Masterson v Commissioner of Police

Masterson v Commissioner of Police - [2017] NSWCATAD 17 - NSWCATAD 2016 case summary — Zoe

[3]

Background facts

Mr Masterson obtained his category AB licence on 12 December 2011. On 4 July 2012, a search warrant was executed at Mr Masterson's address. It is understood that this was because Mr Masterson was identified as having communicated online with Paul Francis. Mr Francis had been identified by New South Wales Police as being involved in the unlawful modification, manufacture and supply of firearms in Sydney. In 2011, investigators had commenced the lawful interception of Mr Francis' telephone service. In 2012 investigators identified that Mr Francis was involved in an Australian shooting website and forum community, and that he was providing advice on the website to forum members about firearm repair, modification, assembly and other firearms related issues. He was also offering gun smithing services from his home. Mr Francis did not hold a firearm dealers licence and has been serving a prison sentence after convictions for offences.
After the search warrant was executed at Mr Masterson's address on 4 July 2012, he was charged with:

possess unregistered firearm - not prohibited firearm/pistol - T2 - s 36 Firearms Act 1996 (the receiver);
possess or use a prohibited weapon without permit - T2- section 7 Weapons Prohibition Act 1998 (the magazine); and
possess an unauthorised prohibited firearm - T2 s. & Firearms Act, 1996 (the Vektor Rifle).

On 14 November 2013, the Penrith Local Court dismissed the offence of "possess an unauthorised prohibited firearm -T2". The charge had related to a Vektor rifle which the police had alleged had been fitted with a stock that was specially designed so as to be readily detachable; or to operate on a swivel, folding or telescopic basis - making it a prohibited firearm.
On 14 November 2013, the Penrith Local Court convicted Mr Masterson of the offences "possess or use a prohibited weapon without permit - T2" (the magazine) and "possess unregistered firearm - not prohibited firearm/pistol -T2." (the receiver)
The Penrith Local Court placed Mr Masterson on good behaviour bonds for 12 months under section 9 of the Crimes (Sentencing Procedure) Act 1999. Mr Masterson lodged an all grounds appeal against these convictions.
On 26 June 2014, the Parramatta District Court quashed Mr Masterson's convictions of "possess or use a prohibited weapon without permit - T2" (magazine) and "possess an unregistered firearm - T2. (receiver)"
The charge of "possess unregistered firearm" related to an item found during the search at Mr Masterson's home in July 2012. The item was alleged to be a receiver which, as a firearm part, required to be both registered and stored as a firearm under the Firearms Act 1996. In quashing the previous conviction, the District Court judge described the alleged receiver as a lump of metal and not a firearm or firearm part.
The charge of "possess or use a prohibited weapon without permit," related to an alleged Ruger magazine found at Mr Masterson's home during the search in July 2012. The item before the District Court was two symmetrical plastic pieces. In quashing the previous conviction, the judge found that the item was broken pieces of plastic and not a prohibited weapon or part.

[13]

Evidence of Mr Tristan Masterson

Mr Masterson had provided a statement dated 26 February 2016. He gave evidence and was cross examined before the Tribunal. The Tribunal summarises Mr Masterson's evidence as follows.
Mr Masterson denied that he had contravened the Firearms Act 1996, nor had he engaged in any conduct that would warrant the revocation of his firearms licence. He had first applied for a firearms licence in 2008 and was approved by police. He did not take up the licence at that time as he was living in a shared house and was concerned about safe storage. He reapplied for his licence in 2011 and was again approved. Since taking up his licence, he had been a regular hunter on New South Wales' public lands and a regular participant of SSAA shooting ranges.
Mr Masterson said that he is a sole trader. He had employed himself since the age of 16 or 17 doing various things like auto wrecking, auto repairs (mechanical and body), IT work (programming/development, marketing, penetration testing/consulting) and aircraft restoration. He did not have any criminal convictions as an adult. He had been to court a few times as a kid - living in DOCS housing. The last time he had been in any court prior to this application was when he was a 16-year-old. That was 17 years ago.
Mr Masterson relied on his acquittals in the Local Court and District Court as important matters for the Tribunal to consider. There were many other factors in support of his application. He referred to his "intemperate remarks" at the time of the police search of his house in July 2012. He said that he was fully aware of his obligations and duties as a licence holder and stated that he abides by the requirements. All his firearms and ammunition were stored correctly. He had demonstrated through his actions a thorough understanding of the laws and his obligations. Between July and December 2012 when he was arrested for the charges, he had cooperated fully with the police. He had been described as cooperative by the relevant police.

[15]

The charge of possess or use a prohibited weapon without permit- the "Ruger" magazine

Mr Masterson referred to the allegations that he had been in possession of a Ruger magazine with the capacity to carry more than 15 rounds, without a permit, without legitimate reason and with the intention of enabling an attempt to make a replica. When it was located by police it was not a magazine. It was not of Ruger manufacture. It was a broken case containing none of the internal parts necessary to function as a magazine. He had bought them at Penrith gun show in their separate state. He had not broken them apart and he had never intended to make the two pieces into a magazine.
He had not attempted to obtain the missing parts that would be needed to convert the two pieces of plastic into a magazine. In any event, full sized banana magazines can still be bought that are limited to 10 or 15 rounds. This type of magazine, when completely functional, is designed for a myriad of firearms including legal lever action, pump action, straight pull, bolt action firearms. It was not correct to say that the magazine is suited only to illegal firearms.
Mr Masterson denied that he wanted to make a replica of the magazine. He had used a broken case as a guide to design a stronger case. Mr Masterson asserted that he is permitted to hold any item classed in the AB category. All parts that he held were in the AB category. It was established in the District Court that the pieces were not a weapon and not a prohibited weapon.
The video of the search showed that the police had found the items as two broken plastic parts. In the time between Mr Masterson being charged and appearing in court, the defence witness, Mr Barry Smith had inspected the item and noted that it was a magazine in two parts.
In subsequent court proceedings at the Penrith Local Court, the magazine was presented to the court, but it had been glued together. It was again presented glued together in the District Court appeal. Detective Ferris had pulled it apart during the District Court appeal hearing. He had shown that there were large amounts of glue in the plastic parts.
Mr Masterson also relied on the evidence of Mr Wilson, called by the Prosecution before the District Court, concerning the alleged magazine. Mr Wilson had confirmed that even if the two pieces were stuck together, they would not function as a magazine, as they needed further parts.

[16]

The Vektor Rifle stock

He had obtained the Vektor rifle in May 2012 from John Graham. It had a thumb hole stock when he acquired it. The firearm was now different to how it came out of the factory. He had added the stock. He put a new grip on it. He agreed that he had fitted a bolt which did not have a nut on it. He told the Tribunal it might have fallen off when they picked it up during execution of the search warrant. However, the receiver has a thread in it, holding in the bolt. He had only modified the accessories of the firearm and he had not modified the action.
He had not breached legislation. Mr Masterson said that he had made the modifications to the stock so that it was virtually impossible to move it. When the firearm had been brought to the Local Court it may have become a prohibited firearm because the stock could now be moved - the packing he had put in it to stop it moving, had been removed.
Mr Masterson denied that the stock on his rifle was illegal or that he fitted it himself. The bolt had been factory fitted. To undo the bolt on the Vektor, it was necessary to put the rifle in a vice. He had not taken the bolt out. He had not seen Detective Sergeant Iverach loosening the bolt on the stock at his house. He had seen Detective Ferris tugging on the stock. He said that the rifle contained a telescopic/collapsible stock. The mobility allowed adjustment so that there was an arm's length. The telescopic action moves in an out on concentric rings and in any event, it was well above the minimum length for a shortened firearm. The stock was not illegal.
Mr Masterson alleged that the firearm stock on the Vektor rifle had been tampered with by Mr Wilson, the prosecution witness, so that the stock could be moved. Previously, the pin in the stock could not move without a multi-grip tool. Mr Barry Smith, the Defence witness, had noted that the stock of the firearm could not be adjusted without a tool. Mr Masterson denied that Paul Francis had adjusted the stock for him. He said that the stock of the Vektor rifle did not meet the definition set out under the Firearms Act 1996 of being designed to be readily detachable or to operate on a swivel, folding or telescopic basis.

[19]

Paul Francis

Mr Masterson stated that Paul Francis had initiated contact with him on a shooting website, after Mr Masterson had posted a message on the site, asking for advice on magazines which were breaking and jamming. Mr Francis had been a long time and highly respected member of the shooting website. He agreed that he had had lengthy discussions with Mr Francis about their opposition to the regulation of firearms and the overregulation. He had gone to Mr Francis' home. He had taken a cracked air rifle to him. He held the rifle while Mr Francis squinted into it. He said that the firearm had never left his control. Mr Francis had offered to build a stock and things like that for him.
He had not asked Mr Francis whether he was licensed. He was on the website. He had no reason to suspect that Mr Francis was doing anything unlawful. He thought it was ridiculous to have expected him to ask Mr Francis if he were licensed. Mr Masterson said that he was given no cause to doubt anything Mr Francis told him. Mr Masterson said that Mr Francis told him that his licence had been suspended because police had come to his house and found an unlicensed BB gun. None of the charges with which Mr Francis was convicted, related to Mr Masterson. Mr Francis had not done any work on his firearms.
Mr Masterson stated that when his property was returned to him in October/November 2012 by the Police, it was damaged significantly. He immediately complained about it.
Mr Masterson stated that he was of good character. He is a fit and proper person to be the holder of a firearms licence. He is conscious of the grave responsibilities that are imposed on such a licence holder and he has at all times discharged those responsibilities and will continue to.
There have been no issues raised about firearms being stored at his home until after he had won the District Court Appeal. He thought that there had been vindictiveness by the police as a result, because restrictions had been put on his partner's possession of firearms.

[31]

The "Magazine"

The issue was whether the 2 broken pieces of plastic, lacking both base plate and springs, was a magazine. It was not challenged that the plastic said to constitute "the magazine" was, when located by the police, in 2 separate pieces as shown in the search warrant video.
It was determined by Delaney DCJ, in the District Court that that the item was not proved to be a prohibited weapon under the Weapons Prohibition Act 1998
It was not challenged that when presented in the Local Court, someone had glued the two parts together, and that it came apart in Court.
Although the 2 broken bits of plastic may well have been a part of a magazine at some stage, there is no evidence that the two pieces of plastic had ever been one unit, or that as a unit it had held the appropriate missing parts to constitute and function as a magazine. Section 4(2) of the Act consequently did not apply.
The Applicant gave evidence that the missing parts are not sold separately and could not be obtained. This evidence was not challenged. Nor was there any challenge to his evidence that he made no endeavour to attempt to obtain the missing parts. There is no evidence that the Applicant took apart the item.
The Tribunal should accept the sworn expert evidence of Barry Smith that someone had tried to put the parts together. When he first saw the items at St Mary's police Station they were in 2 pieces. Someone had tried to make them 1 item. He was clear in his expert's statement that it did not constitute a magazine. Mr Smith also referred in addition in his evidence before the Tribunal to other matters - to the housing being broken and the item was missing a stud arrangement through the top, which is designed to hold a "magazine" in the firearm. He said further that one could not tell its capacity now just by looking at it.
Mr Wilson, the prosecution's witness, agreed that to be capable of being used even if it was (successfully) glued together "you would need the inner parts. You would need the parts that were missing".

[37]

Further matters

Language by the Applicant showing dislike and irritation at what some might see as overly technical restrictions, is not inconsistent with being obedient to the law. It is not the type of conduct that this Tribunal should be concerned with. Although Mr Masterson said that he "sort of but not exactly" understood his obligations", he explained that the laws were constantly changing - he pointed out (contrary to the Respondent's assertion) that many changes are made by regulation. He very honestly said that he was a member of the Shooter's Party He didn't believe in gun ownership being a privilege, he said "Just because I don't believe it, doesn't mean I don't obey it. I do obey it - but I believe it goes too far."
The Applicant may not have been able to recite all parts of obligations under the Act - but that is more a test of memory, which most would fail.
The Applicant in evidence before the Tribunal said that he believed he was entitled to fit a pistol grip. This is not unlawful according to Mr Smith. The Applicant didn't believe he was entitled to build a receiver. He explained why he knew he could not. He purchased it to have a licensed firearms dealer turn it into a receiver.
Mr Smith considered that the way Mr Masterson had the stock with the pin packed and fixed in place, did not make it a prohibited firearm.
It is significant that many of the matters now relied on to justify deprivation of the Applicant's licences, weren't even a part of the original statement by Senior Constable Ferris. This includes the pistol grip and the telescopic stock. It is odd that the police only moved against the Applicant's licence after he had been acquitted of all charges.
The Applicant shared premises with his partner who was in possession of registered firearms, but no proceedings were brought against her until after the proceedings against him had been dismissed by the Courts. On 11 November 2014, the Police for the first time imposed special conditions on her licences. These were lifted after internal review.
It is incorrect factually, to assert that the Applicant had a held a firearm's licence for a very short time and that he engaged in conduct inconsistent with the behaviour expected of him. The evidence does not support the assertions. There is no evidence that he continues to associate with any unlicensed person in gaol. It is submitted that none of the matters if established (which is contested) provide a basis for refusal of the return of his licences. Most of the assertions are not based on the evidence. There is no evidence of modifications; no evidence of providing Francis with the Vektor rifle; no evidence of him engaging Francis to make modifications to the Vektor rifle; no evidence that Francis ever had possession of the Vektor rifle.
The Applicant relies on the construction of Weapons Prohibition Act S 4 (2) set out in the judgment of RS Hulme AJ in Jacob v R [2014] NSWCCA65 at l42, 146 and 149. 142. The fact that the parts could have been fitted together and then could have formed a crossbow is nothing to the point. The parts were not a crossbow when the Appellant had possession of them. To quote an example given during the course of argument, a box of parts bought from Ikea and which, when assembled, form a bookcase is not a bookcase until the assembly occurs. 146.Furthermore if everything that was part of a prohibited weapon was, by virtue of s.4(2)(a) to be taken to be prohibited weapon, then s.4(2)(c) would be unnecessary. Each of the two or more persons who was carrying or in possession of a part of the weapon would, by virtue of s.4(2)(a) be taken to be carrying or have possession of the weapon. 147……To illustrate, albeit by an article that is dealt with in the Firearms Act 1996 rather than the Weapons Prohibition Act 1998 (and ignoring the specific provisions of the Firearms Act 1996 dealing with parts), a rifle would still be a firearm even if the bolt or firing pin or both were missing but those items would not themselves be firearms in circumstances where all the remaining parts, barrel, stock, magazine, trigger mechanism etc were missing. In the case of a crossbow, the fact of, say, a missing string, would not prevent the balance of the item being a crossbow, but the absence of a bow or stock would do so. An alternate view is to require that the component under consideration have been at one stage part of a (complete) prohibited weapon, from which other part(s) have been detached and therefore can be regarded as missing. Such an approach would solve the difficulties attendant upon the examples of elasticised bands, staffs, handles sticks and bars referred to above. 149. However, there was no evidence that the unassembled items purchased on 30 December 2010 had ever been put together so as to constitute a cross-bow so, whichever of the interpretations just expressed be adopted those unassembled items, either in totality or individually, did not constitute a crossbow and the Appellant's conviction on the first count was wrong and must be set aside.
The Tribunal understands that the Applicant relies upon Jacob v R as support for the contention that even if parts might be assembled to form part of a firearm - this does not render the parts to be firearms themselves.

[45]

Respondent's submissions

The Applicant's category AB firearms licence placed limits on what the Applicant could lawfully do as a licence holder. The conduct relied on by the Respondent to support the revocation decision, includes:

The Applicant's lack of knowledge of his obligations as a licence holder and that he "don't believe in licensing and all that crap";
The Applicant acquiring and having in his possession an item from Tactical Machining, namely a firearm receiver (Receiver).
Further, the Applicant acquiring, having in his possession, and not registering, the Receiver in breach of s36(1) of the Act by virtue of s93 of the Act;
The Applicant not storing the Receiver in his firearms safe;
The Applicant purchasing a Ruger magazine (in respect of which it had a capacity to carry more than 15 rounds) when he held no permit for such a magazine (and being in breach of s23(1) of the Weapons Prohibition Act 1998).
Further, the Applicant having in his possession that Ruger magazine (in respect of which it had a capacity to carry more than 15 rounds) when he did not have any legitimate reason to have that magazine in his possession.
Mr Paul Francis, who did not hold a firearms licence, modified firearms and committed various firearm related offences for which he is now serving time in gaol. The Applicant's own association with Mr Francis, and his beliefs, is incompatible with the privilege of a firearms licence.
Further, the Applicant having that magazine to enable him to attempt to make a replica of it (contrary to his authority and licence as a category AB licence holder).
Further, the Applicant by having that magazine, had a prohibited weapon (see clause 4(4)(a) of schedule 1 to the WP Act) in his possession without a permit in breach of s7(1) of the WP Act;
The Applicant having a 3D printer with the intention to, and using it to, make firearm parts, such as a pistol grip and magazines (including because he couldn't get those items "through customs"). Further, such actions are contrary to his authority and licence as a category AB licence holder;
The Applicant associating with Mr Paul Francis (who did not have a firearm licence or permit at all), having dealings with him in relation to firearms, firearm repairs and modifications;
The Applicant providing to Mr Francis, a Vektor H5 .223 calibre rifle with serial number 10473 (Vektor Rifle). Further, such action in providing the Vektor Rifle to Mr Francis was in contravention of the Applicant's personal obligations and in breach of: 1. s7A (1) of the Act by virtue of s7A(2)(b) and s19(2)(b) of the Act; and 2. s39(1)(c) of the Act;
The Applicant engaging Mr Francis (who did not have a licence or permit), to make modifications to the Vektor Rifle. Further, the modifications made at the Applicant's instigation made the Vektor Rifle a prohibited firearm (see item 11 of schedule 1 to the Act);
The Applicant taking possession of the Vektor Rifle from Mr Francis, so modified. Further, such action was a contravention of s7(1) of the Act.

The above conduct, whether in contravention of the Act or not, is inconsistent with the privilege of a firearms licence and cause for public concern.
A firearms licence is a privilege and not a right: see, for example, Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2, Bottomley v Commissioner of Police [2005] NSWADT 211 (Bottomley) and Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 (Keane). Licence holders are expected to not only comprehend and understand their obligations but also to comply with their obligations: Bottomley.
The outcome of the criminal proceedings is of little moment. What matters is the Applicant's conduct, as established in these proceedings, and what that conduct demonstrates about whether it is in the public interest that he holds a firearms licence.
The standard of proof is the civil standard based on the balance of probabilities. That remains the same even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR. There is no third or higher standard of proof: Qantas Airways Limited v Gama [2008] FCAFC 69.
In the decision of Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 Member Higgins stated: ...It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings.
The Applicant was charged with three firearms offences relating to the above matters. After an appeal to the District Court, the Applicant had been acquitted of all charges.

[46]

Impact of criminal proceedings

The fact that an Applicant is not charged, is acquitted of criminal charges or obtains the benefit of a section 10 order (or equivalent) has no impact on the determination of the issues before a Tribunal. The focus of the Tribunal is on a licensing decision and looking at the Applicant's conduct and its impact on his licence. No issue estoppel arises. In Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 at [21], the Tribunal said: A conviction in itself will not ordinarily be enough for the Tribunal to make an adverse finding on fitness and propriety... It is the person's conduct, not the fact of a conviction, which is to be considered.
1. In Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 the Appeal Panel said at [47-48]: In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions. In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch's history and the explanations given for his conduct, to make the Commissioner's and Tribunal's decisions the correct and preferable ones in exercise of the discretion given by section 24 (2)(b)(ii). Similarly, the separate 'public interest' basis for the decision was available in the circumstances. There were aspects of his conduct and explanations, which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.
Criminal proceedings involve a different issue, namely whether the Crown proved beyond reasonable doubt all the ingredients of the offences. That is completely different to the issues before the Tribunal, applying the civil standard of proof, to a licensing issue.
The findings of the District Court (as to the Receiver and Magazine offences) were limited:

the Magistrate in the Local Court did not give reasons for preferring the evidence of Mr Wilson over Mr Smith (page 4 of the decision, lines 23-26);
the offence in respect of the receiver was "not proved... beyond reasonable doubt' (page 8, lines 3 to 4); and
the offence in respect of the Magazine "was not proved by the Crown beyond reasonable doubt (page 7 of the decision, line 4). As the High Court said in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [33] (albeit in a different context) "it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action". Also, see, relevantly, [48] and [49] of the High Court decision:

That is, the Commissioner and this Tribunal can determine itself, on the balance of probabilities, that the conduct of the Applicant was in contravention of various provisions of the Act and WP Act (including subsequent to acquittal of criminal charges), and conduct of a nature that justifies revocation of the Applicant's
The underlying principles of the Act and WP Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms and weapons are imposed in the interests of public safety: Keane at [44].
The licensing regime under the Act is strict and ought to be interpreted in that fashion: England v Commissioner of Police, New South Wales Police [2006] NSWADT 95 (England) at [39]; also, see Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 at [45].

[50]

Licence authorities and limitations

Section 8(1) of the Act prescribes the types of firearms that apply to each category of licence and the authority the licence confers. Relevantly, s8 provides in respect of a category AB firearm licence, "All prohibited firearms are excluded from this licence category." The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Notably, under both category A and B firearm licences, the Applicant could not possess a prohibited firearm. The licence authority also did not enable the Applicant to manufacture or convert firearms. Such authority is only granted to a firearms dealer
A category AB licence holder cannot manufacture or convert firearms or firearm parts. That proposition is confirmed by s9(1) of the Act that provides: (1) A licence that authorises the licensee to have possession of a firearm also authorises the licensee to have possession of the firearm while: (a) taking it to a licensed firearms dealer for the purpose of: (i) selling it, or (ii) having it converted, maintained, tested or repaired and subsequently recovering it from the dealer
Relevantly, the terms "firearm" and "firearm part" mean: "firearm " means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. "firearm part" means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm.
It is alleged that the Applicant:

outside the authority conferred on him by his category AB licence, intended to and tried to manufacture firearm parts; and
contrary to ss7A and 9(1) took his firearm to a person who was not a licensed firearms dealer to convert or modify his firearm.

The fact that the Applicant, on his own admissions, was having his firearm converted and repaired by a person other than a firearms dealer, and seeking himself to manufacture firearm parts is inconsistent with the limitations imposed on him by the Act. It would be against the public interest for such a person to retain the privilege of a licence.

[55]

Public interest ground

The Court of Appeal in the Kocic decision, was explicit about the unfettered nature of the public interest ground to refuse a licence under s11(7) of the Act: at [39], [41], [92], [93] and [127]. Leeming JA said: [93] ... The opening words of s11(7) ("Despite any other provision of this section") tell against a construction where the exclusion of some matters from one qualification upon power impliedly operates to exclude the same matters from a separate and overriding qualification to the power.
White J said at [127]: ... In my view the width of the public interest criterion in s 11(7) is not limited by the earlier provisions in s 11(3), the non-satisfaction of any of which will necessarily result in refusal of the application.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the 'public interest': is an inherently broad concept giving the appellant [the Commissioner) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681: The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
The relevant interest is therefore the interest of the public, as distinct from the interest of an individual: Director of Public Prosecutions v Smith (1991) 1 VR 63.
In Livadaru v Commissioner of Police [2008] NSWADT 160, Deputy President Handley stated at [54]: In considering the public interest, regard must be had to the underlying principle of the Act, stated in section 3(1), emphasising that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward, at paragraph 28, Deputy President Hennessy stated in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk.
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety: 27.... The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v The Commissioner of Police [2003] NSWADT 30. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223.
The Applicant has, within the very short period he held a firearms licence, engaged in conduct inconsistent with the behaviour expected of a licence holder (granted the privilege of a licence). As set out above at paragraph 6 of these submissions, the Applicant's conduct;

reveals a lack of understanding of his obligations under the Act and that he holds beliefs in opposition to the Act, which are confirmed by his conduct;
demonstrates activity inconsistent with the scheme of the Act and WP Act;
is in contravention of the Act, his licence conditions and the WP Act; and
associates himself (as a licence holder) with an unlicensed person (who is now in jail for firearm related offences) to have firearm related dealings.

Regardless of the outcome of the criminal proceedings, and whether the conduct is in contravention of the Act or WP Act, it is against the public interest to give the Applicant a firearms licence when:

The Applicant admits his lack of knowledge of his obligations as a licence holder and that he "don't believe in licensing and all that crap";
The Applicant acquires an item from Tactical Machining, namely a firearm receiver and takes steps to turn it into a functional Receiver;
The Applicant purchasing a Ruger magazine (in respect of which it had a capacity to carry more than 15 rounds) when he held no permit for such a magazine. Further, the Applicant having in his possession that Ruger magazine when he did not have any legitimate reason to have that magazine in his possession. Further, the Applicant having that magazine to enable him to attempt to make a replica of it (when he was not a firearms dealer or manufacturer);
The Applicant having a 3D printer with the intention to, and using it to, make firearm parts, such as a pistol grip and magazines (including because he couldn't get those items "through customs"). Further, such actions are contrary to his authority and licence as a category AB licence holder; and
His conduct which demonstrates a lack of understanding of his obligations as a licence holder.
The Applicant said "... the same as Paul." Mr Paul Francis, to whom the Applicant refers, did not hold a firearms licence, modified firearms and committed various firearm related offences for which he is now serving time in gaol. The Applicant's own association with Mr Francis, and his beliefs, is incompatible with the privilege of a firearms licence.
The Applicant associating with Mr Paul Francis (who did not have a firearm licence or permit at all) and having dealings with him in relation to firearms, firearm repairs and modifications;
The Applicant providing to Mr Francis, the Vektor Rifle;
The Applicant engaging Mr Francis (who did not have a licence or permit), to make modifications to the Vektor Rifle;
The Applicant taking possession of the Vektor Rifle from Mr Francis, so modified; and

The public would be rightly concerned if the Applicant held the privilege of a firearms licence in all the circumstances. The correct and preferable decision is to affirm the refusal to issue a licence to the Applicant.

[58]

The slide or receiver

Mr Masterson's conviction in the Local Court "possess unregistered firearm - not prohibited firearm/pistol under section 36 (1) of the Firearms Act 1996 was quashed in the District Court. This related to the slide or receiver.
The issues were - was the item a receiver; did Mr Masterson possess it and if so had Mr Masterson failed to register it as required?
To establish a contravention of the requirement that Mr Masterson not possess an unregistered firearm, the Tribunal needs to be satisfied on the balance of probabilities set out in section 140 of the Evidence Act 1995 that Mr Masterson was in breach of the requirement. The Tribunal would need to be satisfied that Mr Masterson possessed a receiver which was unregistered.
The Tribunal is satisfied that the item did not form part of a registered firearm. and that the item had not been registered. The Tribunal is satisfied that Mr Masterson possessed the item as it was found at Mr Masterson's home in the search.
The question remains - was it a receiver?
Mr Masterson's comment about the receiver at the time of seizure was: "Well that was going to be for a straight pull Stallenberg.… I spoke to the Firearms Registry before I bought them. They said it doesn't have to be registered until you take it to a gunsmith and get the barrels put into them… They didn't, I haven't even got the barrel… They said it's an action driller, an action driller is a registered part, a barrel is not registered part they're not registered until they are joined.
Mr Masterson then identified the blue razor as a template: "Yeah it's to drill that. There is nothing in that barrel… They said I didn't have a permit for it. The email's on my computer."
In his evidence before the Tribunal, Mr Masterson said he had received the "receiver" in the mail with the holes already drilled in it.
Mr Wilson's evidence before the Magistrate was that the item was a receiver because it was designed and manufactured for fitting into a firearm. Mr Wilson told the Magistrate that they do not have a definition of a receiver. "We work with the actual piece that we are presented with, which in my opinion is a receiver, from my experience of trading and that's what we work with."
Mr Wilson stated that it was the main component of a Ruger 10/22 self-loading rifle. It was manufactured from aluminium or aluminium alloy and was at a stage where it could be fitted into a firearm with a number of other steps being performed. It had a bolt, with the firing pin fitted, but needed a trigger assembly. Mr Wilson said this is quite easy for anyone to do by downloading instructions from the Internet, filling out the portion of the item so that a barrel could be fitted.
Mr Smith's view was that, in its current form, the item was just a lump of aluminium and that it would take considerable skill, work and machining to turn it into a receiver to fit a barrel. The Magistrate had noted that the item already had the bolt and firing pin fitted when it was seized.
Mr Smith said that the piece of metal had various holes drilled to which a trigger device could be attached, but it certainly lacked the main hole which would attach it to the barrel. He said that the general definition of a receiver is that working part of a firearm that contains most of the working parts and mounts the barrel. This receiver doesn't have that hole in the front of the action - so it cannot receive a barrel and as such it is not at the point where it can become part of a firearm. That's of course what the Firearms Registry insists upon as far as their instruction to firearms dealers. The Act doesn't describe it all. The Firearms Registry insist upon, that's the point, as they have instructed firearms dealers, that that is the point at which it becomes a firearm part - when it can form part of the firearm when it actually comes capable of becoming part of the firearm, of receiving a barrel." Mr Smith did not think it was a backyard workshop process. These operations aren't something you can do in a drill press or home workshop. It requires quite a bit of setup, complicated tooling and jigs to make it square and online.
Mr Smith later agreed under cross examination that it was a partially constructed receiver, but stated "It is not a receiver by the standards that we have to work with as far as the Firearms Registry are concerned. It could not function. It was designed to eventually be a receiver, yes, it was intended to be a firearm part."
The District Court overturned the conviction because the Magistrate had noted that there was no definition of receiver in the Firearms Act 1996. In the absence of a definition of a receiver, the Magistrate had not articulated why Mr Wilson's view was to be preferred over that of Mr Smith - and the Crown had not made out its case beyond reasonable doubt.
Mr Smith asserted that the item was not a receiver and referred to the requirements of the Firearm Registry in defining what a receiver is. In his second statement of evidence in July 2016, Mr Wilson refers to the National Firearm safety code glossary which describes a receiver as the frame of a firearm consisting of breech, locking and reloading mechanisms. The Firearms (Long arms) Users guide describes a receiver as: the frame which contains the operating (or moving) parts of the firearm and includes the breech, (which is usually the part of the barrel that includes the chamber in which cartridge or projectile is loaded) and firing mechanism.
Mr Wilson considered that the item met the definition. It had bolt and trigger retaining holes already drilled, the bolt assembly included and there was a matching trigger mechanism located at the Applicant's premises. The fact that to sell the item it needs to be completed with a barrel hole and then registered, does not mean it is not a receiver. The item was designed to be a receiver, and with some other work, it would be a functional receiver.
In his earlier statements to the Local Court, Mr Wilson had relied upon his own observations on seeing a particular item as to whether it was a receiver.
The Tribunal is faced with competing definitions relied upon by Mr Smith as required by the Firearms Registry for purposes of registration and by Mr Wilson as set out in the National Firearms Safety Code and the Firearms (Longarms) Users guide. In the circumstances, given that the purpose of the identification of the item as a receiver is to determine the point at which it needed to be registered, the Tribunal prefers the reasoning and definition relied upon by Mr Smith which refers to the purposes of the Firearms Registry.
The Tribunal accepts the findings of the District Court and the evidence of Mr Smith that the piece of metal was not a receiver and therefore did not need to be registered or stored as a firearm. In these circumstances, Mr Masterson was not in breach of the Firearms Act 1996 in possessing the unregistered and unstored piece of metal.

[61]

Did Mr Francis make modifications to the Vektor rifle?

Mr Masterson told police on the day of the search that Mr Francis had made a pistol grip for the Vektor rifle for Mr Masterson.
DSC Ferris' evidence to the Tribunal was that he was immediately suspicious when he saw the Vektor rifle as the rifle appeared to be modified. He noted that the firearm had a telescopic stock on it and a wooden pistol grip, inconsistent with the make of the rifle. The pistol grip appeared to be home-made. During the search, he recalled DSC Iverach saying the bolt was "a bit… unusual looking" and Mr Masterson replied "yeah well it's the only one I could get to fit".
The Tribunal is satisfied from Mr Masterson's evidence, that Mr Francis did make the pistol grip for the Vektor rifle. There is no evidence to contradict Mr Masterson's assertion Mr Masterson fitted the new grip himself. The Tribunal is also satisfied that Mr Masterson changed the stock on the rifle and inserted the silver bolt shown in the photos of the Vektor rifle before the Tribunal. He also told the Tribunal that he had packed cardboard around the pin on the stock to stop it moving. Mr Masterson agreed he had made modifications to the Vektor rifle, but said he had not modified the action - so he had not breached the Act.
In his evidence before the Tribunal, Mr Smith stated that he understood modification to mean in the context of the Firearms Act 1996: "Changing the description or specifications of the firearm so as to change either its category, class or description or capability. Something that would for example change it from being a class B firearm to class C or D. Or completely changing it in some other way that would be from semi-auto to a pump action or something that would actually change the class that it's registered under."
Mr Smith stated that the fitting of a pistol grip to the Vektor rifle was not a modification within the Firearms Act 1996. The Tribunal finds that Mr Masterson fitted a new grip to the Vektor rifle and this was not unlawful.

[62]

Did the modifications make the Vektor rifle a prohibited firearm?

The Tribunal understands from the statement of DSC Ferris of 15 January 2013 that in its unmodified condition, Mr Masterson was lawfully able to possess the Vektor H5 under his category B firearms licence.
On 22 August 2013, the Penrith Local Court dismissed the offence of "possess an unauthorised prohibited firearm -T2" brought under section 7 of the Firearms Act 1996. The prosecution had alleged that the Vektor had been fitted with a stock that was specially designed so as to be readily detachable; or to operate on a swivel, folding or telescopic basis. Such a stock makes the firearm a prohibited firearm in clause 11 Schedule 1 of the Firearms Act 1996.
Prohibited firearms are set out under Schedule 1 of the Firearms Act 1996. Clause 11 includes as a prohibited firearm: 11. A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.
DSC Ferris gives the reason for the dismissal of the matter in November 2013 in an email of 5 November 2014 to Ms Livermore in the Firearms Registry as follows: "I was guided by the advice from both the Firearms Registry and a firearms expert in determining the most appropriate charges which were put before the Local Court. However on the day of the hearing, a failure to produce evidence from the Registry office significantly effected the prosecution case and without evidence of licensing requirements from the Registry, the offence was dismissed."
Earlier the Internal Review Officer, notes in a file note dated 3 November 2014 referring to DSc Ferris: "he stated that in relation to the offence of possess an unauthorised prohibited firearm which was dismissed at Penrith Local Court on 14 November 2013, the Magistrate was not knowledgeable with regard to firearms offences, nor was the prosecutor. The legal representative questioned the validity of the offence and as no proof was supplied to indicate it was prohibited firearm it did not proceed."
In the email of 5 November 2014 from DSc Ferris to Ms Livermore DSc Ferris responds to Ms Livermore's question:

[64]

Evidence about the stock

DSC Ferris' evidence about the stock was: "I was concerned that the pin on the stock could be removed and the firearm shortened, or the bolt removed and the telescopic stock removed altogether. This would make concealment of the Vektor rifle easier. I was concerned that the Vektor or rifle was a prohibited firearm under item 11 of schedule 1 of the Act."
DSC Ferris recalled that DSC Iverach demonstrated to him that the firearm could be shortened, by showing him outside Mr Masterson's home that the stock moved forward and backwards, when he loosened the pin.
DSC Ferris concluded: "It did not appear to me to be difficult to remove the pin, to alter the length of the firearm. It also appeared to me that the bolt could also be easily removed with a small spanner or equivalent tool, and the telescopic stock removed altogether. I looked at the bolt closely. It was a bolt inserted into the firearm but there was no nut at the other end."
Mr Wilson's initial certificate states that in his opinion the Vektor is a prohibited firearm as described in item 11 of schedule 1 of the Firearms Act 1996.
In his statement dated 8 September 2015, Mr Wilson says that when he examined the Vektor rifle, as per his report of 11 August 2012, it had a 6-stage telescopic stock attached to it. The length of the stock is adjustable by releasing the pin. It was an easy task to release the pin by simply pulling it down and then sliding the stock in the desired direction. He had taken a photograph of the firearm with the telescopic stock completely retracted.
Mr Wilson also observed that the back of the bolt had no nut. The bolt could be easily removed using a pair of pliers or spanner, leaving a shortened firearm with just the wooden pistol grip. This bolt enabled the stock to be detachable. He used a pair of pliers to turn the bolt no more than 6 turns. He then used his fingers to pull the bolt straight out. There were only three threads in the threaded hole in the receiver. He said that the Vektor rifle was in breach of schedule 1 of the clause 11 of the Firearms Act 1996 in that it had a telescopic stock fitted to it. The stock was readily detachable by using a spanner or pliers and fingers and the stock was telescopic.
In his evidence to the Tribunal however, Mr Wilson said he was not saying that the stock was "readily detachable" rather than it was more easily detachable. The Tribunal understood this to mean that the stock did not meet this particularly of clause 11 of schedule 1 of the Firearms Act 1996. 11. A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.
Mr Wilson also said that he had used multi-grips to remove the pin, but he could not remember seeing cardboard packing around it.
In his evidence to the Tribunal, Mr Masterson said that the bolt which he had used to attach the stock rigidly, did have a nut on it when it was in his safe. The bolt didn't stick through much on the other side. It could have fallen off when they picked it up. They could have taken it off. It could have fallen off anywhere. However, the bolt itself was still threaded through tight and the receiver had a thread in it.
Mr Masterson said that you needed a tool to remove the pin which allows the stock to move backwards and forwards. He had put it together so that it was virtually impossible to move the pin. He said he put some cardboard packing in. He acknowledged that: "After, when the police were at court they were able to very easily move it. I don't know what they had done to it, but it was definitely modified. He said what's happened is when it was brought to the Local Court the police expert was just moving that thing called the pin with his fingers quite easily and showing the stock opening and closing. I don't know what he's done to it.
Mr Masterson agreed that the way in which the Vektor rifle had been presented in court, it was a prohibited firearm.
Mr Smith said it is not an offence under the Act to have an adjustable stock. Many rifle stocks have adjustable arrangements for allowing people of various stature to be able to adjust the gun to their size. Long, tall, short, slightly built, youth, young ladies and so forth.
Mr Smith said that having a screw attach the stock could not make it a folding stock, a collapsible stock or a quickly detachable stock. He said it was normal. Many rifles have the stock secured to the rifle with a single screw. Basically, the understanding is that if you require a tool to remove it, it is a permanent fixture.
Mr Smith confirmed that when he examined the Vektor rifle at St Mary's police station on 1 May 2013, he couldn't move the bolt and couldn't therefore open the stock. He had tried doing it with his fingers but was unable to remove the bolt.
Mr Smith said that when he examined the Vektor, the butt stock did not fold or collapse. In his opinion it did not contravene section 11 of the schedule 1 of the Firearms Act 1996. It was not a collapsible stock or telescopic stock. He understood that a telescopic stock meant that one section collapses inside the other. In other words, you could adjust the length of the butt stock originally by actioning a lever which was attached to this pin rigidly in its manufacture. He thought that it probably could be collapsed beyond the minimum required stock length. He had been unable to collapse it when he examined it at the St Mary's police station. He said that usually under the pin there was a little plastic cantilevered lever. By pulling up on it at the back, you would get purchase on the pin to come down. Mr Smith noted that when he inspected the Vektor, not only was a lever actually missing, the pin was in some way or shape jammed so that I couldn't pull it down by hand.
Mr Smith agreed that if the pin were released and if the stock were able to then be moved, it would be telescopic.

[66]

Was the Vektor stock specially designed to operate on a folding or telescopic basis?

The Tribunal heard conflicting evidence about whether the pin allowed the stock to be moved. Mr Masterson's evidence was that he had packed cardboard around the pin to stop it from moving. This suggests that in its unaltered state the pin could be moved and the stock could telescope. DSC Ferris said he saw DSC Iverach moving the stock in and out easily outside Mr Masterson's home. Mr Wilson's certificate of August 2012 identifies the Vektor rifle as a prohibited firearm as described in item 11 of Schedule 1 of the Firearms Act 1996, but did not specify which aspect of the item 11 it met. His statement of 8 September 2015 states the Vektor had been modified in that it had a wooden pistol grip and a telescopic stock added to it…It was fitted with a 6-stage telescopic stock. He was able to release the pin and the telescopic stock could be shortened. In his evidence, Mr Smith noted that when he inspected the Vektor, not only was a lever actually missing, the pin was in some way or shape jammed so that he couldn't pull it down by hand.
The Tribunal accepts DSC Ferris' evidence that on the day of search, the Vektor rifle had a telescopic stock fitted to it and that it could be moved in and out. This is consistent with Mr Wilson's evidence that in August 2012 he was able to move the pin and telescope the stock. The Tribunal also accepts Mr Smith's evidence that by the time he examined the Vektor Rifle in May 2013, he could not move the pin although he tried. The 2 versions are not mutually exclusive.
There is no definition of telescopic under the Firearms Act 1996, however Mr Smith agreed that telescopic meant to move in six stages. The Tribunal is satisfied that the stock was telescopic and notes Mr Smith's evidence to the Tribunal that if you released the pin and the stock could be moved, it would be telescopic. When presented with the proposition that the pin could be moved, Mr Smith then agreed that the stock was, in these circumstances, telescopic.
In these circumstances, the Tribunal is satisfied that the stock as set out under clause 11 of schedule 1 of the Firearms Act 1996 was "specially designed", prior to Mr Masterson adjusting it, to operate on a telescopic basis.
The Tribunal is satisfied that in July 2012, Mr Masterson did not have a licence or permit to possess a prohibited firearm. The Tribunal is satisfied on the balance of probabilities, that at the time of the search in July 2012, Mr Masterson possessed a prohibited firearm in contravention of section 7 of the Firearms Act 1996.

[67]

The Applicant having a 3D printer with the intention to, and using it to, make firearm parts, such as a pistol grip and magazines contrary to his authority and licence as a category AB licence holder

At the search, Mr Masterson told DSC Iverach that he had brought the plastic printer to make a pistol grip as he been unable to bring one in from overseas, so he tried to make one. He said it was just average on its performance. He later told DSC Ferris that he was going to use it to make his own magazines which he couldn't get in the country and a pistol grip for my other gun. He later told DSC Iverach that a magazine that he had made with the plastic printer is not to fit anything. "It's just to see if I could make it. It's the first thing I made with it. I made a few test models." Mr Masterson then referred to a broken magazine that he bought to get the measurements to make a 10 round or 15 rounder. Mr Masterson later told DSC Mouk, that the printer cannot make a functional magazine. I wanted to make some magazines for my gun, but they're not good enough to do it. In response to DSC Ferris, Mr Masterson said "I was trying to make a rail for a gun right. See how it's bent like that? … You can't use stuff out of it. It's shit. It's worthless. "
Mr Masterson also said: "It's just for my own personal use. I did want to try it, like I said, I did want to try and build a pistol grip for one of the guns in there because I couldn't get one in through customs… So originally, I got it to make one of them. Then I thought I'd try and make magazines which they won't get through customs which are legal in NSW…. I never, I never really got anything good out of it so…I was going to print a pistol grip, sand it down, try and fit it to my gun and see if it was strong enough."
Under cross examination, Mr Masterson said he did not try to make a magazine, he did make a 70% scale model of a magazine case which could not be used for anything. When it was put to him that he had told the police officers on the day of the search that he had bought the 3-D printer to try make his own magazines which he couldn't get into the country, Mr Masterson responded: "No, well, I actually had extensive discussions with them about this on the day and they keep twisting my words. I tried to make, design something like a prototype which I could then have made in a shop. I mean the machine itself cannot make anything functional. It is a prototype. It's a very rough prototype machine.
Mr Masterson also said that the Glock magazine found in the search was only a model. It was 70% scale case. It was made of PLA plastic which actually dissolves in water. A real Glock magazine has a metal case and there is an injection moulded plastic and everything on the outside of it."
Under cross examination Mr Masterson told the Tribunal that he believed he was entitled to make a magazine under his category AB licence.
Wherever there is a conflict between the 2 versions, the Tribunal prefers the evidence of Mr Masterson's comments to the search party, to that given in his subsequent statement and before the Tribunal. It is clear that Mr Masterson has had the opportunity to reflect on legislative requirements and to modify his statements through the several legal proceedings, since the search in July 2012.
Mr Masterson also stated in his evidence to the Tribunal that the police had tried to twist his words, but this is not evident from the transcript.
The Tribunal is satisfied that it is not unlawful to own or use a 3-D printer.
The Tribunal is satisfied from Mr Masterson's evidence that, using the 3-D printer, he intended to make a pistol grip. The Tribunal understands that this is not unlawful.
The Tribunal is also satisfied from Mr Masterson's comments at the time of the search, that Mr Masterson intended to make a functioning magazine. Mr Masterson intended to make his own magazines which he couldn't get in the country "which are legal in New South Wales." Initially however, he had only made test models which were not intended to function.
The Tribunal is satisfied that Mr Masterson was also experimenting with the printer - which is not unlawful. "It is not to fit anything. It's just to see if I could make it. It's the first thing I made. I made a few test models."
The Tribunal is satisfied that Mr Masterson approached Mr Smith to have a firearm made for him. The Tribunal also understands from the email chain between "Tristan" and the Firearms Registry that Mr Masterson was considering having a firearm made for him. This is not unlawful.
The Tribunal is satisfied on the balance of probabilities, that Mr Masterson did attempt to make firearms parts - a magazine and a rail. Using the 3-D printer was part of that process. Mr Masterson's remarks indicate he was disappointed in the printer's incapacity.
The Respondent submitted that under his category AB licence Mr Masterson was entitled only to possess or use and store his firearms. He could take them to a gunsmith. His actions in trying to make firearms are beyond the scope of the authority conferred on him as a licence holder under category AB in section 8 of the Firearms Act 1996.
The Tribunal is satisfied that trying to make firearms parts such as the magazine and the rail, is outside the authority of Mr Masterson's category AB licence, set out under section 8 of the Firearms Act 1996. A firearms licensee may maintain their firearm, but this went beyond that scope.
The Respondent submitted that it would be against public interest for Mr Masterson to retain his firearms licence in these circumstances.

[70]

Should Mr Masterson's licence be revoked because he has contravened the Firearms Act 1996 under section 24(2)(b) (ii)

Section 24(2)(b)(ii) provides a discretion to revoke a licence where there has been a contravention of the provisions of the Act or Regulations. The Tribunal has found that Mr Masterson has contravened section 7 of the Firearms Act 1996 by possessing a prohibited firearm.
The Deputy President has stated in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at para 23 that "the discretion should be exercised in a way which promotes the principals and objects of the Firearms Act 1996 ".
Section 3 of the Firearms Act 1996 sets out the principles and objects of the Firearms Act 1996. The underlying principles of the Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety:

by imposing strict controls on the possession and use of firearms, and
by promoting the safe and responsible storage and use of firearms, and
to facilitate a national approach to the control of firearms.

The objects of the Act include: to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,
Features of those principles are that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety and the need to administer strict controls on the possession of firearms.
The Tribunal was referred to the matter of Lynch, Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 in relation to considerations of contraventions and the public interest. In that matter, Mr Lynch, an experienced firearms licensee, was found to have breached the Firearms Act 1996 as he held several unregistered and unstored firearms. The ADT affirmed the Commissioner's decision to revoke Mr Lynch's firearms licence at first instance. The Appeal Panel affirmed the Tribunal's first instance decision to affirm the revocation. Mr Lynch had obtained a section 10 of the Crimes (Sentencing Procedure) Act 1999 from the District Court. Although no convictions were recorded - the Appeal Panel considered the storage matters were sufficiently serious to warrant revocation on their own.

[71]

Is the contravention in relation to the Vektor Rifle sufficient to warrant revocation of Mr Masterson's firearms licence under section 24(2)(b) (ii)?

In the matter of Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 at 37 the Appeal Panel set out some of the considerations under section 24(2): 37 Once the circumstance to which s 24(2)(b)(ii) is directed (contravention) is present, the Commissioner 'may' revoke the licence. No guidance is given in the provision as to what factors might be relevant. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.
In Mr Masterson's circumstances, the Tribunal considers the possession of a prohibited firearm to be a serious contravention. The legislature has signalled its gravity with a maximum penalty of 14 years' imprisonment set out in section 7 of the Firearms Act 1996. The principles and objects of the Firearms Act 1996 refer to the need for strict controls on possession of firearms and public safety.
Mr Masterson has no history of prior contraventions; however, he had been licensed for approximately 8 months, only, at the time of the search in July 2012. No mitigating circumstances were presented to the Tribunal. Mr Masterson had the new stock fitted to the Vektor Rifle, he had packed cardboard around the pin to stop it moving. This indicates to the Tribunal that Mr Masterson was aware that the telescopic stock may not have been a lawful addition to the Vektor Rifle.
General policy considerations might include the principles and objects of the Firearms Act 1996 - the intended strict controls on firearms possession, and considerations of public safety. New firearms legislation was introduced in 1996 with the intention of increasing public safety with strict licensing and a permit regimen for each new firearm. Licensees were required to have a genuine reason for licensing and for permit of each firearm. Making a firearm into a prohibited firearm, contradicts this public policy.
In Lynch at [47] the Appeal Panel noted 47 In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions. 48 In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch's history and the explanations given for his conduct, to make the Commissioner's and Tribunal's decisions the correct and preferable ones in exercise of the discretion given by s 24(2)(b)(ii). Similarly the separate 'public interest' basis for the decision was available in the circumstances. There were aspects of his conduct and explanations which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.
Revocation of a firearms licence is driven by the need for public protection - not for punishment of the licensee. The Tribunal also accepts that it is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.
The Tribunal is satisfied that the contravention of section 7 of the Firearms Act 1996, possession of a prohibited firearm, is sufficiently serious to warrant revocation of Mr Masterson's firearms licence in itself.

[72]

Is it contrary to the Public Interest for Mr Masterson to have a firearms licence?

The concept of "public interest" has been considered by this Tribunal in several decisions (e.g. Slavicek v Commissioner of Police, New South Wales Police Service [2003] NSWADT 106 Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179: Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 and Police v Toleafoa [1999] NSW ADT AP 9).
In Toleafoa the Appeal Panel stated at [25] that the public interest is: "...an inherently broad concept giving the Appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual…..."
The phrase in the public interest' was considered by the High Court in O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210. In a joint judgment, Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216: "...the expression in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only `in so far as the subject matter and scope and purpose of the statutory enactments may enable..."
In Ward, the Deputy President held that the `public interest' in relation to the holding of a firearms licence, related to the objects and principles set out in s.3 of the Firearms Act 1996. This means that Mr Masterson's conduct must again be considered in the light of the over-riding public interest of public safety.
The Tribunal is satisfied that the Vektor Rifle had a stock which was specially designed to be telescopic and hence make the rifle more easily concealable, in contravention of the Firearms Act 1996.
Mr Masterson's conduct involved a fundamental breach of the firearms possession requirements of the Firearms Act 1996 which compromised public safety.
The Tribunal is also satisfied that Mr Masterson did intend to make firearms parts, a pistol grip, a rail, and magazines for his firearms, although the printer was not good enough to do it. The Tribunal is satisfied that making firearms parts is outside the authority of Mr Masterson's category AB licence set out under section 8 of the Firearms Act 1996. A firearms licensee may maintain their firearm, but this went beyond that scope. The Respondent submitted that it would be against public interest for Mr Masterson to retain his firearms licence in these circumstances.
The Tribunal looks to Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 in relation to considerations of the public interest.
The Tribunal distinguishes Mr Masterson's circumstances, as unlike Mr Lynch, he has not been found guilty of a firearms offence. The Tribunal is satisfied that Mr Masterson has contravened the Firearms Act 1996 by possessing a prohibited firearm. The Tribunal is also satisfied that he has tried to manufacture firearms parts, contrary to the authority of his licence.
In considering whether it was not in the public interest for Mr Lynch to retain his firearms licence, the Tribunal at first instance (see Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80 at 21) referred to a range of considerations: (a) the public safety considerations, especially in the environment of the family home, which had led to the enactment of strict firearms storage requirements (b) the extent of the breaches of the law found in this case (c) the degree of ignorance displayed by Mr Lynch in relation to his knowledge of the relevant requirements (d) the opportunity that Mr Lynch had to regularise his situation so far as unregistered weapons were concerned through the well-publicised amnesties that occurred between June and November 2001, and for the 12-month period commencing October 2003 and ending September 2004 (e) the extent of the testimonials to Mr Lynch's good character from 47 people from 'various walks of life ranging from teachers and politicians to local business people and friends of long standing' (at [15] of Tribunal's reasons) (f) his sense of shame, and his commitment to never reoffending again (g) his practical needs for firearms.
The Tribunal in Lynch also considered the question, drawing on the approach taken by Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 at [27]- [28], as being whether the decision-maker can 'have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms'. The Tribunal needed to be satisfied there was "virtually no risk."
The Tribunal weighed up these matters as follows: '27 Although there was unquestionably a risk to public safety through Mr Lynch's actions, that risk did not materialise. Fortunately, the weapons did not fall into the hands of criminals nor did unauthorised persons use them. The police seized them. I need to determine the degree of risk to public safety if Mr Lynch's licence were reinstated. 28 Many factors need to be weighed in forming a view as to the risk to the public. The authorities to which I have been referred set out some of those factors however each case will inevitably raise its own peculiar issues for consideration. 29 I have no concerns about Mr Lynch's character or his commitment to comply with the law in future. However, in the circumstances of this matter I have concerns with respect to Mr Lynch's understanding of the obligations imposed on the holder of a firearms licence.'
The Tribunal has applied these considerations in relation to Mr Masterson. There is, of course, inherent risk in the possession of a rifle which can be concealed because of the telescoping of the stock.
At the same time, the Tribunal recognises that the public safety concerns might have been mitigated by the fact that the Vektor Rifle was stored in Mr Masterson's safe - reducing the risk that it could fall into other hands, besides Mr Masterson's own hands.
The making of firearms parts when not authorised to do so effectively undermines the objects of the Firearms Act 1996 in promoting public safety through the strict control of the possession of firearms. At the same time, however, Mr Masterson's contraventions were fewer than Mr Lynch's.
Mr Masterson said during the search "So you're going to try and get me for manufacturing something, are you? ". He also said in relation to the broken magazine "I'm not really in possession of that" indicating again a certain understanding of legislative prohibitions. This indicates, in the Tribunal's view, that Mr Masterson was aware that he was not authorised to make firearms. However, Mr Masterson did not appear to be clear about the scope of his authority as an AB licence holder during cross examination. In the Tribunal's view, this demonstrates a combination of educated wilfulness and ignorance on Mr Masterson's part in relation to firearms regulation. Because of this, the Tribunal cannot be certain that Mr Masterson would operate within the scope of the legislation and his authorities in the future.
While Mr Lynch may have expressed some remorse or contrition about his contraventions of firearms storage requirements, Mr Masterson has defended himself adamantly. He has denied breaching firearms legislation. He has not suggested that he might behave differently in the future.
There were no character references offered by Mr Masterson. It is difficult to understand what support he has in the community for his personal integrity in this respect.
It is also clear to the Tribunal that Mr Masterson does not have a need for a firearm - other than for recreation. There was no evidence his livelihood depended upon the holding of a firearms licence.
The Tribunal has considered the risk to public safety caused by Mr Masterson's behaviour and contravention of firearms legislation.
The Tribunal notes that there was no evidence of an adverse outcome to members of the public. However, the Tribunal must be satisfied that there is virtually no risk to public safety. The creation of firearms parts by an unauthorised person avoids the tracking of firearms which is integral to the safety objects of the legislation. It also undermines the principle of imposing strict controls on possession of firearms. Possession of a prohibited firearm is a serious criminal offence and a clear challenge to the Firearms Act 1996.

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Judgment (73 paragraphs)

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Cases Cited (9)

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