressed genuine remorse for his driving behaviour and his disregard for traffic rules. He had some understanding of the consequences of his actions.
The applicant also relied on a number of supportive character references from friends, his wife and fellow hunters; and a letter from a firearms instructor, Mr Daniel Forster which claims his knowledge of the fiearms legislation and practical experience satisfies the requirements for him to be a licence holder.
The letter does not address if he is a fit and proper person and dates from 2017. The character references testify to the applicant's past poor driving record and good character particularly in more recent years and since becoming a father.

The applicant's submissions

The applicant submitted that he takes full responsibility for his actions, expresses remorse and is now more mature. He relied on the decisions of Jameson v Commissioner of Police [2019] NSWCATAD 25 and Hook v Commissioner of Police [2020] NSWCATAD 250. In Jameson, the applicant's licence was revoked after firearms in his possession were stolen. The question was whether it was in the public interest for him to hold a licence. The applicant cooperated fully with police and pleaded guilty at the first opportunity. Although three of the stolen handguns were recovered, two were unaccounted for. The Local Court found an offence under s 39 of the Firearms Act of failure to keep a firearm safety established against him. No conviction was recorded but he was required to enter into a six months good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act 1994, which he completed without incident. The Tribunal found that there were "persuasive and relevant circumstances that take his matter outside the ordinary case" including his unblemished prior record, the security precautions he had in place, his acute remorse and psychological evidence that he was likely to be hypervigilant in the future.
In Hook, the applicant's licence application had been refused. Since 2005, he had received a total of 12 traffic infringement notices, including, before 2009, negligent driving, not displaying a P plate, and exceeding the speed limit. More recently, he incurred two speeding notices and another for failing to keep to the left on 2 January 2016. He was also involved in two high speed police chases in 2008 and 2009. On the second occasion the car he was driving was unregistered and uninsured and he was unlicensed. He was disqualified for 4 years. There was evidence that the applicant had matured and his worst offences were committed when he was 18, in addition there was a public interest in him having a firearms licence as he worked on a rural property where vermin needed to be destroyed. The Tribunal determined he should be granted a licence.
The applicant also submitted that the evidence of dishonesty dated from 2009, more than 10 years ago. His driving record from 2016 to the present would not form a basis for refusing a licence. He does not deny his poor record. He was caught out by unpaid fines.

Respondent's submissions

The respondent submitted that the applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme designed to ensure public safety and for the law generally. While the firearms charges were withdrawn, the applicant's conduct (whereby two unauthorised firearms were found in a vehicle he was driving while unlicensed) count against him.
The respondent submitted that firearms possession and use is a privilege and the legislation aims to protect the public. Public safety is the primary issue for the Tribunal in this case when considering the public interest. The Tribunal cannot be satisfied that the applicant poses virtually no risk to public safety and should find that he is not a fit and proper person to hold a licence in the circumstances.
Mr Kruger Davis's report is undermined by the applicant's more recent behaviour, in the respondent's submission. Between 5 December 2015 and 17 June 2020 the applicant committed 12 traffic related offences and his drivers' licence was suspended on numerous occasions.
The respondent submitted that Jameson and Hook could be distinguished from the current case on their facts.

Consideration

The Tribunal's role on administrative review is to determine what the correct and preferable decision is having regard to the material before it (s 63(1) Administrative Decisions Review Act 1997). The Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Commissioner's delegate in this case. The Tribunal may decide to affirm or vary the decision, set aside the decision and make another decision in substitution, or set aside the decision and remit the matter for reconsideration by the decision-maker (s 63(2) and (3)).
Administrative review powers must be exercised within the scope of the legislation. 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. In addition, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest (s 11(3) and (7)) Firearms Act.)
Whether a person is fit and proper has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28).
As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] with regard to security licensing legislation, the "public interest" is: "…an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual."
That definition has been applied to firearms cases (Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16.)
In Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 the Tribunal said: "69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." … 72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25] 25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ... 73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25]. 74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]."
In Constantin at [33] the Appeal Panel stated: "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."
An applicant's disregard for the traffic laws and regulations may be relevant to the criteria for a firearms licence, as held in Keegan Jaques v Commissioner of Police [2017] NSWCATAD 145 in which SM Scahill said at [81]: "The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety."
I accept that the applicant's worst driving offences and the instances of dishonesty occurred when he was young, in around 2009. There has been an improvement in his driving record. However further traffic offences in 2016-17 resulted in his driver's licence being suspended twice, for 3 months each time. In 2018 there were two offences, and one offence in each of 2019, 2020 and 2021.
I accept that the applicant is often on the road for his work. One of the recent speeding offences occurred, however, when he was on holidays and his family was in the car with him and the risk to safety was greater.
I consider that his conduct with regard to firearms in 2016 is relevant. The Tribunal may have regard to his conduct, even though the charges were either withdrawn or dismissed. In 2016 he admitted that his application for a firearms licence in that year was completed by someone else on his behalf and that his firearms were stored in his father's safe for a period while he was unlicenced. He drove with those firearms in the vehicle while unlicensed. His answers to the police when he was stopped indicated a casual attitude to firearms safety and regulation.
This conduct, taken with the recent driving offences, do not indicate to me that there is virtually no risk. I am not satisfied that the applicant has the necessary regard for the regulatory scheme concerning the storage and transport of firearms nor that he has sufficient regard for public safety. The decisions in Hook and Jameson can be distinguished either on the basis that he does not have the otherwise unblemished record of the applicant in one, or that the level of maturity shown is not as great as demonstrated in the other.
Accordingly I am not satisfied that the evidence is sufficient to justify a finding that it is in the public interest to issue him with a licence; or that he is a fit and proper person and can be trusted to have possession of firearms without danger to public safety. Possibly after a period has passed where he has demonstrated the necessary regard for these matters he would be able to meet those tests.

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: 30 April 2021

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