Moss v Commissioner of Police

Evidence

1. In addition to the s 58 documents, I had before me submissions by both parties. The Applicant provided four references. The Respondent's solicitor specifically said at the hearing that his written submissions had been approved by the Applicant. No witnesses were called to give evidence, notably the Applicant, who also did not provide a statement. Consequently, the hearing proceeded solely on the basis of the material before me and the parties' submissions, both written and oral.
2. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the [Commissioner] is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 theTribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the Civil and Administrative Tribunal Act 2013.

How did the charge come about?

1. There was essentially no dispute about the facts that gave rise to the charge against the Applicant.
2. The Applicant resides in a semi-rural part of town on the outskirts of Muswellbrook on a property of about 100 hectares. Late on 6 December 2019 a nearby resident contacted Police, concerned that someone in the area may have discharged a firearm. In response, Police attended the Applicant's home in the early hours of 7 December 2019; there is now no contention by Police that it was the Applicant who had discharged a firearm.
3. Police informed the Applicant at that time that a firearms safe inspection would be conducted the following day. The Applicant immediately volunteered that his gun safe had not yet been bolted down in the "new" house, in which, it was said at the hearing, the family had been living for about 5 or 6 years. Attending Police observed that the gun safe did not comply with the storage requirements of the Act. The safe was hidden inside a wardrobe in the master bedroom, and the house had an alarm; the Applicant was said to be the only one who knew where the keys were located and how to open the locked gun safe. He had not decided on the safe's final location pending ongoing discussions with his wife.
4. The Police Fact Sheet indicates the Applicant appeared remorseful at the time.

CONSIDERATION

1. Failing to comply with the safe storage requirements of s 39 of the Act is a strict liability offence. Had the Applicant been applying for a firearms licence following his conviction it would have been mandatory that such an application be refused: s 11(5)(b) of the Act and cl 5(1)(a) of the Regulation. However, revocation of a licence following a conviction is not mandatory, and the Commissioner, and therefore the Tribunal on review has a discretion in deciding whether the licence should be revoked: s 24(2)(a) of the Act. Any discretion under the Act must be exercised in a way that promotes the objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 (Cusumano) at [23]. One of the objects of the Act is to improve public safety by promoting the safe and responsible storage of firearms.
2. In Kalinic v Commissioner of Police [2006] NSWADT 227 (Kalinic) JM Montgomery, after considering Maloney v Commissioner of Police, NSW Police (22 November 2004 unreported) (Maloney) and Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6, said at [23], that it would be anomalous if a conviction, after a licence has been granted, is treated totally differently to a conviction before a licence application. See also Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38 at [42]. I agree with this general approach.
3. The Applicant's licence is for the genuine reason of 'Recreational Hunting/Vermin Control', 'Security Guard' and 'Firearms Collection'. There was no evidence that he is engaged in the security industry nor in relation to firearms collection; his main interest is recreational. It can also have an economic benefit to his family in providing meat such as venison. This interest also assists others in the district with the eradication of feral animals which have contributed to stock loss, erosion and land degradation in regional NSW. Continual government efforts to control the feral dog, fox and pig populations have been unsuccessful, causing stock losses, environmental destruction and degradation to the local farming area. One of the Applicant's referees, Mr Bates, owns farming land which adjoins a National Park and wrote of the Applicant's assistance in vermin control. I accept this is a public service.
4. I observe that the Applicant is a mature family man who supports his wife and two children. The Applicant's son, aged 11 has expressed an interest in becoming junior firearms permit holder for recreation and vermin control purposes and the Applicant would like to encourage his son to be a good and responsible firearms holder.
5. The Applicant has no antecedents and volunteered to Police that his safe was unsecured.
6. While the Applicant's contravention was a serious one, I find that his circumstances take his matter outside the ordinary case. They include:

• his unblemished prior record in relation to firearms and generally
• his reputation and standing in the community, as evidenced by his referees
• his volunteering to Police that his safe was unsecured
• his immediate securing of the safe, which is accepted by Police
• his remorse and contrition over the event, attested to by Police
• having the sobering experience of being charged and fined in relation to the breach
• being deprived of his licence and unable to engage in his preferred recreation for nearly year
• loss of economic benefit to his family (meat)

1. I consider that the Applicant's circumstances are sufficiently special so as to justify the exercise of the Tribunal's discretion in his favour.
2. In respect to s 24(2)(b)(iii) of the Act, DP Hennessy provided a summary of the legal principles applying to the revocation of a firearms licence in Uzelac v Commissioner of Police [2003] NSWADT 226. She said that the principal issue is whether there is a risk to public safety if the applicant retains a licence and set out relevant considerations at [19]: 1. the reason for failing to store the firearm safely; 2. the length of time the firearm was not stored safely; 3. the potential or real danger posed by failure to store the firearm safely; 4. the person's previous conduct in relation to storage of firearms and any related matter; 5. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and 6. 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. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])
3. Each is considered in turn.

the reason for failing to store the firearm safely

1. It was the Applicant's explanation that the safe was unsecured because he had not decided on its final location pending ongoing discussions with his wife. At the hearing, somewhat inconsistently in my view, it was submitted that he was uncertain if securing it by bolting it into the wooden floor and onto wall studs would suffice. It was conceded by his solicitor that there had been "some laziness" on the part of the Applicant. Further, it was said, on the Applicant's behalf, also somewhat inconsistently, that the delay in securing the safe was because of an intention to build a garage with a concrete floor and this would be more secure but there was no evidence about any proposed construction of a garage.

the length of time the firearm was not stored safely

1. The Applicant conceded that the safe had been unsecured since moving into the house 5 or 6 years ago. I observe that there was no inspection of his firearms safe by Police during that time, but that does not absolve the Applicant of his responsibilities.

the potential or real danger posed by failure to store the firearm safely

1. It was submitted on the Applicant's behalf that there was minimal danger because his firearms were "under lock and key" in that the safe was locked, in the wardrobe and that the house was alarmed. It was contended that the offence was "technical" in nature because the safe was hidden, and the Applicant was the only one who knew the location of the keys.
2. The safe weighed less than 150 kgs, and s 40(1)(b), in requiring that a safe weighing less than that must be fixed to prevent its easy removal, acknowledges that a safe of that weight is capable of being appropriated. Notwithstanding that the Applicant lives in a semi-rural area with perhaps less crime than urban areas, that does not diminish his obligation to secure his firearms safe in accordance with the Act. It was noted on the Applicant's behalf that he was well known in the community, including for his work with respect to feral animal eradication. It is reasonable to conclude that it was similarly well-known that he had firearms on his premises, which would increase the risk of the safe, and its contents, being stolen. Still, there was no evidence of any intrusion into his house in the time the family has lived there.

the person's previous conduct in relation to storage of firearms and any related matter

1. There was no evidence that the Applicant had previously failed to secure his firearms.

the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future

1. It was submitted on the Applicant's behalf that he was, at the time of the offence, unaware of his responsibilities with respect to a safe weighing less than 150 kgs. It was said that he had never weighed it. The Applicant conceded that he was "not absolutely sure" of the 150kg storage requirements. If he was unclear as to the safe's weight or the requirements, as submitted, it was incumbent upon him to find out. His actions were, at best, naïve in failing to address the statutory requirement to secure such a safe.
2. I accept that the safe is now secured, presumably to the satisfaction of Police.

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

1. I have discussed the Applicant's reason for a firearms licence at [15] - [16] above.
2. As to public safety considerations, 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. Public safety is promoted, amongst other things, by safe storage requirements: Cusumano at [24].
3. The Applicant's desire to continue to engage in shooting as a recreational activity, assist in the control of rural pests, provide meat for his family and encourage his son in the sport must be weighed against the need for public safety. His personal interest in having his licence cannot outweigh the public interest: per Hill at [22].
4. DP Hennessy in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) 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]. Since Ward, DP Hennessy cautioned against applying that language in a mechanistic way: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
5. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34] . 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: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25]. Despite the Applicant's long history and experience with firearms, he breached the mandatory requirements of the legislation.
6. In Bottomley v Commissioner of Police [2005] NSWADT 211, the Tribunal said at [20]: Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and law that govern them, they also must act in accordance with them.
7. In Cleofe v Commissioner of Police, NSW Police Service, Alpha Intelligence Securities Ry Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2 (Cleofe), the Tribunal accepted that one of the underlying principles of the Act is to improve public safety by promoting the safe and responsible storage and use of firearms. By ensuring that firearms are stored in a safe and secure manner, the likelihood that they will contribute to an accidental or deliberate injury or death is decreased: see Cleofe at [31].
8. In his re-application for a firearms licence dated 10 August 2016 the Applicant, relevantly, declared that he understood and could comply with the firearms safekeeping requirements. The Applicant was "not absolutely sure" of the 150kg rule and had not weighed his safe whilst empty but conceded that the safe would have been less than 150kg when empty. It is clear, by his own admission, that the Applicant did not know at the relevant time the safe storage requirements of the Act. The Applicant, furthermore, he has held firearms licences for many years, and, by the time of the events that gave rise to the charge, had ample opportunity to make himself aware of his obligations. It was submitted that the "rules" had changed since the Applicant had first acquired his firearms licence. The Act clearly sets out the obligations of a licensee, and it is incumbent on a licensee to familiarise himself with those obligations. Having regard to the Applicant's long licence history, he should have been familiar with the safe storage requirements.
9. In Uzelac Hennessey DP added that in relation to the first three considerations, if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. The discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act: Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].
10. I am satisfied that the Applicant did not comply with the safe storage requirements for 5 or 6 years, that is, since the family moved into the new house. I accept however that the Applicant's firearms were locked in the safe which was in the wardrobe and that the house was alarmed, and the Applicant had the only key. However, the safe was transportable.
11. There is no evidence of the Applicant having previously committed an offence under the Act or having committed any other offence which would render him ineligible to hold a firearm licence.
12. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It 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].
13. I accept that the Applicant has been a firearms licence holder for almost 30 years and, with the exception of the charge in relation to the safe, his record has been exemplary. Mr Bates, in his reference, was greatly supportive and appreciative of the Applicant's assistance over many years in vermin control. The Applicant's other referees also speak highly of him and his honesty and integrity.
14. In considering whether an applicant should retain a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, and 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]. In all the circumstances I consider that, on balance. the Applicant's circumstances are such as to justify the exercise of the Tribunal's discretion in his favour.

Conclusion

1. It was submitted that an appropriate course of action was to adjourn the matter until the Applicant had undertaken a refresher programme. No programme had been identified and the Applicant had taken no steps, even now, to enrol. It was open to the Applicant to undertake that course at any time since the introduction of the Act, now some 24 years ago. Similarly, it was open to him to undertake a course upon the identification of his error, now some 10 months ago. However, I consider the Applicant would benefit from such a course.
2. There are grounds for revoking the Applicant's licence but I have exercised the Tribunal's discretion not to do so. Section 22 of the Act provides that the Commissioner (and hence the Tribunal on review) may, if satisfied there may be grounds for revoking a licence, suspend the licence. I consider this is an appropriate matter in which to make such an Order. I consider the Applicant's licence should be suspended until he has successfully completed a firearms safety course nominated by the Respondent, at his own expense.

ORDERS 1. The Commissioner's decision under review to revoke the Applicant's category AB firearms licence is set aside. 2. In substitution therefor the Applicant's licence is suspended until he has successfully completed a firearms safety course nominated by the Respondent, at his own expense.

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: 27 October 2020