Nepotu v Commissioner of Police, NSW Police Force

Legislative framework

1. Section 24(2)(a) of the Firearms Act 1996 (the Act) provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Under s 11(5)(d), a licence must not be issued to a person who is subject to a good behaviour bond, in relation to an offence prescribed by the regulations.
2. Clause 5(1)(c) of the Firearms Regulation 2017 (Regulation) provides that one prescribed offence is that of assaulting a police officer while in the execution of the officer's duty: per s 60 of the Crimes Act 1900, an offence under Division 8A of Part 3 of the Crimes Act 1900.
3. Section 24(2)(b)(ii) of the Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
4. The Respondent also relied on the power to revoke a licence under s 24(2)(d) of the Act in relation to any reason prescribed by the Regulation. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner (or the Tribunal on review) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
5. Section 12(1) of the Act provides that a licence must not be issued unless the Commissioner is satisfied that an applicant has a genuine reason for possessing or using the firearm, and each genuine reason attracts some particular responsibilities: s 12(4) of the Act. Where, as in this case, one asserted genuine reason was sport/target shooting, applies and an applicant must be a current member of a shooting club approved by the Commissioner, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought. In relation to her reason of recreational hunting/vermin control an applicant must, relevantly, be a current member of an approved hunting club.
6. Clause 107 of the Regulation states the participation requirements for sport/target shooters, essentially that a licensee must be a member of at least one approved shooting club and must, during each 12 months, participate in not less than 4 shooting activities of an approved shooting club: see cl 105.

Incident which gave rise to revocation of the licence

1. The following is largely extracted from the Facts Sheet relied on by Police in the Applicant's criminal proceedings.
2. On 28 November 2018, the Applicant boarded a train at Central Station and alighted the train at Marrickville Station. Police also alighted this train and began conducting ticket inspections on passengers and commuters on the platform of the station.
3. When approached by Police, the Applicant denied that she had travelled on the train. The Applicant was asked to provide her Opal Travel Card, which, when scanned, showed that the card had been last used the previous day and had a balance of $1.54, which was insufficient to travel at all.
4. Shortly after presenting her Opal Travel Card to Police, the Applicant ran from Police along the platform. Police ran after her and directed her to stop. Police stopped her and she was requested to produce identification. The Applicant refused to cooperate with Police and to provide any identification even though the Police informed her she would be arrested if identification was not provided. The Applicant denied having done anything wrong and continued to ignore Police requests for identification. Police then placed the Applicant under arrest and attempted to handcuff her. The Applicant resisted, and scratched Police and attempted to bite an officer. The Applicant's actions forced Police to push her to the ground and handcuff her hands behind her back. The Applicant told Police that she is anti-Police and has little regard for the laws in this country.
5. The Applicant was charged with Travel or attempt travel without valid ticket - adult; Resist officer in execution of duty; and Assault officer in execution of duty. On 29 May 2019, at Newtown Local Court the Applicant was found guilty of these offences, and a conviction was recorded against the Applicant for each offence. The Applicant appealed the convictions for Resist officer in execution of duty and Assault officer in execution of duty - and on 25 July 2019, the District Court found her guilty of these offences, but dismissed the Applicant from further penalty, removing the conviction.

The Applicant's submissions

1. On 6 and 19 December 2018, following suspension of her licence, the Applicant made submissions to the Firearms Registry. She also made submissions to the Tribunal dated 20 March 2020.
2. She referred to having 'high professional military standards', and said she had 8 years military experience. She provided what she said was a translation of a certificate form the Romanian Intelligence Service that she had been an 'active member' between 2003 and 2007. She claimed she was a liaison officer between Romanian Military Intelligence and ASIO, and other security forces. She said she has a low trust of Police as a result of her experiences. She said that she avoided Police due to previous 'unpleasant experiences with police'. She said she had 'too many interactions' with UK intelligence officers in Cyprus. She said she had been shooting since 1999, including 'guns, rifles and pistols'. She held Police responsible for her 'unfair dismissal'. She referred to the involvement (unspecified) of the Australia Federal Police in the charges against her.
3. The Applicant has no criminal history in Australia, nor she submitted, elsewhere. She referred to a fine imposed on 21 September 2015 in Cyprus for failure to wear a seat belt as 'fake'. The Applicant did not mention that she has multiple driving offences including speeding and disobeying traffic lights, all in 2019.
4. The Applicant said that she had never previously experienced 'genuine violence' and intimidation and it was she who suffered actual bodily harm. The Applicant said she had acted in self-defence, and that being charged with 'assault' was just the view of the Police. She alleged it was she who was 'violently assaulted'. She said she had taken the matter to the Police Ombudsman.
5. She said 'the Police story portrays a person disregarding the law and embracing contempt towards public servants', which she said was untrue. She said the Police were at the mercy of the secret services.
6. As to why she had not used a valid Opal card, she referred to the bad weather conditions on the day.
7. She claimed the approach of the Police in the present matter was 'malicious and extremely superficial'. She referred to her capabilities in Government, Defence, Education, Hospitality, Art and Disability. She claimed to be a 'mental health practitioner'; and provided a Certificate of Accreditation as a Standard Mental Health First Aider.
8. She noted that she was not 'convicted' and that the charges were dismissed and the allegations against her were therefore no longer valid; there had been as 'serious abuse of power'. She claimed her arrest was unlawful.
9. She said her firearms licence was not issued on the basis of public interest. She wishes to retain her licence to 'deepen her knowledge of investigations'. In depriving her of her licence, she claimed, her well-being was affected. She alleged discrimination. She said there had been defamation.

Psychologist's report

1. I had before me a copy of a psychological assessment conducted by Psychologist, Michael Kruger-Davis, dated 23 July 2019. Mr Kruger-Davis, was not the Applicant's treating psychologist; he was engaged by her lawyer to provide a report for the purposes of the Applicant's appeal to the District Court. All of Mr Kruger-Davis' five interviews with the Applicant (over a period of about 6 weeks) were undertaken by phone; he had arrived at his conclusions without the benefit of personally interviewing the Applicant.
2. The majority of the report focuses on the Applicant's history, her achievements and work history and his review of various references the Applicant provided. In his report Mr Kruger-Davis attempted to explain the Applicant's behaviour during the relatively routine interaction with Police, as being the result of her previous interactions with Police, and that she had had unpleasant and traumatic experiences due to her role in Romanian Military Intelligence. Mr Kruger-Davis offered this as an hypothesis as to the Applicant's response; he did not appear to have asked the Applicant for her own explanation. Further, while the report records Mr Kruger-Davis' view as to the reason for the Applicant's response in running away from the Police, he does not address why she travelled on the train without paying the fare, why she had told the Police that she had done nothing wrong and why she assaulted the Police.

The Applicant's 'genuine purpose' for a firearms licence

1. The Applicant nominated as her 'genuine reason' for her firearms application Sport Target Shooting and Recreational Hunting Vermin Control - Hunting Club. She signed a declaration confirming that she understood her obligations under the firearms legislation, undertaking she would participate in target shooting and recreational shooting at her nominated club and her firearms licence was granted on this basis. She was said to be a member of the Hunters & Fishermen Association of NSW. Correspondence with the Club's President was to the effect that, while the Applicant may have attended the club, she had never participated in any shooting events.

CONSIDERATION

1. As a result of the incident that took place on 28 November 2018, the Applicant was made subject to a conditional release order (also known as a 'good behaviour bond') until 24 July 2021 for assaulting a police officer in the execution of their duty. A good behaviour bond would give rise to mandatory refusal of a new firearms licence application: s 11(5)(d) of the Act. Section 24(2) of the Act provides, to the effect, that in those circumstances an existing a licence may be revoked.
2. In Parisi v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 155 , I said that I agreed with the approach of Montgomery JM in Kalinic v Commissioner of Police [2006] NSWADT 227 , that it would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.
3. In Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, Hocking v Commissioner of Police, New South Wales Police Service [2002] NSWADT 214, and Fisher v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 239 special or exceptional circumstances were considered to be needed if the discretion not to revoke the licence should be exercised. See also Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272.
4. The Applicant claimed she needed her firearms licence to deepen her knowledge of investigations. There was no evidence as to why she might need this skill or, indeed, how having a firearms licence would assist. She claimed that if she were deprived of her licence her well-being would be affected. There was no evidence that this would be the case, aside from her assertion. In any event, it is difficult to see how her well-being would be affected by not having a firearms licence in circumstances where she has not undertaken any shooting for some time. She alleged discrimination, but there was no evidence that she had been discriminated against either in relation to her offending or in relation to the revocation of the licence.
5. I do not consider there to have been any special circumstances that would lead me to reinstate her licence.

Public interest'

1. "Public interest" is not defined in the Act. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act as an 'inherently broad concept giving the [Commissioner, and hence the Tribunal on review] the ability to have regard to a wide variety of factors in deciding whether to exercise a discretion adversely to an individual. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
2. The Applicant's private interests are discussed at [30] above. Private interests are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
3. The Respondent submitted that it would be contrary to the public interest to allow the Applicant to continue to hold her firearms licence, given the incident that occurred on 28 November 2018 which involved fare evasion and running away from the Police when she was detected travelling without paying a fare; and failure to provide identification when requested by the Police. Perhaps most seriously, she also assaulted a Police officer in the course of their duty.
4. When the Applicant spoke to the Police the Applicant stated that she is anti-police and has little regard for the laws of this country. This disregard for the authority of Police is of great concern. I also observe that she has had a spate of driving offences in recent times, which suggests a disregard for road rules.
5. The Respondent submitted that the report of Mr Kruger-Davis should be afforded little or no weight in the proceedings. I agree. Mr Kruger-Davis arrived at his conclusions without the benefit of personally interviewing the Applicant. He hypothesized that the Applicant's running from the Police as stemming from her previous negative interactions with Police, especially during her role in Romanian Military Intelligence. He provided no explanation for the Applicant's fare evasion, her assertion that she had done nothing wrong and why she assaulted the Police officer.
6. In considering whether it is not in the public interest for the Applicant to hold a licence, considerations of public safety are especially relevant. In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal said: Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
7. In Sheehan v Commissioner of Police, NSW Police Force [2017] NSWCATAD 232 this test was described as setting a high standard. The Applicant, for whatever reason, reacted in a violent fashion when apprehended and detained by Police for what, generally speaking, might be regarded as a minor infraction of the law. One might speculate with concern as to what may have occurred had the circumstances escalated and the Applicant had not been subdued by Police or if the Applicant had access to a firearm at that time. I could not be satisfied in the circumstances that there is virtually no risk if the Applicant has a firearms licence.
8. Consequently, I am satisfied that it is not in the public interest for the Applicant to continue to hold the AB firearms licence.

Failure to comply with obligations under the Act

1. When applying for a firearms licence an applicant must demonstrate a 'genuine reason' in support of their application. The Applicant signed a declaration confirming that she understood her obligations under the firearms legislation, undertaking she would participate in target shooting and recreational shooting at her nominated club. The Applicant was granted her firearms licence on the basis of this undertaking.
2. It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them.
3. The Applicant however has failed to maintain her genuine reason for her firearms licence as she has failed to meet her annual obligations under the Regulation, as set out in clauses 107-108. Furthermore, she had not done so for a number of years. The Applicant has shown an ongoing disregard for the legislative requirements and the strict controls around firearms licence, which is a substantial dereliction which cannot be overlooked: Todororovski v The Commissioner of Police [2019] NSWCATAD 192 at [130].

CONCLUSION

1. The Applicant has displayed a poor attitude towards authority and inadequate knowledge of, or preparedness to comply with, the firearms' legislation's requirements.
2. I consider that revoking the Applicant's firearms licence will assist in ensuring public interest is accounted for and the confidence of the public in the licensing system safeguarded: per Constantin v Commissioner of Police [2013] NSWADTAP 16, at [33]; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

DECISION

1. For the reasons given above, the correct and preferable decision is that the decision of the Commissioner of Police to revoke the Applicant's AB firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2020