Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADT AP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Finlay v Commissioner of Police [2020] NSWCATAD 5
Hardes v Commissioner of Police [2022] NSWCATAD 264
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Kammoun v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 273
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Lee v Health Care Complaints Commission [2012] NSWCA 80
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272
Saxby v Commissioner of Police [2021] NSWCATAD 275
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Tannous v Commissioner of Police [2011] NSWADT 11
Umbaca v Commissioner of Police [2021] NSWCATAD 380
Judgment (13 paragraphs)
[1]
Hartmann & Associates (Applicant)
Bartier Perry (Respondent)
File Number(s): 2022/00260318
[2]
REASONS FOR DECISION
The applicant Mr Brendan James Phillip Hunt applied to this tribunal on 1 September 2022 for review of a decision by the respondent Commissioner to refuse his application for a category AB firearms licence. The applicant had applied for the licence on 26 February 2020 and that application had been refused on 1 September 2021.
The refusal letter stated that according to information held by police, he had answered "no" in his application for a firearms licence to the question whether he had been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked. That answer was false or misleading and contradicted a declaration in the application that he understood and certified that all the information in the application was true and correct in every detail.
The applicant applied for a review of that decision on 17 November 2021, stating that he had made an error but was not trying to conceal or hide anything, genuinely thinking he had done everything correctly. He submitted that he is now a primary producer and requires a licence in order to undertake his duties in that capacity. The refusal decision was affirmed following an internal review on 26 August 2022 on the ground of a charge of common assault involving domestic violence, certain other offences, and the provision of false and misleading information to the Firearms Registry. That decision is the decision under review in the present application, which came on for hearing by AVL on 5 April 2023.
[3]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license 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(7) states that "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".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[4]
The evidence
The respondent did not lead oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.
In oral evidence the applicant adopted his signed statement of 1 November 2022 (part exhibit A1), which began by explaining that having reflected in the past weeks and months on his licence refusal, he felt genuine disappointment and regret when reading the s 58 brief. The behaviour mentioned in the brief was of the poorest quality and he made no attempt to water down the severity. He was young and reckless and made some very poor decisions.
He is now 37 and those incidents seem like a lifetime ago. He had grown considerably as a person and as a parent. It was his understanding that having been charged with common assault, he was ineligible to apply for a firearms licence for 10 years. He waited patiently for 10 years and applied, only to be informed that he was unable to apply for another 12 months, the length of time he was placed on a good behaviour bond. There were no breaches of the bond and at no time was he made aware of the extra 12 months he had to wait, even though he telephoned and spoken to the licensing sergeant at his local police station on a number of occasions before applying.
When applying, he misinterpreted the question about prohibition and refusal of having a licence on two separate occasions. Although he did not intend to be deceptive or dishonest, he had clearly answered the question incorrectly, twice. He apologized for not fully understanding the question and the wording within the application. On reflection, he should have read and clarified those questions more thoroughly and would have revised his responses accordingly.
"This said," he wrote, "I do wonder how long these incidents from my past can be held onto and used against me - I think it's a reasonable thought process, to say that I have done the crime - And I have done my time - this should not be a life sentence".
In all aspects of his life, both professionally and personally, he is highly respected, a respect born out of doing the right thing by people continually over many years. He is a natural leader, having captained every sporting side he has played in. He employs 10 people across three businesses and is a serious contributor and leader within his family and community. He understands the level of responsibility and accountability involved in issuing firearms licences and does not take the matter lightly, completely understanding and respecting the cautious approach that must be taken. But people do grow up, and he has.
[5]
Applicant's submissions
In oral submissions Mr Kable submitted that the main thrust of the respondent's case rested on the incorrect answers in the applicant's licence applications, but there were other issues. There was his driving history, but it did not cross the threshold to warrant licence refusal. His last violation was in 2020, with none since, and before that one in 2017. His record had improved over time. Tannous v Commissioner of Police [2011] NSWADT 116 had laid down the framework. The applicant in that case had a long history of violations, and the applicant's record was nowhere near that.
As regards his answers on his application forms, he has explained both instances. He made the 2019 application 9 years after the making of the AVO as he had spoken to his local licensing sergeant and thought the relevant date was the date of sentence, so that he would be eligible to apply, but the relevant period was 10 years after the end of the AVO. As regards the 2020 application, he admits that he had glanced over the question.
There were many cases each way in relation to the disclosure issue. In Constantin v Commissioner of Police [2013] NSWADTAP 16, [26] the Appeal Panel had set aside a decision that was "narrowly based" on a single event. A finding based on the answers in this case was problematic, given the serious nature of a finding that a person is not fit and proper, leading to refusal of a licence. The questions answered incorrectly by the applicant related to an AVO and a licence refusal, both of which had been issued by the police. The firearms registry had the relevant information, so it was not as if the answers related to a matter unknown to the firearms registry. It was open to question whether such questions should even be on the form.
In Webb the applicant had deceived the police about the relevant incidents, but his licence was restored, though his behaviour was worse than giving incorrect answers on a form. Between 2019 and 2020 the applicant became a primary producer. In Finlay v Commissioner of Police [2020] NSWCATAD 5 [85], the tribunal had commented that for primary producers, long arms were a practical necessity, especially in more remote areas. In Hardes v Commissioner of Police [2022] NSWCATAD 264 the tribunal set aside a decision based on incorrect answers in the case of a primary producer.
The present case did not meet the threshold for licence refusal. The applicant's traffic record was a non-event. His referees speak highly of him and their reports should be given full value.
[6]
Consideration
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 CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). 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.
[7]
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides 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".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[8]
Domestic violence
33 The respondent relied on a domestic violence episode that occurred on 29 December 2008. Summarizing the police fact sheet for that matter (H 37054916), the contents of which were not disputed, the facts were that the applicant and Michelle ****** had been involved in a relationship for about 12 months, had which ceased approximately 10 months previously. The parties had been texting each other by mobile telephone on the evening of 28 December and were discussing the possibility of working through their issues. The applicant asked her if he could visit her from Tamworth in the near future, and she agreed, although no timeframe was set.
At about 1:30 a.m. on 29 December, Michelle had been speaking on her mobile telephone at her residence in Charlestown when she heard the front door open and the applicant walked in after letting himself in with a key that he still had in his possession. She asked, "What are you doing here?", to which he replied "I told you I was coming down. Who were you on the phone to? Give it here". Michelle said it was only her aunt, whereupon the applicant snatched the phone from her and began checking it. Michelle seized the applicant's bag that he had in his possession and said, "Well I will go through your phone then". Michelle then threw the telephone down by the applicant's side as he sat on the sofa. She attempted to retrieve her telephone from the applicant, who pushed her away with his hand, saying "You're a scummy and lying black slut. You are shit. You are nothing".
He then stood up and seized Michelle around the throat with one hand, forcing her down onto the sofa, and then struck her several times to the head and face with an open hand, causing pain and swelling to her lower left jaw and inside her mouth. The argument continued for some time and when he decided to leave the house, Michelle convinced him to stay, as he was too tired to drive back to Tamworth. He went to the spare room and lay down. Still wishing to talk with him, Michelle nudged him with her elbow to gain his attention, whereupon he slapped her twice in the face. She put her arm up to protect herself and then punched him a few times in the face in an act of self-defence. They then both retired.
The next morning they continued to argue and the applicant walked to his car in order to leave. Michelle again tried to convince him to stay and to "sort it out", but he refused, and by that stage was sitting in his vehicle. Michelle put her hand over the key in the ignition to prevent him from driving away. The door was open and the applicant punched her four times to the right leg with a closed fist, causing slight bruising. He threatened to punch her again if she did not move away from the vehicle, and pretended to lunge at her but did not assault her in that instance.
[9]
Traffic record
The respondent pointed out that the applicant's traffic infringement history includes 17 violations between 2004 and 2020, including:
eight incidents of speeding, the most recent being in 2020;
two incidents of driving with an expired license (in 2009 and 2015);
one of failing to wear a seatbelt (2013);
one incident of driving with a middle range PCA (in 2009);
one of failing to provide a specimen of breath for analysis or blood test on requirement (2014), and
four other traffic contraventions.
Two of the violations, in 2009 and 2014, led to fines and disqualifications from driving. All of them occurred while the applicant was an adult and most involved repeated infringements, including driving with an expired license (twice), driving or suspected to be driving under the influence (twice) and speeding (multiple times). He was aged 24 when he drove with a mid-range PCA, and 29 when he failed to provide a specimen of breath or a blood test. He was aged 24 and 30 when he was found to be driving with an expired license. He was not a juvenile who could claim he did not know what was legally required of him, and he repeated his "poor decisions" that had previously caused him trouble with the law.
It is established doctrine that repeated breaches of traffic laws aimed at ensuring public safety are relevant to decision-making in a statutory scheme such as the firearms legislation, which also has the objective of protecting public safety: Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145.
Mr Kable pointed out that the applicant's record had improved in recent years and submitted that it had not crossed the threshold such as to warrant licence refusal. Nevertheless, a record involving two disqualifications and numerous and repeated violations, the most recent in 2020, remains cause for continuing concern.
Supplying incorrect information in applications
The applicant first applied for a category AB licence on 30 January 2019. In that application, he answered "No" to the question whether within the last 10 years he had been the subject of an apprehended violence order. He also completed the declaration at the end of the application form certifying that the information given was true and correct in every detail.
[10]
The references
The applicant tendered five recent character references, the first being from Ms Katherine Rawsthorne, who writes that she has known the applicant for more than 10 years and has observed his behaviours in both a professional and a personal capacity. In the agriculture industry she has known him as she was previously employed at a stock and station agency that manages his residential investments. She has formed a high opinion of him from the manner in which he conducts himself, his overall disposition being positive, friendly and cooperative.
At times she has relied on him for professional mentoring as she trusts that he is rational and insightful. He has a strong sense of community and recently purchased earthmoving equipment to assist members of the Quirindi Shire Council to have urgent repairs completed on roadways damaged by flood and weather events. She has witnessed him caring for his five year-old child Clancy and observed that he is an extremely attentive and loving parent. He had confided in her that he does have a criminal record, including drink driving offences and assault charge, and an AVO following an altercation with a woman he had been in a relationship with. She had read detailed information about each incident. Brendan had openly expressed that he feels accountable and remorseful for his actions and has used these negative experiences to project his life in a different direction. He accepts that he reacted poorly in a situation of duress and feels humiliated by his behaviour in regard to his drink driving offences. He now rarely consumes alcohol and she has never witnessed him being intoxicated.
As a woman she has always felt safe and comfortable around him, and he has checked on her welfare in a number of occasions. She often calls on him if she is in an unsettled situation such as locking up commercial premises while it is dark or travelling significant distances. It is her opinion that he is a responsible and sensible man with strong moral integrity.
Mr Joshua Dowe has known the applicant personally and in a professional capacity for the past seven years, during which he sold Brendan rural and animal health products to support his farming enterprise from his place of employment, as he is rural product sales manager for Elders in Gunnedah. He is aware of Brendan's past assault and drink driving offences, but during the time he has known Brendan, he has never found him to be anything but polite and courteous and above all, honest. He is in constant contact with him, 3 to 4 times a week, depending on how busy he is with the farm at the time. They run an account for Brendan, and during that time accounts have always been paid in full and on time.
[11]
Evaluation: fitness and propriety
The applicant is a man aged 37 who operates a sizeable spare parts business and also maintains a cattle and sheep property covering 1087 acres (438 ha) at Currabubula. His current domestic status is not apparent from the evidence, but whatever bit is, it is not a cause for concern. It is clear that he is a conscientious and devoted father to his five year-old son. He has no drug record or firearms contraventions and now drinks only infrequently. There is no history of any mental health problems. He describes himself as "a natural leader" making a serious contribution in business, family and community.
He was found guilty of common assault against his former partner Michelle in a serious domestic violence incident in 2008 which has been described above. He was placed on a 12 months s 9 bond but was called up in 2009 for a breach of the bond. No action was taken and no details are available, but it appears that a breach of the bond took place, notwithstanding the applicant's assertion to the contrary.
There have been no instances of violence since then, but he does have a poor traffic record consisting of 17 infringements between 2004 and 2020, the last being one of his eight speeding incidents. The record also includes a mid-range PCA in 2009 and an offence of failing to provide a specimen of breath or a blood test in 2014. On both occasions he was fined and disqualified from driving. He explains his prior behaviour as being when he was "young and reckless and made some very poor decisions" and also states that he has 'grown considerably as a person".
While there has been an improvement in recent years, a record of 17 infringements in 16 years, including two disqualifications, cannot be described as other than poor. His infringement in 2014 of failing to provide a specimen of breath or a blood test suggests a certain resistance to complying with laws designed to ensure public safety. While his traffic record might not, as Mr Kable put it, "cross the threshold" of warranting licence refusal by itself, it is not by itself: besides the domestic violence episode, there is also the matter of incorrect information supplied in applications.
The applicant contended that the inaccuracies in his 2019 application form were unintentional and were in part the result of incorrect information he was given by the local licensing sergeant. They must also have been partly the result of negligence on his part, however. But by the time he gave a false answer to question (a) in his 2020 application, he should have been keenly aware of the importance of accuracy when completing licence application forms. Yet his evidence was that he had simply glanced over the question (or "glossed over" it, as he put it). As the tribunal pointed out in Umbaca v Commissioner of Police [2021] NSWCATAD 380 the integrity of the licensing scheme depends on applicants providing true and correct information in their licence applications. One may also note that that the misstatement in question was made in the very application which is the subject of these proceedings.
[12]
The 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].
[13]
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: 12 April 2023
Parties
Applicant/Plaintiff:
Hunt
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He has no intention of causing harm to any living person or being. He has applied for the licence so he can humanely euthanize injured livestock without significant cost or prolonged exposure to suffering. His property has adequate fencing and infrastructure, but sheep are vulnerable to attack from predators, including foxes and wild dogs, especially during the lambing season. He currently runs 2000 sheep on the property and it is distressing to find them in a state where they cannot be rehabilitated, with the knowledge that his options for euthanizing them would cause further suffering or significant cost to his business, so much so that it would become financially unviable.
In oral evidence in chief he acknowledged that the s 58 material does not "read well" and said his unfavourable conduct in the past resulted from poor decisions when he was not acting responsibly over time. He was now in a changed situation, had learned his lesson and employs 10 people.
In cross-examination he admitted that the conduct leading to his conviction in Tamworth Local Court on 16 February 2009 of common assault against Michelle ***** was "aggressive and deplorable" and that the issuance of an AVO expiring on 16 February 2010 had been good for both of them.
The applicant was then asked about his declaration in his AB licence application dated 30 January 2019 in which he answered "no" to question (f) in the personal history section, which asks whether in New South Wales or elsewhere the applicant had "Within the last 10 years been the subject of an Apprehended Violence Order….." and agreed that his answer had been incorrect. The AVO issued by Tamworth Local Court on 16 February 2009 remained in force until 16 February 2010, which was after the date of his application. He pointed out, however, that this was his first time to apply for a licence, as he had previously held only a minor permit.
Mr Mattson then asked the applicant about his AB licence application dated 26 February 2020, in which he had answered "No" to the question whether in New South Wales or elsewhere he had "Been refused or prohibited from holding a firearms licence….", when his 30 January 2019 application had been refused on 15 March 2019 on mandatory grounds. He replied that he had received the 15 March 2019 notice and had known that his application had been refused.
In re-examination in relation to his answer to personal history question (f), the applicant said he had telephoned his local police station and the licensing sergeant had said that the relevant starting date of the disqualification was the date of the assault, but he now realized that it should have been when the AVO expired and he should have waited before applying.
He agreed that in his 20 February 2020 licence application he had answered question (a) in the personal history section incorrectly, as he had in fact previously been refused a firearms licence. He agreed that the answer was wrong and that explained that he had "glossed over" the question as he often has to complete 20 forms a week.
The applicant also relied on a number of character references, the contents of which are outlined below.
In reply Mr Kable pointed out that in Romanos v Commissioner of Police [2019] NSWCATAD 272 I had opined that it was not necessary for an applicant to have led an exemplary life. In this case there was no real prospect of risk to the public. There had been no recurrence of domestic violence. Two of his incorrect answers on application forms were simply incorrect dates and the third stemmed from an error in comprehension. His offending had occurred before he was 25 but was legally an adult. It is accepted that the propensity for male law-breaking declines sharply after that age, partly by reason of brain development. Issuing a firearms licence to the applicant would present no realistic risk to public safety.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
Following his arrest, he made admissions during the interview but did state that there were several "mitigating circumstances" surrounding the alleged assault. The admissions and the mitigating circumstances are not set out in the documents. On 16 February 2009 he was found guilty of common assault at Tamworth Local Court, was fined $500 and placed on a s 9 bond for 12 months. He was also made subject to a provisional AVO from 2 January 2009, which became a full AVO on 16 February 2009 and expired on 16 February 2010. The internal review decision states that he "lodged a successful appeal of that decision", but the documents do not contain details of the District Court decision.
On 26 October 2009, the applicant was called up before the Local Court again because of non-compliance with the conditions of the bond, but the learned magistrate decided to take no action on the breach. Details of the breach or the magistrate's reasons do not appear in the documents, but it appears that a breach took place. Consequently, the applicant's submission that there were no breaches of the bond may not be entirely accurate.
Although this domestic violence incident is not recent, it is a serious one and resulted in a finding of guilt, a bond, a fine and a final AVO. It was not a case of a single blow struck an anger, but involved successive assaults over part of the night and the following day, including cuffing, seizing by the throat and punching, causing minor but visible injuries to Michelle's head, leg and inside her mouth. Michelle explained that she struck him back in self-defence, but it is clear that the applicant was the aggressor and Michelle undoubtedly the victim.
Although there has been no repetition of this kind of episode since then, the conduct occurred when the applicant was an adult and was of a serious nature. While the incident is not recent, the mere passage of time does not in itself demonstrate a reformation of character. In Lee v Health Care Complaints Commission [2012] NSWCA 80, [7] - [73], the Court of Appeal quoted with approval from the well-known case Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637 - 638, where the Court of Appeal stated that such cases required an applicant to adduce "Clear proof that some years later he has established himself as a changed man". By "changed man" the court presumably meant that there was positive evidence that his conduct had changed for the better. In this case the applicant has adduced evidence by way of references and certificates, which are summarized below.
That application was refused on 15 March 2019 under s 11(5)(c) which provides that a licence must not be issued to a person who has at any time in the past 10 years been subject to an AVO. But the applicant had been the subject of an AVO issued on 16 February 2009 which was current from that date until 16 February 2010, which meant that the disqualification period did not end until 16 February 2020, after the date of the application. It was therefore mandatory that the application be refused.
As the applicant knew about the AVO against him, the respondent contends that his answer of "No" to question (f) in the personal history section of the application form was not honest. The applicant's explanation was that he had telephoned the licensing sergeant at his local police station on several occasions to discuss the matter and had been told that the starting date for the 10-year disqualification period was the date of sentence, when actually it was the date that the AVO expired.
Whether he misunderstood the licensing sergeant's advice, or the sergeant made a mistake or did not explain the position clearly, this unchallenged piece of evidence does tend to support the applicant's claim of an honest mistake. Further, he had already waited 10 years to make his application, and although waiting a further 12 months would have been inconvenient, it would not have been such a burden as to warrant his risking a mandatory refusal.
He then applied again for a category AB licence on 26 February 2020. In that application he answered "No" to question (a) in the personal history section about whether he had been refused or prohibited from holding a firearms licence. He again completed the declaration at the end of the form about the information being true and correct in every detail. As the application made on 30 January 2019 (the first application) had been refused by notice on 15 March 2019, his answer to that question was incorrect.
In his internal review request dated 17 November 2021 he said he could not offer a sensible explanation as to why he answered the question incorrectly other than to say he believed he had unintentionally "glossed over" the word "prohibited", and believed that he had "glossed over" it because none of the other scenarios applied to him, as up until then he had at no time had a firearms licence or permit refused, suspended, cancelled or revoked. But he genuinely thought he had done everything correctly. In his oral evidence he said again that he had "glossed over" the question and pointed out that he commonly answered some 20 forms a week.
That explanation is unsatisfactory. Question (a) is perfectly straightforward and the applicant's experience with his 2019 application should have made him mindful of the importance of completing licence application forms correctly. The fact that, as he says, he completes 20 forms a week should also have led him aware of the need for accurate disclosure. It is one thing for an applicant to plead that he or she has little or no experience in completing government forms, but quite another to claim that a misstatement can be excused because the maker is experienced in form-filling.
Rev. Dale Martin of Tamworth Presbyterian Church has known the applicant for a couple of years, since they met during a "Good to Great Fathering" course which he was facilitating. He exhibited an openness to improvement in many core aspects of his life and demonstrated a deep commitment to achieving what was necessary to help him be the best father possible for his little boy.
He was immediately impressed with Brendan's genuinely warm personality and his a kind of humility that is increasingly rare. He found Brendan to be honest, trustworthy and a man of his word. Rev. Martin's appreciation of the applicant's character was enhanced by the fact that he offered significant help to him without any personal gain for himself, an act of generosity and kindness so typical of what he has observed of Brendan's nature.
Mr Daniel Clissold writes that he first met the applicant at a wood chopping demonstration at Merriwa Show eight years ago, where they found that they had similar interests in sport, business and farming. Mr Clissold is aware of the applicant's assault charge and drink driving offences and finds them out of character for the person that he has known. He has shown himself to be a very supportive friend and they speak at least three times a week. During this time Brendan has shown himself to be a devoted father to his son, an extremely hard worker and is always kind, courteous and polite.
Ms Anne Blake has been an employee of the applicant at Phil Hunt Parts, where she commenced employment on 7 November 2011. She is aware of Brendan's assault charge and the two drink driving offences. Those charges are quite hard for her to comprehend, because the behaviour is out of character for the person she has known for the last 12 years. In the time she has been at Phil Hunt Parts, Brendan has always been a respectful and decent person. He is an upstanding member of the community and has always been a supportive employer who puts his employees' needs before his own. He is a hard-working small business owner dedicated to helping his customers solve their machinery parts problems. He regrets his past actions and for as long as she has known him, he has conducted himself in a kind, sensible and responsible manner.
There is also a letter from Mr Sam Notley of Roberts & Morrow, who are the applicant's accountants. They confirm that he is a primary producer and operates a cattle and sheep grazing property located at Currabubula. There is also a certificate of completion of the "Good to Great Fathering" course in September 2021 and a certificate of appreciation from Tamworth High School for his support in raising funds and awareness for White Ribbon Day 2010.
From the references he has tendered it is clear that the applicant is well regarded in the Tamworth district as a businessman of substance and that he takes an active role in local community affairs. He has expressed remorse over his past conduct, although his written statement (part exhibit A1) may contain a hint of impatience when he writes "I do wonder how long these incidents from my past can be held onto and used against me - I think it's a reasonable thought process, to say that I have done the crime - and I have done my time - this should not be a life sentence". The licensing scheme is not about "doing time" or any other kind of punishment - it is about minimizing risks to public safety.
In Saxby v Commissioner of Police [2021] NSWCATAD 275, [95] the tribunal stressed that it is required to look at the applicant's conduct as a whole, including potential future conduct, using the applicant's past conduct as a significant guide. Mr Kable pointed out that in Romanos v Commissioner of Police [2019] NSWCATAD 272, [47] I had said that applicants were not required to have led exemplary lives. In the present case, neither the applicant's traffic record nor his supplying of incorrect information, by themselves, might be decisive. Even the assault matter in isolation might not be enough, given the lapse of time, although such a serious episode of domestic violence must remain a weighty consideration, even when it is 15 years old.
Taken together, however, the matters relied on by the respondent raise serious concerns about whether, even now, he can be relied upon to comply with the legislative scheme. Although mere lapse of time without reoffending may not be enough basis for concluding that a person has changed, it does constitute probative evidence. In this case, especially given the serious domestic violence incident, more time would need to elapse before a tribunal could conclude that the applicant would present no real or appreciable risk to public safety, as that concept is understood in Webb. I therefore find that the applicant is not at present a fit and proper person to hold a firearms licence.
The respondent submitted that viewing the applicant's conduct as a whole, as indicated in Saxby, led to the conclusion that it was not in the public interest for the applicant to hold a firearms licence. The applicant is currently a businessman-grazier who runs some 2000 sheep on his 438 ha property and argues that he needs firearms to control ferals and other vermin that prey on his stock.
Considerations of personal interest in having a licence cannot outweigh the public interest in safety (Kammoun v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 273, [97]. But for a New South Wales primary producer firearms are a practical necessity and not merely a personal interest. It is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and primary industry.
Nevertheless, the reasons given above in connexion with fitness and propriety lead to the conclusion that it is not at present in the public interest for the applicant to hold a firearms licence, and I so find.