Parisi v Commissioner of Police, NSW Police Force

Failure to secure weapons and ammunition

When Police attended Mr Parisi's property they located his son's double-barrelled shotgun in the house. It was unloaded but it was not stored in a gun safe. The ammunition for the gun was located in Mr Parisi's car. Mr Parisi pointed out that both the house and the car were locked, but this is hardly the method of securing weapons and ammunition anticipated by the Act and Regulation. He said that this was the first occasion he had taken a weapon to the property, which was following an encounter with the feral dog some weeks previously. He said he would carry the gun as he made his way round the property but kept the ammunition in his pocket; it would take him only a couple of seconds to load the weapon. He said he did this because he experiences high blood pressure and the medication causes dizziness. If he passed out he might injure himself if the weapon was loaded and accidentally discharged.
Importantly, Mr Parisi conceded that the property had no gun safe and it was clear that the weapon and ammunition had been unsecured for at least several days. Mr Parisi also gave evidence that the property is frequented by his grandchildren; in my view, there is a very clear safety issue if a weapon were not properly secured when children are in attendance. Furthermore, Mr Parisi also gave evidence that in his absence, his property had been vandalized and had been broken into on two occasions, by persons unknown. He had not reported these events to the police. In those circumstances his unsecured weapon and ammunition could fall into the hands of intruders who may then use them to commit other offences; ensuring that firearms are stored safely, decreases that likelihood. In my view, Mr Parisi demonstrated a disregard for the strict controls and provisions of the Act and Regulation, in leaving the weapon and the ammunition unsecured.

The Tribunal's discretion and public interest considerations

Had Mr Parisi been applying for a firearms licence following his conviction it would have been mandatory that such an application be refused: s 11(5)(b) of the Act and cl 5(1)(d)(iii) of the Regulation. However, the power to revoke a licence following a conviction is not mandatory: s 24(2)(a) of the Act. In Kalinic v Commissioner of Police [2006] NSWADT 227 (Kalinic) Montgomery JM, after considering Maloney v Commissioner of Police, NSW Police (22 November 2004 unreported) (Maloney) and Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6, said at [23] that it would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.. I agree with this approach.
In the context of a revocation under s 24(2)(a) of the Act in Maloney JM Higgins considered that it only in special or exceptional circumstances should the discretion not to revoke the licence be exercised. I turned then to consider if Mr Parisi's circumstances could be said to be special or exceptional.
Mr Parisi submitted that he was in fact 'the victim' in the events that led to the revocation of his licence. He gave evidence that he was working behind the shed on his property when he had seen a group of 4 or 5 motorcycle riders on the nearby track through the property. He screamed after them but they did not stop. They were travelling in the direction of the gate to the property, which he had previously locked after rubbish had been dumped on the property. Knowing that they would have to turn around because of the locked gate, he took his unloaded weapon which he had near him by the shed, and went onto the track, holding the weapon, he said, by his side. The first rider stopped about 3.5-4 metres from him, and said he was a neighbour and could explain. The second rider approached him, he said, at speed, stopping only 50-60 centimetres from him. He said he was scared he was going to be struck. It was then, he said, that he raised his weapon, which caused the second rider to put his hands up. Mr Parisi said he believed the bike riders were trespassing on his property, as none of the group were the adjoining property owners who had a right of carriageway through his property via the track. The riders did not remove their helmets, and did not produce any identification when asked, and the bikes were unregistered. He thought they might be 'criminals', although he acknowledged two of the riders were children. Mr Parisi said although he had never seen anybody on his property he believed the riders had been there 'many times' before. He contended he had been threatened and was entitled to defend himself. He believed the law was wrong.
The Agreed Facts record that when Mr Parisi confronted the bike riders, and when it was explained where they were from had said: I don't care. Come here again and I will shoot you.
When asked by police if he had pointed a firearm at anyone Mr Parisi was recorded as having stated: Yes I did. He was on my property.
When asked if he stated that if they came back he would shoot them, Mr Parisi was recorded as having stated: Yes I did. That fucking bastard. They dump cars here and wreck my land.
From the Magistrate's notes at Bathurst Local Court it appears it was submitted on Mr Parisi's behalf that all the riders were wearing helmets with visors and that he had felt intimidated when one rider rode up to him 'at a pace', and there had been an argument about trespass. There was no evidence or submission though that the riders, particularly the second rider, had menaced Mr Parisi as he claimed before me. This could have been raised by way of mitigation, but apparently, from the Magistrate's notes, was not. Although I do not propose to review the availability of the so-called 'right to self-defence', I observe that s 418 of the Crimes Act 1900 provides that 'self-defence' may be raised if and only if the person believes the conduct is necessary to, relevantly, defend himself, or to remove a person committing criminal trespass to land. The conduct - here, brandishing a weapon - must be a reasonable response in the circumstances as the person perceives them. I consider that if it had been contended at the Local Court hearing that Mr Parisi was acting in self-defence, a clear reference would have been made in the Agreed Facts and in the Magistrate's notes. It is only now that it is raised by Mr Parisi.
There was also no evidence to support Mr Parisi's claim that the riders had previously been on his property, nor that they were the persons responsible for dumping cars, vandalism or thefts. These contentions could also have been raised by way of mitigation at the hearing at Bathurst Local Court. Again, it is only now that these contentions are raised.
On Mr Parisi's own evidence he had never seen anyone use the track. I accept that only a limited number of persons may have had an unfettered right of carriageway through the property, and that the riders were likely to have been trespassing. I also accept that Mr Parisi was upset that his property had been used as a dumping area and been broken into by persons unknown. However, in my view, his response to the encounter with bike riders, which, on his evidence was intended to scare them and deter them from returning, was disproportionate to the circumstances.
For these reasons I do not consider that the discretion in s 24(2)(a) of the Act should be exercised in Mr Parisi's favour.
Further, it was submitted to police on internal review that whilst Mr Parisi is a recreational hunter, he also needs a firearms licence because the property is for grazing and it sometimes contains feral predatory animals which pose a threat to livestock, and also to Mr Parisi and his family including his grandchildren. In his evidence Mr Parisi said, for the first time, that at some time in the weeks before the incident of 1 October 2016 a feral dog 'gave him a hard time'. He explained that a wild dog bared its teeth at him from a distance of about 25-30 metres but left him alone when he picked up a branch. From then on, he decided, he would carry a weapon with him when he moved around the property. He said that there is no mobile phone reception on the property and he had concerns for his safety. This contention had not been previously made by his former solicitor.
When the police attended the property following the complaint by the bikers Mr Parisi was burning off - about 50 metres from the house. Contrary to his evidence that he takes the weapon with him as he moves about the property and carries the ammunition in his pocket, the weapon was located by police inside the property and the ammunition was in his car.
Although it had been submitted that the feral animals might pose a threat to his livestock, Mr Parisi conceded that he did not in fact have any livestock on the property at this stage. There were some goats, but these might be feral themselves, or had been left by the previous owner. He conceded he had taken no steps, such as baiting or engaging professional hunters, to rid the property of feral animals. In Kalinic, the applicant submitted that the "special circumstances" were "protecting the general fauna, the wildlife" and noted his "obligation to keep feral animals down". The Tribunal there rejected that these amounted to special circumstances. I agree with this approach.
As to the safety of Mr Parisi's family, there was no evidence as to the frequency that his grandchildren attend the property, if at all. Their possible exposure to feral animals, if any, is outweighed, in my view, by the hazard of having an unsecured weapon on the property.
For these reasons I do not consider that the discretion in s 24(2)(b)(ii) of the Act should be exercised in Mr Parisi's favour.
As to public interest considerations, in Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said, albeit in the context of the licensing regime for the security industry, 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 to exercise discretion adversely to an individual: at [25].
The 'public interest' allows a consideration of 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant's licence to possess firearms is returned to him.
I accept that Mr Parisi may find the use of firearms helpful in controlling pests on his property. His desire to assist in the control of rural pests however, does not outweigh the need for public safety and his personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22].
Strict controls on the possession and use of firearms are imposed in the interests of public safety. While Mr Parisi may wish to be able scare off trespassers by brandishing a weapon, this personal interest in this regard also does not in my view outweigh the public interest.
In Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 (Ward) Deputy President Hennessy made comments relevant to a consideration of whether the issue of the licence may be contrary to the public interest. The Deputy President, although dealing with the "fit and proper person" requirement elsewhere in the Act, focused on the importance of protecting public safety. At [28] she said the Tribunal must be satisfied that there is "virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety. I cannot be so satisfied.

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Judgment (7 paragraphs)

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