Hollman v Commissioner of Police

The Applicant comes to Police attention: 28 January 2020

1. On 28 January 2020 the Applicant was stopped by Police about 12.15am He undertook a roadside drug test that produced a positive reading for 3,4 methylenedioxymmethamphetamine (ice), a prohibited drug under the Drug Misuse and Trafficking Act 1985. On being told about the positive test result, the Applicant reportedly told the Police, Yeah my friend gave me some white powder the other day. I don't know what it was. I think it was crushed up eckies (ecstasy). The Applicant told the Police that he had consumed that drug the morning of the previous day. He said in his evidence that that was the only time till then that he had taken drugs. This contradicted his earlier evidence that he had first started taking drugs in about December 2019.
2. According to the COPS Event, Police asked the Applicant whether he had any illegal drugs in the vehicle and he said he did not. He then said that there was something in the car but it was not his. He told Police it was an ice-pipe. The vehicle was searched and a small fabric bag was located in the centre console. The bag contained a pipe (of a kind used to smoke ice), and 32 small plastic ziplock bags containing a residue of a white power. Police recorded that the Applicant was said to be an associate of other [named] drug users. The COPS Event further recorded that the Applicant "became evasive" when questioned about his movements that evening. The Applicant denied in his evidence that he had done anything that might lead Police to the view that he was being evasive.
3. In his evidence the Applicant said that he told Police he did not know what it was he had taken, but later said he had consumed 'eckies' by eating them. When asked about the bag containing the pipe, he said he knew the bag was in the centre console and that he had seen "a mate", who he had collected from the pub and given a lift home, put the bag into the centre console. He said he did not know why his mate had put the bag there. He did not say anything when his mate did this and could provide no explanation for not doing so. He "had an idea" the bag contained the pipe, but could not explain how he had come to that view, although he also said he could feel the contents of the bag through the fabric. He denied the 'mate' was a supplier of drugs; the Applicant said he knew his mate was a drug user but denied that he himself was a "user". This was clearly false, given the positive test and his admissions at the scene.
4. As to the ziplock bags, the Applicant said he did not put them in the centre console, nor did he know what was in the bags. He apparently did not feel the 32 ziplock bags in the fabric bag as he had felt the ice-pipe. It appears that the Police took no action about the possession of the ziplock bags and the white powder residue within the bags. The Respondent submitted that possession of 32 ziplock bags with residue of white powder, suggests involvement in the drug trade rather than just possession for personal use. There was, however, no evidence as to the forensic testing of the white powder. He was charged only with Drive vehicle illicit drug present in blood.
5. Overall, I found the Applicant's explanation of the occurrence to be somewhat confusing.

The Applicant comes to Police attention: 20 March 2020

1. At about 11.30pm on 20 March 2020 the Applicant was pulled over in a laneway for random alcohol/drug testing. He undertook a roadside drug test that again produced a positive reading for ice, and he was again charged with Drive vehicle illicit drug present in blood. According to the COPS Event the Applicant told Police he had consumed ice about 12 hours beforehand and that he had consumed the drug by smoking it through a pipe.
2. When Police searched the Applicant's vehicle a small foil of cannabis was located. The Applicant reportedly admitted owning the cannabis and said he had forgotten it was in the vehicle. Possession of that drug was dealt with by way of a cannabis caution. In his evidence the Applicant said he had only ever used ice and had never used cannabis. He admitted saying that the cannabis was his. He said that it had in fact been left in his car by another person and he could not explain why he had said it was his. In his evidence he said the cannabis was owned by his brother and that he had not wanted his brother to get into trouble.

Outcome of the charges

1. The Applicant entered guilty pleas to both charges and they were finalised at Bourke Local Court on 23 July 2020. The Magistrate sentenced the Applicant to a 12-month non-conviction Conditional Release Order on each offence, which expired on 22 July 2021. I accept that the Applicant's offending was considered by the Court to be at the lower end of the scale of seriousness. The Applicant did not breach those Orders. They are the only offences which appear on the Applicant's criminal record.
2. It was submitted on the Applicant's behalf that, as it took Police over 6 months after the Applicant was sentenced to make the decision to revoke his firearms licence, if there were a genuine concern about the Applicant, this revocation would have taken place much sooner.

The Applicant's drug use

1. The Applicant deposed that when his parents separated he went through a difficult time and got mixed up with the wrong people and he "began using ice recreationally". The Applicant said in his evidence though that his parents had separated when he was 16, now some 6 years ago. He wrote that he used drugs when he was bored. He said in his evidence that he first started using drugs in about December 2019. He also said in his evidence that the only two occasions he had used drugs were on the occasions he had been pulled over by Police in January and March 2020. The evidence is clearly inconsistent. Firstly, he attributed his drug use to his parents' breakup, but it was not until about 5 years later, on his evidence, he started using drugs. Secondly, he said in his affidavit that he used ice recreationally, which tends to suggest, with the remark about "boredom", that he used drugs with some regularity. Thirdly, in his evidence he said he only used ice, whereas he told Police that he thought he had taken "eckies" (ecstasy). Fourthly, he said in his affidavit that he started using drugs in December 2019, but, said in his evidence that he had only used drugs twice, the first occasion being in late January 2020. Most significantly, I find it to be frankly implausible that the only two occasions he used drugs were the very occasions he was apprehended by Police. I note the submissions, presumably made on instructions, that he "was able to stop using drugs"; such a submission, I consider, to be inappropriate if the Applicant had in fact only used drugs twice.

The public interest

1. Before me, the Respondent submitted that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and cl 20 of the Regulation.
2. The expression "public interest" is not defined in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. The "public interest" factor allows a consideration of issues going beyond the character of an applicant to be taken into account. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
3. The Applicant applied for a firearms licence for the genuine reason of recreational hunting/vermin control. It was submitted that, as a recreational hunter, he assists in controlling animals, such as pigs and rabbits, which are considered vermin on the properties on which he has permission to shoot. Since he was 10 years old, he accompanied a family friend on shooting trips to local properties shooting rabbits and pigs and was taught how to look after and clean firearms and how to handle firearms safely. He obtained his firearms licence as soon as he turned 18. In submissions it was raised for the first time that he would be able to assist Mr Spencer, his current employer, in this regard if he retains his licence. Mr Spencer, however, wrote of the Applicant being engaged as a machinery operator, and made no reference to the Applicant requiring a firearms licence to perform his role, nor that the Applicant had assisted in shooting vermin at the property.
4. Private interests are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. They include 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 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
5. The Applicant provided character references from Ms Sontag, Mr Spencer and Ms Dickson, which were prepared in support in his criminal proceedings. All considered the Applicant to be of good character and that his conduct in drug/driving to be out of character. Ms Sontag wrote of the Applicant being the type of person she liked her children to associate with and that the Applicant is a keen contributor to the community, and an active member of various sporting associations. She wrote of him being affected by his parents' divorce and that he sought refuge 'through mateship', and she specifically mentioned the bad influence of BB upon the Applicant. Ms Dickson wrote of the Applicant suffering "periods of sadness" as a result of his parents' marriage breakdown and that the Applicant had acknowledged that using substances was made during a period of sadness. She described him as reliable and trustworthy and wrote of his remorse. Mr Spencer wrote that the Applicant is a good worker and that he is a contributor to the local community through sport and fund-raising and is a respected and valued member of his community.
6. It was submitted on the Applicant's behalf that he poses no risk to public safety and for him to hold a firearms licence is not contrary to the public interest. It was admitted that his offences had put the public at risk, but the risk was not in relation to violence or firearms. I accept that the Applicant has not come to adverse attention in relation to his firearms licence. He has, however, come to notice in relation to threats of violence. He admitted to pushing BB in their argument in January 2020, albeit claimed it was in self-defence. It was also submitted on the Applicant's behalf that both the matters in relation to BB on 11 August 2019 and 1 January 2020 are now nearly 2 years and 18 months ago, respectively, and as neither resulted in any charges, it is unreasonable that those events are used to justify the revocation of the Applicant 's firearms licence. While it was submitted that the event of 11 August 2019 appears to have been uncorroborated, the Applicant did not deny the occurrence. It is immaterial that those matters did not give rise to any charges: see Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64].
7. It was submitted that the two offences occurred at a time in the Applicant's life when he had experienced some personal difficulties and had temporarily "lost his way" and he was "unsettled for a period" and behaved in a way not usual for him. He was described by his solicitor as "a decent young man who went through a rough period". Other than the breakdown of his parents' marriage some years before, there was no evidence as to what were these "personal difficulties" or why he was "unsettled" at the time of the offences. As it is unclear what were the precipitating events that led to his drug use, I cannot be confident those events may not recur.
8. It was submitted that being charged and going to Court was a wake-up call. It is clear though, being charged in January 2020 did not deter him from further drug use and driving (in March 2020).
9. The Applicant wrote in his affidavit that he had "made mistakes". He wrote that he was proud that he recognised the path he was on was leading to trouble and he has made positive changes to his life in the past 18 months. He wrote that he had "stopped using drugs completely", which is, again, somewhat at odds with his evidence before me that he had only ever used drugs twice - on the occasions he was pulled over by Police. When Ms Dickson wrote that the Applicant had acknowledged that using substances was made during a period of sadness, this is clearly at odds with his evidence that he had used drugs only twice.
10. He wrote that he no longer associates with people who were not good influences on him. I observe that the Applicant named BB as one such person. Ms Sontag wrote of the Applicant seeking refuge "through mateship", and specifically mentioned the bad influence of BB upon the Applicant. However, by at least December 2019 and possibly as early as September 2019, there had developed a "feud" between them, ostensibly at least, about Ms R. The Applicant's use of drugs in late January and in March 2020, therefore post-dated his "mateship" with BB. The Applicant, in my view, sought, in his evidence before me, to downplay his own responsibility for his actions, first by blaming them on his distress at his parents' divorce and then by blaming his friends or former friends.
11. The Applicant claimed to continue to have close relationships with both parents, but they were clearly not sufficiently influential in his life to preclude what he had described as "poor choices".
12. It was submitted the Applicant has matured during this process. He has been with his partner for the past 12 months. In February 2021 he obtained an apprentice mechanic position and is currently working and attending TAFE. The Applicant wrote in his affidavit that he has been involved in the Rugby Union Club in Bourke as a player and volunteer. The Applicant was said to have shown insight into the factors that led to his offending and has taken the necessary steps to rehabilitate himself. Ms Sontag wrote of his remorse. In Jameson v Commissioner of Police [2019] NSWCATAD 25 and Hook v Commissioner of Police [2020] NSWCATAD 250 the Tribunal's discretion was exercised in favour of each applicant where there was remorse and a low likelihood of re-offending. Each matter, however, turns on its own facts.
13. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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, at [64] - [66].
14. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
15. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The underlying principles stated in s 3(1) of the Act 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. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
16. Between December 2019 and March 2020 the Applicant told members of the public that he was going to fight BB, ignored Police warnings not to do so, was involved in a fight with BB, consumed prohibited drugs and then drove a motor vehicle on two occasions, and was found in possession of prohibited drugs (cannabis) and implements to use prohibited drugs (an ice-pipe), although he claimed neither belonged to him. He also has admitted lying to Police about the ownership of the cannabis. The driving of a motor vehicle having consumed prohibited drugs is a matter of concern from a public safety perspective. The Applicant was given the benefit of a penalty notice for the January 2020 offence. Nonetheless, only two months later, he had clearly learnt nothing and again placed the public at risk by consuming a prohibited drug and driving a vehicle. It is clear that the driving offence was directed at protecting the public from those that are drug-affected driving motor vehicles and placing the other road users at significant risk. Further, I have rejected as implausible the Applicant's contention that he only used drugs on two occasions.

Conclusion

1. A firearms licence is a privilege, not a right, and the enjoyment of that privilege is conditional upon the overriding need to ensure public safety. In considering whether an applicant should be afforded the privilege to hold a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The Tribunal is required to look at the Applicant's conduct as a whole. The principles and objectives of the Act confirm that firearms possession and use of the firearms is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. The public's right to safety outweighs an individual's privilege to possess and use a firearm.
2. Having regard to the evidence before me, I cannot be satisfied that the continuation of the Applicant's firearms licence is virtually without risk and I decline to exercise the discretion in the Applicant's favour. In my view it would be contrary to the public interest for the Applicant to have a firearms licence.

DECISION 1. The decision under review is affirmed.

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: 27 July 2021