Mills v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2013-08-16

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2The Applicant, Mr Mills, has applied to the Tribunal seeking external review of the Respondent's decision to revoke his firearm licence.

Background 3The Applicant held a Category AB firearms licence under the Firearms Act 1996 ("the Act"). The licence was granted in March 2012 and was due to expire in March 2014. However, the licence was revoked in November 2012. The Applicant did not receive notice of the revocation until March 2013. 4The determination to cancel the licence was taken on the basis of firearms offences for which the Applicant has been convicted. 5In June 2012 the Applicant became subject of a Provisional Apprehended Violence Order. His firearms licence was suspended following a domestic incident where Police found a 22 Remington rifle stored under his bed and ammunition stored with firearms in his safe. 6In July 2012 the Applicant were convicted of the offences 'Not keep firearm safely -not prohibited firearm/pistol' and 'Holder of Category A or B licence not have approved storage'. He was fined $500 and $300 respectively for the offences. 7The Applicant's licence was revoked in November 2012.

Applicable legislation 8The Tribunal, on review, has to make the correct and preferable decision having regard to the material before it before it, and any applicable written or unwritten law: section 63 of the ADT Act. The Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 9The underlying principles and objects of the Act are stated in section 3: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and ... (2) The objects of this Act are as follows: ... (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, ... 10Section 11(5)(b) of the Act prescribes that a licence must not be issued to a person who has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law. 11Clause 5(l)(a) of the Firearms Regulation 2006 ("the Regulations"), prescribes for an offence relating to the possession or use of a firearm, or any other weapon committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). 12Section 12 of the Act provides: 12 Genuine reasons for having a licence (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. (2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons: (a) personal protection or the protection of any other person, (b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section). 13Section 24(2)(a) of the Act, prescribes that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 14Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulations. 15Clause 19 of the Regulations prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

The Respondent's case 16The Respondent has filed a bundle of documents pursuant to section 58 of the ADT Act. This bundle includes the material taken into account in relation to the determination. It includes entries held on the Police data base, the Facts Sheet setting out the details of events that lead to the convictions, the Applicant's criminal history, the original determination, submissions made by the Applicant in relation to his request for an internal review of the revocation determination and the reasons for decision provided in response to the internal review request. Mr Steptoe also provided written submissions in support of the Respondent's case. 17The Respondent relies on the provisions of section 11(5)(b) of the Act which provides that the Commissioner of Police must refuse a firearms licence application from any person who has been convicted of an offence prescribed by the Regulations. Section 24(2)(a) of the Act also provides grounds to revoke a firearms licence for the same reason. 18Clause 5(1) of the Regulations relevantly prescribes an offence relating to firearms or weapons. The mandatory provisions of section 11(5)(b) apply to any future application for a firearms licence lodged by the Applicant prior to July 2022. 19The Respondent, and therefore the Tribunal standing in its place, has discretion to revoke the Applicant's licence. However, it points to the decision in Botros v The Commissioner of Police [2000] NSW ADT 6 in support of the argument that it would be anomalous to allow the Applicant to continue to hold the licence. In Botros the ADT found it significant that if an applicant committed a prescribed offence before applying for his licence, it would not have been granted. The legislature has seen fit to ensure that that result would have been mandatory, and is mandatory for ten years from the date of the conviction. The Tribunal also found that it would be anomalous if, despite the committing of a prescribed offence after a licence is granted, the applicant were to retain his licence, although it is conceivable that some circumstances could justify such an anomaly. 20Mr Steptoe submitted that any discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and in clear preference to the public interest rather than an individual's private interests: Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 at [43]. 21There needs to be exceptional or special circumstances to give rise to the anomalous situation that the Applicant could hold a firearms licence when any subsequent reapplication by him would be a mandatory refusal: Maloney v Commissioner of Police of Police, NSW Police, 22 November 2004 unreported; WS v Commissioner of Police, NSW Police [2007] NSWADT 71 and Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227. 22Mr Steptoe submitted that there are no exceptional or special circumstances that would warrant the Applicant retaining his firearm licence. 23The Respondent contends that it would be unfair to allow the Applicant to hold a firearms licence when a person with entirely the same conviction, and perhaps with lesser penalty, would have their firearms licence application refused. It argues that the Applicant's desire to hold a firearms licence for recreational purposes does not justify the re-instatement of the licence. 24The Respondent further contends that it is not in the public interest that the Applicant holds the licence. In support of this contention the Respondent points to the Applicant's admission that he always slept with his firearm under his bed in case of any intruder. It is argued that this indicates that the Applicant considers the firearm as a tool for self-protection. However, the Respondent contends that self-protection is not a reason for which a firearms licence can be granted and, by extension, for which a firearms licence should be used. 25Section 12 of the Act specifically says that 'an applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for ...personal protection or the protection of any other person.'' 26The Respondent contends that a firearms licence holder who keeps a firearm for personal protection would be more likely to use a firearm if feeling threatened. Further, the likelihood that the firearm would be used in this manner is raised significantly if the firearm kept readily available under a bed rather than locked in a safe. In those circumstances the licensee poses a significant risk to public safety. 27The Respondent submits that the correct and preferable decision for this Tribunal to make is to affirm the Respondent's decision to revoke the Applicant's firearm licence on either basis.

The Applicant's case 28The Applicant appeared on his own behalf. He did not file any material in this matter and did not dispute the facts as outlined by the Respondent. 29The Applicant's solicitors provided submissions in relation to his request for an internal review of the revocation determination. It was submitted: Prior to the recent offences before the Coffs Harbour Local Court on 20 July, 2013, I understand Mr Mills had no prior convictions against him and was of unblemished character. The offences at Coffs Harbour Local Court were dealt with by way of a small monetary fine which in my respectful submission would suggest the offences were at the lower end of the scale and treated accordingly by way of small fine. The offences were out of character for Mr Mills. He maintains he will not re-offend in this manner again. There was no domestic related conviction or Final AVO Order made against Mr Mills in any circumstances. It was not alleged the firearms were used or intended to be used in respect of any domestic issue. The decision to revoke his licence is unduly harsh having regard to all the circumstances. Mr Mills had been a responsible gun holder up to the time of the offences. 30The Applicant's solicitors also provided a number of references in support of the request. References were provided by Mr John Davidson, Mr Bill Chapman and Ms Marie Newcombe. Each spoke highly of the Applicant. 31The Applicant indicated that his firearms have been confiscated and the Respondent proposes to have them destroyed. He seeks to retain his licence to enable him to dispose of his firearms. He requested that the Respondent facilitate this by making arrangements for the firearms to be transported to a dealer who could then sell them on his behalf.

Discussion 32One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. The Tribunal has held that "ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. 33It is my understanding that the Applicant's licence has now expired. He was convicted of two prescribed offences related to firearms or weapons. Parliament has identified certain offences which disqualify a person from being issued with a licence. This means that if his licence was reinstated and he was to apply for it to be reissued, the Commissioner would have no alternative but to refuse his application. 34Nevertheless, there is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter. 35A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. 36The Tribunal has considered numerous applications relating to the revocation of a firearms licence where the licence holder has failed to meet the requisite storage requirements contained in the Act. Deputy President Hennessy provided a summary of the legal principles that apply to the revocation of a firearms licence in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226. The Deputy President stated that the principle issue is whether there is a risk to the safety of the public if the applicant retains the licence and she quoted Vella v Commissioner of Police, NSW Police Service [2003] NSW ADT 91 at [35] as authority for this proposition. I agree with that view. 37The Deputy President went on to state that for the purpose of determining the principle issue, the relevant considerations included the following:

the reason for failing to store the firearm safely;
the length of time the firearm was not stored safely;
the potential real danger posed by failure to store the firearm safely;
the person's previous conduct in relation to storage of firearms and any related matter;
the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety 38The Deputy President then stated: "In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety". 39Contraventions in respect of failing to meet the safe storage requirements as set out in the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act: Bevan v The Commissioner of Police [2004] NSWADT 1 at paragraph [26]. 40I accept that the Applicant has a legitimate reason to hold a firearms licence however, there is doubt that he understands the importance of safe storage. He allowed the firearm to be kept unsecured at a residence used by others. I consider that in the circumstances this was a significant risk. 41Given what has transpired it is possible that the Applicant would be more alert to safety issues in the future and therefore that he is more likely to store his firearms safely in the future. However, I agree with the views expressed in Maloney v Commissioner of Police of Police, where Higgins JM stated in relation to this legislation: "In my opinion, the inference to be drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege to have a firearms license as public safety is placed at risk. Furthermore, that privilege is lost for a period of ten years following a conviction. Although the Commissioner has a discretion in this regard where the conviction occurred after the license has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the license. ... these offences form a basis of a mandatory refusal of an application for a licence. This means that even if Mr Maloney's license were to be restored, after 2007 when he would be required to reapply for his firearms license, the Commissioner would have no alternative but to refuse a renewal of his license. As I have already said, in my opinion parliament has made it quite clear that conviction for such offences result in the loss of the privilege of having such a licence unless there is some special circumstances that justify a contrary decision. In my opinion, in this case there are no special circumstances." 42In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, were treated totally differently to a conviction before a licence application. It will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence. 43The Applicant has not referred to any exceptional or special circumstances. I agree with the Respondent that there are no exceptional or special circumstances that would warrant the Applicant retaining his firearm licence. In any event, as the Applicant's licence has expired, there is no utility in reinstating the licence. 44In the circumstances of this matter, it is my view that the correct and preferable decision is to affirm the Respondent's decision to revoke the licence. Order The decision 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: 28 March 2014

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