This is an application brought by Ms Hovey (the Applicant) seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Commissioner). The delegate determined to revoke the Applicant's Firearm Dealer Licence and her personal Category ABH Firearm Licence (the Licences).
[2]
Background
The Applicant has held a number of firearms licences under the Act.
From 21 October 2006 until 5 October 2011, the Applicant held a minor's firearms training permit and a minor's target pistol permit.
The Applicant has competed at 'western' shooting competitions, participating in single action shooting. The Applicant has competed in shooting competitions since in or around 2006, including competing in the Australian shooting team on several occasions, being a seven time Australian Champion and holder of one world record.
On 26 October 2011, the Applicant was issued with a category A, B and H firearms licence.
In or around June 2014, the Applicant commenced working at 'Cowboy Guns and Gear', being a family-owned firearms dealership (Firearms Store). The Firearms Store is owned by the Applicant's father and step-mother.
The Applicant was the business manager for the Firearms Store and a 10% shareholder. Whilst working at the Firearms Store, it was envisaged that in the future, the Applicant would take over the store or open her own firearms business.
Since 2019, the Applicant's residential address was recorded with the Firearms Registry to be her ex-husband's residence. The Applicant had two safe storage addresses, being her father's farm in Cowra, NSW and her ex-husband's residence in Woodstock, NSW. The Applicant frequently moved her firearms between the two safe storage addresses and the storage at the Firearms Store. The Applicant did this due to movements in the location of her work and the need to travel for shooting competitions.
However, in February 2021, the Applicant separated from her then husband and in April 2021, the Applicant commenced a new relationship.
In or around December 2021, and following her separation from her husband, the Applicant and her daughter moved into a residence with a family friend. The Commissioner refers to this as the Applicant "renting bedrooms for her and her daughter", however the Applicant denies this and gives evidence that the money she paid was to help with utilities only and she only begun paying rent at the beginning of this year - however, I find that nothing turns on this for the reasons below. Prior to that she had been staying with other family and friends.
By early 2022, the Applicant had a 'Lokaway' pistol safe on the floor in her bedroom's built-in cupboard at the residence, which weighed approximately 50 kg. The purpose of the safe, according to the Applicant:
"was only there for the purpose of having somewhere safe to place documents and money while I was transiting, if it was inconvenient to have them at my ex-husbands."
The safe was not bolted to the floor or wall, given it was used to store documents and cash held by the Applicant. The keys for the safe were kept in a draw or in a glass bowl in the Applicant's wardrobe. Despite this move, the Applicant did not update her residential address with the Firearms Registry within 7 days of her moving into her family friend's residence.
On 15 December 2021, the Applicant's firearms licence was renewed. At this time, the Applicant held four firearms, consisting of a rifle, shotgun and two pistols (handguns) that are replicas of historic models. The firearms are worth a combined $4,200.
On 22 February 2022, the Applicant found out that her partner was required to return to Canada for work. From 22 February 2022 until on or around 8 March 2022, the Applicant experienced stress in light of the physical and possible relational separation and the need to tell her daughter of the separation. The Applicant describes the news that her partner would need to move overseas in the context of separating from her husband as "a shock to the system" which was "a stressful time navigating big life decisions".
The Applicant planned to take one week of leave to go on a holiday with her partner and daughter prior to his moving to Canada.
Prior to 24 February 2022, the Applicant's four firearms were stored at the Applicant's ex-husband's residence.
From on or around 24 February 2022 until 12 March 2022, two of the Applicant's firearms, being her rifle and shotgun, were stored at the Firearms Store.
On 12 March 2022, the Applicant worked at the Firearms Store, which involved preparing for the Bathurst Arms Fair. Part of the purpose of the Applicant attending the fair was to generate interest in the Firearms Store.
After working at the Firearms Store, the Applicant drove to her ex-husband's residence to pick up her replica pistols and drove to the Bathurst Arms Fair.
On 13 March 2022, the Applicant attended the Bathurst Arms Fair.
Later that afternoon, the Applicant drove halfway between Bathurst and Woodstock where she met her husband by the side of the road to pick up her daughter. According to the Applicant, she did not return to her home until later that evening and did not go past her safe storage address.
After the fair, the Applicant packed her replica pistols into a locked pistol case and placed it in her vehicle and the Applicant then travelled with her daughter and partner to her residence. The Applicant is reported to have not realised or forgotten that she packed the pistols into her vehicle until she arrived at her residence. When the Applicant arrived at the residence, it was late in the evening and well past her daughter's bedtime who was four years old. In the Applicant's opinion:
1. travelling a further 25 minutes to her safe storage premises and then back a further 25 mins was not a safe option after a long and exhausting weekend;
2. as for returning the firearms to the Firearms store, in the Applicant's words;
"this store has 24/7 back to base alarm system and 24/7 monitoring after the hours of 6pm. Given that this was a weekend and quite late, this would have required an attempt to contact the monitoring system to ensure alarm was deactivated and ensuring that an out of hours visit did not alert not only security but police to the fact that there was access to the store at unusual hours. I would have also had to notify the other owners who could well have been asleep of this as they would have been the first to get the monitoring call".
Rather, the Applicant decided to store the firearms in line with recommendations whilst in transit/travelling. At this time, the Applicant placed the locked pistol case firstly on her bed for approximately 20 minutes, then inside the 'Lokaway' safe, which is inside of her built-in cupboard in her bedroom, locked it, and placed the key in a draw. No ammunition was stored with the pistols.
The Applicant intended on moving the pistols into the storage at the Firearms Store in the morning of 14 March 2022. Police were informed that the Applicant regularly transported her pistols in this way, especially in circumstances in which she competed in shooting competitions and stored the pistols in hotel accommodation overnight. However, Police were also informed that this was the first time that the Applicant had stored pistols in the 'Lockaway' safe.
On 14 March 2022, the Applicant, her daughter and her partner left the residence and began travelling to Sydney and then to Port Macquarie for their holiday. The Applicant did not remove her pistols from the safe in her built-in cupboard or move them to the Firearms Store. At the time of leaving the residence, the Applicant alleged that she was 'anxious about her relationship breakdown' and 'forgot about the [pistols] in the wardrobe'. However, in the Applicant's words:
"At the time of leaving …, I was not anxious however under a lot of pressure to get my 4 year old in the car and on the road for the lengthy trip and had forgotten that I had stored the pistols in the pistol safe as they were out of sight and not normally stored this way."
On 16 March 2022, the Applicant's family friend, who lived at the residence, returned home to find that the residence had been broken into. The Applicant was informed by her friend and contacted her father.
Police attended the residence and observed that it had been broken into and that 'two bedrooms had been ransacked'. The Applicant's father told police that the Applicant's two replica pistols had been stored at the residence. Police searched the Applicant's bedroom cupboard, however, did not locate the safe containing the pistols. Police did not identify any signs that the safe had been secured to the floor or wall.
On 17 March 2022, the Applicant provided a statement to the Police. The Applicant's evidence with respect to the giving of this statement was that:
"I felt pressured to attend the station and to make a statement, this was not ideal timing or location as I had my daughter present with me and had to have someone care for her during this time. I requested to attend [my local] station when I was home but was told I had to go to the [a different station in a different location] by the end of that day."
On 22 March 2022, police attended the Firearms Store and obtained an additional statement from the Applicant, providing further details about the storage of her replica pistols.
Police subsequently seized the Applicant's firearms licence. In lieu of police seizing the Applicant's other two firearms, these were transferred into the name of the Firearms Store.
On 15 June 2022, police attended the Firearms Store and charged her with the offence of 'not keep firearm safely-pistol'. The Applicant refused to adopt her two previous statements.
On 3 August 2022, the Applicant attended court. The Applicant received a six month conditional release order without conviction, commencing on the day and concluding on 2 February 2023.
On 21 February 2023, the Applicant's firearms licence was revoked based on public interest grounds and contraventions of the Act.
On 23 March 2023, the Applicant lodged an internal review request.
On 5 May 2023, the Firearms Registry affirmed the decision of the Commissioner.
On 11 May 2023, the Applicant lodged an application for administrative review of the decision to revoke her firearms licence with the Tribunal.
[3]
Issues for the Tribunal
The Applicant has applied to the Tribunal for review of the Commissioner's determination to revoke her category ABH firearms licence.
The issue for the Tribunal to determine is whether it is against the public interest for the Applicant to hold the licences.
[4]
The applicable legislation
The relevant legislation concerning the licensing, use and safekeeping of firearms is the Act and the Firearms Regulation 2006 (the Regulations).
[5]
Revocation of firearms
The underlying principles and objects of the Act are set out in section 3 which provides:
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
Section 11 places general restrictions on issue of licences. It provides:
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
...
(3) A licence must not be issued unless:
…
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
...
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
Section 24 of the Act provides for the revocation of a licence:
24 Revocation of licence
...
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) …
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
…
(d) for any other reason prescribed by the regulations.
...
Clause 20 of the Regulations provides:
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.
[6]
Safe storge
With respect to the statutory obligations of safe storage, section 39(1) of the Act, provides that:
A person who possesses a firearm must take all reasonable precautions to ensure-
(a) its' safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
Additionally, section 41(1) of the Act provides that the holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies-
(a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated,
(b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,
(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm,
(d) such other requirements relating to security and safe storage as may be prescribed by the regulations.
[7]
Notification requirements
With respect to the notification requirements of a licensee, section 69 of the Act, provides that 'a licensee or the holder of a permit must, if there is any change in the licensee's or permit holder's place of residence, provide the Commissioner with the particulars of the change of address within 7 days after the change occurs'.
[8]
Jurisdiction
The Tribunal's jurisdiction to review the Commissioner's decision to revoke the licence is pursuant to section 75 of the Act and the provisions of the Administrative Decisions Review Act 1997 (the ADR Act).
Pursuant to section 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. The Tribunal is confined to making decisions which were available to the Commissioner at the time that the decisions under review were made. In determining the Application, the Tribunal may affirm, vary or set aside the Decision or remit it to the Commissioner for reconsideration.
[9]
The material before the Tribunal
in addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s58(1) of the ADR Act marked "R2" and a supplementary s 58(1) bundle marked "R3", the Commissioner relies upon written submissions filed 1 August 2023 marked "R1";
The Applicant relies on
1. The Administrative Review Application form marked "A1"
2. Written Submissions filed 16 August 2023 marked "A2";
3. Bundle of documents filed 6 July 2023 and entitled "Applicant's evidence" marked "A3" including:
1. Letter signed by the Applicant to the Tribunal which I treat as the Applicant's statement. In this letter:
1. apologised for her actions that led to the stealing of her replica pistols and the revocation of her firearms licence;
2. assumed full responsibility for negligently storing her replica pistols at her residence;
3. maintained that leaving the pistols at the residence was influenced by excessive stress and 'extenuating' personal circumstances, however, did not excuse her from failing to return the pistols to her safe storage address;
4. maintained that this was the first time she had left her firearms incorrectly stored or unattended during transport to her safe storage address;
5. maintained that she understood the safe storage requirements under firearms legislation; and
6. maintained that at the time the pistols were stolen, she was not formally residing at the residence and was staying with her family friend whilst navigating her separation from her ex-husband.
1. Eight character references; and
2. Certificate addressed to the Applicant from the Firearm Safety and Training Council Limited for completing a course of study on firearms ownership, possession and use dated 2 June 2023
3. Letter from the Firearm Safety and Training Council Limited describing the course undertaken by the Applicant dated 2 June 2023.
The Applicant gave oral evidence and was cross-examined.
[10]
The public interest
The concept of the "public interest" has been considered in numerous matters before this Tribunal and the former Administrative Decisions Tribunal. Senior Member Ransome helpfully considered various authorities that have dealt with the concept in Crowther v Commissioner of Police, NSW Police Force [2017] NSWCATAD 62:
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681:
"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."
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 appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual."
In Cusumano v Commissioner of Police [2001] NSWADT 50, Deputy President Hennessy stated:
"There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:
"27 The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 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."
It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
In Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91 it was stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence. It is, of course, trite to say that a failure to store firearms properly may have catastrophic consequences: Rosenboom v Commissioner of Police [2006] NSWADT 10.
The Appeal Panel considered the concept of the "public interest" in Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44. The Appeal Panel stated at paragraphs [34] - [36]:
34. We agree with the submission for the Commissioner that a finding that a person is not of fit and proper character to hold the type of licence under notice would necessarily also mean that it would be contrary to the public interest to allow the person to hold the licence.
35. Equally there can be cases, and this is an example of that kind, where the material might be problematic in relation to the question of fitness but strong in relation to the public interest. A person may not be so lacking in fitness as to warrant the conclusion that he or she is not a fit and proper person to hold the relevant licence. But nonetheless there may be matters in the material considered in that regard that properly found a case for denial of the licence in the public interest. There is no problem, as we see it, in an administrator (or the review tribunal) differentiating in that way.
36. It does not follow that because a person is 'fit' to hold a licence, that therefore it must also be in public interest for the person to hold the licence. The 'public interest' enables a range of factors some of which may be specific to the person (personal associations, health considerations, and so on) and others of which may be external to the person (need for more licences in a particular geographical area, number of licences already held, risks of penetration by criminal elements, and so on) that might militate against grant of a licence.
[11]
The Commissioner's case
The Commissioner's position, in summary, is that - first the Applicant has contravened the safe storage requirements of the Act and has contravened a condition of her firearms licence related to safe storage.
The Commissioner contends that contravention of these requirements is fundamental, as those requirements go to the crux of the principles and objects of the Act. The Commissioner submits that:
"Even where safe keeping contraventions lie at the lower end of the scale of seriousness, they can 'evidence an attitude that is still significant' when determining whether a person should have a licence."
In this regard, the Commissioner made reference to the Second Reading speech dated 25 June 1996 of the Hon J W Shaw (at page 3559 of the Hansard) where it was stated:
"Legislation should have the effect of making a failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms. Measures should be indicated in legislation for the storage of firearms which are specific and clear so that firearm owners and possessors know their obligation…"
The Commissioner contends that for the Tribunal to set aside a revocation decision based on failure to store firearms safely, an Applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case but the Applicant has not been able to demonstrate sufficient considerations that take the matter outside the ordinary case.
Secondly, the Commissioner contends that the Applicant has failed to notify the Commissioner of changes in her residential address. In this respect, as submitted by the Commissioner:
"The obligation to notify the Commissioner of a licence holder's residential address has practical effect, particularly for any person who resides out of state, as a licence must not be issued unless the Commissioner is satisfied that the person is a resident of NSW. Safe storage obligations also arise in recognition of whether firearms are stored in a licensee's place of residence."
As such, the Commissioner contends that the contraventions of the Act by the Applicant are not merely technical and that they pose a risk to public safety and evidence a disregard and lack of appreciation for firearms legislation.
In conclusion, the Commissioner submits that in consideration of the factors outlined above, the Tribunal should be satisfied that 'it is not in the public interest for the licensee to continue to hold the licence' and the correct and preferable decision to be made by the Tribunal is to affirm the decision of the Commissioner.
[12]
The Applicant's case
In response to the submissions of the Commissioner, the Applicant contends that:
1. although she made a regretful mistake by unintentionally not returning my handguns to their safe storage, she has always shown a great level of appreciation for the firearm laws as well as respecting and understanding the purpose of the law. In her letter of apology, she wrote:
"I am truly, deeply, apologetic for the mistake that I have made, and I would never for any circumstances re-offend in any nature again, I have full understanding of how the continuous loss of my license will have significant impact on almost every part of my life."
1. the manner in which they were stored was in line with recommendations of storage whilst in transit/travelling, however she accepts that she made the unfortunate mistake of leaving the firearms on the premises when a robbery occurred which was a breach of her responsibility as a firearms licensee;
2. she never imagined her mistake in not returning her handguns would also coincide with some intentional law breakers that forcefully entered the address and she remains very upset that the stolen firearms have not been recovered and remain in the public sphere;
3. she understands the importance of changing residential addresses however at the time, she had not formally moved into the premises and was staying with a friend while she navigated her separation from her husband. The Applicant gave evidence that most of her belongings were still located at the martial home that she formerly shared with her husband which she still considered her home. Rather, staying with friends and family temporarily only ceased at the beginning of 2023. In the Applicant's words:
"I also did not formally rent at the premises until the beginning of this year 2023. Prior to that, I assisted with bills and house maintenance for the times is which we were on the premises… As of early this year, 10 months after the break and enter, after considering multiple rental options, I did formally rent the property off a family friend after her relocation for work (no relevance to the break and enter) early this year."
1. the Applicant also relies upon her completion of the Firearm Safety and Training Council Limited course which she completed voluntarily in June 2023. The Applicant's evidence was that in undertaking this course, she had learned much, particularly about storage requirements, but also about other legislation affecting licence holders. The Council is a registered training organisation approved by the New South Wales Firearms Registry and which conducts a mandatory course for all New South Wales firearms holders. According to the Council the course is:
"Designed to improve the general knowledge of the firearms laws in this state and covers a firearm licence holders responsibility as to matters including safe storage transportation use/ carriage/ possession of firearms. The course includes an examination of the issues that gave rise to the cancellation of [the persons] firearms licence and the knowledge and measures necessary to prevent any recurrence"
1. the Applicant has not had any previous transgressions.
2. the Applicant also drew the Tribunal's attention to the severe impact these events have had on her life which only affirm that the conduct leading to the revocation of her license will not be repeated. This impact included the Applicant losing her job, losing her dealer's authority, losing her ability to be involved in her family's business and losing her ability to compete in a sport that she was highly proficient in. These events have been significant both personally and financially to the Applicant. As indicate in her oral evidence, if the Applicant reobtains her firearms licence, her intention is to return to the Firearms Store run by her family.
3. The Applicant also provided a number of references from individuals who clearly hold her in high regard notwithstanding the breach.
[13]
Discussion
The public interest requires that licensees are aware of and comply with the legislative requirements: Lukas v Commissioner of Police [2021] NSWCATAD 268. Public safety requires that licensees maintain their level of understanding of their obligations as a licensee. Section 69 of the Act requires the holder of a firearms licence to notify the Commissioner if there is any change to the licensee's place of residence within 7 days of the change.
I accept that the Applicant has not complied with her obligations under section 69 of the Act. Non-compliance may, in appropriate circumstances, led to the conclusion that she does not have sufficient knowledge of her obligations under the Act. However, I accept the Applicant's evidence that following her separation from her husband, she stayed with friends and family while navigating her new life but that she still considered her martial home her residential address given that most of her possessions remained at that address, she frequented that address in order to facilitate co-parenting arrangements and significantly, it remained her safe storage address for her firearms. This is supported by her ex-husband, who provided a letter of reference dated 14 June 2023 which states:
"Although [the Applicant] was staying at a friend's house at the time of the break in, she had not formally moved out and removed her belongings from the [martial] residence …. We had an agreement she was allowed to keep her belongings at the residence both in the house and an outside storage unit and could come and go as she pleased allowing our daughter time to adapt to her parents' recent separation. The applicant did not formally remove her belongings and cease residency at the marital home until recently as she now has her own place"
While I do not accept that the legislation makes any distinction between "temporary" or "permanent" residence, I accept that the circumstances arising in this application makes the failure to notify of the change of an address a technical breach. I further accept that the Applicant has undertaken an education program to increase her understanding of her obligations as a licence holder. In my view, it is highly unlikely that the Applicant would again breach her obligations regarding notification.
With respect to the Applicant's breach of safe storage requirements, this is a matter in which the Applicant's contravention was a serious one. Because of the breach, there are now firearms which remain unaccounted for, and this poses an ongoing risk to public safety. In this respect, the Commissioner draws my attention to the decision of Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1 and relies upon the following statement:
However, where a contravention has been proven without a conviction having been recorded, Parliament has given the Commissioner a discretion as to whether to revoke a licence. In the opinion of the Tribunal, this discretion does not alter the fundamental nature of a contravention, particularly where a court has made a finding of guilt. In the opinion of the Tribunal, in those circumstances, on a proper construction of the Act, Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety
However, that decision has been considered and applied in a number of times. An example is Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 at [62] (Jameson) where the Tribunal stated:
Safe storage contraventions do not, however, automatically lead to licence revocation. In [Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1], the tribunal set aside the Commissioner's decision to revoke. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 there was a conviction, not merely a finding of guilt, in respect of a safe storage infringement, which was affirmed on appeal. The tribunal nevertheless allowed the applicant to retain his licence, saying "As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi's, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account": at [32].
In this respect, I accept the submissions of Mr Kable that in exercising this discretion, consideration should be given to those elements identified in the Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 and as set down in Jameson which mainly turn on good character and the Applicant's knowledge and understanding of the laws.
While, because of the Applicant's contraventions, there remain firearms unaccounted for, and this poses an ongoing risk to public safety - there are also significant considerations which are in the Applicant's favour.
In Jameson, the applicant placed a number of pistols in the boot of his vehicle the night before he was to go shooting and the pistols were subsequently stolen. The Tribunal set aside the decision to revoke the applicant's firearms licence. At paragraph [76] of Jameson the Tribunal noted:
"While the applicant's contravention was a serious one, I find that he has shown persuasive and relevant circumstances that take his matter outside the ordinary case. They include:
• his unblemished prior record in relation to firearms and the general law;
• his high reputation and standing in the community and in pistol shooting circles;
• his security precautions before the offence exceeding those required by law;
• his contacting the police immediately on becoming aware of the theft, accepting full responsibility and assisting the police by supplying his CCTV footage enabling the wrongdoer's apprehension and recovery of three of the guns;
• his acute remorse and contrition over the event, attested to by all witnesses, together with the sobering experience of being deprived of his licence and unable to engage in his favourite sport for over a year, which will have reinforced the lessons involved;
• his upgrading of the already strong security precautions at his house; and
• the psychological evidence concluding that in the future he is likely to be hyper-vigilant and obsessive over firearm security precautions and is highly unlikely to reoffend. He suffers from no mental disorder and functions fully appropriately in normal society.
I therefore find that there is virtually no risk that Mr Jameson will in the future fail to follow prescribed safe storage or other safety requirements and that it is not contrary to the public interest for him to hold a category ABH firearms licence."
Jameson was also applied in the recent decision of Legallant v Commissioner of Police, NSW Police Force [2023] NSWCATAD 47.
Most of the considerations identified in Jameson are equally applicable to this matter. The Applicant contacted police after becoming aware of the robbery, has accepted responsibility, has an unblemished prior record in relation to firearms and the general law; has a high reputation and standing in the community and in pistol shooting circles. I also have regard to the strength of the evidence of those supporting her including her ex-husband. Additionally, and as referenced above, I further accept that the Applicant has undertaken an education program to increase her understanding of her obligations as a licence holder.
In addition to the considerations in Jameson, I also accept that the circumstances preceding the robbery was a time of transition and stress given the separation from her ex-husband, the need to co-parent her young daughter, the notification of her new partner's impeding departure to Canada and the absence of a permanent home. Those circumstances contributed to her out-of-character behaviour. Those circumstances can now be contrasted with the Applicant's current circumstances that include the support of her ex-husband, permanent residence and living arrangements that allow her to be a registered foster parent to a newborn baby.
In determining this matter, it is necessary to consider the risk to the public should the Applicant have access to firearms. On the evidence before me, in regard to the Applicant's conduct prior to the March 2022 robbery and her conduct since that incident, I am satisfied that her breach was out of character and based on the circumstances then existing. She is extremely apologetic and has undertaken an education program to increase her understanding of her obligations as a licence holder. In my view, it is highly unlikely that the Applicant would again breach her obligations in regard to the storage of firearms.
Based on all the evidence, I have confidence that the Applicant would pose virtually no risk to public safety if she had access to firearms.
It follows that the Commissioner's decision to revoke her firearms licence should be set aside. The effect of that decision is to restore the Applicant's licence.
The correct and preferable decision is to set aside the decision to revoke the Applicant's category ABH licence. If in the circumstances the licence cannot simply be reinstated, and it is necessary for the Applicant to make a fresh application, I see no reason why she should not be able to hold the licence.
[14]
Orders
The decision to revoke the Applicant's Category ABH Firearm Licence is set aside.
[15]
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
[16]
Amendments
18 September 2023 - Coversheet - Representation for Respondent, corrected.
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: 18 September 2023