Penalties and Sentences Act 1992 (Qld).
Cases Cited: Allen v Commissioner of Police, New South Wales Police Force (CoP) [2015] NSWCATAD 224
Source
Original judgment source is linked above.
Catchwords
Civil and Administrative Tribunal Act 2013Criminal Records Act 1991Firearms Act 1996Penalties and Sentences Act 1992 (Qld).
Cases Cited: Allen v Commissioner of Police, New South Wales Police Force (CoP) [2015] NSWCATAD 224Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321Bazouni v CoP [2002] NSWADT 100Bronze Wing Ammunition Pty Ltd v SafeWork New South Wales (No. 2) [2016] NSWSC 988Brosowski v CoP [2003] NSWADT 182Comalco Aluminium (Bell Bay) Ltd v O'Connor (1993) 131 ALR 657CoP v Toleafoa [1999] NSWADTAP 9Constantin v CoP [2013] NSWADTAP 16Davos v CoP [2013] NSWADT 7Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Ex parte Tziniolisre Medical Practitioners Act (1966) SR (NSW) 448Green v CoP [2014] NSWCATAD 59Joseph v CoP [2014] NSWCATAD 46Lee v CoP [2015] NSWCATAD 254Lee v Health Care Complaints Commission [2012] NSWCA 80McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Minister for Immigration, Multicultural and Ethnic Affairs v Baker (1997) 49 ALD 136
Nakad v CoP [2014] NSWCATAP 10
Nguyen v CoP [2007] NSWADT 16
R v Mulholland [2001] QCA 480
Re Naumovski and Minister for Immigration and Ethnic Affairs (1994) 20 AAR 388
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Judgment (9 paragraphs)
[1]
reasons for decision
On 1 December 2016, the applicant Ross Barry Mulholland applied to this tribunal for review of a decision by the respondent to refuse the applicant's firearms licence application. He had applied for a new category A firearms licence on 3 August 2015 (his application being received by the respondent on 19 August 2015), and on 4 May 2016 the respondent refused that application. The applicant applied for an internal review of the original decision and on 31 October 2016 the respondent affirmed that decision, providing a statement of reasons.
The applicant has no New South Wales convictions, but had a long history of criminal behaviour in Queensland starting with breaking and entering with intent shortly before his 18th birthday and extending over at 31-year period until 1999. Between 1968
possession of prohibited and dangerous drug;
supply of prohibited and dangerous drug;
driving under the influence of alcohol;
dangerous driving;
serious assault;
wounding and similar acts; and
evading lawful arrest, including using a firearm against police officers attempting to arrest him.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act 1996 provides that the Commissioner must not issue a firearms licence unless satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(7) provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issuing the licence would be contrary to the public interest.
Section 12(1) of the Act stipulates that the Commissioner must not issue a licence unless satisfied that the applicant has a genuine reason for possessing or using it. A list of genuine reasons for possessing or using a firearm is set out in the Table to s 12(4) and includes "recreational hunting/vermin control" where the applicant is "the owner or occupier of rural land". That is the reason relied on by the applicant in this case, and that ground is disputed by the respondent.
The issue in the present application is thus whether or not the applicant is a fit and proper person to hold a firearms licence or whether or not it would be contrary to the public interest for him to be issued with a firearms licence. A secondary issue is whether the applicant has a genuine reason for possessing or using a firearm within the meaning of s 12.
[3]
The evidence
Neither party called oral evidence, the respondent relying on the s 58 documents (exhibit R1). Beyond that, both parties presented their cases in the form of submissions based on largely agreed facts. The applicant did not tender documentary evidence apart from three references (part exhibit A1) but presented written and oral submissions.
[4]
Applicant's submissions
On behalf of the applicant his agent, Ms Danielle Mulholland, presented detailed written submissions in which she contended inter alia that the passage of 17 years since his last complaint of misconduct suggested that he had become a changed person, as the references supplied attested. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 75 - 76, the court had said that "When a considerable period of time has elapsed from now, past acts might be viewed in the light of this lapse of time and weight might then be properly given to his subsequent good behaviour". The repondent had relied on Lee v Health Care Complaints Commission [2012] NSWCA 80 as authority for the proposition that the mere passage of time without a report of misconduct was insufficient to demonstrate reformation. But that was a case of violation of trust and professional misconduct, and in this case insufficient weight had been given to Mr Mulholland's subsequent good behaviour and the 17 years he had been offence-free. One of the critical issues taken into consideration in the original decision was whether the behaviour that gave rise to the offence would be repeated. The applicant had a demonstrated history of using licensed guns between 1968 and 1996 responsibly and without committing any gun-related or violent offences.
He had committed one offence in 1999 using an illegal firearm, which was clearly an aberrant and singular offence. His behaviour since had been exemplary and he had not been charged with any further offences. That incident should be viewed within its context as a single poor choice. Mr Mulholland had not exhibited any violent tendencies towards either his family or community members since the 1999 incident. There is no correlation between the offences committed before 1999 and his suitability to use a firearm, as none of those offences were violent or gun-related. He was a responsible gun owner until the 1996 legislation, when he handed his guns in or sold them.
Cases applying the stringent tests required by the Department of Immigration in administering the "good character" requirement took account of the lapse of time since the offence or the existence of positive evidence of reformation and found the applicants to be of good character despite their having diverse criminal records. In a case affirming a decision refusing a grant of citizenship on character grounds, the Administrative Appeals Tribunal expressed the view that the applicant might be regarded as fulfilling the good character requirement if he maintained an unblemished record for a substantial period, say for the next three years.
[5]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997, 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 to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (s 29) and the Firearms Act, including the Commissioner's refusal to issue a licence (s 75(1)(a)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354, 357. Nor is there a burden or onus of proof: Bronze Wing Ammunition Pty Ltd v SafeWork New South Wales (No. 2) [2016] NSWSC 988, [74] - [77]; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].
[6]
"Fit and proper person"
The first sub-issue to be considered is whether the tribunal can be "satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace" within the meaning of s 11(3)(a) of the Firearms Act.
The tribunal's consideration of that issue should be guided by the fact that "The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences": Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117]. The applicant's failure in that case to install an approved trigger lock, together with his conviction for assault, meant that he was not fit and proper within the meaning of the Act. That concept takes its meaning, the tribunal said, from the context in which it is found: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321, 380. In proceedings under the Act, fitness and propriety must be considered in the context of public safety, as is plain from the additional words "without danger to public safety or to the peace in s 11(3)(a): at [126]. Mr Davos's licence revocation was affirmed.
The respondent relies mainly on the applicant's criminal history, which extends (although not without interruption) over a period of 31 years. The applicant has submitted a number of times that because his convictions are more than 10 years old, they cannot be relied upon. That is not correct, however. The Criminal Records Act 1991 applies to Mr Mulholland's offences, even though they were committed in Queensland (ss 7(2), 6(1)). But by reason of s 10(4) of the Firearms Act, s 12 of the Criminal Records Act does not apply in relation to an application for a licence. Further, most of the applicant's previous offences are not spent for the purposes of that Act in any event because they earned sentences exceeding 6 months' imprisonment (s 6(1)(a)). Consequently, all of the applicant's offences are relevant for the purposes of assessing his application. Further, criminal conduct for which the applicant has not been charged or convicted is also relevant to the question of fitness and propriety: Bazouni v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100, [21]; Nguyen v Commissioner of Police, New South Wales Police Force [2007] NSWADT 16, [31] - [34]; Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, [72] - [79].
[7]
The public interest
The next sub-issue arises under s 11(7) of the Act, which gives the Commissioner a discretion to refuse to issue a licence if the Commissioner considers that that issue of the licence would be contrary to the public interest.
In O'Sullivan v Farrer (1989) 168 CLR 210, [13] the High Court stated that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory texts may require. Isenberg SM at first instance in Joseph v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 46 pointed out in the context of firearms licensing that the "public interest" allows a consideration of issues going beyond the character of the applicant to be taken into account. These might include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. The applicant's individual interest in obtaining his licence is subordinate to the public interest in ensuring public safety: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, a decision on security industry licensing, the Appeal Panel said that the public interest is an inherently broad concept giving the Commissioner, and the tribunal on review, the ability to have regard to a wide range of factors in choosing whether or not to exercise a discretion adversely to an individual: id., [56]. Other relevant considerations are the nature of the licence sought, the activities that the licence will authorize and the nature of risks to public safety that arise when a licence is issued: [56] - [61].
The likelihood of public safety risks is to be assessed by reference to the applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182, [41]. In the present case that prior conduct includes a 31-year record of criminal behaviour extending from the age of 17 to middle age, consisting of multiple drug offences, driving under the influence of alcohol and, above all, the serious criminal charges of which he was convicted in 2001 and for which he was declared to be a "serious violent offender". He has not produced sufficient cogent evidence of rehabilitation to allay concerns over his conduct, and indeed did not himself give evidence at all. Although he has been free of any offences for 17 years (8 of which included his term of imprisonment), the nature of his offences would require evidence of a more comprehensive nature before the tribunal could find that all significant risk was excluded.
[8]
Genuine reason
The third sub-issue is whether the applicant has "a genuine reason" for possessing or using a firearm, in this case for the purposes of recreational hunting and vermin control. The respondent submits that although the application is to authorize the use of firearms for vermin control on his family property, the applicant has not provided any persuasive evidence that he has a genuine need for a firearms licence.
In oral submissions Mr Winram argued that the applicant himself recognized that there were several methods for controlling feral animals and other vermin, including fencing, trapping and baiting, as well as shooting. Helicopter shooting was also an effective option. There were already three firearms on the property, as his wife and two daughters were licensed.
The applicant responded that fencing is expensive and unpractical, as it is nearly impossible to exclude feral animals from large tracts of land. Trapping is labour-intensive, as traps must be checked at least once a day and often have limited success. Some feral animals are trap shy, which means that they are reluctant to enter traps even though they are baited with food. With baiting, usually involving use of the poison 1080, there is the problem of non-target species eating the baits, and baiting is not regarded as a humane way of controlling feral pests. Presumably none of those methods is effective against poisonous snakes.
The issue of genuine reason has arisen in past licensing cases involving primary producers. In Allen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 224, [63] - [67) the evidence showed that shooting was by far the most effective and humane method of feral pest control. The same applies here. In my view a full-time farmer or grazier in rural New South Wales has, other things being equal, the best possible reason for possessing and using long arms. In the present case other things are not equal, but that is for reasons of fitness and propriety and public interest.
The respondent points out that there are already three firearms on the property, but the applicant maintains that his wife and daughters, while licensed, are not effective shooters. While accurate shooting is a skill that can be honed with practice, there are indeed people who have great difficulty in mastering it. Further, the applicant is the person actually operating the property and spends his working hours doing so. He is the person most likely to observe feral animals and to be able to destroy them before they take flight. I therefore conclude that the applicant satisfies the genuine reason requirements of s 12.
[9]
Order
The decision under review 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: 13 April 2017
Parties
Applicant/Plaintiff:
Mulholland
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
The applicant's criminal history in this case was largely limited to marijuana offences, and since the more serious 1999 offences he had led a stable family life, shared in family activities, had not offended for 17 years and had retired to a rural property that he maintains. He had severed all ties with previous associates of bad character and had limited his social interactions to family members. He had undertaken extensive rehabilitation programs while incarcerated and had admitted his own misconduct and the extent of its inappropriateness. He had been completely transparent about his criminal history and had taken full ownership of it. He could thus be considered to be of good character and therefore a fit and proper person to hold a firearms licence.
The respondent's reference to a conviction from when Mr Mulholland was a juvenile was quite absurd. It appeared that all other convictions had been included in order to prejudice the outcome of these proceedings. Further, under the Criminal Records Act 1991, a person is not entitled to take a spent conviction into account when assessing a person's character.
Between 1968 and 1996, the applicant possessed guns but was not charged with any firearms offences. The offences that appear in his criminal history in that period were not gun related and were not violent offences. The only dangerous offence was committed with an unlawfully obtained pistol - a crime for which he had paid his debt to society.
In rural Australia, it is a necessity to own a firearm to protect one's livestock. Their property was working towards a self-sustainability model and the Northern Rivers district has a significant wild dog and fox problem. Traps and baits have not proven effective. Conventional methods of control include fencing, trapping, baiting and shooting. Fences designed to exclude feral animals are much more costly than conventional stock fences, so it is impracticable and nearly impossible to exclude feral animals from large tracts of land. Those fences also need continuous inspection and maintenance, which is expensive. With baiting programs, the effects of 1080 poison on non-target species needs to be considered, and baiting and trapping are not humane ways to control feral pests.
Common pests in the Northern Rivers district include wild dogs, feral cats, foxes, feral pigs, feral goats, feral cattle, feral poultry, rabbits and hares. In addition, there are a number of snakes in the area, including aggressive types such as the taipan and the Eastern Brown. Between 70 and 90 percent of people who suffer snakebite are bitten while trying to kill snakes without rifles. They are a serious threat to the safety of the applicant and his family.
The applicant does not seek a licence in order to buy a firearm. Instead, he needs a licence to use one of the firearms currently on the property legally in order to control pests. Currently he has no means of effectively controlling them.
The United Nations Human Rights Committee had stated that the concept of feared or predicted dangerousness to the community in the case of past offenders is inherently problematic. It is essentially based on opinion, as distinct from factual evidence. Rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law-abiding citizen: Vartzokas v Zanker (1989) 51 SASR 277, [279]. In this case the applicant had been transparent in all his dealings with the police when applying for a firearms licence, had undertaken all available rehabilitation programs within the Queensland correctional system, was granted early release from prison for good behaviour and has been a functioning, stable member of the community since his release. His lack of recidivism has re-established him as a law-abiding citizen and an honourable member of the community. Rehabilitative efforts are generally successful in reducing recidivism, and the applicant had completed all required programs. It is anomalous that the respondent does not consider it sufficient to acknowledge that a prisoner can be rehabilitated and reintegrated back into society without continuing to pay a penalty - in this case, denial of a gun licence. The fact that he has been issued with a driver's licence, when a motor vehicle can be used as a weapon, would appear to be contradictory to the position taken by the respondent.
The applicant is not a threat to public safety. He has been rehabilitated and reintegrated into the community. The issuing of a gun licence for rural pest control is a legitimate request. The denial of such a request denies his right to be acknowledged as a functioning, contributing, rehabilitated person in society.
At the hearing, which at the applicant's request was conducted by telephone, Ms Mulholland reiterated those points and pointed out inter alia that there had been a number of attacks by feral dogs on residents of the area. The applicant had attended the local gun club with his wife, who also has a licence but lacks experience. But Mr Mulholland has both experience with, and knowledge of, the type of firearms he wishes to use. He has tried other methods of pest control but they have proved unsatisfactory. He has a genuine need for a firearm and simply wishes to use one of the existing weapons on the property, not to purchase one for himself. He is committed to obeying the law.
He had supplied character references, but the respondent had criticized them as coming from persons who were not qualified. That raised the question of who is qualified for these purposes. The psychologist referee had not performed an assessment on the applicant, but had known him for 15 years. The respondent's criteria for rehabilitation were not clear, nor were the means for proving rehabilitation. Mr Mulholland had completed courses in prison on matters such as anger management, and had been responsible for handling substantial amounts of prisoner funds.
The applicant was not relying on the United Nations Declaration of Human Rights, but submitted that he had changed. He sought to be treated only in accordance with the principles of equality before the law and not to be prejudiced by negative stereotypes. He did not say that gun ownership was right, but that in rural areas it is a necessity. He meets all the criteria and has only one violent offence on his record. The passage of time is not the sole ground for his claiming to be rehabilitated. There is also his undertaking of all relevant courses and his establishment and operation of the primary production property. He is not a danger to public safety. The judge at his trial had said he had no intent to injure.
Withdrawn charges should not be taken into account as they did not indicate that he was guilty. They are purely prejudicial.
In the often-cited case Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, in the context of occupational licensing, Walters J said:
I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record and previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance…. [A]n applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails" (at 75 - 76).
The tribunal must thus assess fitness and propriety in the context of public safety and having regard to the applicant's past conduct (whether resulting in a charge or conviction or not), including whether that conduct is such that the tribunal can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or the peace. Any previous breaches of the law must be regarded as crucially important, and the applicant must show that he has the requisite knowledge of the obligations of a licence holder and that he would scrupulously carry out those obligations.
The applicant's first conviction was in the Queensland Supreme Court on 5 December 1968 for breaking and entering with intent, when he was not quite 18. He was convicted on two counts and sentenced to 3 years' imprisonment, which appears to have been suspended on condition of his entering into a good behaviour bond for that period.
Then followed numerous drug offences, including possession, producing a dangerous drug, cultivation of a prohibited plant, supply of a dangerous drug and possession of utensils for use in connection with the commission of a crime. Several of those charges resulted in fines, but there was also a sentence to 12 months' imprisonment on 18 October 1985, three years' imprisonment on 7 September 1987 and a further three-year sentence on 27 March 1996. A further five drug charges were withdrawn on 22 April 1996.
There were also convictions for a bail violation, hindering police and driving under the influence of liquor. Over the 31-year period, the applicant appears to have incurred 21 convictions, and 11 custodial sentences, some of them served concurrently and one suspended. The applicant's last and most serious convictions were recorded in the Queensland Supreme Court at Brisbane on 27 April 2001 in respect of an episode on 5 October 1999 in the course of which he opened fire with a pistol on pursuing police. That resulted in convictions on two counts of serious assault, for acts intended to prevent lawful arrest, for the dangerous operation of a vehicle, possessing instructions for producing dangerous drugs and possessing anything used in connection with the commission of a crime. The serious assault and acts intended to prevent arrest resulted in sentences of 10 years' imprisonment served concurrently, as well as concurrent sentences of three years, 18 months, two years and 12 months on the other charges. The applicant was also declared on that occasion to be a serious violent offender. An application for leave to appeal against sentence to the Queensland Court of Appeal was rejected on 5 November 2001: R v Mulholland [2001] QCA 480. He was released on parole after serving 8 years of the custodial sentence.
The following outline of those events is summarized from the learned Chief Justice's reasons in the leave to appeal decision. Police detected a Holden Commodore driven by the applicant with one female passenger who was his co-offender in respect of some of the counts. They pursued the vehicle, using their siren and flashing lights. The applicant sought to evade them, apparently because the back seat and boot of the car contained components of a methylamphetamine laboratory, written instructions for producing the drug, and also in the vehicle was a loaded 9 mm automatic pistol.
The protracted pursuit covered approximately 16 km, over a freeway and other suburban roads. The Holden reached speeds of over 210 km/h, with other traffic in the vicinity. The applicant's pattern of driving included collisions with other vehicles, a U-turn against the flow of traffic, straddling the centreline, forcing other oncoming vehicles to leave the road, speeding in the presence of pedestrians, crossing a median strip into the path of oncoming traffic, driving through a red light, and mounting a footpath, narrowly missing schoolchildren.
At one stage at a shopping centre with many people in the area, the applicant stopped the Holden by heavy braking and proceeded to fire at least three rounds from the pistol in the direction of the police car's windscreen. None of them struck the vehicle, but one passed through the windscreen of a bread van being driven by Mr Furlong. Mr Furlong was struck by flying glass and by part of the bullet's jacket. The trial judge said he was lucky not to have been killed.
The chase ended when the applicant lost control of the Holden and it collided with a tree. The applicant's co-offender, the passenger, surrendered to police, but the applicant fired at least eight rounds from his pistol directly at one of the officers, who returned the fire. The applicant continued to fire at the officer until he ran out of ammunition. He then surrendered.
At the time of the offences, the applicant was considerably affected by what the trial judge termed grossly excessive drug abuse. De Jersey CJ continued: "One of the expert witnesses, a psychologist, Mr Kerr, inclined to the view that this offending occurred in the context of what he termed a drug-induced psychotic episode. That provided no basis for general moderation in penalty, although it could be relevant to prospects of rehabilitation". Pursuant to s 161B(1) of the Penalties and Sentences Act 1992 (Qld) the applicant was declared to be a serious violent offender.
The applicant points out that he has had no firearm offences on his record either before or after the 1999 charges. Further, he has had no offences at all for 17 years, although it should be pointed out that for the first 8 of those years he was incarcerated. His conduct while in jail was good, however, and led to his being released on parole at the earliest permissible date. He refers to a number of cases under federal migration and citizenship legislation that requires a finding that a person is of "good character", including Minister for Immigration and Ethnic Affairs v Baker (1997) 49 ALD 136, 144 and Re Naumovski and Minister for Immigration and Ethnic Affairs (1994) 20 AAR 388. In those cases, the applicant submitted, heavy reliance had been placed on the importance of the passage of time without further offences as demonstrating good character.
The migration cases are not really comparable to the circumstances of the instant case, however. "Good character" is a more general concept than "fit and proper", which focuses on the specific activities to be authorized by the licence sought. A person could be of eminently good character but not fit and proper for firearms ownership because, for example, he or she suffered from a visual impairment that created a risk of mistaking the nature of a target; or because he or she had suffered from a period of depression involving suicidal ideation.
The applicant tendered three recent character references, the first from Rebecca Mulholland, his youngest daughter, who states that since his release he has endeavoured to live his life constructively and within the parameters of law. He has cut all ties with those who are affiliated with his past criminal activity and occupies himself in the upkeep of the family property on which they all live. There have been numerous incidents of feral animals attacking livestock and wildlife, a problem aggravated by her father's inability to deliver the coup de grâce to injured livestock himself. His lack of access to a firearm also inhibits his ability to cull feral animals when he sees them on the property, in line with recommendations by the New South Wales Department of Primary Industries.
A second reference is from Graham Barton, who has been friends with the applicant for approximately 24 years and is aware of his criminal history and incarceration. Mr Barton states that since his release the applicant has demonstrated a clear commitment to living a life free from criminal activity. He no longer socializes or has contact with people who were associated with those activities and has established and maintained solid relationships with his family and community. His primary focus has been the maintenance of the rural property, and those responsibilities are the reason for his seeking a firearms licence. Mr Barton does not believe the applicant would be a threat to the broader community if he were licensed.
A third reference is from Charles F S de Joux, who holds degrees in psychology and public administration. He has known the applicant for about 15 years and is aware of his former lifestyle and associations. Over many years he has proven to Mr de Joux and others that he is totally rehabilitated and reformed from his previous life choices. He has a real need to control feral animals on the property and as other methods have had limited success he seeks a firearms licence for the specific purpose of feral animal control. He does not pose any threat to himself, his family or the local community and has Mr de Joux's full support in his endeavour to obtain a license. His willingness to negotiate the various bureaucratic layers demonstrates his desire to comply with the standards required and he is now a fit and proper person to obtain and hold a firearms licence.
The references may be accepted as genuine and truthful, but given the seriousness of the 2001 convictions, they may not be sufficient. One important matter on which there is no evidence arises from the fact that much of the applicant's criminal history, including the 2001 convictions, relates to the use, supply or manufacture of prohibited drugs. According to an expert witness at his trial, the shooting episode occurred in the context of "a drug-induced psychotic episode". Ms Mulholland submitted that the applicant's drug violations involved marijuana, but the Court of Appeal referred to his "considerable long-standing drug problems including amphetamine addiction". The shooting offences involved methylamphetamine, and indeed the transportation of the components for a methylamphetamine laboratory.
In those circumstances a decision-maker could be expected to require specific evidence to show that the applicant is now completely free from prohibited drugs and has been for a considerable period of time. The absence of any drug charges since 2001 is some indication of that, but only by implication. The character references can be read as attesting to an absence of drug abuse but, again, only by implication. And unusually in this class of case, the applicant himself did not give evidence at all, or indeed provide a witness statement, despite a tribunal direction given on 17 January 2017 to lodge evidence including statements.
In addition, the Court of Appeal's reference to a state of "drug-induced psychosis" suggests the need for an up-to-date evaluation by a clinical psychologist or a psychiatrist. Such professionals usually apply a range of standard psychological inventories and tests that cross-check one another and give a picture of a subject's psychological state, enabling an informed (but not infallible) prediction of future behaviour to be made. Mr de Joux did not perform such an evaluation and does not appear to be a clinical psychologist. While I do not suggest that evidence of freedom from illicit drugs and of psychological adjustment would necessarily be decisive, it might strengthen an applicant's case in such circumstances.
As was mentioned above, one of the criteria of fitness and propriety is knowledge of the requirements that licence-holders are to meet. The respondent submits that the applicant fails on that count because of his claim that on a rural property firearm possession must be regarded as a necessity rather than as a privilege, and that the 1996 legislation has been a "policy failure" with unforeseen undesirable consequences. I am satisfied, however, given his long record of firearm ownership that was unblemished until the 1999 rampage, that he has the knowledge required for safe firearm use and storage. His attempt to obtain a firearms licence through the proper channels supports the view that he is able and willing to comply with the standards expected for legal compliance and public safety.
His criticisms of the Firearms Act do not contain any attempt to advocate or excuse any breach of the law. The legislation does not require an applicant to profess admiration for the legislative scheme. As I pointed out in Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254, [160] - [161], such criticisms fall within the constitutionally protected liberty of political communication, which applies to State as well as federal legislation. As far as I am aware no later case has questioned that proposition.
The main obstacle to the application remains, however, the enormity of the 1999 offences that led to the 2001 convictions. Short of actually causing death or permanent injury, it is difficult to imagine an example of firearms misuse more egregious than initiating a prolonged shootout with pursuing police by using an unlicensed pistol, slightly injuring and nearly killing an innocent bystander, accompanied by reckless driving endangering many lives, including those of schoolchildren in the vicinity. His conviction resulted in his being declared a serious violent offender and led to a sentence of 10 years' imprisonment, which the Court of Appeal, incidentally, considered to be possibly on the light side.
Walters J in Sobey declared that in considering fitness and propriety, "Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance". Firearms offences of such gravity as those in this case go to the heart of the legislative goal of protecting of public safety and to the applicant's fitness and propriety. As the applicant pointed out, however, Sobey also stated that "When a considerable period of time has elapsed from now, past acts might be viewed in the light of this lapse of time and wait might then be properly given to his subsequent good behaviour…."
As against that, the respondent pointed to Lee v Health Care Complaints Commission [2012] NSWCA 80, [72], in which the Court of Appeal concluded that a finding of reformation in cannot be made by reference merely to the passage of time without renewed misconduct. Despite the lapse of 4½ years since the last complaint of misconduct in that case, the court pointed out that "there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person".
The court quoted with approval the words of Walsh JA in Ex parte Tziniolis; re Medical Practitioners Act (1966) 67 SR (NSW) 448, 461 where his Honour said that "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing…. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man".
It will be noticed that Walsh JA was writing in 1966 at a time when corrections systems conducted a more modest range of rehabilitation programs. In recent times, however, prisoners have had access to training in a variety of life skills, such as anger management, and are given the opportunity to acquire useful work skills, often leading to a recognized TAFE qualification. In my experience of cases of this type in this tribunal and the federal Administrative Appeals Tribunal, reformations of character and behaviour are far from exceptional today, although one could not say without the support of proper research findings that they constitute a majority.
Accepting that the mere passage of time without unlawful conduct will normally be insufficient to prove reformation and rehabilitation, it must be observed that the applicant has supplied some additional proof. A period of 9 years without offences, or 17 years if one counts his time in prison, is longer than in most of the cases that have considered this point. There is also his good conduct as an inmate, leading to his early release, and his completion of all available rehabilitation courses while in custody. Further, since his release he has devoted himself to the development of the rural property, which is owned by his two daughters but of which he is effectively the manager and operator, thereby establishing himself as a useful member of the rural community.
Were it simply a matter of his criminal history before 1999, the evidence might well justify a finding that he is now a fit and proper person within the meaning of the Act. But the gravity of the 1999 offences, and their direct bearing on public safety in relation to firearm use, puts them at odds with the central purposes of the Act and means that substantial, reliable and cogent evidence of rehabilitation, in addition to the passage of time, is required. Such evidence has not been forthcoming. I therefore find that the applicant is not a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act.
Also relevant to the public interest is the maintenance of public confidence in the licensing system. In Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33], the Appeal Panel expressed the view that "The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol". The present application is for a licence to use long arms on a rural property, not for a pistol. But as Mr Winram submitted, there would be many people in the community who would consider that the applicant's offences were enough to disqualify him from firearms possession for life. Nevertheless, I think that in such cases the tribunal should at least remain open to considering a clearly demonstrated case of rehabilitation more favourably. But for the reasons given above, I do not think the evidence relied on by the applicant in this case is sufficient.
In view of the conclusions I have reached in respect of the fitness and propriety and public interest issues, however, I find that the applicant does not satisfy the legislative requirements for a firearms licence and that the decision under review must be affirmed.