Holstein v Commissioner of Police, NSW Police Force [2025] NSWCATAD 164

(1) Respondent's submissions marked with the Applicant's objections

(2) Applicant's objections to Respondent's submissions

(1) Documents provided pursuant to s 58 of the ADR Act filed on 3 February 2025 (section 58 documents). These include the following:

(a) Applicant's Firearm Licence History

(b) Applicant's Criminal History

(c) Information from the NSW Police Computerised Operational Policing System (COPS) recording the following events:

(i) E35820153 - 20 September 2008

(ii) E53600829 - 19 November 2013

(iii) E54644554 - 3 May 2014

(iv) E55099627 - 24 July 2014

(v) AVO E549622015 - 13 August 2014

(vi) E55213773 - 27 May 2014

(vii) E61224877 - 24 March 2016

(viii) E65317913 - 16 September 2017

(ix) E90893540 - 8 October 2022

(x) E81646365 - 24 May 2024

(d) Applicant's Traffic Record Report

(e) Applicant's Application for a Personal Firearms Licence

(f) Request for a Mental Health Risk Assessment

(g) Report of Mr Curtis dated 19 July 2024

(h) Notice of Refusal dated 20 September 2024

(i) Request for Internal Review dated 17 October 2024

(j) Internal Review Statement of Reasons dated 27 November 2024

(2) Tender bundle of documents filed 17 April 2025 being documents produced by Gloucester MedicCo obtained pursuant to summonses issued by the Tribunal including:

(a) Applicant's Patient summary

(b) Visit notes (24) of Dr Hogg from consultations with the Applicant from the period 15 October 2010 to 2 July 2024

1. The Respondent filed written submissions on 2 May 2025.

1. The Applicant appeared at the hearing by telephone and was cross-examined by counsel for the Respondent.

1. The Applicant was cross-examined about events recorded in the COPS records on the following dates:

1. Police were called to attend an address at Wards River due to an alleged domestic dispute between the Applicant and Mr Allan Penfold. The Applicant and Mr Penfold had become involved in a verbal argument. Mr Penfold claimed the Applicant pushed him to the chest saying, 'wake up to yourself'. A witness believed they heard loud voices and yelling, prompting them to call the police (section 58 documents, 9-10).
2. When questioned about this report during cross-examination, the Applicant stated that the allegation made by Mr Penfold that he pushed him in the chest is "false". It was nothing more than a "gentle tap on the shoulder". There was "a lot of raised voices" but it was "nothing more than a heated argument". Since this date, the Applicant and Mr Penfold have attended family functions and have worked together, and they are the "best of friends" today. Mr Penfold has provided a character reference for the Applicant.

1. Police attended an address in Stratford and spoke with the Applicant about an allegation that he had been verbally abused and pushed by Mr Bagnall. A second person with Mr Bagnall, Mr Morgan, told police that the Applicant had grabbed Mr Bagnall by the throat and was the aggressor. Mr Bagnall claimed Mr Holstein had assaulted him and showed police a scratch to the right side of his neck below his ear. Police were unable to establish who was the aggressor. The COPS record indicates that there was an ongoing dispute between Mr Bagnall and the Applicant over a contract to supply firewood (section 58 documents, 11).
2. When questioned about this incident, the Applicant told the Tribunal is that this event is "one of many incidents" involving him and Mr Bagnall. On this occasion, he was the "victim" as he was in incidents which followed this one. The Applicant was not the "antagoniser" in this incident.

1. Mr Morgan alleged that the Applicant harassed him by driving past his house, sticking his fingers up at Mr Morgan and yelling at him from his vehicle. The Applicant denied this allegation (section 58 documents, 18).
2. During cross-examination, the Applicant said that he does not know Mr Morgan and denies that he gestured towards him in the manner alleged.

1. A verbal altercation took place at the Caltex Service Station between Mr Bagnall and the Applicant. The Applicant confronted Mr Bagnall and verbally abused him over an allegation that Mr Bagnall stuck his middle finger at him each time he drove past. The Applicant was issued a warning by police about his behaviour and advised of possible further police action if his behaviour continued (section 58 documents, 19).
2. The Applicant's evidence given during cross-examination is that his relationship with Mr Bagnall had soured and the situation between them was "festering" as he had harassed the Applicant's wife. He admits that he gave Mr Bagnall the finger, but he had "done tenfold". In relation to the verbal assault that led to the AVO, the Applicant's evidence is that he was the "victim" in this incident and there was "no harassment or intimidation" by him towards Mr Bagnall or Mr Crossley in fact it was the "complete opposite". In a small town it is hard to avoid adversaries and feuds go on for years. Now the Applicant stays away from Mr Bagnall and ignores him if they cross paths as he is a "bad egg".

1. The Applicant was spoken to by police about allegations that he had pushed another male in the chest and threatened to kill him. The Applicant told police that the victim had slandered his name which caused him to lose his temper (section 58 documents, 20).
2. The Applicant's evidence under cross-examination was that he did not threaten to kill the man (a neighbour) and that "he got extremely abusive" and displayed "threatening behaviour with closed fist" to his partner's face and the man slandered his partner's name. He lost his temper, but he did not threaten to kill the man although he may have pushed him.

1. A truck driver blew his horn as a warning that he was driving behind the Applicant with a full load after his partner stopped her vehicle on a ramp. The Applicant followed the truck to the depot where he abused the victim at his workplace and knocked his phone out of his hands once the victim started recording the incident. The recording captured the Applicant saying, 'if you ever do that to my wife you cunt......oooo fair dinkem cunt I will tear you from ass-hole to breakfast time'. The victim tried to explain that his truck was fully loaded and he couldn't stop quickly but the Applicant told the victim to get out of the truck so they could 'sort it out'. The Applicant told him 'I'll remember your face cunt' (section 58 documents, 20-22; video file of recording on USB).
2. The Applicant's evidence is that he "seriously regrets" his actions and language which were "completely inappropriate" and inexcusable. However, the driver (Mr Maslen) blasted his air horn at their car, and this caused flash backs for his partner from a previous motor vehicle accident. The Applicant has "sincerely apologised" to Mr Maslen, and he accepted the apology and they "shook hands" and "moved on".

1. The Applicant attended a mechanic's workshop to collect his vehicle but later noticed further issues with the vehicle that had not been rectified. The Applicant called the mechanic, and it is alleged that he spoke to the victim in an aggressive manner and threatened to burn the shop down due to their incompetence. The Applicant acknowledged he was a 'bit heated' during the conversation but denied ever making threats of harm (section 58 documents, 23-24).
2. The Applicant told the Tribunal that the allegation that he threatened to burn down the shop is a "lie". He did not speak to the mechanic (Mr Dart) but he did speak to the receptionist (Ben) and the conversation was "heated". He has since apologised to Ben and the apology was accepted. The Applicant did not agree that this is an example of him losing his temper and being aggressive. He agreed that there are other ways to deal with these situations. He was very frustrated at this time as he had to make several trips back and forth from the mechanic's workshop and the distance is approximately 100 kilometres each way.
3. The Applicant's evidence is that he takes responsibility for his behaviour. He wishes he could have handled these situations better, but he cannot be held "totally responsible".

1. The Applicant was questioned about summonsed clinical notes of Dr Hogg in relation to his mental health condition. He was asked about descriptions in these notes of him as "short tempered" (31 August 2012) and having "difficulty with anger" (3 April 2014). The notes record he experienced "violent dreams" (8 December 2014) and as "losing it" mentally (20 December 2014) when it was a "dark time". The notes state his partner had concerns about the Applicant's "anger/rage" (14 September 2018) and that he has a "short fuse" (6 August 2019).
2. The clinical notes record the incident with the truck driver (7 October 2022) and the Applicant's "emotional outburst".
3. The Applicant was asked about a clinical note that he was experiencing problems with his short-term memory (September 2018). He said that he is not experiencing this problem now, and he is "fully aware" of the safe storage requirements associated with a firearms licence.
4. In relation to his depression diagnosis, the Applicant's evidence is that his condition is "stable" and he has been on medication for a period of four to five years.

1. In his report dated 19 July 2024, Mr Curtis noted that in his opinion, the Applicant "is free of any psychopathology or negative symptoms of anxiety and depression with no DSM5 diagnostic possibilities" indicated by the clinical interview and the Personality Assessment Inventory (PAI) interpretative report completed by the Applicant.
2. Mr Curtis described the Applicant's "interpersonal style" as "open, genuine and conforming" and noted that the Applicant described his temper "as within the normal range, and as fairly well-controlled without apparent difficulty." He noted that the validity checks incorporated into the PAI "did pick up on a tendency [of the Applicant] to provide a favourable impression of himself".
3. In Mr Curtis' opinion, "[t]here is low to no foreseeable risk in [the Applicant] obtaining or to exercising responsible control over firearms" In his view, the Applicant "has demonstrated and possesses good ability to form rational judgement and exercise control in accordance with rational judgement." He found that there were "no red flags raised around impulsivity" and the Applicant has "demonstrated in the last decade that he does effectively self-regulate emotions and behaviours."
4. During cross-examination the Applicant confirmed that when he saw Mr Curtis in September 2024, he did not tell him about the incidents with the truck driver (October 2022) and the mechanic (May 2024) because he didn't ask him about them. He told the Tribunal he is "working on" his anger. He has not sought treatment for anger issues but is taking medication for depression.

1. The Respondent relied on the written submissions and elaborated on these in submissions at the hearing by reference to the Applicant's oral evidence.
2. The Respondent acknowledged that the Applicant was not charged in relation to any of the incidents reported in the COPS records, however submitted that it is the conduct of the Applicant that is relevant to consideration of whether it is appropriate for him to hold a firearms licence, not the fact of a criminal conviction or if the offence has been proven.
3. The evidence reveals multiple instances of the Applicant being involved in verbal altercations, disputes and displaying aggressive behaviour from 2013 to as recently as May 2024. The incidents show the Applicant has an inability to control and regulate his emotions and a propensity to respond in a disproportionate and unacceptable manner to the behaviour of others. The Applicant seeks to minimise the incidents or dispute the events documented in the COPS records and shift the blame to others, demonstrating that he has limited insight into the seriousness of his behaviour.
4. The Applicant's pattern of aggressive behaviour strongly suggests he has unresolved anger management issues. He has not attempted to get counselling or other treatment for his anger issues and there remains a very real possibility he will engage in further aggressive behaviour and/or demonstrate his inability to control his anger.
5. Limited weight should be given to the Psychologist report given it is solely based on the Applicant's self-reporting and makes no reference to the multiple incidents between 2013 to 2024 recorded in the COPS records. The Applicant did not inform Mr Curtis of these incidents despite their obvious relevance to his ability to form rational judgment and exercise control over his emotions.
6. The evidence supports a finding that the issuing of a firearms licence would be contrary to the public interest in view of the primary concerns of public protection, public safety and public confidence in the administration of the licensing system.

1. The Applicant contends that he is no public risk as he has had the "all clear" from Dr Hogg and has been assessed by a psychologist. He knows what is expected of him as the holder of a firearms licence.

1. The legislative framework and the key principles established by the case law are set out above. These principles are not in dispute, and the only issue for determination is their application to the facts as revealed in the evidence before the Tribunal.

1. The Tribunal has considered all the documentary evidence, and the oral evidence adduced at hearing, and makes the following findings on the balance of probabilities.
2. Key aspects of the multiple instances of the Applicant's aggressive behaviour and involvement in altercations between 2013 and 2024 reported in the COPS records were minimised or disputed by the Applicant in his evidence to the Tribunal. In so far as there are inconsistencies between the COPS records and the Applicant's account of what occurred, the Tribunal has preferred the description detailed in the COPS records for reason that they were recorded at the time of the incident and involved numerous individuals who provide a similar description of the Applicant's abusive language and aggressive behaviour towards them.
3. The Tribunal has given limited weight to the Psychologist report for reason that it omits reference to the incidents reported in the COPS records, indicating that Mr Curtis was not informed by the Applicant about the details and frequency of the Applicant's aggressive behaviour and altercations with members of the public. This information was critical to Mr Curtis' task of providing his professional assessment of the Applicant's suitability to possess use of firearms without posing a risk to public safety. Had it been provided to Mr Curtis he certainly would have questioned the Applicant's claim that his temper was within the "normal range" and "fairly well-controlled without apparently difficulty" as it was clearly relevant to whether the Applicant "possesses good ability to form rational judgement and exercise control". This information was a "red flag" about the Applicant's "impulsivity" that was withheld from Mr Curtis despite it being critical to his professional assessment of the risk to public safety in the Applicant possessing and making use of a firearm.
4. The Tribunal has given minimal weight to the character references provided by the Applicant's friends, neighbours and family members which speak to his good character and genuine need for a firearms licence. The statements do not acknowledge or refer to the Applicant's history of aggressive behaviour reported to police as documented in the COPS records, which was a critical factor in his firearms licence being refused. The statements are therefore of little assistance to the determination of the issues before the Tribunal, as the views expressed appear to have been formed without full knowledge of the facts as found by the Tribunal.

1. The issue for determination by the Tribunal is whether the issue of a firearms licence to the Applicant is contrary to the public interest: Firearms Act, s 11(7).
2. The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court stated that the use in legislation of the expression "in the public interest" imports "a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of [the legislation] may enable."
3. Commissioner of Police v Toleafoa [1999] NSWADTAP 9 concerned the revocation of a security licence. The Appeal Panel of the then Administrative Decisions Tribunal described the "public interest" in the relevant Act at [25]:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

The concept does include 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] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor [1995] IRCA 540; (1995) 131 ALR 657 [Comalco] 681, the High Court said:

The purpose of the reference to public interest is to ensure that private interests are not the 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.

1. In Commissioner of Police v EMB [2021] NSWCATAP 63 at [60] the Appeal Panel of this Tribunal explained that the "public interest" is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community. See further Emery v Commissioner of Police [2022] NSWCATAD 122 at [26], referring to Cusumano at [23].
2. The 'public interest' allows for consideration of matters going beyond the applicant's character to be taken into account. These 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 (Constantin) at [33]. Given the underlying principles as stated in s 3(1) of the Firearms Act, public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 (Hill) at [24]. In Lee v Commissioner of Police [2020] NSWCATAD 144 (Lee) at [94] the Tribunal emphasised that "[w]here there is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's personal interest and privilege to possess and use a firearm" citing Hill at [24].
3. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [25] the Appeal Panel made the following observations about which aspects of an applicant's previous conduct are relevant to the Tribunal's consideration of whether the issue of a firearms licence to the applicant is contrary to the public interest:

... it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.

1. The Tribunal is required to look at the applicant's conduct as a whole, including potential future conduct, with past conduct of the applicant being a significant guide in assessing likely future conduct: Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 (Stamatelatos) at [141].
2. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [27]- [28] Hennessy DP identified the degree of risk which would allow the Tribunal to have confidence that an applicant would not pose a risk to public safety if issued with a firearms licence:

The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

1. Ward considered the "fit and proper person" requirement in s 11(3)(a) of the Firearms Act, but the "virtually no risk" standard has been held also to apply to the "public interest" consideration in s 11(7): Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]- [134].
2. Following Ward, Hennessy DP cautioned against applying the "virtually no risk" standard in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that in Ward she had set aside the Commissioner's decision to revoke a firearms licence because she was satisfied that the applicant was a fit and proper person to hold a firearms licence. Her Honour stated at [8]:

The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests.

1. In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 (Martin) at [64], the Tribunal explained that the assessment of risk is to be approached in a nuanced way:

The question of risk is therefore not 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.

1. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 (Webb) at [32], Montgomery JM emphasised that not every conceivable risk needs to be considered:

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.

1. Recently, in GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88 (GGW) the Appeal Panel confirmed at [45]:

The relevant question in relation to the public interest, as the Tribunal recognised, is whether issuing a licence to the appellant would entail a real and appreciable risk to public safety.

1. The Applicant's evidence is that he requires a firearms licence for vermin control on another property. The Tribunal is satisfied that his reason for wishing to possess and use a firearm is genuine. However, the Applicant's private interests are not the only matters to be taken into account, and the Tribunal must consider the interests of the whole community: Comalco at 681. These include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin at [33].
2. The Tribunal has considered whether there is a risk to the safety of the public if the Applicant is issued with a firearms licence. In making this assessment, the Tribunal has adopted a balanced view in relation to risk, having regard to all the relevant circumstances. It has considered whether there is a "real and appreciable risk to public safety" as opposed to a risk which is "minimal, fanciful or theoretical" Webb at [32]; GGW at [45].
3. The Tribunal has taken account of all the circumstances, including the Applicant's attitudes, character and prior conduct, with an overriding focus on public safety: Martin at [64]. The Applicant's conduct during the period 2013 to 2024 reported in the COPS records, demonstrates he has long-standing anger management issues which, by his own admission, he has not sought treatment for from a psychologist, counsellor or medical practitioner. His evidence is that he is "working on" his anger, but he did not explain how he is doing so. Contrary to his oral evidence at the hearing that he has anger issues that he is working to address, he told Mr Curtis in July 2024, that his anger is "normal range" and "fairly well-controlled without apparently difficulty". The Tribunal cannot be satisfied that the Applicant has the ability to control his temper and emotional outbursts if confronted by a person or event which triggers his anger. The Tribunal is required to look at the applicant's conduct as a whole, including potential future conduct, with past conduct of the applicant being a significant guide in assessing likely future conduct: Stamatelatos at [141]. Having regard to the Applicant's past pattern of aggressive and abusive behaviour, the Tribunal cannot be satisfied that the Applicant would not on a future occasion engage in aggressive behaviour and use abusive language towards individuals who are the subject of his anger. It finds that there is "real and appreciable risk" to public safety if the Applicant were authorised to possess and use a firearm and he is confronted by a person or event which triggers his anger. Having had regard to the observations of Hennessy DP in Ward, the Tribunal cannot be satisfied that there is "virtually no risk" to public safety if the Applicant were granted a licence to possess and use a firearm.
4. Pursuant to s 11(7) of the Firearms Act, the Tribunal finds that it would be contrary to the public interest for the Applicant to be issued a firearms licence.

1. The correct and preferable decision is for the Tribunal to affirm the Commissioner's decision to refuse the Licence Application.

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.

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.