This is an application by Moris Jibian ("the Applicant") for review of a decision by a delegate of the Commissioner of Police, NSW Police Force ("the Commissioner" or "the Respondent"). The delegate's decision made on 21 February 2023 ("the February 2023 Decision") was to impose a Special Condition on his firearms licence number 408209692 under the Firearms Act 1996 ("the Firearms Act"). The Special Condition prohibits firearms being stored or, possessed, at a location where the Applicants wife resides or frequents, which means he could not store firearms at his home in Western Sydney. This was due to a history of allegations of arguments over parenting and domestic issues which required police intervention.
It is noted that a similar Special Condition was imposed on the Applicant's licence prior to him applying to reissue that licence. The Tribunal determined that it was appropriate for the Special Condition to remain in the decision of Jibian v Commissioner of Police, NSW Police Force [2019] NSWCATAD 70 ("the 2019 Decision").
[2]
The Applicant's firearms licence history and applications for administrative review
It is convenient to set out a summary of the Applicant's firearms licence history at this juncture. The Applicant does not dispute this history. I have included some parts of the summary where the Applicant provided a different version of events.
The Applicant was issued a Category ABH firearms licence on 19 January 2001.
On 15 May 2002, the licence was revoked after the Applicant became subject to an apprehended violence order.
On 27 February 2004, the Applicant became the subject of a second apprehended violence order issued for the protection of Wayne Hannah and two other members of his family. That order expired on 26 August 2004.
On 2 February 2013, Police attended the Applicant's residence in response to a report of domestic violence. Leyla Arslan (who was the Applicant's de facto partner at the time), informed Police that she suffers from panic attacks and agoraphobia and that her father had been concerned for her mental health after he had called and realised she and the Applicant had been having an argument.
On 6 January 2017, Police again attended the Applicant's residence in response to a report of a verbal argument that became physical. No signs or injuries were sighted by Police, and both the Applicant and Ms Arslan admitted to overreacting. It was noted by Police at the time that Ms Arslan suffers from depression and has taken Valium for seven years.
On 11 October 2017, the Applicant was issued with a Category AB firearms licence to expire on 30 November 2022 for the genuine reason of Recreational Hunting/Vermin Control based on his membership with a hunting club.
On 30 January 2018, the Applicant reported losing his wallet and set of keys at a Bunnings store. The Applicant's firearms licence, driver's licence and firearm safe key were among the items lost, and the Applicant expressed concern to Police that someone may attend his home and steal his firearms.
On 22 March 2018, the Applicant and Ms Arslan became involved in a verbal argument over parenting and domestic issues. Ms Arslan had very recently given birth to the couple's second child and reported feeling overwhelmed. Police considered that the stress of a new baby, coupled with sleep deprivation would have been contributing factors to the incident, and post-natal depression was also flagged as another possible factor.
As a result of the 22 March 2018 incident, Police suspended the Applicant's firearms licence. The Applicant subsequently advised Police that he had lost the main key to his gun safe and was unable to find the spare which he had stored somewhere in the shed which houses his firearms safe. A locksmith was required to break into the safe so Police could seize the firearms.
On 4 May 2018, the Respondent advised the Applicant that the suspension of his licence had been lifted and a decision had been made to impose the following Special Condition on the Applicant's licence, pursuant to section 19(1) of the Act:
You must not possess or store firearms at any location where Leyla Arslan DOB XX XX XXXX resides or frequents.
On 25 May 2018, the Applicant submitted to the Respondent a request for internal review of the decision to impose the Special Condition on his Category AB Firearms Licence.
On 29 July 2018, the Respondent undertook an internal review of the decision to impose the Special Condition. The decision was made to affirm the decision to place a Special Condition on the Applicant's firearms licence, although amended the wording to reflect the Applicant's wife's married name, as follows:
The licence holder must not possess or store firearms at his residence at [address] or at any location where Leyla Jibian (also known as Leyla Arslan) D.O.B. XX XX XXX may reside or frequent.
("the Special Condition")
On 7 December 2018, the Applicant made an application for administrative review to the Tribunal.
On 26 April 2019, the decision to impose the Special Condition on the Applicants licence was affirmed by the Tribunal.
On 11 September 2021, Police received a phone call from the Applicant who was enquiring about the fine for breaching COVID-19 restrictions. It was reported that the Applicant wanted to see his mother as he had not seen her for 4 months. After being informed that he would be unable to do so, the Applicant reportedly told Police he did not care and would be going anyway and would "cop the fine" if he got caught by Police. Police noted that the Applicant was "belligerent and showed little regard for the pandemic or Police". The Applicant provides a slightly different version of events. He denies he was belligerent and told police he had compassionate grounds to see his other. Ultimately, he did not leave his home.
Since the Tribunal's decision in 2019, the Applicant has also received further traffic infringements for the following offences:
(a) exceed speed limit by more than 10 km/h but not more than 20km/h whilst driving a motor vehicle on 12 March 2021;
(b) exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected) on 18 May 2021;
(c) driver use mobile phone when not permitted (camera detected) on 24 February2021 and 10 March 2022; and
(d) overtake vehicle unsafely - without clear view approaching traffic.
As a result of the above infringements:
(a) the Applicant was made subject to a demerit points suspension on 2 June 2021, which was extended subject to the Applicant passing an Increased Traffic Offender Penalty Knowledge Test;
(b) the Applicant was issued demerit point warning letters on 16 September 2022 and 5 May 2023; and
(c) on 15 January 2023, the Applicant's drivers licence was suspended until 4 May2023 as he failed to complete a Driver Education Course.
On 12 April 2022, the Applicant submitted a request to remove the Special Condition from his Category AB Firearms Licence, 15 which noted he:
(a) wants to have the Special Condition removed as his daughter was soon to tum 7 and his son would be turning 5, and he wishes to take his family on trips and experience recreational hunting; and
(b) is considering buying a farm; and
(c) has not shown any sign of aggression.
On 16 May 2022 and 7 July 2022, the Applicant sent further emails to seek an update on his request submitted on 12 April 2022.
On 30 August 2022, the Applicant submitted a renewal application for his firearms licence." In that application, he noted that he did not agree to the Special Condition remaining on his licence, on the basis that:
(a) there had not been any further domestic incidents with his wife;
(b) he has not shown any reason to justify the Special Condition;
(c) he wishes to one day take his son hunting and having the Special Condition has proven to be a nuisance, as it is frustrating to store his firearms elsewhere;
(d) he is in the process of buying land in Mudgee 'down the track to take his family hunting once of age'.
On 30 November 2022, the Applicant was issued with a Category AB firearms licence with the Special Condition, to expire 30 November 2027.
On 21 February 2023, the Respondent responded to the Applicant's request and confirmed that the Special Condition will remain in place and that the Applicant's firearms must remain stored at an alternative safe storage address.
On 3 March 2023, the Applicant sent an email to the Firearms Registry, which was taken to be a request for an internal review of the decision made on 21 February 2023. In that request the Applicant stated that the Special Condition is causing him unnecessary grief, as both he and his wife want to go on hunting trips together with their kids, and they are looking at purchasing acreage in the near future.
On 13 March 2023, the Applicant filed an application for administrative review of the Respondent's decision.
On 26 April 2023, the Tribunal directed that the decision be remitted to the Respondent for reconsideration, given that an internal review had not been undertaken.
On 12 May 2023, the Respondent reviewed and affirmed the decision, that, the Special Condition is to remain imposed on the Applicant's licence ("the Reviewable Decision"). It is the Reviewable Decision which is the subject of this application.
On 27 June 2023, the Applicant confirmed that he wished to proceed with his application, and directions were made to progress the matter to hearing.
The reasons provided by the Respondent which are outlined in the Reviewable Decision, include:
1. The underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms;
2. Public interest is the fundamental objective of the Firearms Act;
3. In fulfilling this fundamental objective, the Respondent is compelled to assess not only the character of the Applicant, but also the Applicant's way of living and the domestic circumstances to ensure these circumstances pose 'virtually no risk' to public safety;
4. The Registry took into account both the conduct of the Applicant himself and the conduct of anyone else with whom they are in a domestic or familial relationship;
5. Based on the information available to the Respondent pertaining to both the Applicants wife, with whom the Applicant resides, the Respondent was unable to be satisfied that the presence of firearms at the Applicant's residence is in the public interest;
[3]
Background
It is not in contest that the Applicant has held a category AB firearms licence since 11 October 2017. The Special Condition was placed on the licence 4 May 2018 and amended on 29 July 2018. The Tribunal affirmed the imposition of the Special Condition in 2019. The licence was renewed on 30 November 2022 and is to expire on 30 November 2027. The same Special Condition remains imposed. He has held that licence continuously during that period. The reason the Applicant sought to obtain a firearms licence was "Recreational hunting/vermin control". There is no evidence that the Applicant has come to the attention of the Commissioner or any other authority concerning any misuse of his firearm or non-compliance with the firearms legislation. I do note that the Applicant self-reported to the NSW Police instances where he had lost the keys to his firearms safe.
The Applicant submitted that it is inconvenient, frustrating and a nuisance for the condition to remain on his licence. He is not able to service his firearms at home and has to travel a distance to where he stores them. He contends that he would like to be able to take his wife and children hunting and intends to buy a country/rural property in the future, all of which is frustrating and inconvenient where his firearms are not able to be stored at his home. He also contends that the incident involving his wife occurred some years ago and there has been no domestic related incident since. In these circumstances, the is virtually no risk to the public and the condition should be lifted.
[4]
Issues for determination
The Tribunal is to determine whether the correct and preferable decision is to lift the Special Condition placed on the Applicant's firearms licence.
[5]
Applicable legislation
Section 9 of the ADR Act provides the Tribunal with jurisdiction to review a decision of an administrator where 'enabling legislation' enlivens the Tribunal's administrative review powers. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner to impose a Special Condition on a firearms licence.
This application is made under section 75 of the Firearms Act and the ADR Act.
The Firearms Act sets up a scheme to licence people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Section 3(1) provides:
(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.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:
"[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ..."
Section 12 of the Firearms Act provides that an Applicant for a firearms licence must have a "genuine reason" for holding a licence. Sport or target shooting is a genuine reason.
Section 19 of the Firearms Act provides a basis for the Commissioner to issue a firearms licence subject to such conditions as the Commissioner thinks fit. This is provided the discretion is exercised in a way that promotes the principles and objects of the Firearms Act (see Cusumano v Commissioner of Police [2001] NSWADT 50), namely, to ensure public safety through strict controls upon licensing. Family relationships are of particular concern when affected by domestic violence and a history of criminal offending.
Special Conditions should be proportionate to the risk to public safety, when weighed against the level of interference with the genuine reasons for the Applicant holding and using a firearm (Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83; Ryan v Commissioner of Police [2021] NSWCATAD 23). When exercising the discretion, a decision maker should not shy away from imposing a condition merely because it may cause inconvenience to the licence holder (Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]).
In these circumstances, the question for the Tribunal in this matter is whether or not the decision to impose a Special Condition on the Applicant's licence is the correct and preferable decision having regard to s 19 in its statutory context, which includes exercising the discretion in a way that promotes the principles and objectives of the Act (Cruickshank v Commissioner of Police [2022] NSWCATAD 115 at [29]; Grant v Commissioner of Police [2020] NSWCATAD 158 at [31]).
[6]
The public's safety
The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court 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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation."
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:
"The 'public interest' allows, we consider, for issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy, as she then was, 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."
This approach has been applied consistently in matters where the reviewable decision is to refuse to grant a licence, but it is also relevant considering the issue of safety to the public when exercising a discretion to impose a Special Condition. That is, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
Section 3 of the Firearms 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 paragraphs [27] - [28] ("Ward v Commissioner of Police") Deputy President Hennessy, as she then was, 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."
Ward v Commissioner of Police dealt with the issues of whether the Applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking into account of all the circumstances, including attitudes, character, and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at paragraphs [64] - [66].
The Tribunal needs to examine whether there is a risk to public safety if the Applicant was to be issued his firearms licence without the Special Condition. An appreciation of the Applicant's entire history, including his family who live or associate with him in the circumstances of this matter, and not just the Applicant's recent conduct, is important to the public interest considerations.
In determining these issues, 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
The Respondent has lodged a bundle of documents pursuant to section 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.
[7]
The material before the Tribunal
As noted, the Commissioner relies on an initial and supplementary bundles of material filed pursuant to section 58 of the ADR Act ("the section 58 documents") on 14 June 2023 and 25 August 2023. This material includes a number of records held in the Respondent's electronic database ("COPS"). The Respondent has filed written submissions.
The Applicant relies on his application filed 13 March 2023, a hand written statement dated 20 July 2023. This includes a statement from his wife. A typed version of the hand written statement was also before me. The Applicant said that the typed version is to be relied upon if there is any inconsistency with the hand written document.
[8]
The Respondent's case
As noted above, the Applicant's category AB firearms licence had the Special Condition imposed on it.
The Commissioner relies upon the following facts to support the conclusion that it is contrary to the public interest for the Applicant to hold a category AB firearms licence, without the Special Condition.
[9]
Risk to public safety
While acknowledging that there have been no reported domestic disturbances apart from those referred to in the summary above, the likelihood of risk is to be assessed by reference to relevant prior conduct (Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]). In these circumstances, the Tribunal could not be satisfied that there is virtually no risk to the public safety if the Special Condition was lifted.
The respondent submits that the Applicant has a significant traffic record dating back to when he was granted his provisional licence. This traffic record has been previously set out in the 2019 Decision at [23]. I do not intend to set it out here in detail. Suffice to say I have had regard to the history and this submission.
After the 2019 Decision, the Applicant received further traffic infringements, which he does not dispute, including:
(a) exceed speed limit by more than 10 km/h but not more than 20km/h whilst driving a motor vehicle;
(b) exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected) on 18 May 2021;
(c) driver use mobile phone when not permitted (camera detected) on 24 February 2021 and 10 March 2022; and
(d) overtake vehicle unsafely - without clear view approaching traffic.
The Applicant has had his driver's licence suspended on more than 8 occasions.
Due to the Applicant's extensive history of traffic infringements, some of which are repeated, the Respondent submits that he demonstrates a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety.
I note this submission was accepted by the Tribunal in the 2019 Decision, before the Applicant had accrued further traffic offences. The Respondent contends in effect, that the Applicant continues to exhibit a disregard for safety and the regulatory scheme aimed at ensuring public safety.
The Respondent draws to my attention the following parts of the 2019 Decision at [80]-[81]:
The Tribunal has considered concerns about Mr Jubian's (sic) prior conduct. Mr Jubian has a poor traffic record. He did not take action to have the locks on the firearms safe changed after he had lost his keys and firearms licence until he was obliged to do so some two months later when the police were called to his home. There is a history of the police being called to Mr Jubian's (sic) home on a number of occasions due to domestic disputes.
In the matters of Tannous v Commissioner of Police [2011] NSWADT116 and Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 the Tribunal observed that traffic rules are designed for public safety. The poor record of the Applicant, Mr Keegan Jacques who had repeated traffic offences, demonstrated disregard for his own safety and the safety of others. The Tribunal considers that Mr Jubian's (sic) poor traffic record demonstrates a disregard for his own safety and that of others.
The Respondent submitted that the Applicant's disregard for traffic rules is also reflected in his disregard for the safe storage regulations imposed under the Act. However, she acknowledges that the Applicant's conduct amounted to a breach of the safe storage provisions.
Finally, the Respondent submits that the Applicant's attitude towards the law and ensuring the safety of the public during the COVID-19 pandemic and his attitude towards Police in stating he would breach Public Health Orders is demonstrative of the concern which is held with ensuring public safety.
In circumstances where the Applicant has continued to incur traffic infringements and has displayed a poor attitude towards Police and Public Health Orders, the Respondent submits that it would be prudent that the Special Condition remain on his licence.
[10]
The inconvenience caused by the imposition of the Special Condition
The Applicant's genuine reason for obtaining a firearms licence is vermin/hunting management and recreational shooting. I accept the Respondent's submissions that there is no compelling reason for the Applicant to possess and/or use a firearm at his residence. Despite the Applicant's submission that he intends to buy a farm, he has not done so. This is given little weight. The Applicant's current circumstances can be contrasted with a farmer who might require a firearm for vermin, pest and livestock management. I accept that there would be considerable inconvenience to the licence holder and interference with the genuine reason for holding a licence if firearms could not be stored on rural premises. The Applicant lives in a residential area and does not have any need to store or use his firearms at his home, apart from it would be more convenient to do so. During the hearing, the Applicant agreed that his children are too young (eight and five years old) to seek a minors permit, and therefore lawfully use and possess firearms.
The Respondent submits that the correct and preferable decision is that the decision of the Respondent be affirmed as the imposition of the Special Condition is to ensure public safety. The Applicant incurs little, if any, inconvenience as a consequence of the Special Condition by reference to the genuine reason for which he holds a licence. In light of the totality of the evidence, the Respondent submits that it cannot be said that there would be "virtually no risk" to public safety if the Decision were to be set aside.
[11]
The Applicant's case
The Applicant provided a statement dated 20 July 2023. The statement is short in nature and I set out the relevant parts:
"Hi it's moris jubian, I have obtained all the documents needed that were required from my self.
Below is a letter from my wife leyla jubian explaining the situation and signed by the justice of the peace, further more I would like to comment on two of the issues raised by the police commissioner.
Issue 1) raised by police commissioner is my "driving records". That I can not argue I do have a history of traffic infringements however I would like to point out none are DUl, or driving in a reckless manner, nor was I speeding over 20kms per hr. I travel daily due to my work and am on the road most of the day, and in some cases travelling to new locations. All of my fines are minor speeding, or on the phone, still wrong however not as bad as it has been made out to be however for that I apologise regardless and traffic laws are their for safety of human life.
Issue 2) alligatons (sic) "I rang the police wanting to break the lock down law or breach it"
Let me explain why this is obscured and frustrating with all due respect not only should be removed from concern however I would like an apology for an utter fabrication, please retrieve the call I made and you will find out what took place. Please allow me to explain... My elderly mom Victoria jubian age 71 at that time rang me during covid lockdown crying and telling me she is not well and is also lonely and doesn't understand why I can't at least come and check on her as she also has cataract and does not see well.
After receiving that call I was emotional and I believe I did the right thing at that time, I rang the police and explained that "I want to drive from Newcastle to Sydney to see my mum that is elderly and is crying" I explains the reason to the police on the phone and she said "I can not!", I then responded "I just watched a party on tv which took place at Bondi on news, all I want is to see my mum!" She then responded, then "if we catch you driving we will fine you!" I then responded back and said "ok fine me I just want to see my mum". The police officer then said "we will also are at you!" I then responded " it seems like you are escelating (sic) the consequences as I agree"
So I never got to go and see my mum. Which I'm also confused " AUSTRALIA which is known as one of the worlds best place to live prohibits compassionate visit when a obviously law abiding citizen rings and tries to explain the situation and then to be villainized for doing the right thing in such a terrible time and ringing the police and explain the situation actually offends and saddens me.
I do apolisge (sic) if I sounded frustrated explaining issue 2 response however I'm sure anyone who listens to that phone call would see what truly transpired."
The Applicant gave oral evidence. He affirmed his statement and was cross-examined. I accept his explanation for why he made the enquiry with the NSW Police about visiting his mother during COVID -19. The important thing is he did not breach the Public Health Order. COVID-19 was a difficult time for many residents. I accept that his interaction with the Police was one borne out of the frustration he refers to. The incident attracts little to no weight in this administrative review application.
Mrs Jubian said that she did not believe having firearms at the home presented any threat to her or her children. She said that the incident in which the Special Condition was imposed related to adapting to parenthood and it never involved any violence. She intends herself to obtain a firearms licence. Mrs Jibian was not cross-examined.
I accept the Applicant as an honest and reliable witness.
[12]
Discussion
This is a matter which concerns whether it is in the public interest for the Special Condition to be lifted from the Applicant's firearms licence.
The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the decision under review should be affirmed.
[13]
Public safety
I am not satisfied that there is "virtually no risk" to "public safety" if the Reviewable decision was to be set aside and the Special Condition lifted.
The Applicant has a reasonably long history of domestic disputes which have involved the police. I note that some of the previous two AVO's involving previous girlfriends and a difficult neighbour, which were dismissed. Despite this, the Police have come to the home of the Applicant in relation to his personal relationships on at least 4 occasions. I accept that since March 2018, there have been no recorded further domestic incidences. But, I am required to take into consideration the Applicant's entire history.
I have considered the Applicant's traffic record, and in particular, the additional traffic record since the 2019 Decision. It is trite to say that traffic rules are designed for public safety. In one of the offences, the Applicant was detected driving a motor vehicle while using a mobile telephone. For that, there is no excuse and it is a blatant disregard for the traffic laws. I agree with the Tribunal's findings in the 2019 Decision at [81] that the Applicant's poor traffic record, and continued breach of the traffic laws, demonstrates a disregard for his own safety and that of others. Albeit at the lower end of the range, he has continued to offend.
Mrs Jibian has provided no evidence concerning her mental health or anxiety issues. I note the police reports contain allegations of panic attacks, agoraphobia, depression and concerns for her mental health. Mrs Jibian had the opportunity, but did not address her mental health in her statement.
I have considered the explanation of the Applicant and his wife as to the their version of the events that day. However, their explanation implies an inability to control emotions or frustrations in a mature and responsible way. At its highest, I infer from the explanation provided by Mrs Jibian that she may have been experiencing stress and anxiety or something similar when her second child was born. I have some concern over whether she had, has, or remains untreated for any related mental health illness. The Applicant and Mrs Jibian could have provided an explanation concerning the historic notations contained in the police records. No recent medical or lay evidence is available to counter the question that arises with respect to her current or previous mental health and public safety. There is no evidence about whether the Applicant and/or Mrs Jibian sought counselling or treatment in circumstances where police intervention was required.
Domestic related disturbances are a significant problem and concern within our community. This risk of harm to the public is heightened when domestic disturbances events occur and firearms are potentially accessible which can lead to tragic outcomes.
I find that there remains a real and appreciable risk to the safety of the public in terms of firearms being stored at the home. That risk which is not far fetched or fanciful, and it can not be said as being virtually no risk to public safety in these circumstances.
[14]
The inconvenience argument
I have considered the inconvenience to the Applicant in not being able to store firearms at his home. In weighing that inconvenience and the risk to public safety, for the reasons as set out above, the risk (which is real and appreciable risk) to public safety is greater.
Regulation 28B of the Firearms Regulation which provides requirements relating to where a firearm may be stored. The requirements are as follows:
(1) The holder of a licence or permit must not store a firearm in a dwelling unless it is an inhabited dwelling.
…
(2) The holder of a licence or permit must not store a firearm on premises other than a dwelling unless -
(a) the premises are in a proximity to an inhabited dwelling that allows the premises to be easily observed by the holder of the licence or permit, or by a person on behalf of the holder of the licence or permit, from the inhabited dwelling, or
(b) the holder is a licenced firearms dealer and the premises are commercial premises from which the holder carries on the business of, or at which the holder carries on activities as, a firearms dealer, or
(c) the requirements of subclause (3) are complied with.
…
(3) For the purposes of subclause (2)(c), the requirements are as follows -
(a) the firearm must be -
(i) stored in a safe of an approved type, and
(ii) fitted with a trigger or barrel lock that prevents the firearm from being discharged, and
(iii) secured individually on, or in, a locked device within the safe,
(b) the safe must be fitted with an alarm of an approved type that is monitored off-site,
(c) the premises on which the firearm is stored must have an intruder alarm and duress facilities that are monitored off-site and are of an approved type.
(4) In this clause.
inhabited dwelling, in relation to the storage of a firearm by the holder of a licence or permit, means -
(a) a dwelling that is the principal place of residence of a person, whether or not the person is the holder of the licence or permit, or
(b) a dwelling at which a person resides while the firearm is stored there, whether or not the person is the holder of the licence or permit.
permit means a permit that authorises the possession of a firearm.
The Applicant identified that he could store his firearms at a number of storage facilities or other people's homes, namely: his mother's property, but he does not like this, a Storage King facility (but it has no vacancy), and the St Mary's gun club (but it has no vacancy). I note that the Applicant also has the possibility of negotiating with firearms dealers to store his firearms.
The Applicant can also store his firearms elsewhere, for example at a fellow gun club member's residence, his friends or family.
The balance lies in the Applicant being granted a firearms licence, where he can pursue his recreation sport of shooting or hunting, and protection of the public be maintained by imposition of the Special Condition. The principles and objects of the Firearms Act are met by affirming the Reviewable Decision.
Having considered the totality of the evidence, the correct and preferable decision is for the Reviewable Decision to be affirmed.
[15]
Order
1. The decision under review is affirmed.
[16]
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: 22 February 2024