The Applicant's son, Lawrence has an extensive history of serious and violent crimes. From his long criminal record it is clear his conduct has progressively deteriorated from the age of 14.
There are many incidents, the details of which were set out in the s 58 documents, that involved Lawrence behaving aggressively towards his parents at their home, and which required Police intervention. That address is also where the Applicant's firearms were stored until they were seized when his licence was suspended. In particular:
1. In October 2003, at age 14, Lawrence went out without telling his parents and when he returned home late, was abusive towards them. The Applicant and his wife refused to let him inside the house. The following morning, Lawrence yelled and swore loudly at his parents who were inside the house. He kept forcefully knocking on the door which caused a cracked glass plate to smash. The Applicant called the Police for assistance in controlling his son, but he and his wife did not want any action taken against him.
2. In November 2003, the Applicant and his wife became involved in an argument with Lawrence about schoolwork and his behaviour. Mrs Mekhitarian called the Police, but when Police attended, they were told it was a verbal argument only, no threats had been made, and they had no concerns for their welfare.
3. Also in November 2003, the Applicant and his wife became involved in another verbal argument with Lawrence about his attitude and behaviour. The Police were called but when they arrived, Lawrence had left the house to go for a walk to cool down. The Applicant and his wife agreed the incident was only a verbal argument and that no threats had been made. They signed a Police notebook stating they did not in any way fear for their safety (or for that of their daughter) and that they did not want Police to take any action as a result the incident.
4. In March 2006, when Lawrence was 17, he and his mother became involved in a verbal argument. Lawrence told her and the Applicant that he had smoked pot in the past. Mrs Mekhitarian demanded that he undertake a hospital drug test which he refused. Mrs Mekhitarian then called the Police, believing, erroneously, that they could make Lawrence undertake a drug test.
5. In April 2006, the Applicant and his wife called the Police to assist with removing Lawrence from their house. They told Police that they had had enough of Lawrence going out and not telling them where he was. They told Police that Lawrence was verbally abusive, and they believed that he was mixing with the wrong company and was out drinking and taking drugs. Police removed Lawrence from the house, and he then stayed with a family friend for an unspecified period.
6. In June 2006, the Applicant and Lawrence argued. The argument became physical and they were pushing and shoving each other. Mrs Mekhitarian called the Police. The Applicant informed Police that he did not wish to make a statement, did not wish to attend court as a victim, nor have an AVO applied for on his behalf, and he signed a Police notebook statement to acknowledge that he had no fears. The Applicant advised Police that the only action he sought was assistance in removing his son from the house. Police escorted Lawrence to the home of family friends, where he remained for an unspecified period. As a consequence of the Applicant's unwillingness to make a statement and because there were no physical injuries to the Applicant, no charges were laid against Lawrence.
7. In August 2006, the Applicant and Lawrence began to argue because the Applicant asked Lawrence to move out of the house; the Applicant sought Police assistance. The Applicant and his wife informed Police that they had had a verbal argument with Lawrence and they were sick of their son not respecting them. They were adamant that they did not want an AVO taken out against Lawrence as they had no fears for their safety.
8. Also in August 2006, when Lawrence was living with friends, he arrived at the house to collect his things; an argument ensued between the Applicant and his son. The Applicant refused to unlock the screen door of the house and Lawrence kicked the screen door open. The Applicant then contacted the Police. The Applicant and Lawrence continued to argue until the Police arrived. The Applicant told Police that he wanted Lawrence to continue to live with them but not if he was going to continue to come home at all hours of the night or not at all. The Applicant told Police that this was only a verbal argument and that he did not want Police to take any formal action, including taking out an AVO, against Lawrence. The Applicant signed a Police notebook stating that he had no fears for his safety.
9. In November 2006, the Applicant and Lawrence became involved in a verbal argument regarding Lawrence's behaviour, such as going out a lot. The Police were called and the Applicant said that he did not want Lawrence staying at the house if Lawrence continued to argue with him. The Applicant did not want to make a statement to Police but confirmed he had no fears for his safety.
10. In December 2006 Mrs Mekhitarian called the Police because Lawrence was abusing her. Upon arrival at the family home, Police could hear them screaming at each other. They were separated by Police and were taken to different rooms in the house. Mrs Mekhitarian was considered to be heavily intoxicated. Neither could not be reasoned with by Police. Lawrence then left the house in a very emotional state, refusing to talk to the Police. Mrs Mekhitarian continually screamed at the Police that she wanted Lawrence out of the house and demanded that they remove him and make him stay away from the house. She was told that they could not do this without an AVO. A few hours later, after Police had left the house, Lawrence returned, and the argument restarted. Mrs Mekhitarian contacted the Police again. The Applicant and his wife refused to take out an AVO and no fears were held for their safety.
11. Also in December 2006, in the car on the way home from the station, Lawrence asked the Applicant for money, and when the Applicant said he did not have any, Lawrence reportedly became enraged. The Applicant then stopped the car and Lawrence got out. Lawrence then smashed a bottle on the ground. At the house, Lawrence started yelling at the Applicant. Lawrence then pushed the Applicant and put his head forward towards the Applicant as if to headbutt him. Mrs Mekhitarian then called the Police. Lawrence then threw a dining chair, a pedestal fan and a bowl, destroying each. Mrs Mekhitarian twice tried to walk past Lawrence but he stepped in front of her and placed his hands on her face and then pushed her backwards. The second time, Mrs Mekhitarian fell onto a coffee table. She expressed fears for her safety if Lawrence was not removed from the house and prevented from returning. She provided Police with a statement at the scene but was adamant that she did not want Lawrence charged because "he is her still son". In the Police notebook statement, Mrs Mekhitarian acknowledged that she was scared of Lawrence and was worried about what he might do next. The Police subsequently applied for an Apprehended Domestic Violence Telephone Interim Order on behalf of the Applicant and his wife. The AVO was granted and the restrictions included Lawrence being prohibited from entering or approaching within 100 metres of the his parents' house. The Order was made for a duration of 28 days.
12. On Christmas Day in 2006, while the AVO was still in place, the Applicant and his wife saw Lawrence lying on the front porch of the house, half asleep, in breach of the condition of the AVO that he must not go within 100 metres of the house. The Applicant and his wife left the house to take a relative home, but when they returned home, Lawrence was inside the house taking a shower. This was a breach of the condition of the AVO that he must not enter the house. When the Applicant said to Lawrence that he was not supposed to be there because of the AVO, Lawrence responded that he had nowhere to go. The Applicant then called the Police. When asked by Police why he was at the house, Lawrence responded that it was where he lived. Lawrence acknowledged that he had been served with the AVO; Police arrested and cautioned Lawrence and conveyed him to Chatswood Police Station. There, Police reportedly said to Lawrence "we've got no reason to believe you won't go straight back there", referring to the Applicant's house. In response to this, Lawrence reportedly said, "that's right, I will." Lawrence was charged with contravening an Apprehended Domestic Violence Order. On 26 March 2007, the matter was heard before Sydney District Court. The criminal proceedings did not proceed to a conviction and were dismissed under s 10 Crimes (Sentencing and Procedure) Act 1999.
13. In July 2008, when Lawrence was aged 19, he and the Applicant became involved in a verbal argument over Lawrence being unemployed, swearing at the Applicant and his general attitude. Police were called and the Applicant and his wife told Police that they wanted Lawrence to leave the house. The Applicant stated that he had no fears for his safety and only had a verbal argument with Lawrence.
14. In May 2015, when Lawrence was 26, the Applicant called the Police because Lawrence had returned to the house. At the house, Lawrence reportedly said to his family "I cannot bring myself to kill myself I will get the police to kill me." Lawrence then armed himself with a large kitchen carving knife (about 20cm long) and sat at the front door of the house waiting for Police to arrive. Lawrence told Police: "I have a knife, if you enter, I will kill myself" and later "I am not going to leave unless I'm in a body bag." The Applicant's daughter then took the knife from Lawrence. Lawrence then ran through the house and attempted to remove further knives from the knife block in the kitchen. Police then drew a taser because it was considered there was an imminent threat of Lawrence inflicting serious harm on himself or others. Lawrence was taken to hospital. During the drive, Lawrence stated that he had made a conscious decision to kill himself and that nothing would change that. At the hospital, Lawrence was sedated due to his aggression towards hospital staff.
15. Most recently, on 15 June 2019, at 12:30am, while in the Applicant's vehicle, Lawrence, who was heavily intoxicated, asked the Applicant for money. The Applicant told him he did not have any money. Lawrence then started to hit his hands on the dashboard of the Applicant's vehicle. The Applicant stopped the car. The Police received calls from members of the public about the incident. When Police arrived, Lawrence could not be located. Outside the Applicant's house, Police observed Lawrence hiding behind a parked vehicle. Lawrence was reportedly extremely hostile and threatening towards Police, who then drew their tasers, but Lawrence ran away. At 2:00am, after Police had left the house, Lawrence returned and was let into the house by his mother. The Applicant and his wife began to argue with Lawrence. Mrs Mekhitarian took the phone and ran outside to call 000. While she was outside the house making the call to 000, Lawrence pushed her over and she fell to the ground. While she was on the ground, Lawrence wrapped both of his arms around her in a bearhug like manner and squeezed her tightly. She feared for her safety. When inside the house, Lawrence struck the Applicant with the back of his right hand, causing a laceration to the left side of the Applicant's neck. The Applicant informed Police that he felt immediate pain and feared for his safety. Shortly thereafter the Police arrived at the house and located Lawrence on the roof. He refused to come down and Police requested assistance from Police Rescue and Negotiators. At 4:15am, Lawrence was talked off the roof. At the time Lawrence was 30 years old and was living at the Applicant's house. The Applicant and Mrs Mekhitarian both provided an electronic interview via Domestic Violence Evidence in Chief. Lawrence was charged with common assault and assault occasioning actual bodily harm. On 25 November 2019, the matter was to be heard before Hornsby Local Court. Neither the Applicant nor his wife appeared at Court. It appears that, as a result, the charges were subsequently withdrawn.
[NOT FOR PUBLICATION]
The Applicant, in accordance with the Tribunal's confidentiality Orders was unaware of the detail of the confidential material. He volunteered that he had once been engaged in a dispute at the supermarket about incorrect pricing and also that he had undertaken some (unlicensed) handyman activities at home. The Applicant said he feels like he is being portrayed as a "villain", even though he has held a firearms licence for over 30 years, without incident. The solicitor for the Respondent assured the Applicant that the confidential material in no way related to allegations of any of misconduct by him and it was confirmed that there was no contention that the Applicant is not a fit and proper person to hold a firearms licence.
The Applicant said he has tried to "get inside Lawrence's head". In cross examination he said that his son becomes "uncontrollable" when he becomes angry and, in relation to the incident in June 2019, had become violent and dangerous. Now, in prison, Lawrence is receiving medication to suppress his anger.
The Applicant said his son had been due for release last December, then it was to be February this year. He is still in custody and will be sentenced in August for a charge of reckless grievous bodily harm in company in relation to an assault on another prisoner. He thought Lawrence would "definitely" be sentenced to a further term of imprisonment. He said that Lawrence is in prison on the Central Coast and he has not visited him. They do not phone him, although Lawrence occasionally phones home, and he, he said, speaks to his son. Lawrence does not ask for money or any other assistance, nor is any offered. His wife does not speak to Lawrence when he phones; she is "cold" about their son and wants nothing to do with him.
He said Lawrence last lived with them in June 2019. He came to the home only once after that - to collect his clothes, which his parents packed up and left on the balcony, so they did not have to have contact with him. He cannot come to live with them again.
The Applicant was asked about occasions in the past when they had asked Lawrence to leave the home, then after his son apologised, he was taken back. He said that, as parents they had "hoped against hope" that things would turn around. In relation to Lawrence's return after an AVO had been issued, he said that while Lawrence had not forced his way into the house, they would have been unable to stop him, given that he is aged 70, and was aware that Lawrence is prone to violence. He said they had always tried to keep him away. He has no key to the house. The Applicant observed that all the time Lawrence had been "running free" his son had never attempted to access the Applicant's firearms. He thought it was unfair that it was only after Lawrence was incarcerated that his firearms were confiscated.
The Applicant was asked in cross examination about his (and his wife's) failure to attend court, notwithstanding being issued with summonses, following the June 2019 incident. Senior Constable Roberts said the Applicant and his wife told him they were not going to attend and when he told the prosecutor that, summonses were then issued to the Applicant and his wife. The Applicant said he knew a summons was an order of the court requiring attendance, but they had already given (video) statements and would not have said anything different. He could not recall a discussion with Senior Constable Roberts that they would need to attend in order for the matter to proceed, nor the offer to transport them to court; he said it was "not a pleasant time". He thought his wife would have made a scene at the court, because she was so emotional about what had occurred, and he needed to support her. Senior Constable Roberts said that without their evidence the matter had to be withdrawn.
The Applicant said his firearms were stored at the home, as they always have been, and his storage arrangements have always been found to be compliant. He takes them to the farm, when required, where he has another safe. He said Lawrence has only been to the family farm once, many years ago, when he was still at school. He thought he would not even know how to get there.
The Respondent submitted that Lawrence's extensive history of criminal conduct (including violence), the Applicant's inability to control his son (having to routinely seek the assistance of the Police in the past) but refusing to take action against his son, means there is a real risk to public safety. The fact that Lawrence has not visited the house for a couple of years (including because he is in prison) does not, it was submitted, mitigate the risk.
In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
The Applicant's son has caused the Applicant and his wife, no doubt, great disappointment by nearly 20 years of his escalating misconduct. Many parents though suffer similar distress when their child so clearly, and often inexplicably goes "off the rails". The Applicant and his wife have undergone serious trials brought about by Lawrence's conduct, including criminal conduct. The evidence is that the Applicant has been unable to control his son in the home environment and has resorted on multiple occasions to seeking the assistance of the Police. However, notwithstanding numerous confrontations with Lawrence the evidence is that the Applicant has managed, albeit with the assistance of Police, such situations without resorting to force or the threat of force, in particular using firearms. Importantly, notwithstanding Lawrence having lived at their home, on and off, until the 2019 incident there was no evidence whatever that he had ever attempted to access his father's firearms.
[NOT FOR PUBLICATION]
It is of concern that notwithstanding on several occasions the Police had offered to seek an AVO on behalf of the Applicant and his wife, but they declined to take action against their son. It was only when Lawrence injured his mother that they agreed to take action. Even then, they did not follow through by giving evidence, resulting in the charges against Lawrence being dropped. The Applicant's explanation was that he and his wife already had provided video statements and that these should have sufficed, and that his wife was in such an emotional state that she would have made a scene. While I accept that the niceties of procedural fairness to an accused might not be apparent to a lay witness, I accept the evidence of Senior Constable Roberts that he had explained the consequences of their failure to appear, and that, nonetheless, they decided not to attend. I accept that the Applicant may have been concerned that his wife would have made a scene at court but that is not an adequate reason for failing to attend. Having said that, I accept that the situation was a stressful one and that the incident was the culmination of years of what they are likely to have perceived as parental failure.
There is no doubt that Lawrence's criminal history is appalling. The last incident between Lawrence and his parents occurred in June 2019 and was to be heard in November 2019. The evidence is that there has been some shift in the family dynamics since that time. Lawrence has not been at their home since June 2019, albeit he has been in custody for most of that time. The Applicant and his wife have had almost no contact with him since then, save for Lawrence's occasional phone calls from prison to his father. It is clear to me that, even on release from prison, whenever that may be, Lawrence is not welcome at their home, and, contact, if any will continue to be minimal. This matter differs from the recent case of Ryan v Commissioner of Police [2021] NSWCATAD 23 where, amongst other factors, the Applicant lived with her partner who had an extensive criminal history.
I do not agree that the evidence of the Applicant's association with his son objectively demonstrates that he may not personally exercise continuous and responsible control over firearms because of his living and domestic circumstances. The objective evidence does not even establish that they live or will resume living at the same address, or that their relationship is such that the Applicant would relinquish control of his firearms to his son.
For these reasons, I do not consider that there is reasonable cause to believe that the Applicant may not exercise continuous and responsible control over firearms because of his living or domestic circumstances.
[2]
Public interest
The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. The term is not expressly defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. 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 Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.
The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the 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 are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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 [64] - [66].
There is no dispute that the Applicant is a person of good character. For many years in the past, he had difficulties controlling the behaviour of his son, and it was only when his son became violent towards the Applicant and his wife, that he considered taking out an AVO. I have discussed above the possible reasons for his reluctance to follow through. I have also discussed above the change in attitude towards his son in recent years.
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicant said that he seeks return of his firearms licence because he has owned a 180 acre property since about 2005 on which he raises a small number of goats for consumption. These he shoots as the humane manner of slaughter. In addition, he has a "fair bit" of feral animals such as cats and dogs which he has tried, without success, to poison. He also does some target practice at the farm. I accept that, there is some public interest in law-abiding farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 at [66].
Private interests such as having a licence to control feral animals, shooting domestic animals for consumption and undertaking target practice, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
The Applicant has no criminal history. In particular, his firearms record is unblemished, in circumstances where he has been at possible risk of intimidation by his son to access his firearms. In view of his current virtual estrangement from his son, a real and appreciable risk to public safety is not established. Consequently, it would not be contrary to the public interest for the Applicant to hold a licence, and I so find.
The Respondent submitted, that it was open to the Tribunal to make a condition of the Applicant's licence that his firearms be permanently stored at the farm. This had some initial attraction, given the evidence that Lawrence is unlikely to know the location of the property. On the other hand, the location is likely to be able to be identified as a matter of public record, and therefore, if Lawrence were so minded, he could attempt to access the firearms there. Further, again as a matter of public record, unnecessary attention would be invited to unattended (albeit secured) firearms at a remote location. Having regard to the findings above, I do not propose to impose such a condition.
[3]
Conclusion
In all the circumstances, I am reasonably satisfied that there is no reason for the Applicant not to continue to hold a firearms licence.
[4]
DECISION
1. The decision under review is set aside.
[5]
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: 15 June 2022
Parties
Applicant/Plaintiff:
Mekhitarian
Respondent/Defendant:
Commissioner of Police
Cases Cited (9)
Tribunal's approach
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].