Ljubenkov v Commissioner of Police, NSW Police Force

Background

1. It is not in contest that the Applicant has held a category AB firearms licence since 16 September 2022. The special condition was placed on the licence when it was issued. The licence is to expire on 3 November 2024. He has held that licence continuously during that period. The reason the Applicant sought to obtain a firearms licence was "Club member, target shooting club, longarm". 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.
2. The Applicant submitted that it is "very inconvenient" for the condition to remain on his licence. He is not able to service his firearms at home and has to travel a significant distance to where he could store them. He also contends that the incident involving his wife and daughter occurred some four years ago. He has banned his son from visiting the property and states that he now lives some distance from the family home. In these circumstances, the is virtually no risk to the public and the condition should be lifted.
3. It is convenient to set out a summary of the conduct of the Applicant's son and his wife which, the Respondent contends is of concern and a risk to public safety.

Allegations concerning Anthony and Mrs Ljubenkov

1. The Respondent in her written submissions set out that from 1 June 2009 to 23 January 2019, the following events are recorded within the Respondents COPS record. The record of events were not in dispute. (1) On 1 June 2009, the Applicant called police to attend his residence following escalation of a verbal argument between the Applicant and Anthony who took the family vehicle without permission. Police attended the Applicant's residence and spoke to Anthony no further action was taken. (2) On 18 September 2010, police attended the Applicant's residence regarding Anthony's escalating behaviour of verbal and physical threats. Both the Applicant and Mrs Ljubenkov reported incidents of violence to police and held concerns regarding Anthony's drug use. No further action was taken. (3) On 9 March 2011, police attended the Applicant's residence regarding Anthony making threats of self-harm and suicide. Anthony was taken to hospital by police involuntarily for purposes of a mental health assessment. (4) On 2 February 2012, police were called to an incident involving the Applicant and Anthony at the Applicant's residence. It was alleged the Applicant physically assaulted another male by grabbing his throat, punching him several times and wrestling. It is also alleged that the Applicant struck the male with a baton several times to the head. The Applicant denied intentionally assaulting anyone and stated he acted in self-defence. No further action was taken by police due to conflicting witness accounts. (5) On 17 December 2012, police were called to the Applicant's residence following an altercation with Anthony. It was reported that upon being refused entry to the premises, Anthony became physically and verbally aggressive, kicking down a side door of the property to gain forcible entry and then entering the house. Mrs Ljubenkov reported to police that she feared for her safety, she believed Anthony was engaging in drug use and was mentally unstable, and had intimidated and stood over her in the past. An interim Apprehended Domestic Violence Order was taken out by police on Mrs Ljubenkov's behalf. (6) On 28 December 2012, police attended the Applicant's residence regarding an argument between the Applicant and his two daughters, Bianca and Dearna Ljubenkov. The CAD message reported that Dearna had been physically assaulted by her father. The Applicant engaged in a 'heated verbal argument' where both children were asked to leave the house due to perceived disobedience. Both daughters spent the night at their grandmother's house nearby, but denied any injuries or the need for police assistance and were not willing to make a statement to police. No further action was taken. (7) In or around December 2012, the relationship between the Applicant and Anthony had broken down. As a result, Anthony was "kicked out" of the home. On 13 December 2012, Anthony was asked by his parents to leave the vicinity of his parents' home where he was observed in a car with friends. Anthony was permitted in the home after his friends left to retrieve some personal property. On 17 December 2012, Anthony attended the home and requested to pick up more personal property. He was denied entry by Mrs Ljubenkov as the Applicant was not at home and an argument ensued. Anthony then commenced damaging the exterior of the home and broke a glass panel before gaining entry to the home where he obtained further personal items. (8) On 5 February 2013, a final Apprehended Domestic Violence Order was made in relation to the incident above at paragraph 9(7) with the following conditions: that Anthony must not assault, molest, harass, threaten, otherwise interfere with, intimidate, stalk Mrs Ljubenkov or any person she is in a domestic relationship with, must not enter the Applicant's premises and must not destroy, damage or interfere with the property of Mrs Ljubenkov. (9) On 23 January 2017, the Applicant phoned the police regarding an argument between himself and his daughter, Bianca, and her subsequent refusal to leave the house at his request. Police spoke to both parties who informed them that a verbal argument took place. No further action was taken. (10) On 20 January 2019, police responded to a domestic incident at the Applicant's address. It was reported that Mrs Ljubenkov had been verbally and physically abusive towards both the Applicant and their adult daughter, Bianca following a verbal argument. The Applicant instructed Bianca to phone police for assistance after multiple attempts were made to de-escalate the situation. When providing a statement about these events to police, Bianca reported prior aggressive behaviour on behalf of Mrs Ljubenkov towards herself and her sister. She also described Ms Ljubenkov as having an unstable emotional state, poor impulse control and unpredictable behaviour, her anger often becoming out of control. Bianca also reported fears for her safety. When providing a statement about these events to police, the Applicant described Mrs Ljubenkov's emotional state as consisting of exponentially increasing anger lately which escalated to the point of explosion. (11) On 8 March 2019, Mrs Ljubenkov was charged with one count of destroy or damage property in a domestic violence context and one count of common assault in a domestic violence context. In respect of these charges Mrs Ljubenkov was sentenced to a conditional release order without conviction, provided she committed no further offences for 12 months, to be carried out under the supervision of community corrections service.
2. It is not in dispute that the criminal history of Anthony, includes the following charges: (1) On 12 July 2011, Anthony was charged with four counts of break and enter and one court of larceny, for which he served a sentence of 6 months imprisonment; (2) On 16 August 2012, Anthony was charged with one count of assault occasioning actual bodily harm, for which he served a sentence of 4 months imprisonment; (3) On 8 January 2013, after being refused entry to the Applicant's residence, Anthony's behaviour escalated to physical violence and threats, in respect of which a second AVO was taken out to protect Mrs Ljubenkov ; (4) On 26 January 2013, Anthony was charged with one count of destroy/damage property for which he was issued a fine; (5) On 14 August 2016, Anthony was charged with one count of drive with drug in system; (6) On 25 August 2017, Anthony was charged with one count of drive with drug in system; (7) On 27 December 2017, Anthony was charged with resist arrest, for which he was sentenced to a 9 month suspended sentence and good behaviour bond; (8) On 21 March 2018, Anthony was charged with one count of destroy/damage to property and one count of failure to appear, for which he was sentence to 12 months imprisonment due to breach of good behaviour bond; (9) On 24 January 2020, Anthony was charged with two counts of Destroy/Damage property in a domestic violence context, for which he received a fine; (10) On 2 November 2020, Anthony was charged with one count of Contravene Apprehended Domestic Violence Order, for which he was sentenced to an 8 month intensive corrections order; (11) On 29 January 2021, Anthony was charged with one count of Contravene Apprehended Domestic Violence Order, one count of use carriage service to threaten to kill and two counts of stalk/intimidate for which he was sentenced to 5 days imprisonment. [NOT FOR PUBLICATION]
3. Anthony has also been the subject of other domestic violence related offences, he has made serious threats of abuse, all of which I have considered and are contained in the confidential material.

Issues for determination

1. The Tribunal is to determine whether the correct and preferable decision to lift the special condition placed on the Applicant's firearms licence.

Applicable legislation

1. Section 9 of the ADR Act provides the Tribunal with jurisdiction to review of 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.
2. This application is made under section 75 of the Firearms Act and the ADR Act.
3. 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.
4. 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. ...
5. 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.
6. 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 providing the discretion is exercised in a way that promotes the principals 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.
7. 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]).
8. 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]).

The public' safety

1. 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."
2. 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."
3. In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
4. 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.
5. 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] 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."
6. 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].
7. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at paragraphs [64] - [66].
8. 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.
9. 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].
10. 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.
11. On 5 July 2023, the Tribunal made orders pursuant to s 59 of the ADR Act and s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of certain material ("the Confidential Material").

The material before the Tribunal

1. 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 27 April 2023 and 12 July 2023. This material includes a number of records held in the Respondent's electronic database ("COPS"). The Respondent relies on an affidavit of Mr Sam De Costa sworn 11 August 2023, a bundle of documents to which a confidentiality order has been made pursuant to s 59 of the ADR Act and s 64 of the Civil and Administrative Tribunal Act 2013 and written submissions.
2. The Applicant relies on his application filed 9 March 2023, a statement dated 25 July 2023 and a statement of Bianca Ljubenkov dated 25 July 2023.

The Respondent's case

1. As noted above, the Applicant's category AB firearms licence had a special condition placed on it, namely: "The licence holder is prohibited from possessing, using or storing firearms, firearm parts and ammunition at any location where Yagoda Ljubenkov (DOB XX XXX) or Anthony Ljubenkov (DOB XX XXX) reside or frequent. ("the Special Condition")"
2. 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.

Risk to public safety

1. Anthony and Mrs Ljubenkov have been the subjects of final AVOs - each arising in the domestic setting and each AVO has been imposed well within the last ten years. The Respondent contends, hypothetically, Anthony and Mrs Ljubenkov would be the subject to a mandatory refusal of any firearms application pursuant to s 11(5), Firearms Act. Further, if they held a firearms licence the making of an AVO triggers an automatic suspension or revocation of such a licence (ss 23 and 24, Firearms Act).
2. In her written submissions at [7.3], the Commissioner contends: Public concern over the granting of firearms licences in the context of prior domestic violence offending was highlighted in the recent coronial inquest into the deaths of Jack and Jennifer Edwards, shot dead by their father in an act of revenge against their mother for leaving him. In this instance, the decision making of the firearms registry was characterised as wholly inadequate' by the coroner, who concluded the deaths, and the death of Jack and Jennifer's mother by suicide in the moth's after the tragedy, were preventable.
3. The history concerning various AVO's obtained by Mrs Ljubenkov against Anthony in 2012 is not contested. This included an incident where Anthony entered the family home by damaging a window and retrieved personal items without the permission of Mrs Ljubenkov.
4. In 2019, Mrs Ljubenkov had domestic violence charges and an AVO put in place to protect her daughter when she attempted to access her daughter's room and the Applicant was unable to prevent her from doing so. The Commissioner contends that both Mrs Ljubenkov and Anthony "have displayed behaviour of attempting access to areas within the Applicant's residence without regard for the Applicant's requests not to." The Commissioner also contends that without Mrs Ljubenkov being made available to give evidence concerning her conduct, the Tribunal should be cautious in accepting the submissions of the Applicant that Mrs Ljubenkov's conduct was an isolated incident and is unlikely to, or will not, be repeated. In this regard, I note Mrs Ljubenkov did not give evidence in these proceedings.
5. It is not in contest that Anthony Ljubenkov has an extensive history of offending and violent behaviour. The Applicant does not dispute this. The Respondent acknowledges the Applicant has provided assurances that his son no longer resides in the family home. However, the Respondent draws to the attention of the Tribunal that the Applicant has previously asked Anthony to leave the family home in or around December 2012, but he subsequently returned. It is not in dispute that Anthony was living in the family home up until April 2023.
6. The Respondent submits, and I accept, that Anthony's current registered place of residence (as at 8 August 2023), is within a 15 minute drive to the Applicant's residence. The Respondent submits that, it is open to the Tribunal to find that it is more likely than not, he will frequent the family home from time to time (with or without permission) and during the length of the Applicant's licence period. This is because, despite an ADVO being in place and Anthony being 'banned' from the family home, he has a history of returning to the home, despite his families wishes and an order of the court preventing him from doing so. His attendance has involved making physical and verbal threats to his family and causing property damage. In these circumstances he poses a real and appreciable risk to public safety. He has also been convicted of other threats of violence and to kill.
7. [NOT FOR PUBLICATION]

The inconvenience caused by the imposition of the Special Condition

1. The Applicant's genuine reason for obtaining a firearms licence is for target shooting. I accept the Respondent's submissions that there is no compelling reason to possess and/or use a firearm at the Applicant's residence. The Respondent contrasts the Applicant's circumstances 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.
2. The Respondent relies upon Regulation 28B of the Firearms Regulation which provides requirements relating to where a firearms 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.
3. The Respondent identified a number of storage facilities where the Applicant could store his firearms: Kennards Gun Storage, Moore Park (45-minute drive from his address); Kennards Gun Storage, Camperdown (51-minute drive from his address); Sydney International Shooting Centre, Cecil Hills (27-minute drive from his address). The Applicant also has the possibility of negotiating with firearms dealers to store his firearms.
4. The Applicant can also store his firearms elsewhere, for example at a fellow gun club member's residence, his friends or family.
5. The Respondent submits "that the correct and preferable decision is that the decision of the Respondent be affirmed as the imposition of the condition is to ensure public safety and 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, namely Target Shooting. 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."

The Applicant's case

1. The Applicant provided a statement dated 25 July 2023. The statement is short in nature and I set out the relevant parts: "1. Anthony Ljubenkov gave us a lot of problems and he doesn't reside at [xxx] anymore or ever will. I have had enough of his problems as I stated previously and he is not allowed on the property anymore. 2. As with Dearna Ljubenkov, the gas hot water system is located near my bedroom and would gurgle and make load sounds when in use, so I advised Deanra to have a shower before 10pm. She ignored this advice and in doing so the noise would wake me up at 12.30am and I could not get back to sleep for hours. After many times pleading with her for no showers after 10pm, she still wouldn't adhere to my rules. I told her I have a responsibility to other road users and could be a danger driving tired and groggy. We got into an argument over this she would not back down, so I advised her you cannot live here and unless you adhere to these rules, you need to leave. 3. Dearna still kept on arguing to the point that I requested her to leave. She declined and I had to push her out the front door. … 4. Yagoda Ljubenkov … was just a mother trying to protect her youngest daughter from a bad boyfriend who was 12 years older than her and we were uncomfortable of his face book profile. Yagoda was very worried and going through menopause at the time the situation escalated, and even more when my she found out that I knew where Bianca was but hid it from her (as not to worry my wife). Bianca is an adult and needed to be treated es such Vagoda felt betrayed, which inflated he anger. Yagoda had not been in trouble before this situation or after. 5. Yagoda, Bianca and I have been residing at [xxx] and there have been no other issues. … 9. As my son does not live here anymore and does not attend my home as I have banned him, and as the situation between my wife and daughter has resolved and was 4 years ago, there is no reason for the Special Condition to remain on my firearm licence. 10. I am asking the Tribunal to set aside the decision to place a Special Condition on my firearms licence."
2. The Applicant gave oral evidence and was cross-examined. He said Anthony left the family home in April 2023 and he has not returned. The Applicant communicates with Anthony by text but does not know his residential address. He is aware of the suburb he lives in.
3. He said without being able to store firearms at his home he is particularly inconvenienced. He said he is able to still shoot at the shooting ranges at Malabar and St Mary's, but that it is "not comfortable", referring to the distance he must travel, because it is inconvenient. He said if he wanted to go hunting with friends and family, it would also be inconvenient to first go to collect his firearms.
4. In cross-examination the Applicant conceded that over the years there had been a lot of police attendance at this property. He said that was necessary as the family could not resolve their own problems.
5. In relation to the incident occurring on 20 January 2019, Mrs Ljubenkov lost control, she tried to assault him and became "wild". However, he explained that his wife was trying to protect her daughter. He called the police because the situation could not be controlled. His wife tried to assault him, her daughter and damaged property at the home.
6. In relation to his son, the Applicant said that he is dangerous and he did not want him anywhere near the home. He agreed with the proposition put to him that Anthony had exercised violence, damaged property and threatened the family consistent with the COPS reports. He said Anthony is completely banned from visiting and living in the family home. He was confident he will not now come to the house. I do not have such confidence for the reasons set out below.
7. I accept the Applicant as an honest and reliable witness.

Discussion

1. 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.
2. 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.

Public safety

1. 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.
2. I have particular concern given Anthony's extensive and serious criminal history, and the fact that he has ignored requests from the family not to visit the family home, that he may not do so in the future. This is even where he forced into the home some 11 years ago. I am also concerned that Anthony has ignored ADVO's in the past and appears to have no regard for the law. If firearms were stored at the premises of the Applicant and Anthony became aware of that, there is a significant risk to public safety having considered his history of prior offending, threats of physical violence and to kill, aggression and damage to property.
3. In respect of Mrs Ljubenkov, it is unfortunate that she did not give evidence. Her prior behaviour which occurred on 20 January 2019 in a domestic setting is troubling. I accept that there is no documented evidence of a repeat of her behaviour. I have also considered that the events took place some four years ago. I have considered the explanation of the Applicant and his daughter as to their version of the events that day. It is of concern Bianca Ljubenkov described her mother as having "freaked out" that she was dating an older man. This implies an inability to control her emotions or frustrations in a mature and responsible way. He outburst led to physical and property damage, an AVO and proven charges with which she was convicted. I am not satisfied, without Mrs Ljubenkov having given evidence that the likelihood of her engaging in the same conduct is minimal or fanciful. There is no evidence about whether Mrs Ljubenkov sought counselling or treatment for loosing control of her emotions and acting out in such a violent and uncontrollable way. There remains a real and appreciable risk, which can not be said as being virtually no risk to public safety in these circumstances.
4. Domestic related violence is rightfully a significant problem and concern within our community. This risk of harm to the public is heightened when domestic violence events occur and firearms are potentially accessible which, can lead to tragic outcomes. Having considered all of the evidence, the circumstances of Anthony's extensive serious criminal history and repeated breaches of the law, the absence of Mrs Ljubenkov giving evidence about her current personal circumstances, and having regard to the history of domestic related violence incidents at the family home, I am not satisfied the Reviewable Decision should be set aside.
5. 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. The balance lies in the Applicant being granted a firearms licence, where he can pursue his recreation sport of shooting, 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.
6. The Reviewable Decision is affirmed.

Order 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: 21 February 2024