O'Brien v Commissioner of Police, NSW Police Force - [2023] NSWCATAD 272 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

O'Brien v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 272

NCAT Administrative and Equal Opportunity|2023-03-06

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Court

NCAT Administrative and Equal Opportunity

Decision date

2023-03-06

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

REASONS FOR DECISION

This is an application by Kane O'Brien seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to refuse his application for a category AB firearms licence. The decision to refuse the licence was made on 5 July 2022. Mr O'Brien made an application for internal review but this was not determined by the Commissioner within the relevant timeframe and he then made this application to the Tribunal for administrative review.
The decision of the Commissioner was that it is not in the public interest for Mr O'Brien to hold a firearms licence. The Commissioner relies on the following matters in support of her decision to refuse Mr O'Brien's firearms licence:

Mr O'Brien was involved in a domestic dispute in November 2020 which led to an apprehended domestic violence order (ADVO) against him and being charged and found guilty (without conviction) of the offence of "destroy or damage property (DV)";
He was made subject to a conditional release order for 12 months which was conditional upon him complying with a mental health treatment plan; and
In firearms licence applications in 2020, 2021 and 2022 he did not disclose that he had been referred or treated for mental health issues in the previous 12 months. (The 2020 application was granted, while the 2021 and 2022 applications were refused.)

Mr O'Brien disputes that there are any public interest concerns with respect to him and states he presents no risk to the public or himself. He states that he has never been diagnosed with a mental illness, never been prescribed medication for any mental illness, never received psychiatric treatment and did not provide false information on his application forms. Mr O'Brien states that he requires the licence primarily so he can deal humanely with injured animals on his farm.

[6]

Events of 17 November 2020

On 17 November 2020 in the afternoon Ms O'Brien went to see Mr O'Brien at their home where he was living after agreeing to discuss their relationship. Ms O'Brien told Mr O'Brien that she had no interest in repairing the marriage and had started a relationship with another man. Mr O'Brien became angry and an argument ensued during which he began yelling at Ms O'Brien. He picked up her mobile phone from the kitchen bench and threw it on the floor. The front screen and backing shattered and the phone was severely damaged and unable to be turned on. Mr O'Brien continued to yell and threw other objects on the floor.
The police report states that Mr O'Brien locked the front door and stood between it and Ms O'Brien asking her several times to try and repair their relationship. Ms O'Brien left after agreeing to work on their relationship. Police report that Mr O'Brien did not make any direct threats of violence towards Ms O'Brien nor did he make any direct remarks in respect of preventing her from leaving the house. At the police interview following this incident Mr O'Brien said he shut the front door as he did not want to the neighbours to hear their argument. He did not recall locking the door.
Ms O'Brien subsequently made a report to police. Mr O'Brien agreed with the above version of events but stated that he threw the phone on the floor after Ms O'Brien slapped him. He did not expect the phone to break. Mr O'Brien was charged with the offence of "destroy or damage property" and police applied for and were granted an ADVO.
Mr O'Brien pleaded guilty and was made subject to a conditional release order without conviction for 12 months commencing on 16 December 2020 and concluding on 15 December 2021. The order required him to comply with a Mental Health Treatment Plan. At the hearing Mr O'Brien said that the Magistrate decided to make that order but he could not recall what information was provided by his solicitor. He said he was sad at the time but denied being depressed. He agreed, however, that he had publicly committed to seeking help for his mental health.
Mr O'Brien states that he saw Mr Di Martino on a number of occasions between January 2021 and March 2022. He also states that his mental health has significantly improved and he has developed better communication and conflict resolution skills.
The ADVO was revoked on 15 December 2021. Mr O'Brien states he has not seen his former wife since the November 2020 incident and they are now divorced. He has moved away from the area and has been in a new relationship since June 2021. Mr O'Brien states that the November 2020 incident was an isolated lapse of judgement where his emotions concerning his marriage breakdown clouded his usual approach to life.

[7]

Other matters

Senior Constable Liam Marsland states in his statement of 28 November 2022 that when Mr O'Brien attended the police station on the night of 17 November 2020, he was asked whether he had told his wife's stepfather that evening that he wanted to "neck" himself. Mr O'Brien confirmed he had felt that way the other day that but said he did not feel that way currently and has never tried to self-harm. He said he had made the statement as he had a lot of stuff going on and referred to issues between himself and his former wife. At the hearing Mr O'Brien stated that he had never threatened to commit suicide.
Also at the hearing, Mr O'Brien agreed when questioned that there had been a number of times in the 12 months prior to the 17 November 2020 incident that things had escalated between himself and his wife. He agreed when questioned that he had punched a hole in a wall on one occasion but no-one was home at the time. He also acknowledged that when interviewed by police following the November incident he told them that he had started seeing someone else the year before and his wife had started seeing someone that year (2020). He agreed that things between them had escalated prior to the November 2020 incident.
Mr O'Brien has no other criminal history and no traffic history of particular note. He has also never been accused of breaching any regulations with respect to his firearms, for which he was originally licenced in 2015.
Mr O'Brien has provided references from business associates and friends all of whom are aware of the November 2020 incident. All speak highly of Mr O'Brien and commend him for taking steps to deal with the effects of his marriage breakdown.
One of Mr O'Brien's referees, Andrew White, stated that he would go to Mr O'Brien's farm to go hunting and shooting targets. Mr O'Brien said at the hearing that Mr White was referring to shooting clay throwers. The Commissioner points out that Mr O'Brien's past licences have been for the genuine reason of the humane destruction of animals and vermin control, not target shooting. This matter was not taken any further in submissions and is not of significance in my decision.

[8]

Firearms licence applications

Mr O'Brien's firearms licence was due to expire on 20 August 2020 and on 12 July 2020 he applied to renew it. He answered "No" to a question about whether in the past 12 months he had been referred or treated for, among other things, "a mental or nervous disorder or illness". The new licence was granted. This was the licence that was revoked following the November 2020 charge and ADVO.
On 21 December 2021, following revocation of the ADVO, Mr O'Brien applied for a new firearms licence. He answered "No" to the question "Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness?" On 30 December 2021 his application was refused on the basis of the 17 November 2020 incident and the sentencing conditions which required Mr O'Brien to comply with a Mental Health Treatment Plan (noting that he had answered no to the question cited above). The Commissioner's delegate considered that the issue of a firearms licence to Mr O'Brien would be contrary to the public interest. As noted above, Mr O'Brien sought review of this decision by the Tribunal but the application was dismissed as he had not sought internal review and the Tribunal was not satisfied that that requirement should be waived.
Mr O'Brien made a new licence application on 22 June 2022. He again answered "no" to the question about referral or treatment for a mental disorder or illness. That application was refused on the same basis as the 2021 application and is the subject of these proceedings.
Mr O'Brien states that on 6 January 2020 his GP, Dr Murray, never discussed with him that he was suffering from any mental health condition. He said the Mental Health Treatment Plan was initiated so he could be granted funding to discuss the stressors which were at play at the time with Mr Di Martino. He in fact did not see the plan which was emailed to Mr Di Martino. Mr O'Brien states that he was never assessed by Mr Di Martino, never prescribed medication or referred for any treatment but had counselling sessions with him to talk through stressful life events. He did not consider himself to be suffering from a mental health condition.
Mr O'Brien states that in 2020, 2021 and 2022 he responded "No" to the question concerning whether he had been referred or treated for a mental disorder or illness as he considered the counselling sessions to be practical tips and techniques for getting through his divorce and dealing with work pressures as opposed to formal treatment for a mental health condition. He states he was not attempting to mislead or withhold information and still is of the view that he was not being treated for a mental disorder or illness. He states that, while Mr Di Martino is a psychologist, he also offers counselling.
Mr O'Brien was cross-examined about the Mental Health Treatment Plan and was confused about whether there was one plan or two but seemed to agree that the first plan was dated 6 January 2020 and the second was dated 14 October 2021. Both plans referred to depression and situational stressors. He agreed he continued to see Mr Di Martino until March 2022.

[9]

Report of Dr Wong

Dr Andrew Wong, Psychologist, assessed Mr O'Brien for the purpose of the application for review of the 2021 refusal of his firearms licence application. He provided a report dated 27 May 2022 and that report is relied upon in these proceedings. Mr O'Brien was interviewed by Dr Wong on 26 May 2022 and underwent a number of psychometric assessments. Dr Wong did state in his report that, in answering his questions, Mr O'Brien attempted to portray himself in a positive light which could be expected in the context of a firearms licence application.
Dr Wong states that it does not appear that Mr O'Brien has ever been formally diagnosed with a mental illness and, at the time of his assessment, Mr O'Brien did not have any mental health impairment. Dr Wong noted that Mr O'Brien has never been prescribed any psychotropic medication. Dr Wong said that many GPs make a quick assessment of a person's anxiety or depressive symptoms and then refer the person to a psychologist through the Mental Health Treatment Plan process. This then leads to a different diagnosis or no diagnosis of a mental illness. Dr Wong said he does not put much weight on the GP's diagnosis and his assessment is directed towards whether that diagnosis is correct.
Dr Wong states that, in his opinion, the risk of Mr O'Brien harming others is low and he is not a suicide risk. He also states that there is no current or past condition or impairment that would affect Mr O'Brien's ability to exercise continuous or responsible control over firearms.
Dr Wong states that, in his opinion, there does not appear to be any risk to public safety regarding Mr O'Brien's ability to safely possess firearms. He placed the offending in the context of the breakdown of Mr O'Brien's relationship with his ex-wife and states that he has effectively removed himself from contact with her which further reduces his risk of violence or aggression. He notes that the criminal offence appeared to have occurred in isolation and that Mr O'Brien has no history of violence and states that it is therefore unlikely there would be a relapse in aggression towards another person.
Dr Wong was questioned at the hearing and acknowledged that he had seen Mr O'Brien on only one occasion and relied upon Mr O'Brien's statements concerning his history. He also acknowledged that he had not spoken with Dr Murray or Mr Di Martino and did not review their medical records or file notes. He stated that it was possible he was simply unaware that Mr Di Martino had diagnosed Mr O'Brien with depression.
Dr Wong was referred to the reference to Mr O'Brien wanting to "neck" himself as reported during the police interview on 17 November 2020. Dr Wong said he had discussed suicide with Mr O'Brien but had not mentioned it in his report. Dr Wong was unaware of the incident where Mr O'Brien put his fist through a wall and said Mr O'Brien had stated that the only incident was that of 17 November 2020. He said the previous incident would have been relevant to his assessment. Dr Wong also said that Mr O'Brien had not told him that he had started seeing someone else in the year before the November incident.

[10]

The public interest

The Commissioner submits that Mr O'Brien's past conduct leads to a conclusion that it is not in the public interest for him to hold a firearms licence.
What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

[11]

November 2020 incident

The Commissioner refers to the incident in November 2020 when Mr O'Brien yelled at his ex-partner and threw and damaged a number of objects, including her mobile phone and contends that the circumstances of this incident and the impact which it had on his former wife should be given significant weight in determining whether it is in the public interest for Mr O'Brien to hold a firearms licence. The Commissioner refers specifically to the potential for domestic violence incidents to involve firearms: see Grenfell v Commissioner of Police [2021] NSWCATAD 124 at 103. She also refers to the incident where Mr O'Brien punched a hole in the wall. The Commissioner submits that, in light of Mr O'Brien's prior conduct, the Tribunal could not be satisfied that there is no risk to public safety if he were to be issued with a firearms licence.
While, as Mr O'Brien states in his submissions, all matters of a domestic violence nature are objectively serious, the incidents the Commissioner refers to occurred at a particular time and in the context of a relationship breakdown. Neither incident involved physical violence. Mr O'Brien pleaded guilty and no conviction was recorded in relation to the November 2020 incident. These matters do not excuse Mr O'Brien's behaviour by any means but they do have a bearing upon whether it can be said that there is a risk to public safety if Mr O'Brien were again to be issued with a firearms licence.
Mr O'Brien does not have a history of violence nor have any issues arisen about his use and storage of firearms. In fact, Mr O'Brien has no criminal history apart from this charge and no significant adverse driving history. The relationship breakdown was clearly a very difficult time for Mr O'Brien. The Commissioner seeks to impugn Mr O'Brien because he did not tell Dr Wong that part of the reason for the breakdown was because he had had a relationship with someone else. Whether Mr O'Brien regretted his actions or felt guilty or ashamed because of them was not a matter raised at the hearing. The simple fact is that he was deeply affected by the end of his marriage and his actions must be seen in that context.
Mr O'Brien is now in another relationship and reports he is happy. He has no contact with his former wife and no longer lives in the same area. There is no indication that he has a propensity to violence. While the Commissioner raises some concerns about Dr Wong's report, I accept his conclusions after his assessment of Mr O'Brien that his risk profile with respect to violence and serious physical harm is low. It is also important to note that Mr O'Brien has sought help in relation to his problems. This is an indication that he has insight into his behaviours and does not wish to repeat them.
The court's order in relation to this incident is, in my view, reflective of the seriousness of the matter and any future risk to the public from Mr O'Brien's conduct. I do not consider that this incident should be given significant weight in my consideration of whether it is in the public interest for Mr O'Brien to hold a firearms licence.

[12]

Mental health

Before turning to Mr O'Brien's statements in the three application forms, it is important to address the evidence about his mental health. The Commissioner submits that the evidence in relation to Mr O'Brien's mental health is inadequate and cannot be relied upon to support a finding that his mental health is such that it can be said there is virtually no risk to the public in him having a firearms licence. The Commissioner questions why Mr Di Martino, who saw Mr O'Brien nine times, has not provided a report. The Commissioner is particularly critical of Dr Wong's report and notes that the report relies upon a single consultation and also relies upon the account given by Mr O'Brien of his circumstances rather than any independent corroboration. The Commissioner also points out that Mr O'Brien may not have been completely candid with Dr Wong.
The Commissioner made much at the hearing about whether Mr O'Brien had told his doctor and Dr Wong that he was depressed. Mr O'Brien denied using the word "depressed" but Dr Wong stated that Mr O'Brien had told him that he had felt "sad and depressed" in 2021 because of his divorce and the criminal charge. The Commissioner also referred to the word "depression" being used by Dr Murray in the Mental Health Treatment Plan.
On balance, I believe it most likely that Mr O'Brien did use the term "depressed" to describe his feelings in early 2020. That is not to say, however, that his symptoms were such that he was suffering from a diagnosable depressive disorder. At the hearing Mr O'Brien described himself as being sad rather than depressed. In general it is accepted that the term "depressed" has entered the general language as a description of low mood or feeling sad about life events and does not only refer to clinical depression or depressive disorder.
Dr Wong states that Mr O'Brien has never had a formal diagnosis of depression. He conceded at the hearing, however, that Mr Di Martino may have made such a diagnosis, although that is denied by Mr O'Brien and there is no evidence that Mr Di Martino performed any diagnostic tests or assessments. I note that Mr Di Martino in letters to Mr O'Brien's lawyer dated 13 October 2021 and 18 March 2022 states that Mr O'Brien was referred to him by his GP to receive psychological services. In the March 2022 letter Mr Di Martino stated that Mr O'Brien was receiving "counselling" from him. Dr Murray's description of Mr O'Brien's "Main Problem/Diagnosis" as "depression and situational stressors" does not take the matter any further.
This is not a matter where the applicant has a lengthy history of poor mental health and referrals to treating specialists. I have no reason to not accept Mr O'Brien's evidence that in his discussions with Dr Murray and Mr Di Martino he was not diagnosed with a mental health condition. There does not seem to be any dispute that Mr O'Brien was never prescribed any medication to treat depression. He states that the Mental Health Treatment Plan allowed him to access funding so he could receive counselling from a professional, Mr Di Martino. While it may have been helpful if Dr Di Martino had been asked to provide a report or if his records had been summonsed, the Tribunal must deal with the evidence it has before it. It is accepted that the absence of particular evidence can be a factor in the Tribunal's decision-making.
In this matter the evidence is that of Mr O'Brien and Dr Wong, whose expertise to make a diagnosis was not significantly challenged. Overall I accept that Mr O'Brien has not been formally diagnosed with depression or, at least, if he was so diagnosed, he was either unaware of the diagnosis or unaware that clinical depression is a mental disorder.
Even if Mr O'Brien was diagnosed with depression, that is not the end of the matter. The issue is whether, and to what extent, there is a risk to public safety if he is granted a firearms licence. Neither Dr Murray nor Dr Wong consider that Mr O'Brien is a suicide risk. It is acknowledged that he made a remark on the day of the 17 November 2020 incident that he had wanted to "neck" himself. There is no evidence of self-harm or that he had in fact threatened he would commit suicide. There is no evidence that at the present time he has any suicidal ideation.
The Commissioner was critical of Dr Wong's reliance on Mr O'Brien's version of his history and the fact that Mr O'Brien did not reveal some details of his life - that he had had a relationship with another woman which seems to have initiated the breakdown in his marriage and that he had punched a hole in the wall. In his report Dr Wong noted that Mr O'Brien was putting himself forward in a positive light, which he stated is not unusual in the circumstances. Dr Wong was clear, however, that he had taken this fact into account in his assessment of Mr O'Brien's mental health and his risk to others and himself.
While noting the Commissioner's criticisms of Dr Wong, I am satisfied that I should accept his assessment that Mr O'Brien does not suffer from any mental health impairment. I also accept Dr Wong's conclusion that the risk of Mr O'Brien harming himself or others is low.

[13]

Licence applications

In submitting that it is not in the public interest for Mr O'Brien to hold a firearms licence the Commissioner also points to the statements made by Mr O'Brien in the 2020, 2021 and 2022 licence applications which she states re false and misleading. It is well accepted that the proper functioning of the firearms licencing system depends on applicants providing true and correct information: Hunt v Commissioner of Police [2021] NSWCATAD 58 at[56].
The Commissioner states that at the time the 2020 application was made Mr O'Brien knew that he had been referred to a psychologist under a Mental Health Treatment Plan for "depression" and "situational stressors". His statement on the form that he had not been referred or treated for a mental or nervous disorder or illness in the previous 12 months was therefore clearly false.
I accept Mr O'Brien's evidence that he did not see the Mental Health Treatment Plan prepared by Dr Murray as it was emailed directly to Mr Di Martino. It is not in dispute that Mr O'Brien had not in fact attended any sessions with Mr Di Martino at the time he made the 2020 licence application. It therefore understandable that he answered "no" to the relevant question on the form.
The Commissioner states that in relation to the 2021 application, Mr O'Brien's no response was clearly false and misleading. The Commissioner points to the fact that Mr O'Brien had been subject to a conditional release order between 16 December 2020 and 15 December 2021, a condition of which was that he comply with a Mental Health Treatment Plan. In conjunction with this Plan Mr O'Brien accepted "psychological services" from Mr Di Martino on nine occasions. By the 2022 application, the Commissioner states, Mr O'Brien was well aware he had received treatment and the Commissioner had in fact raised this issue with him in the previous Tribunal proceedings.
There is no material before the Tribunal to establish why or on what basis the Magistrate made it a condition of the conditional release order that Mr O'Brien enter into a Mental Health Treatment Plan. Mr O'Brien complied with the condition and attended nine sessions with Mr Di Martino. Other than the letters referred to above from Mr Di Martino to Mr O'Brien's representative in which he refers to both "psychological services" and "counselling", there is no evidence other than that given by Mr O'Brien about what happened in these sessions. Mr O'Brien says he attended counselling sessions to help with his marital breakdown. In some of his evidence he refers to his "mental health" but also insists that he does not believe he has ever been diagnosed with a mental illness or disorder.
The Commissioner referred to the case of Saxby v Commissioner of Police [2021] NSWCATAD 275 to support her submission that by choosing not to reveal that he had been referred and treated for mental health issues, Mr O'Brien failed to provide the Commissioner with the opportunity to adequately assess his suitability to hold a firearms licence. In that case the applicant had a long history of mental illness, was prescribed several medications and had periods of hospitalisation. The applicant had failed to disclose his psychiatric illness to the Commissioner on three occasions and the Tribunal found that his lack of candour, along with the serious nature of his mental illness and risk of relapse, meant that it was not in the public interest for Mr Saxby to hold a firearms licence at that time.
I am satisfied, however, that Mr O'Brien genuinely believes, despite the existence of the Mental Health Treatment Plan and the condition attached to the conditional release order, that he does not and has never suffered from a mental illness. He firmly believes he was offered counselling, not mental health treatment. Indeed, as noted above, the evidence in relation to whether he in fact has ever had a mental illness, other than the existence of a Mental Health Treatment Plan, does not strongly support a finding that he has. It cannot be said that his situation is analogous to that of Mr Saxby who was clearly aware that he had a serious mental illness and concealed that fact.
I accept that in answering "no" Mr O'Brien did not intend to deceive and believed he was answering honestly. The Commissioner submits that he was careless and, in the context of firearms, failing to take care can have serious ramifications. The Commissioner's submission is predicated upon Mr O'Brien in fact having been treated for a mental illness in the previous 12 months. As already stated, that is not clear and, on the basis of the evidence provided and in light of Dr Wong's assessment, I cannot be satisfied that he was ever diagnosed with or suffered from a mental illness or disorder from 2020 to the present.