Nevell v NSW Police Force

RELEVANT LAW

1. The underlying principles of the Firearms Act are, relevantly,

• to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and
• to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

1. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].
2. Section 19(2)(a) of the Firearms Act provides that a licensee must comply with the relevant safe keeping and storage requirements under the Act.
3. Section 24(2) provides that a licence may be revoked if the licensee contravenes any provision of the Act or regulations or for any other reason prescribed by the regulations.
4. Section 24(1A) provides for the mandatory revocation of a firearm licence that is held for the purpose of employment as an armed security guard if the licensee has failed to undertake any firearm safety training required under the Firearms Act or the Firearms Regulation. The Firearms Regulation require a security guard to undertake the relevant firearms safety training on an annual basis.

Did Mr Nevell fail to undertake firearm safety training?

1. Mr Nevell has worked as a security guard since 1999. It is not disputed that, during this time, he has had no incidences in relation to carrying and caring for his firearm, which is stored at his employer's premises when he is not on duty.
2. Mr Nevell has been on sick leave from his employment since April 2014 due to heart issues. Medical reports contained on file support Mr Nevell's evidence in this regard.
3. It is common ground that Mr Nevell has not undertaken his annual firearms safety training since February 2014.
4. On 10 June 2016, Mr Nevell's category H firearms licence was revoked for failure to undertaking the annual training. Mr Nevell wrote to the Firearms Registry stating that it was his understanding that his employer had failed to notify of Mr Nevell's 'inability to work for them at this present time.'
5. In evidence before the Tribunal, Mr Nevell agreed that he had not undertaken any training in relation to his category H firearm licence since 2014.
6. He told the Tribunal that he had asked his employer about his annual training accreditation but had been told that it was impossible for him to do it because he was on sick leave. He now wishes to return to work and wishes to have his category H licence for this reason.
7. Mr Nathan Nevell, who appears for Mr (Philip) Nevell, has submitted that rather than being revoked, the category H firearms licence should have been suspended until Mr Nevell was able to return to work from his sick leave.
8. Section 22(1) of the Firearms Act states that, if satisfied there may be grounds for revoking a licence, the Commissioner may suspend the licence by serving personally or by post on the licensee a notice: (a) stating that the licence is suspended and the reasons for suspending it, and (b) requesting that the person provide the Commissioner with reasons why the licence should not be revoked.
9. The respondent submits that a suspension is not intended to be indefinite but simply enables the Commissioner to consider reasons why the licence should or should not be revoked.
10. For the following reasons, I agree with this interpretation of the legislation:

• under s22(1) of the Firearms Act, a suspension can only be made once the Commissioner is satisfied that there may be reasons for revoking a firearms licence. The suspension notice itself must request the person to provide reasons why the licence should not be revoked. This implies that the suspension is the interim step towards a decision to either revoke or restore the licence, and empowers the Commissioner to require an applicant to surrender any weapons during the period of suspension.
• Under s75 of the Firearms Act, the decision to suspend a firearms licence is not included in those decisions able to be reviewed by this Tribunal. A refusal to issue a licence is included, as is a decision to revoke a licence or to impose a condition on the licence, but a decision to suspend a licence is not. This is consistent with my interpretation of s22(1) of the Firearms Act, namely that suspension is a mechanism allowing the Commissioner (and the Commissioner - as delegated - alone) to ensure that a person is not the holder of either a firearms licence or any firearms during the time it takes to decide whether a licence should be revoked, rather than an open-ended measure to control the holding of a licence and the right to retain firearms.

1. Mr Nathan Nevell has also submitted that Mr (Phillip) Nevell does not meet the definition set out in regulation 83(2) of the Firearms Regulation which provides as follows: In addition to the firearms safety training courses required in connection with an application for a licence, a security guard who possesses a firearm must undertake, at least annually, such continuing firearms safety training courses as may be approved. (my emphasis) where possession is defined in section 4A(1) of the Firearms Act as follows: Without restricting the meaning of the word "possession", for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person.
2. It is Mr Nevell's contention that he is only a 'security guard who possesses a firearm' while on continual duty in his employment where he is required to carry and care for a firearm, and that he would not meet this definition in the circumstances where he is on extended medical leave and unable to return to work while medically unfit to do so.
3. The respondent disagrees with this interpretation of the legislation. According to the respondent, the expression in subclause 83(2) of the Firearms Regulation, a 'security guard who possesses a firearm', is simply a descriptor of a person to undertake the training, that is, a security guard who, as part of his or her employment, has a firearm. The respondent contends that, despite being on sick leave, Mr Nevell continues to be employed as a security guard who has a firearm as part of his employment. Accordingly, the requirement to undergo annual firearms safety training continues to apply to him, in accordance with regulation 83(2) of the Firearms Regulation. The term 'possesses a firearm' should, he submits, be construed widely to include being in custody of a firearm for the purpose of employment and is intended to be broad in its reach to capture security guards who, as part of their ordinary duties, are required to possess (in the sense of having custody of) firearms.
4. I agree with the respondent's interpretation of the legislation and find that Mr Nevell, despite being on sick leave, nevertheless remains in employment as a security guard and so is required to complete the annual firearms safety training. It is noteworthy that the legislation allows for no exceptions to this requirement. I have already found that a suspension is not a vehicle to be applied on an indefinite basis and so would not be an appropriate remedy to address Mr Nevell's situation.

Does Mr Nevell's failure to undertake firearms safety training mandate the revocation of his category H licence?

1. For the reasons set out above, I find that regulation 83(2) of the Firearms Regulation does apply to Mr Nevell, despite the fact that he is currently on sick leave. On this basis, I find that s24(1A) of the Firearms Act does apply to him and that, because of his failure to undertake his annual firearms safety training, there is a mandatory revocation of his category H firearms licence. It is unfortunate that his employer did not seek advice from the Firearms Registry in relation to Mr Nevell's situation.
2. Accordingly, I find that the decision to revoke Mr Nevell's category H firearms licence was, in the circumstances, the correct and preferable decision.

Did Mr Nevell breach firearms safekeeping requirements?

1. In his affidavit, Mr Nevell stated that he had been issued with a category AB firearm licence in 1994 to allow him to undertake vermin control on his rural property, which he later sold in 1999.
2. In 2004, he advised the Firearms Registry that his firearm was stored at another rural property ('the Byabarra property') where it was secured in a firearms safety box. In 2005, Mr Nevell left his firearm in the possession of his brother-in-law who was also the holder of a firearms licence and who had a firearm safe to keep such firearms. Mr Nevell believes that the Byabarra property was sold in 2005 or 2006. He admitted that as he believed that it was in the care of his brother-in-law, he did not 'take any action on checking for the firearm.'
3. In late 2014, Mr Nevell contacted his brother-in-law to arrange a time to pick up the firearm. His brother-in-law advised him that 'he never had the firearm and was unsure where it was and did not recall any conversation about taking responsibility for the firearm.'
4. In 2015, Mr Nevell drove to the Byabarra property where he believed the firearm had been stored in an effort to locate it. The new owner could not recollect ever seeing a dyna-bolted firearm safety box on the property.
5. An affidavit from Mr Nevell's sister confirmed that during the time 1997 to 2006, there was a toolbox that was dyna-bolted to a concrete slab in one of the sheds in the Byabarra property and that Mr Nevell's rifle had been housed there.
6. In an affidavit by James Hay, he confirms that he previously lived at the Byabarra property. According to Mr Hay: The last time I saw the gun it was in a blue box with double locks bolted to the floor. I do not know anything further as we left the farm and Phillip locked all known guns and returned to his home…I can say that Phillip is an honest man and is respected by all who know him.
7. In evidence before the Tribunal, Mr Nevell agreed that he was aware of the safe-keeping conditions for firearms and was also aware of the need to take precautions to ensure that firearms are not lost or stolen. He explained that his brother-in-law had wanted a bigger safe and had agreed to look after Mr Nevell's gun if Mr Nevell would give him the firearm safe, which was located on the Byabarra property. Mr Nevell agreed that his firearm was available for his brother-in-law to use if he wished to shoot rabbits. He noted that his brother-in-law had a firearms licence and several firearms of his own. He agreed that he must have given his brother-in-law the combination lock to the safety box.
8. Mr Nevell told the Tribunal that he had advised the police when he moved the firearm to the Byabarra property. He also told the Tribunal that he hadn't used his firearm since 2004 or 2005. He told the Tribunal that he had assumed that his brother-in-law had taken his firearm to his new address and assumed that he would have notified the police that he had taken his firearm with him when he moved, and had assumed that he would include his firearm with his own. He agreed that he has now been made aware that his brother-in-law had not notified the police of the change of address.
9. Mr Nevell agreed that between 2005 and late 2014, he hadn't checked on the firearm because he thought his brother-in-law was looking after it for him. He told the Tribunal that he had a 'gut feeling' that the gun had been sold with the farm, perhaps in a garage sale. He agreed that the firearm could now be in the hands of someone he doesn't know.
10. He agreed that in his application for renewal of his personal firearms licence in 2008, he had stated that his firearm was kept at his own residential address. This, he agreed, was incorrect. He told the Tribunal that he had become confused and had made an error but it was not done intentionally. He confirmed that he hadn't seen his firearm since 2004.
11. He told the Tribunal that he takes heart rhythm medication as he is still recovering from his bypass in January 2014.
12. He accepts that he should have been more thorough in caring for his firearm and that it was wrong to expect someone else to care for it for him. He told the Tribunal that he had been fully frank in his evidence, that he had made a mistake and that, in his actions, there had never been any attempt for personal gain. He agreed that he has to take responsibility for what has happened and would never again trust a firearm to a third party.

Is the decision to revoke Mr Nevell's category AB firearm licence the correct and preferable one?

1. One of the underlying principles of the Firearms Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms.
2. In Bottomley v Commissioner of Police [2005] NSWADT 211, it was held at [20] that: 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.
3. In Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 211, it was highlighted that one of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible story and use of firearms.
4. In relation to the decision to revoke Mr Nevell's category AB licence, the Commissioner (and now, on review, this Tribunal) has a discretion as to whether to do so or not. It has previously been found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and that, in reaching such a decision, the public interest overrides an individual's private interests.
5. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226, which consider questions of the safe storage of firearms, it was held that the main issue to be decided is whether there is a risk to the safety of the public if the applicant retains the licence. Relevantly, the following should be considered:

• the reason for failing to store the firearm safely;
• the length of time the firearm was not stored safely;
• the potential real danger posed by failure to store the firearm safely;
• the person's previous conduct in relation to storage of firearms and any related matter;
• the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
• the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.

1. On the evidence before me, I find that, for over ten years, Mr Nevell was, as a firearm licence holder, remiss in attending to his responsibilities in ensuring the safe storage of his firearm. He allowed a third person to take responsibility for his own firearm and he did not advice the Firearms Registry that he had supplied the firearm to this person. He failed to notify the Firearms Registry of the correct storage address of the firearm and failed to satisfy himself that it remained securely stored. The consequence of these failures is that the firearm itself is unable to be located, which may well place public safety at risk. These failures by Mr Nevell demonstrate that, at this stage, it would not be in the public interest for him to be given the privilege of holding a firearms licence.
2. I accept that Mr Nevell regrets his actions and I am satisfied that he is likely to store any firearms safely in the future.
3. At this stage, however, I am of the view that, given the breaches of the Firearms Act and the Firearms Regulation by Mr Nevell, it would not be in the public interest for him to hold a firearms licence. On that basis, I find that the correct and preferable decision is to affirm the respondent's decision to revoke the licence.
4. Given Mr Nevell's history of compliance as a security guard and his long employment record in this area of work, should he continue to demonstrate awareness of the importance of the safe storage of firearms, the Commissioner may reach a different conclusion in relation to a future reapplication by Mr Nevell for a firearms licence.

Order

1. The decision to revoke the Applicant's firearms licence is affirmed.

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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: 07 March 2016