Jubian v Commissioner of Police, NSW Police Force

Background

1. On 11 October 2017 the Commissioner issued Mr Jubian with a category AB firearms licence which was to expire on 30 November 2022. Mr Jubian's firearms licence was suspended on 22 March 2018. On 4 May 2018 the Commissioner reinstated Mr Jubian's firearms licence and imposed the following special condition on Mr Jubian's firearms licence: "You must not possess or store firearms at any location where (Mr Jubian's wife) date of birth 03/08/1986 resides or frequents."
2. Mr Jubian sought internal review of the imposition of this condition. On internal review the Respondent imposed the following, more onerous, condition: "The licence holder must not possess or store firearms at his residence …, or at any location where (Mr Jubian's wife) date of birth 3 August 1986, may reside or frequent."
3. Mr Jubian applied to the Tribunal to review this condition. He wished to have it removed completely.
4. The main issue in these proceedings is whether, having regard to all the circumstances Mr Jubian's firearms licence should be subject to a special condition.

Background

1. Mr Jubian is a 38-year-old man who lives with his wife. On 11 October 2017 Mr Jubian 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 of a hunting club.
2. On 30 January 2018, Mr Jubian reported losing his wallet and a set of keys at a hardware store. His firearms licence, drivers licence and firearm safe key were among the items lost. At the time Mr Jubian is reported to have expressed concern to police that someone may attend his home and steal his firearms.
3. On 22 March 2018 Mr Jubian and his wife became involved in a verbal argument over parenting and domestic issues. Mr Jubian's wife had very recently given birth to their second child. Police were called to the home. The police then suspended Mr Jubian's firearms licence. Mr Jubian advised police that he had lost the main key to his gun safe which had been reported to police at the time he lost it. He was unable to find the spare safe key which he told police he had stored somewhere within the shed which housed the safe. A locksmith had to break into the safe so that police could then seize Mr Jubian's firearms.
4. On 4 May 2018 the suspension of Mr Jubian's firearms licence was lifted. The Respondent imposed a special condition on Mr Jubian's firearms licence based on the recommendation of local licensing police. That condition was that: "You must not possess or store firearms at any location where (Mr Jubian's wife) DOB 03/08/1986 resides or frequents."

The internal review

1. Mr Jubian applied for internal review of the decision to impose the condition on 24 May 2018.
2. On 29 October 2018 the Respondent advised that the special condition would be amended to show the following: "The licence holder must not possess or store firearms at his residence…, or at any location where (Mr Jubian's wife) date of birth 3 August 1986, may reside or frequent."
3. The reasons provided in the statement of reasons are summarised below.

Factual Background

1. The Respondent relied on the following facts set out in the internal review statement of reasons in reaching its decision to impose both special conditions.
2. Mr Jubian's Category ABH firearms licence issued on 19 January 2001, was revoked after an Apprehended Violence Order was issued on 15 May 2002 for the protection of his previous girlfriend. On the same day, the offence of Common assault - T2 against Mr Jubian was dismissed. On 15 January 2004 at Penrith Local Court the offence of Common assault - T2 was dismissed against Mr Jubian. On 27 February 2004 Mr Jubian became subject of an Apprehended Violence Order issued for the protection of his neighbour and two other members of his neighbour's family. That order expired on 26 August 2004.
3. On 19 January 2009 at the Burwood Local Court the offences of Assault occasioning actual bodily harm - T2, Common Assault - T2, Negligent driving and Drive vehicle in manner that menaces other with intention to menace, were all dismissed against Mr Jubian.
4. On 2 February 2013 Mr Jubian was involved in an argument with his de facto partner - now his wife. She told police that she had mental health conditions and that her father had been concerned for her mental health after he had called and realised they were having an argument.
5. On 6 January 2017 Mr Jubian was again involved in a verbal argument with his wife which became physical, with each making allegations against the other. No signs of injuries were sighted by police and both admitted to overreacting. Police noted that Mr Jubian's wife had mental health issues.
6. On 11 October 2017 Mr Jubian 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 of a hunting club.
7. On 30 January 2018 Mr Jubian reported losing his wallet and set of keys at a hardware store. This loss included his firearms licence, driver's licence and firearm safe key.
8. On 22 March 2018 Mr Jubian and his wife became involved in a verbal argument over parenting and domestic issues, shortly after the birth of their second child. Mr Jubian's wife reported she felt overwhelmed and just wanted Mr Jubian to leave the home. Police believed 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. Police suspended Mr Jubian's firearms licence. Mr Jubian was unable to find the spare safe key which he had stored somewhere within the shed. A locksmith had to break into the safe so police could seize the firearms.
9. On 4 May 2018 the suspension on Mr Jubian's firearms licence was lifted and a Special Condition was imposed on Mr Jubian's firearms licence.
10. Mr Jubian had a history of traffic infringements. This included:

• disobey traffic lights on 2 December 2000, 29 December 2000, 31 December 2008 and 2 July 2009;
• exceed speed limit by not more than 10km/h on 21 January 2014, 24 February 2014 and 15 August 2018;
• exceed speed limit by not more than 15km/h on 2 December 2000, 14 September 2002, 26 August 2004, 16 July 2006;
• exceed speed limit by more than 20km/h but not more than 30km/h on 25 September 2015;
• exceed speed limit by more than 15km/h but not more than 30km/h on 10 December 2001;
• exceed speed limit by more than 15km/h but not more than 30km/h in a school zone on 14 and 19 March 2008;
• exceed speed limit by more than 30km/h but not more than 45km/h on 23 September 2017;
• driver not wearing a seatbelt on 26 November 2004, 14 September 2011 and 6 October 2017; and
• drive using hand-held mobile phone on 15 September 2005, 8 April 2010, 16 June 2011, 24 February 2014, 10 September 2014, 22 December 2019.

1. Mr Jubian's drivers licence has been suspended 6 times. Since being issued with a firearms licence, his driver's licence was subject to an excess speed and demerit point suspension between 4 January 2018 and 3 August 2018. Mr Jubian had been issued two traffic infringement notices, the last being on 15 August 2018 for the offence of Exceed speed limit by more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle (school zone).
2. At the hearing Mr Jubian contested some of the matters relied upon by the Respondent. Mr Jubian told the Tribunal that the AVO in respect of his neighbour had been dismissed and that he had successfully fought the AVO sought by his former girlfriend. He disagreed that his father-in-law had ever called the police when he and his wife were arguing. He denied that he and his wife had ever slapped each other.
3. In other respects, Mr Jubian did not contest the facts as set out by the Respondent.

Mr Jubian's case

1. On 7 December 2018, Mr Jubian applied for administrative review to the Tribunal. He attached a written submission to this.
2. Leave was granted by the Tribunal on 15 January 2019 to extend the time for the filing of the application.
3. On 15 February 2019, Mr Jubian served a statement in support of his case.
4. Mr Jubian relied on the following issues when he sought internal review of the decision to impose the condition on 24 May 2018. His partner was now his wife. They had been together for nearly 14 years. They had had their ups and downs as do all couples. However, he had never been physically violent with his wife. They had had two major arguments to which police had been called by his wife. They were both in relation to verbal arguments and both within a couple of weeks of them having a new child. It saddened and embarrassed both himself and his wife that this special condition was placed upon his licence as they both came from good homes and a good upbringing. He hoped to go hunting with his son in the future and also shooting at registered clubs. He respected and understood the decision was made with the number one importance in mind of community safety. He was proud to live in a country that is so mindful of public safety. He wished to have the condition lifted because he was 37 years of age and did not have a criminal record. He had never been convicted of an assault, drug offence or any other infringement to the criminal law. He also attached a letter from his wife stating that she did not mind having the guns stored safely in their garage which was an external building which is both locked and alarmed. The garage was 15 metres from their back door. It is secured and alarmed.

Letter from Mrs Jubian supporting IR application May 2018

1. The letter from Mrs Jubian stated that the police had been called to their home when she and Mr Jubian had been arguing. She had asked Mr Jubian not to return to the residence as they were arguing. She had just given birth to their second child, one week prior to the incident. She did not want them to fight in front of the children and wanted Mr Jubian to leave. Mr Jubian had returned that morning to collect his belongings and they had another verbal argument. This resulted in Mrs Jubian calling the police to help escort Mr Jubian from the property. She did not consider that the firearms were a threat to her safety and that of her children. Mrs Jubian said she did not have any issue with Mr Jubian storing his firearms at the same residence as her. She did not feel threatened in any way with them being stored at their home. The agreement between them was that they were to be stored in the shed and not inside the family home. The shed needs a pass code to get access inside and is fully alarmed. Mr Jubian did have a spare key that he stored in the shed roof. When the police arrived and ordered the safe to be open, he couldn't find where inside the roof he had kept the spare key. He had also forgotten to get a spare key due to her being pregnant at the time the keys were stolen. He was passed on a lot more responsibilities to help her out as well as attending his full-time job. Mrs Jubian stated that her husband would never hurt any of them with the use of his firearms. They were purchased for recreational use - to go hunting/camping with family and friends and to use them at the St Marys shooting range. She wished for the Respondent to reconsider the decision to have the firearms stored elsewhere. She wished to have them returned and stored safely inside the safe at their home.

Mr Jubian's written submission dated 7 December 2018.

1. Mr Jubian opposed the special condition on the following grounds.
2. He contested the reference to AVOs against him. He had fought and won the AVO dating back to 19th January 2009, sought by his girlfriend at that time, who alleged that he had assaulted her. The case had been fabricated.
3. There was also an AVO placed upon him by his neighbor on 27 February 2004. However, Mr Jubian contended that it had been dropped because there was no evidence of any threats or risk of violence.
4. He and his wife did not agree that her father rang the police which lead the police to attending on 2/2/2013. It was due to a person passing their house who heard the yelling.
5. On the 06/01/2017, the police were called to their property due to a verbal argument that escalated. He told the police that he was to blame as his wife was under extreme stress due to lack of sleep as their daughter had serious sleep issues. He also blamed himself as he was also adjusting to fatherhood.
6. Mr Jubian confirmed that his wife did suffer from panic attacks and acute depression, which was work related and at one point did affect her/their life style in a negative way.
7. Mr Jubian agreed that police had been called to their home due to verbal arguments however there was no domestic violence involved.
8. Mr Jubian objected to the police relying on matters for which he was not convicted to question his character. He stated that keys may be stolen or misplaced, however he did not want the condition forced upon him, affecting his name for future employment status opportunities. He had never been convicted of a crime - big or small. Despite being brought up in Bidwill, he did not have a criminal record. He had been raised to respect the law.
9. He managed an extremely large dealership as a dealer principle. He hoped in the future to take his son and daughter hunting, camping and fishing and to teach them morals and provide a life his parents could not as migrants.
10. At the hearing, Mr Jubian agreed that his driving record was poor. He said the reason for this is that he is a sales representative and he is on the road a lot. Despite this he said he did not see how his driving record was relevant to him being dangerous with firearms stored at his home.
11. When asked by the Respondent, he agreed that he had not taken action for two months after his wallet and keys had been stolen to change the lock on the safe. He had assumed he had a spare key to it. He had inquired but only certain locksmiths were able to do the job. He had it replaced on the day that the police came because they said they would arrest him unless he opened the safe within a short period of time. He stressed the fact that the gun safe is not in the house but in the garage, which has an alarm on it.

Impact of the special condition

1. Mr Jubian told the Tribunal that he has friends who go shooting. Because of his job he has not had that much time to go shooting. However, he would also feel hesitant to go with them because if they return back late and the gun club was closed, he would not know how to store the firearms legally.
2. He said it takes about 20 minutes to drive to the St Marys Gun Club where his guns are currently stored. He said he had really only been to the club a couple of times because he is busy with his work.

The Respondent's case

1. The Respondent provided written submissions in support of the Respondent's case.
2. The Respondent relied on the facts set out in the internal review decision.
3. The Respondent relied on Section 19(2)(a) of the Firearms Act 1996 which states, a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. The NSW Police Force Firearms Registry may refuse a firearms licence application, revoke an existing licence, or place a Special Condition on a licence.
4. The Firearms Act 1996 (the Act) sets up a scheme to license people to possess and use firearms. One of the underlying principles of that 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.
5. The Respondent submitted that the Tribunal needed to be satisfied there was virtually no risk to the public safety. See Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
6. In Tolley v Commissioner of Police [2006] NSWADT 149, the Commissioner had imposed a condition on a licence which restricted the licence holder's ability to store firearms at his premises. The Commissioner's concerns for the public safety arose not from the licence holder's conduct or antecedents, but those of his son. The Tribunal found at [31] that: Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
7. In finding that there was a risk, the Tribunal said at [38]: It cannot be said that there is virtually no risk to public safety if Mr Tolley keeps the firearms at his premises. Determining hypothetical questions such as whether Stuart Tolley will return to reside with his parents and whether Mr Tolley is at greater risk of theft or home invasion is unnecessary to reach this decision. There is a risk to public safety by the existence of the firearms on premises where Stuart Tolley and his associates may be aware firearms are present.
8. The Respondent conceded that the circumstances of Mr and Mrs Jubian differed somewhat from those of the applicant in Tolley, in that neither Mr Jubian nor his wife have the same criminal history or criminal associations as Mr Tolley's son did.
9. However, the potential inconvenience to the Applicant from the imposition of the condition requiring him to store his firearms at a place other than his home residence where his wife resides is not onerous, and by the Applicant's own admission, he "probably won't store [his] firearms at [his] location due to the safety of [his] children as [he has] learnt that keys may be stolen or miss placed (sic)".
10. In Hill v Commissioner of Police, New South Wales Police Service, the Tribunal said that "...a decision maker should not shy from an exercise of [their] discretion merely on the grounds that the licensee may suffer hardship and or inconvenience". Although Hill's matter involved a licence revocation, this observation was equally relevant to the Tribunal reviewing and exercising the Commissioner's discretion to impose a condition on the Applicant's firearms licence.
11. It has been acknowledged that a firearms licence is a privilege and not a right, and that the responsibilities of licence holders are of a serious nature. Furthermore, the likelihood of risk is to be assessed by reference to relevant prior conduct. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at [681]; Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25] and Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].
12. As a result of Mr Jubian's extensive history of traffic infringements, and the subsequent loss of demerit points, Mr Jubian had had his licence suspended on 6 occasions. The Applicant told the Tribunal that he drives for a living as a salesperson. He did not see how his traffic offences were relevant to him being dangerous with a firearm in his home.
13. In the matter of Tannous v Commissioner of Police [2011] NSWADT116, the Tribunal stated at paragraphs [32] and [37], that traffic rules are designed for public safety.
14. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, the Tribunal noted at [76] that "the Applicant's traffic history shows a disregard for public safety and his own safety as he repeated traffic offences. The Senior Member determined at [81] that: "The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety."
15. The Respondent submitted that the Applicant's extensive history of traffic infringements, some of which are repeated, demonstrate a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety.
16. The Applicant's disregard for traffic rules is also reflected in his disregard for the safe storage regulations imposed under the Firearms Act. Although it cannot be said that Mr Jubian's conduct amounted to a breach of the safe storage provisions, his failure to change the locks to his safe storage facility or even locate the spare key following the theft of the main key, demonstrated that he may not have taken all reasonable precautions to ensure the safe keeping of his firearms.
17. Moreover, the most concerning issue for the Respondent, and the most significant reason behind the Special Condition being imposed, is the frequent domestic violence incidents involving the Applicant and his wife.
18. These incidents were significant enough for Police to attend the Applicant's residence, and on each occasion concerns regarding the Applicant's wife's mental health have been noted by Police.
19. The Tribunal could therefore not be satisfied that there is virtually no risk to the public safety if the Applicant were allowed to store firearms at his property where his wife and children also reside.
20. The Respondent acknowledged Mr Jubian's wife's support for Mr Jubian to hold a firearms licence - but she did not wish to have firearms stored inside the house.
21. In light of their history and the possibility of a future dispute, the Respondent submitted that it would be prudent that his firearms not be stored at his residential address, or any address where his wife resides.
22. In summary, the reasons for the Respondent's decision to impose the Special condition were:

• the Police had attended the Applicant's residence on a number of occasions in response to domestic violence incidents between the Applicant and his wife;
• the Applicant's wife had reported a history of mental health issues;
• the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicated a disregard for a regulatory scheme aimed at ensuring public safety; and
• the Applicant had demonstrated a disregard for his safe storage responsibilities under the Firearms Act 1996 (the Act);

The Relevant Law

1. Relevantly, the principles and objects of the Firearms Act 1996 set out in section 3 are to confirm that firearms possession and use is a privilege conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms.
2. Section 19(1) of the Firearms Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
3. In Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23], the Tribunal noted that "the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
4. The licensing regime is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
5. The test is whether the Tribunal can be satisfied that there is virtually no risk to the public safety. See Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [28].
6. Public safety is not defined in the Act. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licensing in Commissioner of Police, NSW Police Force v Toleafoa [1999] NSWADTAP 9. At paragraph [25], it stated that the public interest is: "An inherently broad concept giving the [decision-maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual."

Nature of proceedings

1. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another.
2. Section 63(1) of the Administrative Decisions Review Act 1997 provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and "there is no presumption that the decision of the [Commissioner] is correct. ' See McDonald v Director General of Social Security (1984) 1 FCR 354

The Tribunal's findings

1. The issue for the Tribunal is whether the correct and preferable decision is to impose conditions on the Applicant's licence and if so, what conditions should be imposed. Mr Jubian pressed that no conditions should be imposed on his firearms licence.
2. The question to be addressed by the Tribunal is whether considerations of public interest or a concern for the risk to public safety, justify the imposition of the condition imposed on internal review. The Tribunal must determine, whether any inconvenience suffered by the Applicant as a consequence of the imposition of the condition is necessary to ensure public safety. See: Robinson trading as Botany Mascot Security v Commissioner of Police, NSW Police [2008] NSW ADT 17 at [65]
3. The Tribunal notes that Mr Jubian has had assault charges brought against him and that they were dismissed. The Tribunal considered Mr Jubian's contentions that the 2 AVO incidents involving a previous girlfriend and a difficult neighbour had been dismissed and should not be relied upon. Mr Jubian also told the Tribunal that his father in law had not called the Police to Mr Jubian's home out of concern for his daughter. He asserted that he and his wife had not hit each other.
4. The Tribunal notes that there had been no fresh domestic disputes reported involving Mr Jubian and his wife since March 2018.
5. However, even if the Tribunal were to accept Mr Jubian's contentions about the 2 AVOs - the Tribunal is still left with Mr Jubian's history of coming to police attention in his personal relationships on at least 4 occasions.
6. The Tribunal has considered concerns about Mr Jubian's 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 home on a number of occasions due to domestic disputes.
7. 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 poor traffic record demonstrates a disregard for his own safety and that of others.
8. The licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
9. The firearms licensing scheme is aimed at public safety. Mr Jubian did not take appropriate action in relation to his firearms safe until obliged to do so by police after the loss of his keys.
10. The Tribunal makes no findings about whether Mr Jubian's wife has mental health issues. No medical reports were provided to the Tribunal in this regard. Mr Jubian's wife did not appear before the Tribunal.
11. In these overall circumstances, the Tribunal cannot be satisfied that there is "virtually no risk" to public safety if Mr Jubian's firearms were stored at his home.
12. The Tribunal considers it appropriate to affirm the Respondent's decision on internal review to impose a condition that Mr Jubian not store firearms either at his own home or at his wife's home.
13. It is the Tribunal's view that the Respondent has correctly applied conditions to the Applicant's licence. It follows that the Respondent's decision should be affirmed.

Decision 1. The decision under review is affirmed.

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: 26 April 2019