This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Commissioner). The delegate determined to revoke the Applicant's category AB firearm licence.
[2]
Background
On 27 December 2006, being approximately three and a half months after being issued with a provisional licence, the Applicant was charged with exceeding the speed limit whilst driving. The Applicant's licence was suspended from 27 March 2007 until 27 June 2007. An appeal was later lodged and upheld,
In October 2007, the Applicant was charged with not wearing his seat belt. The Applicant's licence was suspended on 2 February 2008 to 2 May 2008.
In 2009, the Applicant was charged with:
1. Exceeding the speed limit by not more than 15 km/hour on 6 February 2009 and on 22 June 2009; and
2. Not complying with conditions of his provisional licence by displaying "P" signed on 21 March 2009.
Since 2009, the Applicant has held various firearms licences.
On 5 August 2010, after an unrestricted driver's licence was issued, the Applicant was charged with driving using a handheld mobile phone. He was again charged with this offence on 11 July 2012.
On 4 September 2012, the Applicant passed a safe storage inspection by the police and no issues were identified.
In 2013:
1. the Applicant was charged with exceeding the speed limit by more than 20 km/hour but not more than 30 km/hr on 19 March 20013. On 16 April 2013, the Applicant's unrestricted driver's licence was refused. The refusal was later not implemented on the basis that the Applicant was subject to good behaviour conditions to apply on 19 April 2013 to 18 April 2014.
2. the Applicant was charged with exceeding the speed limit by more than 10 km/hour but not more than 20 km/hr on 25 November 20013.
On 6 May 2013, the Applicant passed a safe storage inspection and no issues were identified.
On 12 May 2017, the Applicant was issued with an unrestricted driver's licence.
In 2017, 2018 and 2019, the Applicant was again charged with speeding offences and specifically with exceeding the speed limit by more than 10 km/hour but not more than 20 km/hr on:
1. 21 December 2017;
2. 10 June 2018; and
3. 14 January 2019.
On 4 June 2019, the Applicant was issued with a category AB firearms licence.
In 2020, the Applicant was charged with speeding by exceeding the speed limit by more than 20 km/hour but not more than 30 km/hr on 29 March 2020. He was also charged with driving using a mobile phone on 21 May 2020.
Later in 2020, the Applicant's driver's licence was again suspended on 11 August 2020 until 10 December 2020. On 31 July 2020, the suspension was not implemented on the basis that good behaviour conditions would apply from 11 August 2020 to 10 August 2021.
Approximately a month after the good behaviour conditions were lifted, the Applicant was again charged with speeding by exceeding the speed limit by more than 10 km/hour but not more than 20 km/hr on 6 September 2021.
In 2022, the Applicant was charged with:
1. Disobeying a no turn sign at an intersection on 11 January 2022;
2. Driving with a low range concentration of alcohol in respect of which a conditional release order for six months was made without conviction on 24 May 2022 (Driving CRO).
On 30 April 2022, the Applicant completed the Traffic Offender Intervention Program
On 29 November 2023, the Applicant's wife made a report to the police. The report prepared by the police states:
… Both [the Applicant's wife] and [the Applicant] are firearm licence holders and possess firearms.
[The Applicant's wife] is currently 7 weeks pregnant with [the Applicant's] first biological child. [The Applicant] drinks between 8 - 16 beers daily, and is diagnosed with ADHD and RSD (Rejection Sensitive Disorder). [The Applicant] is self employed with a successful earthmoving/ irrigation business.
The relationship has been rocky following their marriage in 2021. [The Applicant's wife] has found evidence of [the Applicant] cheating with other women on his mobile phone. When confronted, [the Applicant] blames [The Applicant's wife] for 'planting' the evidence or denying the incident ever occurred. The continued problems have resulted in the pair attending marriage counselling with no success.
On Tuesday 29th November 2022, [the Applicant's wife] attended the … Police Station to share her concerns relating to the current situation. [The Applicant's wife] told Police about the controlling behaviour shown by [the Applicant] over the last year or so, however denied being subject to any physical violence or threats to her children. [The Applicant's wife] explained they had attended marriage counselling, but [the Applicant] continued cheating with other women.
On considering her future, [the Applicant's wife] has determined she is ending her relationship with [the Applicant]. [The Applicant's wife] believes that GDS will not take this news well, especially considering she is pregnant with his first child; something he has always wanted. [The Applicant's wife] is concerned that [the Applicant] may use the firearms against either her, or himself, once the realisation sets in that she is not coming home tonight. No specific threats have been made.
Police provided general advice to [the Applicant's wife], explained what options are available should anything escalate. [The Applicant's wife] intends on staying with a friend… for the next few days to see what transpires with [the Applicant].
Around 8pm on that same day, the police attended the Applicant's home as recorded in the police report. The report states:
Police attended [the Applicant's home] and met with registered firearms licence holders … Police activated body worn video camera and introduced themselves and informed them both for the reason for Police attending the Iocation ….
Whilst speaking with [the Applicant], he informed Police that one firearm was stored inside his vehicle and another that was stored inside a detached shed.
Police followed [the Applicant] and he removed a firearm from the rear seat of his vehicle.
Police followed [the Applicant] to the detached shed to locate another firearm, in which he checks a gun safe locked inside the shed which was unlocked. The firearm was not inside the gun safe and he told Police it was leaning against the garage door. [The Applicant] walked towards the right side of the garage door and handed Police another rifle that was not stored in a gun safe.
Police cautioned and questioned [the Applicant] about not keeping the firearm stored safely, in which he informed Police he had it out from the previous day to shoot a snake and did not put it back into the safe.
Police seized firearms belonging to [the Applicant] and [the Applicant's wife] ... [the Applicant] will be issued a Future CAN for no[t] comply[ing] with safe keeping requirements.
According to the body worn footage of the police, the interactions between the Applicant included the following:
S/Cst Sykes: Where are your firearms stored, mate?
Applicant:: Uh in the safe in the garage
S/Cst Sykes: Yep
Applicant: Ah actually there was one in my Ute that I was going to drop off to a... [indiscernible]
S/Cst Sykes: Oh okay when are you going to do that
Applicant: Ah will l'm heading to um going to head to Narabi tomorow,
Police followed the Applicant and he removed his firearm (which was stored in a bag) from the rear seat of his vehicle, *
The Applicant then took police to a gun safe in the garage of the residence and handed police a number of firearms. While handing a firearm to S/Cst Sykes, the Applicant and police had a conversation to the following effect:"
Applicant: Now yeah some of them do have the bolts in them
S/Cst Sykes: That's fine mate
Applicant: I understand that that is a potential issue
S/Cst Sykes: Yep
The Applicant then informed police that there was another firearm that was stored in a gun safe in a detached shed at the rear of the property. Police followed the Applicant to the detached shed. While in the shed, the Applicant walked to the right side and opened a gun safe that was unlocked.
The Applicant then looked into the gun safe, looked back at police and said "its over there" pointing at the rifle leaning against the shed wall. The Applicant and police had a conversation to the following effect:
Applicant: We get a lot of snakes up here... I understand that's a breach
S/Cst Sykes: Yep
Applicant: that's just a human error by my behalf
Applicant: I saw a snake mate I flew down and grabbed it out of the safe, um flew back up, missed the missed the snake Um on my way out I threw it there um because the I don't have keys to the other safe
S/Cst Sykes: Yep
Applicant: Um with the intention to put it back in the safe
S/Cst Sykes: Yep
Applicant: And it slipped my mind
On 2 May 2023, the Applicant voluntarily completed a firearm and safety and training course.
On 5 June 2023, the Applicant was sentenced for the offence of "Not keep firearm safely - not pistol/ prohibited firearm". The Applicant plead guilty to the offence. The Court made a conditional release order without conviction with the conditional release order (CRO) due to expire on 4 June 2024. Coincidentally, this was the same date the Applicant's firearms licence was due to expire.
On 6 June 2023, a delegate of the Respondent made an administratively reviewable decision on discretionary grounds to revoke the Applicant's category AB firearms licence based on the sentence given on 5 June 2023. On 18 July 2023, the decision was the subject of an internal review whereby the decision was affirmed.
The internal review identified certain inconsistencies in the accounts given by the Applicant. In that regard, the internal review describes the police attending the Applicant's home at about 7:30pm but no one was present and no motor vehicles were parked and being subsequently told that the Applicant had been at work all day and then subsequently the Applicant and his wife went to the park to have a discussion. Subsequently, at around 8pm, the police revisited the Applicant's residence as described above. The internal review states:
With regard to the unsecured firearm in your shed, you state, "At no stage was the unsecured firearm left on the property alone without my presence". This is clearly a false assertion based on the fact no one was at your residence at 7:30pm the date it was seized, and that you had been at work all day, and that you and [your wife] had been at a park having a conversation. [Your wife] attempts to downplay the risk by stating that she cannot open the shed door, but review of the Police BWV shows you easily opened the roller door with one hand, and it continued rolling upwards without effort being applied. Further, you submit that the shed is a place where the children do not frequent. Despite this, your motor vehicle is a place where children can be expected to access especially when parked in the open driveway next to your residence. The fact the motor vehicle was unlocked and in the open (not within the garage) makes this breach much more egregious. I find this a significant lack of judgement on both occasions.
[3]
The Law
The underlying principles of the Act are outlined in section 3. Relevantly they 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:
3. by imposing strict controls on the possession and use of firearms, and
4. by promoting the safe and responsible storage and use of firearms.
Sub-section 24(2)(a) of the Act provides 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. Sub-section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention. Sub-section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulation states 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.
[4]
Tribunal review
The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(a) of the Act and s9(1) of the Administrative Decisions Review Act (NSW) 1997 (ADR Act). Pursuant to s63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one.
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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).
[5]
Non-compliance with safe storage requirements
The Respondent submits that the evidence supports that:
1. The Applicant knew he should have stored his firearms in a safe and not in his shed or personal vehicle but was reckless towards the strict safe keeping requirements imposed by the Act; and
2. The Applicant cannot be trusted to comply with the safe storage regulations.
In this respect, the Respondent contends that the CRO is an offence contrary to s 39(1)(a) of the Act and is therefore a prescribed offence for the purpose of s 11(5)(d)(iii) of the Act. As a result, at the time the Decision was made and until 4 June 2024 (when the CRO expires), the Respondent was and is required to refuse any application made by the Applicant for a firearms licence. While the decision to revoke a firearms licence remans a discretionary one, the Respondent relies on authorities that in circumstances where it would be required to refuse to grant a firearms licence, the power of revocation should be exercised unless there are "special or exceptional circumstances": Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38. The Respondent submits that the present circumstances are neither special nor exceptional with the Applicant committing fundamental breaches of the Act in circumstances where he knew that his firearms should not be:
1. Left unattended in an unlocked shed; and/or
2. Stored in an unattended vehicle.
Rather, the evidence supports that the Applicant's offences are not trivial or excusable but show a concerning course of conduct noting that the Applicant's Driving CRO expired approximately only a week prior to the conduct of the Applicant's which resulted in the CRO.
The Respondent argues that the Tribunal ought to be of the opinion that the Applicant is not a fit and proper person to hold a licence and it is not in the public interest for the Applicant to continue to hold a licence.
In response, the Applicant accepts that he failed to safely secure a firearm which he understands is a breach of the Act. In this respect, the Applicant speaks of his remorse. The Respondent relies upon the following evidence in chief including a statement of the Applicant of 22 October 2023 and a statement of the Applicant's wife of the same date:
1. The Applicant's wife states that she is unable to specifically remember what it was from my phone conversation with her husband that made her so upset to attend the police station and believes it was her pregnancy hormones that made her more sensitive. She describes the involvement of the police as an overreaction.
2. The Applicant and his wife both inform the Tribunal that they have taken proactive steps to work through their issues and strengthen their relationship and will continue to do so.
3. The Applicant was not charged with any offence related to the firearm in the car.
4. The Applicant acknowledges the "inconsistencies of my previous statement" and accepts that the accuracy of his recollection had been affected by the stress of his child and the ongoing stress of the situation.
5. The Applicant had voluntarily participated in an advanced firearms training course to better educate him on firearms obligations and compliance.
6. The Applicant relies upon his otherwise record of good conduct (apart from the traffic offences) and informs the Tribunal that he takes great pride in his personal and professional reputations. In this respect, the Applicant relied on various references from his wife and others that speak of his good character. Additionally, character references were contained in the s 58 Bundle.
The Applicant also relies on the following evidence in reply:
1. the Applicant's wife disputes that the description of her representations to the police on 29 November 2022 is as set out in the police report and specifically denies that she had found evidence of the Applicant cheating on her rather, the Applicant's wife states that she found evidence that the Applicant had been in contact with a friend of the Applicant's wife but it was a misunderstanding.
2. The Applicant's wife denies that she was ever concerned that the Applicant would use firearms against her or himself and denies telling the police that - rather she was only concerned about the Applicant's safety. The Applicant's wife never thought it necessary that the firearms be removed when it was suggested by the police.
3. The rifle in the shed was not in plain sight but around the corner of the shed purlin.
4. The Applicant denies that the firearm in the vehicle was visible from outside of the vehicle as it was located behind the rear seat.
5. As for the events of that evening, the Applicant alleges that:
Police attended our house within a couple of minutes of us returning home. [The Applicant] had brought pizza into the house for a family dinner and was on his way back to the car to remove the firearm and safely secure it when police arrived. We live at the end of a 5km dirt road, with a 200m dirt driveway, not in a residential suburb where there is passing traffic or pedestrians. Our only child home at the time was inside waiting for dinner, the other child was on a school camp.
1. The Applicant denies that he indicated to the police that he was going to leave the firearm in the car overnight but that he was on his way to safely secure it.
2. The Applicant did not harm or kill a snake as the snake had moved.
The Applicant also relies upon the course undertaken by the Applicant in firearm compliance and safety. The Applicant contended that the Tribunal should find that whatever limitations existed with respect to the Applicant's knowledge prior to that course, were resolved and the Tribunal could have confidence that the Applicant would conduct himself consistently with his obligation in the future if licenced.
[6]
The Applicant's Traffic History
The Respondent refers to the applicant's poor driving history of traffic infringements between the years 2006 to 2022 leading to the Applicant's driver's licence being suspended on four occasions. A traffic record report was provided with the documents which were produced by the respondent pursuant to s58 of the ADR Act which identified the offences described above.
The Respondent made submissions that these matters, over a significant period of time, demonstrate an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety purposes.
The Applicant acknowledged that he had multiple traffic infringements, but the infringements had reduced over time because of his increased appreciation of the importance of compliance contributed to by undertaking the Traffic Offender Intervention Program on 30 April 2022. The Applicant drew the Tribunal's attention to the fact that the Applicant has had no further traffic infringements since completing that course. In addition, oral submissions were made at the hearing that while there was an acknowledgement of the Applicant's poor driving history, it was not the type of history that would raise concerns regarding his ownership of firearms and that apart from the events of 29 November 2022, the Applicant had never come to the adverse attention of the police with respect to his use and storage of firearms.
[7]
Allegation of further offences and conduct: Contravention of non-commercial transportation, firearm visible from outside of vehicle and allegations related to shooting a snake
The Respondent contends that it is open to the Tribunal to find that the conduct of the Applicant could amount to additional offences. In this respect the Respondent submits "there are at least two further offence that occurred which constitute breaches of the Firearms Act". Specifically, these alleged offences are:
1. The storage of a firearm in a soft bag in an unlocked vehicle in contravention of s 39 of the Act with the potential offence relating to the non-commercial transportation;
2. Contravention of clause 149(1)(c) of the Regulation based on the "possibility" that the firearm was visible from outside the vehicle; and
3. Harming or attempting to harm a "protected animal" being an offence contrary to cl 2.1 of the Biodiversity Conservation Act 2016 (NSW).
[8]
Non-compliance with safe storage requirements
It is not in dispute that the Applicant is the subject of a CRO. I accept as submitted by the Respondent that while the decision to revoke a firearms licence remans a discretionary one, the power of revocation should be exercised unless there are "special or exceptional circumstances": Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38. In that decision, it was held at [41]-[42]:
Given 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."
In 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.
I do not accept that the present circumstances are special or exceptional. In that respect, the Applicant has sought to rely upon evidence that supports that the risk arising from his breaches of the safe storage requirements was reduced or made trivial by his circumstance. In this respect:
1. first, the Applicant denies that the firearm was visible in his car and alleges that the firearm that was in the shed could not be seen when entering the shed;
2. secondly, the Applicant alleges that he was on his way to remove the firearm from his vehicle and return it to the gun safe when the police arrived having just delivered a pizza to his wife and child;
3. thirdly, he alleges that he never represented to the police that the firearm would stay in the vehicle overnight and that, in fact, he was on his way to collect the firearm as noted above.
With respect to the denial that the firearm was visible in his car and the allegation that the firearm that was in the shed could not be seen when entering the shed, I find that even if these factual allegations were accepted, neither make the conduct trivial or excusable.
With respect to the other allegations, while I accept that the Applicant and the Applicant's wife regret the events of that day, I put little weight on the accounts given by way of their statements due to the inconsistencies as between the information given to the police as evidenced by the body worn footage, the information given to the Respondent for the purposes of the internal review, the information relied upon as evidence in chief and in reply before this Tribunal. In this respect, the Respondent identified inconsistencies in the internal review as noted above but I also find as follows.
I reject the Applicant's new allegation of being in the process of returning to the car to retrieve the firearm after delivering a pizza which contradicts the body worn footage as well as the information provided to the Respondent for the purposes of the internal review. These allegations being raised for the first time in the Applicant's evidence in reply.
With reference to the body worn footage, I find that the plain meaning of the Applicant's representation to the police on the evening of 29 November 2022 was that the firearm was in the car because he was going to drop the firearm off to a different place the following day meaning that the intention was that the firearm would remain overnight. That interchange was as follows:
S/Cst Sykes: Where are your firearms stored, mate?
Applicant:: Uh in the safe in the garage
S/Cst Sykes: Yep
Applicant: Ah actually there was one in my Ute that I was going to drop off to a... [indiscernible]
S/Cst Sykes: Oh okay when are you going to do that
Applicant: Ah will l'm heading to um going to head to Narabi tomorrow,
Irrespective of the fact that the Applicant did not expressly state "… and I intended to leave the firearm in the car overnight" or words to that effect, I find that the interchange was an admission by the Applicant that he intended to leave the firearm in the vehicle overnight. There would be no reason for the Applicant to explain his plans for the following day in the context of the conversation other than to justify why the firearm was in the vehicle.
With respect to the information provided to the Respondent for the purposes of the internal review, I find that these allegations also sit uneasily with that information. Specifically, the allegation made by the Applicant that prior to the police arriving, the Applicant and the Applicant's wife had shortly returned from the park where they were having a discussion with no mention of a pizza delivery or allegation that the Applicant was returning to his car when the police arrived.
Lastly, with respect to the Applicant's wife's evidence, despite giving evidence in chief that she could not recall what motivated her to speak with the police, in reply, the Applicant's wife disputes the description of her representations to the police on 29 November 2022 is as set out in the police report and specifically denies that she had found evidence of the Applicant cheating on her despite then going to the police. This initial lack of recollection followed by a recollection of specific details is contradictory and I put little weight on her evidence.
I do not accept that the course undertaken voluntarily by the Applicant in firearm compliance obligations is an intervening event such that the knowledge of the Applicant has been supplemented which eradicates the risk. I do not accept that this is a circumstance where the Applicant was labouring under a mistaken belief as to his obligations as supported by the conversation with the police when they attended his home. I accept the contention of the Respondent that the evidence supports that the Applicant committed fundamental breaches of the Act in circumstances where he knew that his firearms should not be left unattended in an unlocked shed or stored in an unattended vehicle. The breaches did not occur because of a lack of information but because of a disregard for their implementation.
Nor am I persuaded by the character references. While I accept that the Applicant has made good impressions on his friends and neighbours, I am not persuaded that this is sufficient to make the Applicant's circumstances "special or exceptional" so as to challenge the revocation where he is subject to a CRO.
I find that the 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.
[9]
The Applicant's Traffic History
With respect to the Applicant's traffic offences, the Tribunal rejects the Applicant's submissions that the traffic offences are irrelevant or should be given little to no weight given that they are unrelated to firearms.
In Tannous v Commissioner of Police [2011] NSWADT 116 at [32] the Tribunal held that repeated breaches of traffic laws and regulations which like the regulation of firearms, are aimed at ensuring public safety, can be potentially relevant. The conduct in relation to traffic offences may indicate an inability to respect authority and observe legal regulations which are imposed for public safety. Such conduct may indicate a lack of responsibility when it comes to public safety. In that case the Tribunal ultimately found that it was not in the public interest for that applicant to hold a firearms licence. In arriving at the decision, the Tribunal regarded that the applicants repeated breach of traffic laws and regulations indicated a disregard for a regulatory scheme which is aimed at ensuring public safety. Such reasoning is consistent with the breadth of the Commissioner's discretion and the overriding object of public safety.
[10]
Allegation of further offences and conduct: Contravention of non-commercial transportation, firearm visible from outside of vehicle and allegations related to shooting a snake
I reject the Respondent's submissions that the Tribunal should find that the Applicant is guilty of further offences either with respect to the Act or the Biodiversity Conservation Act 2016 (NSW). It would be inappropriate for the Tribunal to make such findings. It is not necessary for me to determine if the Applicant was, even on the balance of probabilities "guilty" of the charges against him; I am to consider the conduct that gave rise to those charges. Even if that was incorrect, there is insufficient evidence before me, even on the civil standard to satisfy me of:
1. the "non-commercial transportation" for the purposes of s 39 of the Act;
2. whether the firearm was visible from outside the vehicle for the purposes of clause 149(1)(c) of the Firearms Regulations which the Respondent only describes as a "possibility"; and
3. a breach of the Biodiversity Conservation Act 2016 (NSW) where there is no evidence that the snake was a snake native to Australia or that periodically or occasionally migrates to Australia which is necessary for the purposes of being a "protected animal" for the purposes of the Biodiversity Conservation Act 2016 (NSW).
[11]
Other matters
As for the motivation of the Applicant's wife to attend the police station and whether any of the concerns that she may have are a basis to find that the correct and preferable decision is to revoke the Applicant's licence, the evidence does not allow me to make such findings.
In this respect, the Applicant's wife gives evidence that she was never concerned that the Applicant would use firearms against her or himself and denies telling that to the police. Rather, her evidence is that she was only concerned about the Applicant's safety. This is difficult to follow. The point appears to be that the Applicant's wife was concerned about the Applicant self-harming but did not believe that any self-harm would be with a firearm. If this is correct, I do not find this persuasive however given the subsequent denials of the Applicant's wife and the ambiguity as to her motivations in attending the police station, the evidence is insufficient for me to make positive findings as to the reasons for the Applicant's wife attendance or whether those reasons were justified. It is unnecessary to come to a view with respect to those matters in any case, given the subsequent breaches of the Applicant's safe storage obligations in the circumstances and given the findings made as set out above.
However, as the allegations include a fear of domestic violence, at least as recorded in the police reports (but denied by the Applicant's wife), I find that it is appropriate that the Applicant's name is anonymised, and the Applicant and his wife's names are not disclosed and I make an order accordingly.
[12]
Conclusion
Considering all relevant considerations, the Tribunal finds that the Applicant is not a fit and proper person to hold a licence and it is not in the public interest for the Applicant to continue to hold a licence.
The Tribunal makes the following findings:
1. The Applicant has had a history of continual and significant traffic infringements. The Applicant submitted that they are reducing since undertaking a Traffic Offender Intervention Program on 30 April 2022. Despite Applicant having had no further traffic infringements since completing that course, that course was completed less than two years ago and does not represent a sufficient amount of time to demonstrate a material change. His driving history demonstrates he has previously had gaps of years without infringements and then an infringement to follow. Some of the offences are repeated such as driving with a mobile and speeding. The Tribunal finds that the Applicant's traffic history does demonstrate an inability to follow regulations which are imposed for public safety,
2. The Applicant is the subject of a CRO. I find that the 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.
The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasis that strict controls on the possession and use of firearms are imposed for this reason. The Tribunal is satisfied that the decision to revoke the licence was the correct and preferable decision and affirms the decision. The orders are made accordingly.
[13]
Order
1. The decision under review is affirmed.
2. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal previously made, the publication or broadcast of the name of the Applicant and the Applicant's wife is prohibited.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
[15]
Amendments
29 January 2024 - Anonymisation error amended paragraph [18]
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: 29 January 2024