Houghton v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2023-05-24

reasons for decision

The applicant Mr Luke David Houghton applied to this tribunal on 22 December 2022 for review of a decision by the respondent Commissioner on 10 March 2022 to revoke his category ABH firearms licence (exhibit R1, pp 42-43).
The applicant had been first issued with a category AB firearms licence on 28 April 2008 for the stated reason of recreational hunting/vermin control, supported by club membership. On 5 May 2008 he was issued with a probationary pistol licence.
After observing a loaded .177 airgun on a table in his backyard together with a box of pellets, police on 17 June 2008 inspected the applicant's firearms safe and located his keys in the lock on the door of the safe, allowing access to the safe. Police took possession of his firearms and he was charged with using a firearm in a manner likely to injure persons or property and with failing to keep a firearm safely. Both his AB licence and his probationary pistol licence were revoked on 23 June 2008 (exhibit R1, pp 44-46). This was the applicant's first licence revocation.
On 12 February 2009 at Sydney District Court each offence was found to be proved but without proceeding to a conviction the court dismissed the charges under s 10 of the Crimes (Sentencing Procedure) Act 1999. The applicant requested an internal review of the revocation decision, but the request was made out of time and was therefore refused.
On 4 June 2010, he applied for a new category AB licence and probationary pistol licence, which were issued on 14 September 2010. On 31 August 2011, he applied for a category H licence, which was issued on 15 November 2011. On 15 October 2015, his ABH licence was reissued, notwithstanding that on his reapplication he had incorrectly answered "No" to a question asking whether his licence had previously been revoked.
He again reapplied for his licence on 15 October 2020, again answering "No" to the question about prior revocation. He also answered in the negative to a question about whether he had ever attempted self-harm or in the past 12 months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness.

Applicable legislation

Section 24(2) of the Firearms Act sets out a number of grounds on which a firearms licence may be revoked, including s 24(2)(d), which provides that a licence may be revoked "for any other reason prescribed by the regulations".
Clause 20 of the Firearms Regulation 2017 provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".
The issue in the present application is thus whether it is not in the public interest for the applicant to continue to hold a licence.

The evidence

The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.

Mr Luke Houghton (applicant)

The applicant tendered a signed statement dated 3 April 2023 (exhibit A1). In it the applicant took issue with a statement in the s 58 documents to the effect that he had his licence issued and revoked on the same day, 4 November 2014. That, he said, was an error on the respondent's part. Before the current revocation that was the subject of these proceedings, he had only had his licence revoked once, back in 2008, following court proceedings, and he accepted that he had those matters on his record. He regretted that those matters had occurred.
In relation to the charge of driving without an interlock, that was the only time that he had driven without that device. The reason was that he was moving from Pitttown to Dondingalong and his car with the interlock fitted would not start on the day of the move. He accepted that he should not have driven without the device that day, regardless of the circumstances in which he found himself.
He denied that he had told his then partner that he had wanted to blow his brains out. He did say he was fed up and "over this", which was obviously taken the wrong way. He was talking about continual migraine headaches. His then partner, Laura [surname], did not have his best interests at heart. He was in a toxic relationship with her for 21 years and they separated on 15 May 2022 shortly after that incident. He does believe that she was the main reason for his low mood and migraines. Since she had left, he was happy again and his migraines had drastically reduced. His ex-partner was abusive towards him, such as by punching him in the face, getting drunk and verbally abusing him in public.
He had been totally shocked when five to seven police arrived at his house and said they were taking his guns as they thought he might kill himself or harm someone else. The point he was trying to make was that if he had wanted to kill himself, which he didn't, then there were other ways such as crashing his car into a tree. Having several police cars and ambulances coming to one's house to take you away and scheduling you when you know that you are not a threat to anyone or yourself is a very frightening situation. Many things were said in the heat of the moment.
At the hospital he was assessed by a psychiatrist who determined that there was no reason to schedule him and that he was "not mentally ill or disordered". He was diagnosed with "Low Mood". The discharge letter on the same date (exhibit R1, p 52) states that he was not deemed a risk to himself or others.
He attended the hospital again for follow-up and they assessed him as being at low risk of self-harm or harm to others. His risk of suicide, self-harm, violence, vulnerability to harm from others, risk of absconding if an inpatient or risk to children were all recorded as low. On the last occasion the psychiatrist said that he did not have depression and that he had just had a bad run and it was not surprising that he was in a low mood.
When he had answered "No" in his licence application it was an error and he did not intend to mislead the respondent. In his 2010 application for a licence, he had answered "Yes" to the same question.
The Firearms Registry had expressed concerns that he was suffering from a mental illness or mental health condition. The psychiatrist at Kempsey Hospital found him to be quite capable. Dr Crellyn Taylor's observations about behaviour, speech, mood, affect and thought content were favourable. He had no delusions or suicidal ideation, his judgment was unimpaired and his risk was currently low. He would be happy to undertake another mental health assessment to prove that he is very capable of taking responsible control of firearms.
He had never been diagnosed clinically with depression by a mental health professional and did not currently take any depression medication. He did take Pristiq previously as prescribed by his GP, Dr Sarah Goldman from Advanced Medical Practice at Pittown. It was prescribed when he had low mood as a result of his partner Laura punching him in the face while on holiday. The only medications he now takes are for migraine. He no longer drinks alcohol at all and does not use recreational drugs. He has no history of abuse and dislikes conflict.
He has a strong need for a firearms licence as he lives on a 100 acre property and is becoming a primary producer, breeding Hereford cattle with some success. This is hampered by the fact that he cannot control vermin. Wild dogs have attacked one of his calves and he has no way to either euthanize the calves or to protect them. Foxes are a problem for his chickens. He has six dogs. Having firearms for him is not just a sport or a hobby, they are a tool of trade and he needs them to control vermin such as wild dogs, cats, foxes etc.
In oral evidence at the hearing the applicant said he was in the process of becoming a licensed primary producer, a status that had advantages in relation to tax and other matters. In order to move from hobby farmer status to operating a business, he was required to earn a minimum of $20,000 from primary production. He was well on the way to that target. On the basis of his sales so far, he estimated that he could reach that figure within 6 to 8 weeks.
He stressed that he had never been diagnosed with depression and said he was not now taking anti-depressant medications. The reference to amitriptyline hydrochloride tablets in Dr Bacsi's report (exhibit A3) was for a sleep medication and desvenlafaxine was the anti-depressant Pristiq. He had not, however, been taking anti-depressants for between 6 and 9 months. He had been consulting Dr Bacsi through Telehealth and last saw her in person 15 months ago. He had not been taking medication at that time.

The psychologist's report

At the hearing the parties agreed that consideration of the matter would be assisted if the applicant were to obtain a recent psychological assessment of his mental health. Accordingly the matter was reserved, with parties having leave to obtain, file, and make submissions upon, a psychologist's or psychiatrist's report.
To that end the applicant approached Ms Susan Homeh Hawil, consultant psychologist of Stephens & Bradley, Forensic and Clinical Psychological Services, who assessed him on 29 June 2023 in connexion with the present proceedings relating to his application for review of the decision to revoke his firearms licence.
Ms Hawil produced a detailed 19-page report dated 23 July 2023 (exhibit A5) which set out the background to the application, the applicant's personal background and information about family relationships, education, employment, previous mental health treatment and other matters. His communications with the psychologist indicated no evidence of sensory, perceptual and more significant cognitive impairment. His estimated level of cognitive functioning was felt to be in the average range with a good level of insight and judgment. The report noted that the applicant acknowledged that he had spoken about shooting himself, but explained that it was an off-the-cuff remark and he had no intentions or history of such.
Ms Hawil administered a number of tests, including Generalized Anxiety Disorder test 7 (GAD-7), which indicated that he was experiencing minimal levels of anxiety. The Public Health Questionnaire 9 (PHQ 9) indicated that he was experiencing minimal levels of depression. The Personality Assessment Screener (PAS) questionnaire assesses 11 validity indices and showed that he had a low risk of experiencing clinical problems. He had suffered a depressive episode on 8 August 2022 and self-referred to Hastings and McLeay Mental Health Services. Their notes also acknowledged that he had spoken about shooting himself, but that it was an off-the-cuff remark and he had no intentions or history of that kind. A mental status examination conducted on 10 August 2022 showed that his mood was satisfactory, he did not experience thought disorder or perception difficulties, his judgment was unimpaired and he presented as a low risk.
The Kempsey Hospital discharge summary of his submission on 7 March 2022 recorded that he was admitted under s 22 of the Mental Health Act by police, experiencing low mood and suicidal ideation. Specialist psychiatric and medical assessment indicated that he was not deemed a risk to himself or others and he was taken off the s 22 order and subsequently discharged.
On the basis of the interview, the results of relevant personality profiles and collateral information obtained in the documentation provided to her, Ms Hawil concluded by way of diagnosis that he was not suffering from any mental health disorder. Although she had not been asked to provide a risk assessment of the kind usually required by the Firearms Registry, she completed such an assessment and attached it. Her assessment of the applicant indicated that he is not currently suffering from a mental illness or disorder and his behaviour does not suggest that he is at risk of harming himself, members of his family or other members of the public.

Respondent's submissions

The respondent tendered written submissions (exhibit R2) which, after outlining the background of the case and the applicable law, contended that the applicant has had a blemished history. Historically, he had committed firearms offences, (including failure to use or safely store firearms and providing incorrect information to the Firearms Registry) on two occasions. He has had his firearms licence revoked - not once but twice. His recent history showed that the tribunal would have valid concerns about his holding a licence, including mental ill-health less than 12 months ago.
The applicant had first held a category AB licence from 28 April 2008 and a probationary pistol licence from 5 May 2008. Both licences were revoked on 23 June 2008 in the first revocation decision. They were revoked because he was charged with discharging a firearm in a manner likely to injure persons or property (s 93G(1)(c) of the Crimes Act 1900) and three counts of not keeping a firearm safely within the meaning of s 39(1)(a) of the Firearms Act. Those charges related to the same fact situation outlined above (id., 17-19). On 12 February 2009, the applicant was found guilty of those offences at Sydney District Court and the charges were dismissed under s 10.
The applicant requested an internal review but the request was made out of time and refused. He also sought review in this tribunal, but withdrew the application.
He lodged a category AB licence and a probationary pistol licence application, which was approved, subject to his completing a certification course (id., 57). Once that requirement was satisfied, on 14 September 2010 the requested licence was issued to him.
On 20 July 2010 he contacted the Firearms Registry and asked how he should answer the personal history question in the P650 form about prior revocation of a licence and was advised to answer the question accurately on each application (ibid.). Accordingly when he lodged a category H application or 31 August 2011, he correctly answered "Yes" to that question and was duly issued with a category H licence on 15 November 2011.
He reapplied for his ABH licence on 20 August 2015, but answered "No" to the question about prior revocation of a licence (id., 40). The respondent submits that the applicant's "No" answer to that question was dishonest and contradicted the first revocation decision, the advice given by the Firearms Registry and his own earlier "Yes" answer in the 2011 application. Nevertheless, he was reissued with his ABH licence on 15 October 2015.
He reapplied for his licence on 15 October 2020, answering "No" to the question about prior revocation of the licence and also to a question whether he had ever attempted suicide or self-harm or in the past 12 months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness.
The respondent submitted that the applicant's negative answer to that question contradicted the first revocation decision, the advice given by the Firearms Registry and his own earlier "Yes" answer to that question in the 2011 application. Nevertheless, on 4 November 2020 he was reissued with a category ABH licence, to expire on 4 November 2025.
The respondent points out that the applicant was charged on 17 June 2008 with the firearms charges mentioned above and does not dispute the charges or the outcome. In 2020 he was convicted of driving with a high range PCA, disqualified from driving for seven months and made subject to an interlock order for 24 months. He does not dispute that charge.
In 2021 he was convicted of driving with a low-range PCA and not having an approved interlock installed. He was fined $450 and was again disqualified from driving, this time for three months, and subject to an interlock order for 12 months. When he was stopped by police for the last two offences he was travelling at 127 km/h in a 100 km/h zone. He was breath tested (returning a positive result), arrested and taken to Kempsey police station for breath analysis.
While in custody, he responded "Yes" to the question "Have you ever tried to kill yourself", responding "Put pistol to the head but didn't pull the trigger" and in a question under "Medication" stated that he was prescribed "Antidepressants - Prestiq" (id., 58). He does not dispute the PCA charge and adds in relation to anti-depressants, "I did take Prestiq previously, prescribed by my GP, Sarah Goldman, from Advanced Medical Practice, Pittown" (exhibit A1, [17]). In his statement, however, he does not admit or dispute making the above comments or provide any admission of attempting or considering suicide.
On 7 March 2022, the applicant's then partner Laura [surname] contacted the mental health hotline over concerns for his welfare. She reported that on the previous day he had told her that he was "This close to blowing his brains out" (id., 7 and 58). Laura told the hotline that she "Had never seen you so bad in her life". The mental health team contacted emergency services and police attended the applicant's residence. He told police he "Could have just been dead and all you would have found was a body", then becoming aggressive with police, and even more so when informed that they were going to seize his firearms.
The respondent submitted that it has been consistently stated that the legislation requires strict compliance. The applicant's failure safely to use and store his firearms was reckless and placed other members of the community at risk of harm. The applicant need not have been convicted of any offence for a contravention to be found or for the underlying facts to be relevant, citing my decision in Wade v Commissioner of Police [2021] NSWCATAD 245, [59].
In relation to the applicant's answering incorrectly the application form question is referred to in 2015 and 2020, the applicant submitted that he answered "No" in error and "did not intend to mislead the Respondent". The respondent pointed out that in Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant had failed to disclose his previous licence revocation but said it was an error and not intentional. Nevertheless the tribunal in that matter took the view that the applicant had known that the form he completed was incorrect.
The respondent submitted that the questions about prior revocation were clear and unambiguous and the answer should have been equally obvious to the applicant. He had received but acted with disregard to the Firearms Registry's advice in July 2010 on how to answer the questions. The applicant's provision of false information showed a willingness to be dishonest with authorities and a disregard for legislative schemes promoting public safety. The functioning of a proper system of licensing depended on applicants providing true and correct information in a comprehensible manner: Leathem v Commissioner of Police [2021] NSWCATAD 121, [18].
The applicant submitted that he had never been clinically diagnosed with depression by a mental health professional and had separated from his ex-partner who he blames for his "low mood and migraines". He makes comments about past diagnoses of "low mood" as opposed to mental illness and "low risk of self-harm and low risk of harm to others". But he makes no reference to suicide, notwithstanding his comments referred to above that show he has contemplated self-harm.
The respondent referred to the s 11(4)'s stricture that the tribunal "must not issue" an applicant with a licence if it has cause to believe that there is that he may not personally exercise continuous and responsible control over firearms because of his history of mental ill-health. In AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22] Hennessy DP had said that "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide…. and, if that happens, the likelihood that a firearm will be used".
The applicant's affirmative response to the question whether he had ever tried to kill himself and his comment "Put the pistol to the head but didn't pull the trigger" show that the applicant attempted, or at least seriously considered, suicide, as well as his proposed use of a firearm. His presentation to Kempsey District Hospital under s 22 because of suicidal ideation and allegedly telling Laura that he was "This close to blowing his brains out" was further evidence.
Although there is no evidence that suicidal ideation has occurred since then, the comments above were made less than two years ago and the clinical notes dated 8 August 2022 also refer to them. The clinical notes also record a diagnosis of "depressive episode" and that the applicant is "a man with likely adjustment disorder with depressed mood and sleep disturbance" (exhibit A2, p 4) and that he had "a few depressive episodes" which he attributed to the medication not working correctly.
Again, Dr Bacsi's report of 6 December 2022, which is less than six months old, includes "depression" in the list of the applicant's problems (part exhibit A1). And while he asserts that he is not currently taking any depression medication, the clinical notes do record a history with anti-depressants (exhibit A2, p 4).
The respondent concluded that the applicant's application for an ABH licence should be refused under s 11 of the Firearms Act.
In oral submissions at the hearing the respondent indicated that the Commissioner was not strongly opposed to the applicant's case and noted that s 11(7) confers a broad discretion on the tribunal. The applicant's traffic record could be considered, but did not command as much weight as the other factors in the case, such as his provision of false information, which he agreed was incorrect. The fact that a licence had been issued after that matter became known did not constitute a waiver as the tribunal is able to consider all the information before it.
The applicant's mental health treatment and self-harm ideation were a problem, because they were so recent. All the incidents were close in time. A new assessment by a psychologist or psychiatrist would be needed before the applicant could cogently argue that those problems were behind him, if that were the view of the examining health professional. (Such a report was later obtained from a consultant psychologist, Ms Susan Homeh Hawil (exhibit A5}).
In supplementary submissions filed after the hearing on 4 August 2023 the respondent submitted that the report should receive little weight given the limited contact between the applicant and the psychologist (who was not treating the applicant), the underlying purpose of the report being for it to be used in these proceedings, differing accounts of the applicant's statements at the time of the March 2022 incident and lack of corroboration for the finding that the applicant had ceased taking Deslanafaxine, Pristiq or Mairtazapine, including whether he actually ceased taking Pristiq in November 2022 as he stated. It was submitted that the applicant should have also provided evidence from a treating medical practitioner or his own general practitioner.

Approach

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (NSW) (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
It is not suggested that the applicant is not a fit and proper person to hold a firearms licence. The respondent argues for licence revocation on the ground that it is not in the public interest for the applicant to hold a licence, within the meaning of s 24(2)(d) and cl 20.

Public interest

The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64]-[66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
The respondent submitted that the tribunal ought to affirm the internal review decision as the correct and preferable decision: "The factual basis, and legal reasoning, are sound and equally applicable to these proceedings. Nothing that the Applicant has submitted to the Tribunal disturbs the reasoning on internal review, despite the Applicant's opportunity to closely consider how, and why, issuing a licence is said to be contrary to the public interest" (exhibit R2, paras 41-42). The matters on which the respondent relies are set out below.
As this application concerns a licence revocation, the internal review relied on the discretionary revocation power in s 24(2)(d) of the Firearms Act. The respondent's case, however, was presented as if it turned on the discretionary power to refuse to issue a licence in s 11(7). That apparent oversight was of no consequence, however, as the factual issues were the same on either basis.

Firearms Act contraventions

The applicant's licences were revoked on 23 June 2008 because he was charged with the following contraventions: 1. "Fire firearm in manner likely to injure persons/property", in accordance with s 93G(1)(c) of the Crimes Act 1900, and 2. three counts of "Not keep firearm safely - not pistol/prohibited firearm", in accordance with s 39(1)(a) of the Firearms Act.
The police fact sheet for all four offences (exhibit R1, pp 17-19) dated 22 June 2008 records that on 17 June 2008 in his backyard he discharged a number of shots from a Diana .177 calibre air rifle (actually, it appears to have been a .177 smooth-bore airgun, not an air rifle, but the legal principles are the same). He then left the airgun on a table in the backyard in a loaded condition, together with a box of pellets, left the premises and did not return it to a firearms safe.
He left the key in the lock at the front of the safe, allowing access to his safe by any person. On attending at the premises police found the loaded airgun placed on top of the table pointing towards the rear fence. Located with it was a box of ammunition. Police confiscated the firearms in his safe and the applicant was arrested and taken to Castle Hill police station. During an electronically recorded interview, he admitted discharging and using his airgun in his backyard and leaving it on the table unattended and loaded. He also admitted leaving the premises for a short time and leaving the keys in the door of the safe unattended and unsecured. His premises were surrounded by other residential homes within close proximity.
On 12 February 2009 the four offences were found proved at Sydney District Court and, without proceeding to conviction, the court dismissed the charges under s 10 of the Crimes (Sentencing Procedure) Act 1999. In the context of the first revocation decision, the applicant said of those charges, "I accept I have those matters on my record. I regret those matters having occurred".
The applicant pointed out that notwithstanding those charges, he was issued with a category AB licence and probationary pistol licence pursuant to an application made on 4 June 2010. Further, he was issued with a category H (pistol) licence on 15 November 2011 and his category ABH licence was reissued on 15 October 2015, and again reissued on 4 November 2020.
The ABH licence was again reissued, on 4 November 2020, to expire on 4 November 2025. It was revoked on 10 March 2022 and the revocation was affirmed on 2 December 2022. It may be noted that the s 58 documents recorded that the category ABH licence was issued to him on 4 November 2015 and revoked on the same day (exhibit R1, p 2), but that was apparently a clerical error.
In merits review the tribunal is required to consider all relevant evidence, whether or not a given set of facts has resulted in conviction, acquittal or even a charge (Wade v Commissioner of Police [2021] NSWCATAD 245, [59]). It is the applicant's conduct that is relevant, not the fact of conviction or acquittal. Again, the fact that the applicant's licences were repeatedly renewed after the charges were dealt with cannot be treated as a waiver. The tribunal has also held that strict compliance is required in firearms regulation, even when a breach lies towards the lower end of the scale of culpability (Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].
Thus, although the Firearms Act charges occurred 15 years ago and there has been no repetition of such conduct since, the charges still carry weight on the issue of public safety and public interest.

Traffic record

The respondent submits that the applicant's repeated contravention of traffic laws indicates a disregard for a regulatory scheme aimed at ensuring public safety, and is therefore an important consideration in the matter.
On 2 April 2020, the applicant was convicted of the offence of driving with a high range PCA, fined $700, disqualified from driving for seven months and made subject to an interlock order for 24 months. Subsequently, on 3 May 2021 he was convicted of driving with a lower range PCA and of being an interlock licence holder not having an approved device installed. He was fined $450 and was again disqualified from driving for 3 months and made subject to an interlock order for 12 months.
The 2021 offence was committed on 16 April 2021 when he was stopped by police for travelling at 127 km/h in 100 km/h zone. He does not deny either the 2020 or the 2021 violations. In addition, however, since 2015 he has been detected in breach of road safety and traffic management legislation on 10 occasions (exhibit R1, pp 9-10).
In Lee v Commissioner of Police [2020] NSWCATAD 144, [97], Montgomery SM declared that, "The traffic laws and the firearms regulatory scheme are both aimed at ensuring public safety. A disregard for a regulatory scheme aimed at ensuring public safety is a relevant consideration in relation to a determination of whether or not it is contrary to the public interest for the applicant to hold a firearms licence. Given the extensive history of traffic infringements, I cannot be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme". The applicant's traffic record is thus to be given weight in the evaluation of public interest, though, as the respondent very properly conceded, it did not warrant as much weight as the other factors relied on.

False information in applications

On 31 August 2011, the applicant submitted an application for a category H firearms licence and correctly answered "Yes" to the question regarding the prior revocation of his licence. He was issued with a category H licence on 15 November 2011. On 15 October 2015, his ABH licence was reissued, notwithstanding that on his reapplication he had incorrectly answered "No" to the question about whether his licence had previously been revoked.
On 15 October 2020 he again reapplied for his licence, and answered "No" to the question "Have you in NSW or elsewhere, ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?". That answer also was incorrect.
The respondent placed significant weight on his failure truthfully to answer the personal history questions in each of his respective applications to the Firearms Registry on 24 August 2015 and 15 October 2020. Particular emphasis was placed on the fact that he had continued to answer "No" notwithstanding that on 20 July 2010, he had contacted the Firearms Registry for advice on whether to answer "Yes" to those personal history questions, and was advised that he should answer each question accurately.
The applicant's position was that he had answered "No" in error and had not intended to mislead the respondent. The respondent pointed out that on similar facts in Kogias v Commissioner of Police [2020] NSWCATAD 297 where an applicant had said his incorrect statements in the application were errors and not intended to deceive the tribunal had concluded that the applicant did in fact know that the form he had completed was incorrect. The applicant also pointed out that his licence had been twice renewed notwithstanding the incorrect statements, but as Mr O'Brien argued, there is no waiver in these cases and the tribunal is required to consider all the relevant evidence.
As the respondent submitted, the questions about prior licence revocation were clear and unambiguous and the answer should have been equally obvious to the applicant. In any event, the applicant had sought but disregarded the Firearms Registry's advice in July 2010 on how to answer the questions. It was submitted that the provision of false or misleading information demonstrated a willingness to be dishonest with authorities and a disregard for legislative schemes promoting public safety, as was pointed out in CXJ v Commissioner of Police [2017] NSWCATAD 39 [69]-[70].
While it is not implausible that an applicant could make an error in completing a form, making the same error twice, despite having received official advice on how to answer the question and also incorrectly answering the question about mental health treatment strains credulity. This point must carry significant weight in the evaluation process.

Mental health and self-harm risk

The respondent submitted that the tribunal would have valid concerns about the applicant holding a firearms licence, including mental ill-health less than 12 months ago. Those concerns were the grounds on which the respondent's case for revocation chiefly rested.
While he was in police custody following the 16 April 2021 offence, he responded "Yes" to the question "Have you ever tried to kill yourself?", Adding the comment, "Put pistol to the head but didn't pull the trigger", and in a questionnaire about medication stated that he was prescribed "Antidepressant - Prestiq". The internal review reasons noted that he had not disclosed his prescription for Pristiq to the respondent, and indeed continued to maintain that he had never threatened self-harm or experienced suicidal ideation, notwithstanding that his comments to police on two separate occasions directly contradicted those propositions (exhibit R1, p 60).
The applicant does not admit or deny making the above comments to police and instead states that, "I have never been diagnosed clinically with depression by a mental health professional and don't currently take any depression medication. I did take Pristiq previously, prescribed by my GP, Sarah Goldman, from Advanced Medical Practice, Pittown. That was prescribed for me when I had low mood as a result of my partner Laura punching me in the face on holiday. The only medications I take now are for migraine" (exhibit A1, para 17).
Further, on 7 March 2022, Laura contacted a mental health hotline because of concerns for his welfare. Event report E88509278, 7 March 2022 (exhibit R1, pp 7-8) relates that the applicant told Laura on 6 March 2022 that he was "This close to blowing his brains out". She said he was very emotional and inconsolable during the evening and said she had never seen him so bad in her life. As a result of her concerns for his welfare, she contacted the mental health hotline which in turn contacted police, who arrived shortly afterwards and spoke with him, when he said he could have just been dead and all they would have found was a body.
He subsequently became aggressive with police, and became further upset when told that police would be seizing his firearms because of his current mental health incident. He said that instead of their taking his guns, he could just go and crash his car into a tree and kill himself. An ambulance arrived soon after and the applicant was taken to Kempsey Hospital and scheduled under s 22 of the Mental Health Act.
The applicant maintains that he is capable of taking responsible control over firearms because he has never been diagnosed clinically with depression by a mental health professional, is not currently taking anti-depressants and has been separated from his ex-partner, to whom he attributes his "low mood and migraines". He also refers to past diagnostic observations of "low mood" as distinct from mental illness, and to the stated low risk of harm to others.
Nevertheless, he makes no comment about suicide, despite his admissions that indicate that he seriously contemplated self-harm and suicide in the past. The respondent does not submit that he is of "unsound mind", but contends that the evidence is cause for genuine concern as indicating that the applicant remains affected by his history of mental ill-health and so may not be able to personally exercise continuous and responsible control over firearms.
In AML at [22], Hennessy DP pointed out that "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used". While there is no evidence of any suicidal ideation since then, the applicant made the above comments less than two years ago. Clinical notes from Hastings Macleay Mental Health Services dated 8 August 2022 refer to him speaking "about shooting himself" (exhibit A2, p 2).
The clinical notes contain some other points of concern, recording a diagnosis of "Depressive episode" and referred to his depression getting worse as a result of his taking his medication in a particular way. They also describe him as "a man with likely adjustment disorder with depressed mood and sleep disturbance" (id., 4) and that he "reports that his medication not working well he has had a few depressive episodes and he feels it's been due to the medication not working" (id., 12). Dr Bacsi's report of 6 December 2022 includes "depression" in the list of his "problems".
The psychologist Ms Hawil's report outlined above concluded that her assessment of the applicant revealed that he was not suffering from any mental health disorder or illness and his behaviour did not suggest that he was at risk of harming himself, members of his family or other members of the public. Her response to the risk assessment questionnaire noted that he had been previously diagnosed as suffering from an adjustment disorder on a background of a relationship breakdown. The symptoms of, and the disorder, spontaneously resolved over time, as would be expected when a stressor is removed, Ms Hawil wrote.
On the question of whether a relapse was possible, the probability of relapse was found to be low. He has regular contact with his general practitioner and a loving supportive relationship. He has previously engaged in help-seeking behaviour, and Ms Hawil thought that he would do so again if he felt he needed assistance. Those efforts were a protective factor against his experiencing a deterioration in his mental health functioning.

Evaluation

The applicant has no record of violence or of threatening violence against others. He was first licensed for category AB firearms from 28 April 2008 and held a probationary pistol licence from 5 May 2009. Both licenses were revoked on 23 June 2008 after he was charged with the four Firearms Act contraventions on 21 June 2008. The contraventions arose from an incident on 17 June 2008 when the applicant discharged several rounds from a Diana .177 airgun in his backyard in an attempt to sight it. He also left it on the table in a loaded condition while he left the premises and did not properly lock his gun safe where he kept his firearms.
All violations relating to safe use and storage are to be taken seriously, and an airgun pellet could cause injury to a person at close range. On the other hand, the applicant has expressed remorse over the incident and there has been no repetition of such conduct in the 15 years since then. The applicant also pointed out that his licences were reissued on three occasions between 2010 and 2020, after the charges had been dealt with in Hornsby Local Court and Sydney District Court.
Although the tribunal is required to reach a decision on the basis of all the evidence before it at the time of the review application, and the doctrine of waiver does not apply here, the repeated reissue of his licence does have some bearing on the seriousness of the contraventions. At the present time the 2008 offences would not appear to present an insuperable obstacle to the applicant's holding a licence.
The applicant's traffic record is far from unblemished and includes a high range PCA in 2020 (his first offence of that nature) and a low range PCA in 2021, coupled with his driving a vehicle without an interlock installed, when he was subject to an interlock order. He acknowledges the shortcomings of his driving record and explains the interlock matter as having occurred on the day he was moving from Kempsey to Dondingalong. His car with the interlock fitted would not start and instead he drove another vehicle without one. He admits that he should not have driven in those circumstances.
The respondent stated that the applicant's traffic record could be considered by the tribunal, but acknowledged that it did not warrant as much weight as the other factors. Although unimpressive, the applicant's driving record does not rise to the level of warranting firearms licence revocation in itself. It is, however, to be taken into account as it may cast light on the applicant's preparedness to comply with safety-oriented legislation.
As was noted above, his supplying of incorrect information to the Firearms Registry on two occasions weighs in favour of affirming the revocation decision. He asserts that he made an error on both occasions and had no intention to deceive, or reason to do so, but his conduct in that regard indicates at best a lax attitude to the documentary requirements of the licensing scheme and the need for more conscientious compliance with those requirements should he hold a licence in the future.
On the other hand, in relation to concerns in relation to his past mental health, which are central to this case, the recent and detailed psychologist's report by Ms Hawil (exhibit A5) allays concerns about his likely future mental state. While acknowledging that there was no evidence of recent suicidal ideation, the respondent's supplementary submissions criticized the report as being based on limited contact, not coming from a treating practitioner and having been prepared for the purposes of these proceedings.
Those circumstances quite commonly apply to psychologists' or psychiatrists' reports in proceedings of this nature and are not necessarily regarded as materially lessening the weight of the expert evidence. There is no expert evidence suggesting that Ms Hawil's approach was unsatisfactory or contradicting her conclusions.
The submissions also pointed out that in April 2022 the applicant had said he was consuming alcoholic beverages only at weekends or on special occasions, whereas in July he had said he was abstaining completely. The statements were made some months apart and his practices could have changed in the interim. The point was not put to him.
The psychologist's essential conclusions are that the applicant is experiencing minimal levels of depression, has a low risk of experiencing clinical problems, has satisfactory mood and his judgment is unimpaired. He is not suffering from any mental health disorder or illness and his behaviour does not suggest that he is at risk of harming himself or others. The psychologist's response to the risk assessment questionnaire noted that he had previously been diagnosed with an adjustment disorder on a background of a relationship breakdown. The symptoms and the disorder had spontaneously resolved over time, as would be expected when a stressor was removed, Ms Hawil found.
The probability of relapse was found to be low. He is in regular contact with his general practitioner and is in a loving and supportive relationship. He has previously engaged in help-seeking behaviour and Ms Hawil thought he would do so again if he felt he needed assistance. Those efforts were a protective factor against his experiencing a deterioration in his mental health functioning. The psychologist was not required for cross-examination on her report.
The applicant is currently seeking registration as a primary producer (as opposed to a hobby farmer), which apparently confers certain advantages in relation to motor registration. There is a public interest in law-abiding primary producers having access to long arms for the protection of the environment and of primary industry.
On balance, I conclude that the evidence discloses that restoring the applicant's firearms licence would entail no real or appreciable risk to public safety, as that concept is understood in Webb, and that it would not be contrary to the public interest to do so, and I so find.

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

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2023

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Judgment (15 paragraphs)

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