Heywood v Commissioner of Police, NSW Police Force [2024] NSWCATAD 122 | Case summary

Heywood v Commissioner of Police, NSW Police Force [2024] NSWCATAD 122 | Case summary | Zoe

[11]

12 June 2022 incident

Mr Heywood's alleged conduct on 12 June 2022 gave rise to the criminal charge of "stalk/intimidate intend fear physical etc harm (personal) - T2" above and, ultimately, the decision of the Commissioner to revoke his firearms licence.
Police allege in records from the Computerised Operational Policing System ('COPS') that on 12 June 2022 at about 1:30am Mr Heywood went with another man, Michael Chapman, to Lesa Towers' house. Ms Keryn Wark was staying at the house. Ms Wark is the mother of Mr Heywood's daughter, Madison's boyfriend Lachlan.
When Ms Wark answered her door to the two men, Mr Heywood is alleged to have "began yelling" at Ms Wark that he was "after Madi and Lachie". When Ms Wark responded by saying they were not there, Mr Heywood is alleged to have "kept yelling" at Ms Wark who was attempting to shut the door "however it was [sic] blocked" by Mr Heywood's body.
Mr Heywood is recorded as having "stepped off the veranda and walked away". The COPS entry then records that Ms Wark and Ms Towers attempted to close the door when Mr Chapman pulled the door open, pulling the two women out of the house. Mr Chapman is alleged to have grabbed Mrs Towers by the arm and refused to let her go. Ms Towers is alleged to have then slapped Mr Chapman across the face.
It appears and it is unchallenged evidence that Mr Heywood's involvement in this incident was prompted by his viewing footage of what he concluded was domestic violence by Lachlan against Madison. Mr Heywood is alleged to have said to Ms Wark "I am going to hurt Lachie bad and rape him because he hurt my daughter". Mr Heywood is alleged to yell at Ms Wark "You're a slut and a dog".
The Commissioner also relied on two witness statements, one from Ms Wark and one from Ms Towers, who came to the door during the incident. According to Ms Wark, Mr Heywood kept asking about Madison and Lachlan and "getting closer to [her]". She tried to shut the door but Mr Heywood was "in the doorway so [she] couldn't". She said "The entire incident made me feel intimidated because I didn't [sic] whether Russell was just going to knock me over".
Ms Towers said in her statement to Police that she heard voices at the front door and that the voice "became louder and started yelling". When she approached the front door she saw Mr Heywood standing outside "with his head inside the doorway". She alleges Mr Heywood yelled at Ms Wark "Where the fuck is he? Get him out here now." She said that Mr Heywood started "yelling louder and louder saying that he was going to fuck Lachlan up and that he was going to rape the kid". After the two women asked Mr Heywood to go, Ms Towers alleged that Mr Heywood "leaned further in and became about 10 cm from [Ms Wark's] face and started yelling at her calling her a dog and a slut". Ms Towers stated that the incident made her feel "pretty pissed off and a little bit scared because Russel [sic] is not a small bloke. I was intimidated, and I shouldn't feel like that in my own home."
Mr Heywood gave evidence that he had seen a video showing what he alleged was domestic violence by Lachie against Madison after his son had discovered videos on Madi's phone. Seeing these videos "upset [him]" and he decided it was time to "sort this business out".
Ms Zinn, for the Commissioner, put the detail of the incident as alleged by Police to Mr Heywood. He denied saying any of the above words. He said that there was "no way" that Ms Wark would have felt intimidated by his conduct and that she was doing a lot more yelling than him. He said it was a heated argument but not intimidating. He said he could see why Ms Wark might be concerned about Lachie's safety but not her own. He denied saying any threatening words towards Ms Wark.
In a written statement Mr Heywood said he had been "confronted with [his] own stupidity of how [he] handled things" and that he would not behave in the same way when confronted with the same scenario again.

[16]

6 October 2013 incident

On 6 October 2013 Mr Heywood is alleged to have been refused entry into the Coonabarabran Hotel. Mr Heywood is alleged to have said to Mr Ross Murray, the husband of the Licensee, "You fucking dog Cunt you can't stop me from have [sic] a fucking drink". Police attended and observed Mr Heywood as "very aggressive" and shouting. Mr Heywood is alleged to have said "I'm not going anywhere you fucking dog cunt, I'll fucking kill you" while pointing through a window towards Mr Murray. He is alleged to continue to try to enter the hotel, shouting "fuck of [sic] you gay mother fucker". Police issued a warning to Mr Heywood about his offensive language and a move on direction and orders Mr Heywood to stay more than 50 metres of the hotel for the next 6 hours and not to attempt to enter the hotel for 24 hours.
Police allege that Mr Heywood "continued his behaviour and refused to leave" and "continued to abuse and threaten" Mr Murray. Despite Police warning Mr Heywood that a failure to leave the area would be a criminal offence, Mr Heywood is alleged to still refuse to leave and "continued his aggressive behaviour".
Mr Heywood got into his father's car and is alleged to have "continued his aggressive behaviour punching his father's vehicle" and "continued to shout out words similar too [sic] fucking dog cunts they can't stop me having a drink in the fucking pub".
Mr Heywood was issued with a three year ban by the Licensee of the Coonabarabran Hotel on 7 October 2013. The letter from the Licensee states that the reason Mr Heywood was refused entry was "due to intoxication which resulted in aggression toward the Licensee".
Mr Heywood agreed that the incident was concerning but said that he had grown out of it now. He could not remember much about the incident, stating he "can't remember every time [he'd] had a drink and done something silly". Ms Zinn put to Mr Heywood that it was not "silly" to threaten to kill someone. Mr Heywood said he did not remember saying that phrase. He added it was "obvious" he did in fact say the words but he wouldn't have meant it. Ms Zinn put to Mr Heywood that 15 patrons could hear him and Mr Heywood responded that no-one seemed to worry. He denied anyone should have been in any fear for their safety. He pointed out he was not charged by Police. He said he did not recall being issued with a three year ban from the hotel.

[27]

Character references

Mr Heywood relied on large number of character references. A summary of these references follows: 1. Ms Jennifer Heywood, Mr Heywood's mother said she had never known Mr Heywood to be "anything but responsible" around firearms. 2. Ms Jennifer and Mr Johan Nilsson have used Mr Heywood to hunt kangaroos on their farm for at least five years. They describe Mr Heywood as working "very safely". They refer to Mr Heywood being charged with "stalk and intimidate" and that this caused his firearms to be taken away. They say they "have always felt safe" in their dealings with Mr Heywood. 3. Mr Mark Knight said that had been out shooting with Mr Heywood and he is professional and good at kangaroo harvesting. 4. Mr Andrew Harris has been out shooting with Mr Heywood and hopes Mr Heywood gets his firearms back. 5. Ms Jo Beckwith has relied on Mr Heywood to control the kangaroos and feral animals on her property. If the kangaroo numbers are not kept under control they damage her vineyard. Mr Heywood has told her about the charge of "stalk and intimidate over an incident involving the assault of his daughter". She would be happy to have Mr Heywood back on her property and believes he understands the "serious nature" of the charge against him. 6. Mr Chris Harris has engaged Mr Heywood to control feral animals and harvest kangaroos. Mr Harris said he is aware that Mr Heywood has been "accused of stalking and intimidation". Mr Harris perceives no risk to himself or his family from Mr Heywood working on his property and if he could not have Mr Heywood's services his farming operation would be "severely impacted". 7. Mr Logan Tighe said that Mr Heywood shoots for Mr Tighe's chiller business. Mr Tighe said that he is aware that Mr Heywood was "charged with intimidation over the assault of his daughter". He found Mr Heywood trustworthy and reliable in his dealings with Mr Tighe's business. 8. Councillor Doolan, Mayor of the relevant Shire Council said he is "fully aware that he was charged with intimidation" and that he appreciates the seriousness of the charge. He would be happy to have Mr Heywood return to shoot on his property. 9. Mr Shannon Oakes said he has known Mr Heywood for fifteen years. He has been told that Mr Heywood "has been charged with stalk and intimidation" and Mr Heywood has expressed his remorse to Mr Oakes. In the five years Mr Heywood has shot on Mr Oakes' property Mr Oakes has not seen Mr Heywood show any such behaviour. Mr Heywood is "respectful" to Mr Oakes' family and property. He would not hesitate to have Mr Heywood back to shoot on his property. 10. Mr Adam Freeman said he has known Mr Heywood for ten years as previous Licensee/Manager of a hotel and current Secretary Manager of a bowling club. He described contact with Mr Heywood as a patron as "at times challenging" but he has never needed to involve Police or to exclude Mr Heywood from either venue. He has observed a "new level of maturity towards his role in the family and the community" since Mr Heywood lost his firearms licence and the ability to fully provide for his family. 11. Mr Doug Goard said he has known Mr Heywood for thirty years. Mr Goard gives an opinion that he thinks Mr Heywood's actions on 12 June 2022 were what any loving father would do, describing Mr Heywood as showing a lot of "discipline" in the circumstances. He said Mr Heywood has been known to get into "a little mischief" but he has never observed Mr Heywood to be a threat to anyone. He considers Mr Heywood to be no threat to public safety. 12. Ms Larissa Wilkin said she has known Mr Heywood for seven years. She describes Mr Heywood as "pleasant and considerate" amongst other things and she has not observed him to "physically, verbally or emotionally impact another person". She describes the 12 June 2022 incident as "an act of true altruism" for his child's wellbeing. 13. Ms Anne Mcconnaughty has known Mr Heywood for sixteen years. She said it has been hard on Mr Heywood to lose the income from kangaroo shooting. 14. Mr Wayne Martin has known Mr Heywood for thirty years and he said Mr Heywood is well known in the local community. Mr Martin was the manager of a BWS bottle shop and never had a problem with Mr Heywood seeking to purchase alcohol while intoxicated. He thinks Mr Heywood is a suitable person to have a firearms licence. 15. Mr Bob Sutherland has known Mr Heywood for thirty years. He said Mr Heywood has shown remorse for the charges from the 12 June 2022 incident. He believes if Mr Heywood's firearms licence is restored to him, he will "not falter again".

[28]

The Commissioner

The Commissioner argued that Mr Heywood's licence should be revoked because if Mr Heywood had applied for a new licence that application must be refused as he is subject to a conditional release order for a prescribed offence (refer to section 11(5)(d)(iii) of the Firearms Act 1996 and clause 5(3)(c)(iii) of the Firearms Regulation 2017).
The Commissioner acknowledged that on review of a revocation decision, the Tribunal had a discretion as to whether the revocation decision should be affirmed but submitted that it would be an anomaly to allow a licensee to retain a licence when someone who had been guilty of the same offence would be refused a licence.
The Commissioner submitted that Mr Heywood had engaged in aggressive and threatening behaviour and that the correct and preferable decision, which would promote the objects and principles of the Firearms Act 1996, would be to affirm the revocation decision. Ms Zinn said that Mr Heywood had threatened to harm others while intoxicated and this behaviour can't be dismissed as just "stupid" or "juvenile" noting that Mr Heywood was in his 30s for most of the incidents.
The Commissioner also argued that it is not in the public interest for Mr Heywood to continue to hold the licence and so it should be revoked (refer to clause 20 of the Firearms Regulation 2017). The Commissioner referred to the instances of violence over the period 2009 to 2022 and to Mr Heywood's driving record.
Ms Zinn submitted any loss of income from the revocation of a firearms licence must be seen in the context that the Firearms Act and that public safety is paramount and must be prioritised over a personal interest.
I asked Ms Zinn to make submissions on the question of whether conditions, if imposed on Mr Heywood's firearms licence, would satisfy the concerns of the Commissioner. Some conditions had been proposed in connection with the stay application, such as Mr Heywood being accompanied on harvesting activities and storing his firearms at another person's property. Ms Zinn said that conditions would not alleviate the concerns of the Commissioner.

[29]

Mr Heywood

Mr Kable, legal representative for Mr Heywood, submitted that Mr Heywood had held a firearms licence for a long period of time and it had never been revoked until the decision in 2023. He pointed out that the Local Court had not proceeded to record a conviction against Mr Heywood for the "stalk/intimidate intend fear physical etc harm (personal) - T2" offence, following a finding of guilt.
Mr Kable explained that Mr Heywood derives the majority of his income from shooting activities. He also said his client had the support of the community, with a large number of references tendered into evidence.
Mr Kable cited Carpenter v Commissioner of Police, NSW Police Force [2023] NSWCATAD 163. In that case the Tribunal considered a COPS entry about an incident in March 2020. The Applicant had a different version of events. The Tribunal considered that the COPS entry "amounts to no more than an allegation" (at [86]) and that in that case the Commissioner had not provided any evidence to contradict the Applicant's account or his assertion that the COPS entry was incomplete. Mr Kable made the submission that COPS Event entries are unsubstantiated and this should be reflected in the weight given to them.
Mr Kable submitted that Mr Towers did not identify who said what on 12 June 2022. He said his client denied making any threats to kill and so it was likely that Mr Michael Chapman, the man with Mr Heywood, had made these statements and he was also the subject of criminal charges.
Mr Kable referred to the case of Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 and, in particular, the phrase used by the Tribunal at [47] that "Licence holders are not required to have led entirely exemplary lives…". He also referred to the same decision and the passage at [54]-[55] where the Tribunal stated there is a public interest in "law-abiding farmers and graziers having access to long arms" and that firearms are the "only humane and effective means of countering" "vermin and feral pests". A similar passage can be found in the decision of Mallon v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 325 at [103] which was a case where the applicant was a "professional grazier owning and operating a 40,000 acre sheep and cattle property".
Mr Kable also relied on the case of Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344, a case in which Mr Burey was charged when, following a break and enter at his house, he admitted to Police he had unregistered firearms and also power gel explosive and detonators on the property. He was found guilty of one count of possess unregistered firearm and also handling explosives without a licence and was issued with conditional release orders for these offences.
Mr Kable submitted that Mr Heywood's traffic history would not of itself be enough to cause the Respondent to revoke his firearms licence and that Mr Heywood's driving conduct had improved over time.

[30]

Findings of fact

It is not disputed that Mr Heywood seeks a firearms licence for the genuine reason of recreational hunting/vermin control. He has permission to shoot on rural land in order to shoot feral animals and vermin. It is not in dispute that prior to the suspension and revocation of his licence, Mr Heywood undertook this work in order to earn an income.
I found Mr Heywood's recollection of the incidents to be patchy at best. I preferred the contemporaneous COPS records and witness statements to the evidence of Mr Heywood. Mr Heywood's recollections of the incidents were nearly consistently self-serving as he often could not recall and denied any of the alleged conduct.
Mr Heywood could not recollect some incidents, such as the 6 October 2013 incident, and when he did remember an incident he dismissed his conduct as "silly" or "juvenile", despite his assertion that he accepted responsibility for his actions. Concerningly, he did not fully acknowledge the impact of his actions on his victims or those present, denying these people would feel intimidated, scared or anxious.
I make these factual findings, being satisfied on the evidence before of the following: 1. On 12 June 2022 Mr Heywood threatened to rape Ms Wark's son, Lachlan, and that he yelled at Ms Wark that she was a "slut" and a "dog". I make this finding on the basis of the COPS entry plus the two witness statements. I reject on balance, Mr Heywood's evidence that he did not make these statements. I also specifically reject the suggestion from his legal representative that it must have been the other man who made the threats as there is no evidence to suggest that was the case. The fact Mr Heywood said these words was corroborated by the evidence of Ms Towers who saw and heard Mr Heywood when Mr Heywood had his head inside the doorway. She also observed that Mr Heywood "leaned further in and became about 10 cm from [Ms Wark's] face and started yelling at her calling her a dog and a slut". I find that both Ms Wark and Mr Towers felt intimidated by Mr Heywood's conduct. 2. I do not make any findings about the 16 April 2000 fight between players in a rugby league match. I note the outcome of the criminal charge that Mr Heywood was found not guilty and had the charges dismissed and Mr Heywood has provided an explanation of his conduct. 3. Mr Heywood was intoxicated and became aggressive on the following occasions: 1. 17 January 2009: Mr Heywood put his fist through the glass on the doorway of a hotel after he was refused service. 2. 12 April 2009: Mr Heywood was swinging his arms around banging on the door of a hotel and kicking it and stated to the licensee "Let me in or I'll bash you, you cunt". Mr Heywood had to be restrained by some other men in order to calm down. He later sat on the counter in a service station and verbally abused the attendant and walked back and forth with his fists clenched. 3. 6 October 2013: After being refused entry to a hotel Mr Heywood said to the husband of the Licensee: "You fucking dog Cunt you can't stop me from have a fucking drink" and "I'm not going anywhere you fucking dog cunt, I'll fucking kill you" as well as "fuck of you gay mother fucker". Police issued Mr Heywood with a move on direction but Mr Heywood refused to leave and then when picked up by his father continued the aggressive behaviour by punching his father's vehicle and repeating words similar to "fucking dog cunts they can't stop me having a drink in the fucking pub". He was issued with a three year ban from the hotel. 4. 26 October 2015: Mr Heywood ran after a group of men and yelled abuse at them then threatened to assault them. Police had to take hold of him and take him to the ground to prevent him assaulting the men. He was issued with a move on direction. 5. 8 August 2020: Mr Heywood banged on the doors of a service station. A customer inside was unable to leave and was clearly anxious as a result of Mr Heywood's behaviour. Mr Heywood was issued with a move on direction.
I find that this pattern of behaviour shows that Mr Heywood's use of alcohol can give rise to aggressive conduct. His assurances that he no longer drinks spirits offer little comfort in this regard. Mr Heywood's conduct in making threats to kill, bash or rape others are serious and it is notable that there have been instances where he has had to be restrained when aggressive and would also not stop or leave the scene on some occasions. Excessive alcohol use has featured in nearly all of these incidents. They are also relevantly recent.
Turning to Mr Heywood's driving record I accept that in a 23 year period to 2023 Mr Heywood was given:

eleven speeding fines including two offences of exceeding the speed limit by 30 km/h;
three fines for driving while unlicenced;
fines for negligent driving and disobeying traffic lights;
a section 10 bond for 12 months for a low range PCA offence.

[31]

Discretion where Applicant would be required to be refused a licence of same kind

Mr Heywood's firearms licence was revoked because he was the subject of a conditional release order for a prescribed offence, being an offence involving "stalking or intimidation".
The Senior Adjudicator correctly observed in the internal review decision that the finding of guilt for an offence of stalking and intimidation and the imposition of a conditional release order results in: 1. Mandatory refusal of a new firearms licence application; 2. Discretionary revocation of a current firearms licence.
This is the case because of the use of the word "may" in section 24(2)(a) of the Firearms Act 1996 (refer to the wording of the relevant provisions at [19]-[21] above).
What that means is that if Mr Heywood was applying for a firearms licence (rather than being a holder of a licence that was then revoked) the Commissioner would have no option but to refuse his application. However, because Mr Heywood held a licence the Commissioner had a discretion as to whether or not the licence "may be revoked" (refer to the wording in section 24(2) of the Firearms Act 1996).
The question for the Tribunal is how the discretion should be exercised. That is, standing in the shoes of the Commissioner, whether or not the Tribunal should affirm or vary the revocation decision or set it aside and make a new decision or remit the matter for reconsideration (refer to section 63(3) of the Administrative Review Decisions Act 1997).
I reject the Commissioner's argument that it would create an anomalous situation if I was to do anything other than affirm the decision under review. Where a person held a firearms licence that was then revoked, it is clear that Parliament, by inserting a discretion into section 24(2) of the Firearms Act 1996, intended there to be some circumstances where it would be appropriate for the Commissioner (or in this case, the Tribunal) to decide not to revoke the licence.
One difference that could affect the exercise of the decision is the licensing history of that an applicant. As the Tribunal identified in McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 at [35], a case where the applicant would have been refused a firearms licence if it was a new application because he entered into a good behaviour bond for a prescribed offence: "In the case of a person who already holds a licence, the Commissioner can consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in favour of the applicant."
I agree with the approach taken by the Tribunal in Grant v Commissioner of Police [2020] NSWCATAD 158, that is, there is no need for me to find any "special or exceptional circumstances" exist in order to exercise the discretion in a way not to revoke the licence, as that is not what the legislation requires: refer to [29]-[31].
However, the discretion as to whether to affirm the revocation should be exercised in such a way as to promote and uphold the objects and principles of the Firearms Act 1996: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23].
One of the underlying principles set out at paragraph (a) of section 3(1) of the Firearms Act 1996 states that "firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety".
An important issue in this case is Mr Heywood's prior conduct and whether there would be a risk to public safety if he were to possess and use firearms.
The Tribunal has, in previous decisions, provided guidance as to how the approach the question of risk to public safety. In Webb v Commissioner of Police, New South Wales Police Force [2004] NSWADT 110, which was an application to review a decision to revoke a firearms licence, the Senior Member stated at [32]: "The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. 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. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act."
In considering risk, I can consider evidence indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: refer to the Court of Appeal decision of Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [60]-[64].
I agree that "when considering future risk, the Tribunal must consider the past conduct of the applicant as a significant guide": Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
I agree with the Respondent's submission that the Tribunal cannot have confidence that the Applicant would not "continue to consume alcohol and engage in anti-social behaviour". Merely stating that behaviour was "childish" or "juvenile" does not provide the Tribunal with sufficient basis to find that Mr Heywood can and has changed his behaviour and any such risk to public safety is no longer real and appreciable. The proximity in time and also the gravity of those actions weighs heavily towards risk. Mr Heywood claims he has "grown up and moved past this". However, I cannot accept that Mr Heywood has moved past this period of aggressive and threatening behaviour. What is required is a period of demonstrated reformed behaviour. The recency of the incident in 2022 is of particular concern.
Mr Heywood provided a very large number of character references. Some of these character references refer to the writer being aware Mr Heywood has been charged with an offence of stalking or intimidation. It is clear from these references that there are many landholders who depend on Mr Heywood's services to reduce vermin and pest animals and also to cull the kangaroo numbers on their land. It is also clear that many consider that knowing the nature of the charge and in some instances that it was prompted by Mr Heywood's discovery about domestic violence towards his daughter, they would still welcome Mr Heywood to return to work on their properties.
What the referees do not address is Mr Heywood's conduct when intoxicated and the incidents that occurred as a result. It is this pattern of conduct that gives me concern.
I also considered Mr Heywood's traffic record. An applicant's traffic record is a relevant consideration as disregard for or repeated breach of traffic laws, which are themselves designed to protect public safety, can reflect a general disregard for public safety and laws designed to achieve public safety: refer to El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103 at [42], citing Tannous v Commissioner of Police [2011] NSWADT 116.
I consider Mr Heywood to have a poor driving record. Of particular concern is the negligent driving charge in 2000, the low range PCA charge and the speeding offences for driving in excess of 30 km/h. However, what is also concerning is that Mr Heywood takes the same attitude to his traffic offending, and stated that he received fines when he was "young and stupid" and that he did a lot of "speeding and hooning around", like "a lot of young blokes do". The fact is that Mr Heywood received a fine as recently as 2023.
I reject the submissions made by Mr Kable about the case of Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 and, in particular, the phrase used by the Tribunal at [47] that "Licence holders are not required to have led entirely exemplary lives". The facts of Romanos are different from the present case. The criminal convictions of the Applicant, Mr Panagiotis Romanos, mostly dated back to some 19 years prior or earlier and apart from one conviction of affray "which arose in unclear circumstances" Mr Romanos had "no record of violence, domestic violence or self-harm" or of "a drug problem or of any mental disorders". Given my factual findings above this is not the case in respect of Mr Heywood.
Similarly, I reject the argument of the Applicant that the case of Mallon v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 325 should be followed as the facts in the present case are entirely different. In Mallon, the Tribunal considered Mr Mallon had, until at least up to 2019, an unblemished record of compliance with firearms regulation for over 30 years and "no significant criminal or traffic record and no history of violence or threatened violence". The same cannot be said of Mr Heywood, given the factual findings above.
In respect of the decision of Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344, the facts of that case are again different from the present case. The Tribunal in that case held that there was "no significant risk that the applicant will reoffend, display the selective laxity towards the firearms and explosives licensing schemes' requirements that he did formerly or otherwise represent a risk to public safety" (at [121]).
Mr Kable submitted that his client first held a firearms licence in 1999. He said that despite Mr Heywood having many COPS Events about his conduct these matters had never affected his firearms licence until the 2022 incident. I do not consider that this argument reflects the degree of seriousness of Mr Heywood's conduct and also the risk that arises from that conduct.
The fact that the incidents outlined above did not involve firearms also does not give me comfort as I am greatly concerned by the nature of the threats, the aggressive conduct and Mr Heywood's lack of insight as to the effect of his actions on his victims.
Mr Heywood has a demonstrated history of aggressive incidents, particularly when he is intoxicated. This conduct cannot be dismissed as "silly" or "juvenile". It caused fear to those it was directed to or who were present, such as Ms Wark on 12 June 2022, Mr Ross Murray on 6 October 2013 and the customer in the Coles Express service station who could not leave and was "clearly anxious" because of Mr Heywood's behaviour on 8 August 2020.
Taking all the circumstances together, including the conduct of the Applicant, including his traffic record, I believe that there is a real and appreciable risk to public safety if Mr Heywood was to possess and use firearms. I therefore decline to set aside the revocation decision that was made on the basis that Mr Heywood is subject to a conditional release order for a prescribed offence.

[32]

Public interest

Two questions arise from section 24(2)(d) of the Firearms Act 1996 and clause 20 of the Firearms Regulation 2017 which provide that the Commissioner may revoke a firearms licence if she is satisfied that it is not in the public interest for the licensee to continue to hold the licence. They are: 1. Is it in the public interest for Mr Heywood to continue to hold the licence? 2. If not, should the Tribunal (exercising the functions of the Commissioner on review) exercise the discretion to revoke Mr Heywood's licence?
The 'public interest' is a broad concept, which can involve a wide variety of considerations: refer to Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. As the appeal panel held Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 at [33]: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
I consider there is a public interest in landholders having services provided to them in order to manage pests and feral animals on their farms.
Mr Kable relied on the cases of Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 and Mallon v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 325 to support the proposition that the Tribunal should consider that if an applicant derived income from having firearms it should be considered differently than when the genuine reason proffered by an applicant was recreational. The cases point to a public interest in farmers and graziers having firearms in order to put down animals and to get rid of feral animals or pests. In Mallon v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 325 the Tribunal said there was a public interest for farmers and graziers to "have access to long arms for the protection of the environment and of primary industry".
Mr Heywood seeks a firearms licence as he relies on it for income as a professional kangaroo shooter. The fact that an applicant seeks a firearms licence in order to derive an income is a relevant consideration to the decision as to whether the affirm the revocation decision: refer to Hocking v Commissioner of Police, New South Wales Police Service [2002] NSWADT 214 at [24]. The licensing scheme requires a licensee to demonstrate a genuine reason for the possession and use of firearms, and some of these reasons can relate to employment or business reasons such as "vermin control, primary production, vertebrate pest animal control, business or employment and occupational requirements relating to rural purposes" (at [24]). However, this interest is one consideration to be weighed against "the primary factor of the overriding need for public safety and also against all other relevant considerations" (at [24]).
Any discretion about whether to revoke a firearms licence must be exercised "in clear preference to the public interest than an individual's private interests": Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 at [43].
Having concluded that there is a risk to public safety if Mr Heywood was to possess or use firearms because of his history of aggressive behaviour when intoxicated I find that it is not in the public interest for Mr Heywood to be granted a licence. The discretion to set aside the revocation decision must be exercised in such a way as best promotes the principles and objects of the Firearms Act 1996. On the facts as found in this case, the overriding need to ensure public safety leads me to the conclusion that the decision to revoke the licence must be affirmed.

Heywood v Commissioner of Police, NSW Police Force

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Judgment (35 paragraphs)

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Cases Cited (10)

Cited By (1)