Millar v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-07-31

Solicitors: McDonald Law (Applicant) Holding Redlich (Respondent) File Number(s): 2024/00074851

REASONS FOR DECISION

After pleading guilty to affray, Mr Millar, who is twenty-five years old, was placed on a twelve-month Conditional Release Order (without conviction) to conclude on 14 December 2024. Mr Millar's firearms licence was revoked on 12 February 2024 following this finding of guilt. He now seeks a review of that decision. While he remains subject to a Conditional Release Order, Mr Millar is precluded from being issued with a fresh firearms licence. By contrast, the Commissioner of Police and, on review, this tribunal, retain a discretion to set aside the revocation of a firearms licence.
Firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms. (s3 Firearms Act 1996)
It is not in dispute that I have the power to review the decision to revoke Mr Millar's licence and that it is my role to decide the correct and preferable decision having regard to the material then before it. (s11(5)(d) of the Firearms Act 1996; cl 5(3) Firearms Regulations 2017)

ISSUES

In reaching my decision, I have considered the following issues: 1. my powers in relation to this matter; 2. why Mr Millar wishes to hold a firearms licence; 3. the nature of Mr Millar's offending; 4. whether Mr Millar has addressed his mental health issues and his alcohol issues; 5. whether Mr Millar is a fit and proper person to hold a firearms licence; 6. whether it Is in the public interest for Mr Millar to hold a firearms licence.

What is the law in relation to the revocation of a firearms licence?

A firearms licence can be revoked for any reason for which a licence would be refused (s24(2)(a) and (d) of the Firearms Act 1996)
A firearms licence must not be issued to a person under a conditional release order for particular offences, relevantly in this case, for affray and hindering or resisting a police officer in the execution of their duty. This means that if Mr Millar had applied for a licence while subject to a conditional release order, his application would have to have been refused. (see clauses 5(1)(i) and 5(1)(c ) (i) of the Firearm Regulations; s60(1AA) of the Crimes Act 1900).
When, however, a firearms licence has been revoked and the person in question is still subject to a conditional release order - as is the case for Mr Millar - the decision-maker and, on review, this tribunal, have a discretion to affirm the revocation or set it aside.
While special or exceptional circumstances are not required, there must be some circumstance, or justification, to not treat a relevant conviction as a sufficient basis for revocation. This reasoning has also been applied in circumstances where a conditional release order was made without conviction. (see Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77; Gasnier v Commissioner of Police, NSW Police Force [2024] NSWCATAD 133)

Why does Mr Millar wish to hold a firearms licence?

Mr Millar held a minor's firearms licence until its expiry in 2017. His next firearms licence, for recreational hunting and vermin control, expired in November 2022 and was re-issued to expire in November 2027. As set out above, this licence was suspended on 24 January 2023 and revoked on 20 December 2023.
In the statement prepared for these proceedings, Mr Millar describes his need for a firearms licence: Having a firearms licence and shooting firearms is an essential and significant part of my life. I love the hobby of hunting. I find satisfaction in helping to control feral vermin numbers on farms, assisting property owners in reducing the numbers of rabbits, hares, pigs, feral cats and foxes…I enjoy being out in the bush, there's always another property to go to another place to explore and I enjoy meeting and speaking with the locals at the locations and farms where I go. I grew up around my dad, grandpa and pop taking me hunting when I was young….The seizing of my firearms licence has been very difficult for me with missing out on trips and hunts with my dad, uncle and some friends who share the same hobby…I am also a member of the SSAA (Sporting Shooters Association of Australia).
Contained on file are partly completed letters of authority from April 2024 by landowners giving permission for unspecified persons to shoot for recreational hunting and vermin control.
In oral evidence, Mr Millar confirmed that he works as a carpenter and does not require a firearms licence for his employment.

What was the nature of Mr Millar's offending?

It is not in dispute that Mr Millar was drinking alcohol with some friends between 4pm and 11pm on Friday 13 January 2023, that a verbal altercation broke out with one of the men and that Mr Millar pushed and swung at another man who was trying to break up the argument. The first man punched Mr Millar, who fell over. When Mr Millar escaped behind a locked glass door, the first man punched through the glass, sustaining cuts to his arm. The second man called an ambulance and Mr Millar assisted the first man outside to wait. The police arrived before the ambulance and provided first aid to the injured man. Mr Millar and the second man became aggressive and agitated with the police presence.
According to the agreed facts, which have not been disputed in these proceedings: During the treatment of [the injured man], [Mr Millar] continued to be aggressive with police, questioning their conduct at the scene. [Mr Millar] began interfering with the paramedics treating the [injured man], paramedics told [Mr Millar] to get out of their way. Police gave [Mr Millar] a direction to stop interfering with the paramedics and go back inside the apartment to enable the treatment of the [injured man].[Mr Millar] refused and continued to be aggressive towards police. Police attempted to move [Mr Millar] away from the treatment area, but he refused to comply. [Mr Millar] resisted [one of the police officers] and in the execution of their duties, resulting in a physical altercation taking place. Shortly after, [Mr Millar] was placed under arrest.
In training to become a licensed carpenter, Mr Millar works for his family's building company where he is responsible for running job sites and managing subcontractors. Mr Millar has been a successful football (soccer) player and now coaches children at his local football club. He identifies as a Christian, lives with his parents, is saving for a house and planning to marry his girlfriend
In his statement, Mr Millar stated that he acknowledges the seriousness of his offence which, he says, was a wake-up call, and that he is 'continuing to learn, grow and mature.' On the evidence before me, I am satisfied that Mr Millar is genuine in his remorse and in his desire to act more responsibly.

Has Mr Millar addressed his mental health issues and his alcohol issues?

In a letter dated 29 November 2023, the clinical psychologist, Dr Rony Kayrouz, confirmed that Mr Millar had 'previously met the criteria for adjustment disorder with mixed anxiety and depression regarding the incident on 14 January 2023 but no longer meets the criteria for adjustment disorder with anxiety.'
In his report dated 15 May 2024, Dr Kayrouz expressed the view that 'there is no history that symptoms associated with [Mr Millar's] previous condition will impact his ability to exercise continuous and responsible control over firearms.' He is of the view that Mr Millar is 'at a very low risk of relapsing, and his prognosis is good.'
Dr Kayrouz's reached these views in light of the following findings: [Mr Millar] has insight into the consequences of binge drinking and has a vision for his future of establishing his own business, which he is currently working towards. He has learnt strategies to help manage his anxiety, stress and anger symptoms. [He] reported that his faith and church community, which he attends weekly, is a source of support and provides direction fostering pro-social behaviours.
In particular, Dr Kayrouz enumerated the following protective factors further supporting Mr Millar's mental health: 1. he enjoys meaningful contributions in his employment; 2. he is currently in a long-term stable romantic relationship; 3. he is part of a supportive church community which he attends weekly; 4. he has a good relationship with his mother, father, siblings and extended family.
I accept that Mr Millar has attended thirteen sessions with Dr Kayrouz since June 2022.
In a risk assessment prepared for the Firearms Registry on 15 May 2024, Dr Kayrouz expressed the following opinions: 1. on the basis of his testing, 'it is more than likely [Mr Millar] does not meet the criteria for major depressive disorder, obsessive-compulsive disorder, generalised anxiety disorder, PTSD or substance abuse disorder'; 2. the structured clinical interview for DSM-5 Disorders (SCID-5-CV) and observations made during treatment further indicated that Mr Millar does not meet any diagnostic criteria for mental health diagnoses; 3. Mr Millar has been assessed as a well-adjusted person with several strengths: warm and empathy, a hard work ethic open to learn new strategies for stress anxiety and anger; insight into the negative consequences of binge drinking, significantly reduced alcohol use and the ability to abstain from alcohol for a period of 12 months. 4. Mr Millar is an 'empathic, responsible and conscientious person whose previous condition has no potential to put himself or the public safety at risk if they were to have possession and use of a firearm.'
Dr Keyrouz noted that Mr Millar had reported no suicidal ideation, plan or intent to end his life. He reported no history of suicide attempts.
Mr Millar has been seeing his general practitioner, Dr Tsang, for over twelve years. In a letter to the Commissioner of Police dated 7 May 2024, Dr Tsang wrote: [Mr Millar] is currently on treatment for anxiety with a low dose medication known as sertraline. He has been on this medication for approximately a year and it has been effective. He currently has good insight and has no intent to hurt himself or others. He denies having any anger outbursts and states he can control his emotions. He presents himself calm and reflective, without any delusions. I have consulted him 7 times in the last 12 months and on each occasion, [Mr Millar] has not shown any acute mental symptoms or signs…I do feel he can demonstrate sound judgement and support the reissuing of his firearms licence.'
In notes by the psychologist, Ms LaCaria, at Apex Psychology for Mr Millar's session on 24 May 2023 (incorrectly dated as 2022) records that following the affray incident, Mr Millar had 'intrusive thoughts about the word killing and engaged in rituals in response.' According to the notes, Mr Millar: 1. became worried about becoming schizophrenic - despite clear evidence to the contrary - and kept seeking reassurance from those around him, including his general practitioner and psychologist; 2. reported experiencing low mood and passive suicidal ideation (wanting not to be around anymore) but denied wanting to hurt himself or die; 3. began receiving treatment for symptoms of obsessive-compulsive disorder. The notes also record that Mr Millar's medication was changed to address his anxiety;
In records of the session with Ms LaCaria dated 15 May 2024, Mr Millar said that his mood and anxiety had been better but that he had off days where he felt lower in mood or more anxious and some intrusive thoughts and doubts about his mental health.
In September 2023, Mr Millar began seeing the psychologist Dr Kayrouz for anger management and, on the information before me, saw Dr Kayrouz on eight occasions.
On the evidence before me, I am satisfied that Mr Millar has been making progress in addressing his alcohol and mental health issues. I give weight both to the findings of Dr Keyrouz in his report dated 15 May 2024 that Mr Millar does not have a mental health disorder and to the notes taken by Ms LaCaria, also on 15 May 2024, that, at this time, Mr Millar was continuing to have some low mood, anxiety and intrusive thoughts and doubts about his mental health.

Is Mr Millar a fit and proper person to hold a firearms licence?

A firearms licence may be revoked if the Commissioner of Police and, on review, this tribunal, is on the opinion that a person is no longer a fit and proper person to hold a firearms licence. (s24(2)(c) of the Firearms Act).
In the expression 'fit and proper person', 'fit' or 'idoneus' is said to involve three things, honesty, knowledge and ability. (see Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127, 156 - 157.)
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ found that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur..
Mr Millar has been a member of his church for over ten years and in a reference addressed to the Commissioner of Police, his pastor writes that Mr Millar has made changes to his life since the altercation in January last year: In light of the changes he has been making in his personal life, I personally believe that an incident like this will not happen again. I personally have never felt unsafe knowing [Mr Millar] is a firearm owner and in my opinion I believe that he is reasonable and cautious. With the decisions that he currently making, I can see and am confident of the healthy changes happening in his life.
The young adults pastor at Mr Millar's church has known Mr Millar for over six years. In a letter addressed to the Commissioner of Police and dated 20 May 2024, he writes: On a Sunday service around the early 2023 [Mr Millar] pulled me aside and disclosed to me..an incident that he would have to attend court for, at which I must admit, caught me off guard as it seemed so out of character for [him]..I can speak of in length of [Mr Millar's] remorse and regret for what happened, but what really showed me the scale of impact this situation has had on his life has been his life decisions and change to his routine….I myself was around firearms a lot from a young age on my [g]randfather's farm. I was taught to be overcautious and always handle them with immense respect for the safety of myself and others around me with a zero policy for careless behaviour…I would never be concerned with [Mr Millar] being a firearm holder as I believe he fits the correct and responsible personality type to handle them with the above traits. I know and believe the incident that happened will never play out again, as he has not only spoken at lengthy at the deep changes that have taken place since that time in his life, but he has backed it up in deed as well. As I have told him…all the church family will back and support [him] in this time and beyond..[Mr Millar] is a trustworthy, careful and diligent young man and I know he has a bright future ahead of him.
Ms Nohra is a family support practitioner who has known Mr Millar for over twenty years through their local soccer club, where Mr Millar is a coach for the younger players. In relation to the altercation involving Mr Millar, Ms Nohra wrote to the Commissioner of Police as follows: In my opinion, the incident that occurred was far from who [Mr Millar] is. Knowing [Mr Millar] the way I do, I am most certain this will never happen again given the measures he's taken to better himself. Further on this..I know he demonstrates self-control and [is] a cautious person. Steven is a meticulous young man who enters situations will a well thought out mind frame and sense of responsibility. I have never felt unsafe knowing [he] is a firearm owner/user.
Other members of the football club and local and church communities have also provided references for Mr Millar attesting to his strong values, his dedication to the community and his ability to reflect on his wrongdoing and change his behaviour.
Mr Millar holds a current Working With Children Check Clearance.
On the evidence before me, I accept that Mr Millar has been honest in his evidence and that his honesty and responsibility have been confirmed in the testimonies and references before me. It has not been disputed that Mr Millar has the knowledge and ability to use, store and handle firearms. For these reasons, I am satisfied that he is a fit and proper person to hold a firearms licence.

Is it in the public interest for Mr Millar to hold a firearms licence?

The Commissioner for Police and, on review, this tribunal, may revoke a firearms licence is satisfied that it is not in the public interest for the licensee to continue to hold the licence. (clause 20 of the Firearms Regulations)
In determining the public interest, public safety is to be given paramount consideration. The issue of public interest allows for matters going beyond the applicant's character to be taken into account, including public protection, public safety and public confidence in the administration of the licensing system. Although the Police Commissioner and, on review, this tribunal could never be totally satisfied that a person would never pose any risk to public safety, the tribunal must be satisfied that there is virtually no risk. ( see Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218; see Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP at [33]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28).
In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43, the appeal panel of the Administrative Decisions Tribunal (NSW) considered the revocation of a firearms licence for an applicant who, while found guilty of firearms offences, did not have a criminal conviction recorded against him: 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.
On the evidence before me, I am satisfied that during the altercation in January 2023, Mr Millar displayed aggressive behaviour, anger and issues with alcohol. He continued to behave aggressively by interfering with the work of paramedics and police who attended the scene. In issuing Mr Millar with a conditional release order (without conviction) for a twelve-month period, the magistrate gave Mr Millar the opportunity to address his past behaviour. For the reasons set out above, I am satisfied that this was as Mr Millar describes it, a wake-up call, and that he has shown exemplary behaviour since the court proceedings.
It is not in dispute that, in his application in 2020 to renew his firearms licence, Mr Millar answered no to the question: 'Have you ever attempted suicide or self harm, or in the past 12 months, been referred or treated for a mental or nervous disorder or illness.
According to Counsel for the Police Commissioner, by answering no to the question, Mr Millar knowingly provided false or misleading information and, for this reason, it wasn't in the public interest that he have a firearms licence.
Despite the fact that four issues are raised in this one question, namely suicidal ideation, self harm, referral for mental or nervous disorder or illness, treatment for mental or nervous disorder or illness, an applicant can only answer yes or no to the question. This means that the four issues must be answered together rather considered separately, making the question itself unclear and the choice of reply confusing. This could have been avoided were each of the four issues raised - suicidal ideation, self-harm, referral for mental or nervous disorder or illness, treatment for mental or nervous disorder or illness - queried in discrete questions on the application form.
In light of the confusion potentially caused by allowing only one answer to this composite question, I cannot be satisfied that Mr Millar knowingly provided false or misleading information by answering no in his 2020 application for a firearms licence. I give no weight to this in considering whether it would be in the public interest for Mr Millar to now hold a firearms licence.
On the evidence before me, however, I am not satisfied that sufficient time has elapsed to assess Mr Millar's response to treatment, especially in situations where alcohol is involved or there are significant stressors. Although Mr Millar has certainly made progress and has demonstrated stability in his working, personal and spiritual life, the notes taken by Ms LaCuria do indicate some uncertainty in relation to Mr Millar's anxiety.
Furthermore, Mr Millar remains subject to a conditional release order. As set out above, while special or exceptional circumstances are not required, there must be some circumstance, or justification, to not treat a relevant conviction - or in this case, a conditional release order without conviction, as a sufficient basis for revocation.
On the evidence before me, I find that there is no such justification or circumstance to warrant this and am not satisfied that, at the present time, it would be in the public interest for the revocation of Mr Millar's firearms licence to be set aside. Once Mr Millar has completed his conditional release order he will be in a position to re-apply for his firearms licence and submit details of his personal, vocational and spiritual development and achievements.

ORDER

The decision of the Commissioner of Police on 12 February 2024 to revoke the applicant's firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2024

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (6)