Mekhitarian v Commissioner of Police

The Applicant's domestic circumstances

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.

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.

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Judgment (5 paragraphs)

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