Parkins v Commissioner of Police, NSW Police Force; Parkins v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-01-22

REASONS FOR DECISION

The Applicant, Mark Parkins (Mark) has held Category AB firearms licence since 10 February 2021. His wife, Gantiya Parkins (Gantiya), has held a firearms licence since the same date. On 19 May 2023 the Respondent decided to impose a condition on Mark's firearms licence, which, on 31 July 2023, on internal review, was amended such that he was prohibited from possessing or storing firearms, firearm parts and ammunition at any location where Gantiya and his son Adam reside or frequent.
On 25 July 2023 the Respondent decided to revoke Gantiya's licence on the basis that it is not in the public interest for her to continue to hold a firearms licence. An internal review application was lodged on behalf of Gantiya, but the Respondent declined to entertain the application because it was filed late.
Both Applicants now seek review by this Tribunal and their matters were heard together.

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence Both Applicants provided statements, gave separate evidence and were cross examined. A brief letter was provided by Adam dated 23 October 2023 but he was not required for cross examination.

Gantiya provided a National Crime Check Right to Work Check dated 27 November 2023.
The Applicants relied on character references from: 1. Harry Proskefalas, a friend of family, dated 14 October 2023 2. Craig Collins, a friend of Mark's, dated 20 October 2023
The Applicants also relied on a report by Michael Kruger-Davis, psychologist, dated 19 June 2023. Mr Kruger-Davis was not required for cross examination, but the Respondent, through the Applicants' solicitor, sought written clarification of some aspects of his report, to which Mr Kruger-Davis responded on 16 January 2024 (supplementary report).
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material which had been obtained following a summons to NSW Health - Gosford Hospital.
The Respondent provided a statement of Constable Matthew Hearnden dated 19 December 2023. Constable Hearnden was initially required for cross examination but was unavailable on the day of the hearing. The Applicants' solicitor, rather than delay the proceedings, elected instead to make submissions about the reliability of the constable's evidence.
Material filed by the Respondent included two body worn video (BWV) recordings made by Police when they attended the family home on 29 March 2023. The parties accepted that I would view the video after the hearing, which I did. The Respondent helpfully provided an aide memoire which conveniently transcribed extracts of the BWV evidence. Tribunal's approach
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

Firearms use by the Applicants

Mark's evidence was that he and his wife reside in Wyoming (the family home) and they have a property at Dunedoo (the Dunedoo property) where, since they obtained their licences in February 2021, they shoot feral pigs and foxes together. They also have permission to shoot on neighbours' properties. He said that they go to the Dunedoo property to shoot 4-5 times each year, so since, obtaining their licences, have been shooting there a total of about 10-12 times. Gantiya's evidence was broadly consistent with that of her husband, although she thought that in the 12 months before the revocation of her licence they had only been shooting about twice. Mark's evidence was that Gantiya only shoots with him, and not alone. Gantiya's evidence was that sometimes when she is alone at the Dunedoo property, pigs come close to the house.

What precipitated the imposition of the condition on Mark's licence and the revocation of Gantiya's licence?

On 29 March 2023, Mark called 000 for an ambulance to attend the family home in relation to his wife. According to the relevant COPS Event, following his arrival home from work, Gantiya was on his phone, then without saying anything, she "became distraught and began yelling erratically for no known reason". When Mark requested assistance from an ambulance he was asked if Gantiya had access to knives, and he said there were knives in the kitchen.
Because of the nature of Mark's call, and apparently because of the reference to the Applicant having access to knives, the ambulance service called Police to attend the home to ensure the safety of the family and ambulance staff.
According to Constable Hearden's evidence, on their arrival at the family home, Gantiya was observed crying in an armchair in the shed and she was minimally responsive to questions asked by Police, saying "take me to the gaol". At first, the interaction focussed on ascertaining that she did not have a knife. This is consistent with the BWV.
When Police spoke to Mark he reportedly said that every month Gantiya became violent, and that when she got into a violent rage, she got physical, losing control and ''will reach for a weapon''. He told them that Gantiya had previously become violent and injured herself by striking at the walls with her arms and fists. Her violent episodes occurred monthly, being associated with her periods, and that the episodes were escalating and she needed help from doctors.
In his evidence before me Mark said that he had been concerned for his wife's health over the years but had never before felt the need to seek assistance from the ambulance service. He denied there was ever any concern about domestic violence; he was worried about her and thought she might hurt herself. He denied ever seeing her previously hurt herself. He denied that he had ever seen her violent and could not recall telling Police that he had. When the BWV account was put to him, wherein he used the word "violent" with respect to his wife's conduct on several occasions, he said that, if he did say that, that it was in the sense that her emotions were "out of whack'. He said he may have mentioned "violent", but it was because he wanted to get her help. He also said he panicked when Police arrived ahead of the expected ambulance and in describing her conduct to them as "violent" he had "spoken out of character" and had needed to say something. He said he did tell Police that she became frustrated during menstruation and he had seen her "moody" when she had her periods. He denied that he was now attempting to minimise the reference to violence because of the impact it had had on his firearms licence.
He said they had talked about his daughter coming to live with them. Gantiya had seen information on his phone about his daughter's impending arrival and became "frustrated" and "overwhelmed', so he left the house. He said he could hear banging and possibly thumping noises 75 metres away and that was what caused him to call the ambulance because he thought she may have injured herself. He did not go to her aid, but remained up the road.
He said her behaviour was "not really" an escalation of her previous conduct during menstruation, but had never seen her quite like this before. He said he no longer has concerns about her and regarded the incident as a "one off". His concerns dissipated "straight away" when she returned from hospital and she has been "normal" ever since. He said his daughter has now joined the family and has been welcomed by Gantiya.
The Applicants' solicitor was critical of the Police evidence, in particular that of Constable Hearnden. He referred to Carpenter v Commissioner of Police, NSW Police Force [2023] NSWCATAD 163 at [73], where, the Tribunal considered that, in the absence of evidence from the authors of COPS entries to substantiate them, they were "merely a version of the events, and they may contain embellishment". In this matter though, I had the benefit of a statement from Constable Hearnden which was broadly consistent with the COPS Event. Further, and importantly, I had the benefit of the BWV, which was also broadly consistent with Constable Hearnden's evidence. While it may have been preferable to hear from Constable Hearnden, it was the Applicants' decision to forego cross examination. I observe that Constable Hearnden also made some conclusions in his statement, which, in my view, did not add anything to his factual account, and to that extent, I have disregarded his conclusions; conclusions on the evidence are matters for the Tribunal.
Gantiya was assessed at the family home by the ambulance staff. She reportedly told ambulance officers that she wanted to kill herself but had no plans. The ambulance electronic medical record recorded the following: (P) emotional distress (S) emotional distress; suicidal ideation > > NIL PLAN PT STATES SHE FEELS SHE IS A BAD PERSON, AND SHE DOSENT WANT TO BE HERE WANTS TO KILL HERSELF ...BUT NO PLAN
Gantiya was detained under s 20 of the Mental Health Act 2007. She reportedly said that her menstrual cycle reminds her of her abortion history and that her husband was not very supportive when she expressed feeling mentally delicate. Gantiya was taken to Gosford Hospital for a mental health assessment. At the hospital Gantiya was assessed by Dr Nicol Holtzhausen, psychiatric registrar, who recorded that Gantiya described "infrequent bouts of emotional dysregulation and distress in the context of menstruating and feeling unsupported by her family". The doctor recorded that at other times she is better able to handle distress. Gantiya had referred to her previous terminations of pregnancy and associated guilt. Gantiya had denied thoughts of self-harm or suicide and denied domestic violence or concerns over the safety of the children. Dr Holtzhausen recorded the following: She reports she infrequently has thoughts of not wanting to live anymore, but these are 'not often' and generally occur when she and her husband are having a bad argument. She reports she would never do this, that her family are protective, that she has never attempted suicide or self-harmed before (does hit things when severely frustrated eg couch, however this is not done with the intention to cause herself harm)
Dr Holtzhausen spoke with Mark. He reportedly told the doctor that Gantiya's "demeanour changes" and she becomes "moody and volatile with her behaviour" during menstruation. On that day [her conduct] "escalated more than usual" and "[she] was distressed, and that it sounded like she was throwing things around". He said that since stopping taking the pill she had experienced mood swings.
Dr Holtzhausen recorded the following impression: Situational crisis DDx Adjustment disorder with depressed mood In the context of psychosocial stressors (stepson (sic) planning to move in, providing care for the household, relationship strain) Risk of self-harm and suicide will be mildly elevated compared to general population due to infrequent SI and bouts of emotional dysregulation…
After Police officers attended Gosford Hospital and informed Gantiya that her gun had been retrieved from the safe, Gantiya reportedly told Dr Holtzhausen that she never used her gun even though she had a gun licence and that, in any event, she did not know the combination to the safe.
Gantiya was referred to Central Coast Community Health on discharge and on 2 April 2023, she attended a face-to-face assessment, accompanied by Mark, at her request. During the assessment, they reported that each month there was a noticeable change in her stability of mood and affect and increased emotional sensitivity. Mark reported that Gantiya had been this way for the 10 years he had known her.
Gantiya wrote in her statement about the events of 29 March 2023. She said she was stressed and concerned. She wrote that she had married into a family with four children from her husband's previous marriages and became stepmother to three of the children and had raised them for 11 years. She said there were plans to bring another stepdaughter into the home and that is why she behaved the way she did on that night. Since then, the stepdaughter has lived with them, and she has learnt to love her, and they all live well together.
In cross examination she said that she acted differently on 29 March 2023 to any other time. She was referred to her statement in which she had described her conduct as "out of character" and said it was because she was "in shock". Contrary to the history taken by Dr Holtzhausen, she said it was the first time she had thrown anything. As to why she had written in her statement that she was "remorseful" she said that she was in shock about Mark's daughter coming to live with them. She said she felt she was not ready and was very upset and that was what caused her to throw things that evening. She agreed that Mark had called an ambulance because her behaviour was more significant than he had seen before.
She denied she told Dr Holtzhausen that she had never used firearms. As to whether she had told Dr Holtzhausen that she did not know combination of the safe she said that she did not know if she had said that. In any event the firearms are in a lockable safe to which she has a key.
In her evidence Gantiya denied that she had ever said that she wanted to kill herself. As to the record Dr Holtzhausen made that she had said she had "infrequently had thoughts of not wanting to be here", she denied that she had said that. She denied she had said anything at all about suicide - the subject of killing herself "never came up". She denied she had said that there was any discussion about her hitting things. As to other aspects of the doctor's notes, eg that she loved her husband, she conceded they had been recorded correctly.
She said that in the week following the mental health assessment she went to a women's clinic to check her hormones, and said that the outcome was "normal".

Evidence of Michael Kruger-Davis, psychologist

Mr Kruger-Davis, who is not Gantiya's treating psychologist, conducted a mental health examination of Gantiya. He was briefed with unspecified "documentation" from the NSW Police Firearms Registry. He administered a number of psychological tests, many of which, though, are self-reporting tests, and he conducted a telehealth video-conference with Gantiya. Mr Kruger-Davis took a history of the incident on 29 March 2023 from Gantiya. He asked her about a reference to her threatening self-harm to which she denied knowing where this statement would have come from.
Mr Kruger-Davis considered that Gantiya is "of sound mind", possesses "no indications of depression, anxiety or overwhelming psychological distress" and he found "no evidence of mental illness, personality disorders, mood disorders or thought disorders or substance abuse disorders". He considered Gantiya to be very unlikely to pose a threat to the public or herself if she were authorised to possess or use firearms.
In his supplementary report Mr Kruger-Davis wrote that he was not provided with the relevant COPS Event for the Police attendance on 29 March 2023 nor the medical records from Gosford Hospital. He goes on to say that he had read the medical records from Gosford Hospital and that he accepted that they were accurate.
He wrote in relation to Dr Holtzhausen's reference to Gantiya experiencing "emotional dysregulation", that emotional dysregulation is a mental health symptom that involves trouble controlling your emotions and how you act on those feelings, as compared to a mental disorder which is a syndrome or collection of symptoms that cause a disturbance to daily living in a specific way. He wrote that Gantiya's emotional dysregulation was due to her menstrual cycle and the mood changes it causes.
He wrote in relation to Gantiya's concession that she hits things, he considered this to be consistent with "a large proportion of the population". If it impacted her life, in effect, she would have difficulty functioning normally.
He considered there were a number of protective factors: "her safety plan, support information, women's health clinic, husband, to assist her if she feels overwhelmed again". In his report, however, he observed there was no safety plan developed for Gantiya.

References

On the face of the statements by Messrs Proskefalas and Collins, neither appears to have been informed of the events of 29 March 2023. In Carpenter it was unclear if the referees were aware of the applicant's past. There the Tribunal considered that, given the small community in which the applicant lived and worked, the referees were likely to be aware of his history: at [85]. In this matter though, there was no evidence that this applied with respect to either referee.
Further, both referees appear to be primarily in support of Mark's application, saying little about Gantiya, other than in her capacity as Mark's wife. Although each gives a favourable assessment of Mark's character, neither does so in light of the events of 29 March 2023. I consider little weight can be attached to those references, particularly with respect to Gantiya: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53]. Public interest in Gantiya holding a firearms licence
The Respondent contended that it is not in the public interest for Gantiya to hold a firearms licence: s 24(2)(d) of the Act and cl 20 of the Regulation. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. "Public interest", however, is not expressly defined in the Act or Regulation. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. 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 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 which is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 (Hill) at [24].. Where there is the 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: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "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 never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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]. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Tribunal is required to look at an applicant's conduct as a whole, including potential future conduct. In that regard, an applicant's past conduct is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
The Applicants' solicitor submitted that what occurred on 29 March 2023 was a "one off" incident. He said that Gantiya had been angered by the events of the evening, by which I understood him to refer to Gantiya locating on Mark's phone details of his daughter's impending arrival. Both Applicants' evidence before me was that Gantiya had never before been violent, although this was in direct conflict to what Mark told Police on several occasions that evening. The Applicants attempted to explain this by saying that they were caught off guard when Police attended the family home, instead of the expected ambulance. While I accept that they may have been surprised by the attendance of Police, I do not accept that explanation for what Mark told Police, given that on no less than four occasions, he told Police to the effect that Gantiya was prone to violence when she was menstruating. Further, I reject his contention that he may have described her conduct as "violent" because he wanted to get her help and had needed to say something. I consider both Applicants attempted before me to minimise the reference to violence because of the impact it has had on their firearms licences. In addition, Gantiya's denial of ever having said that she wanted to kill herself and that the subject of killing herself "never came up" in her discussion with Dr Holtzhausen is simply implausible, when threatened self-harm was precisely the reason she had been scheduled. The same applies to her denial that there was any discussion about her hitting things. It was clear that she attempted to downplay what she had told the doctor, especially given her concession that other (favourable) aspects of the doctor's notes had been accurately recorded.
I accept though that Gantiya's conduct had never before been quite like it was that evening; I accept that Mark was so concerned for his wife's wellbeing that he called an ambulance, and that he had not felt the need to do that previously.
Gantiya denied ever contemplating suicide, but Dr Holtzhausen recorded that Gantiya experienced "infrequent" suicide thoughts. Given that English is not Gantiya's first language, I have some reservations that "infrequent" was the word she had used. I accept though, as did Mr Kruger-Davis, that the medical records were accurate and that Gantiya had told the doctor that she had previously had thoughts of self-harm. Gantiya admitted that she had previously hit things which, suggests some loss of control on more than one previous occasion. I do not accept Mr Kruger-Davis' somewhat extraordinary observation that this conduct is consistent with "a large proportion of the population".
It is difficult to understand the Applicants' attribution of Gantiya's conduct that evening to her behavioural changes when menstruating. Firstly, there was no evidence that she was menstruating at the time of the incident. If she was not, then this tends to contradict the Applicants' reliance on the adverse effects of hormones on Gantiya's conduct on the night in question. Secondly, while the notes of a follow up mental health check dated 22 April 2023 record that Gantiya had "seen GP for hormone levels and will see GP again tomorrow", Gantiya's evidence was that she had subsequently attended a women's clinic to check her hormones and that the outcome was "normal". That evidence also tends to contradict the Applicants' reliance on the adverse effects of Gantiya's monthly hormones. There was no evidence that she has received treatment - so desperately sought on her behalf by her husband - to assist in managing her hormonal mood swings. Mr Kruger-Davis, writing in June 2023, considered that Gantiya's emotional dysregulation was due to her menstrual cycle and the mood changes it causes. He also made no comment about Gantiya receiving any treatment and couched his observation in the present tense. Mark's evidence was he said he no longer has concerns about his wife but did not elaborate why this was the case. Likewise, he said that his concerns about her dissipated "straight away" on her return from hospital and that she has been "normal" ever since. Even if she did subsequently receive treatment, Mark's observation of her immediate recovery on her return from hospital, without treatment, is implausible if her monthly behaviour over the 10 years he had known her, was as they claim. Further, there was no evidence that Gantiya no longer experiences the mood swings. In any event, her conduct, evidently triggered by the news that her stepdaughter was soon to arrive, was an out-of-control outburst of such gravity that her husband sought emergency medical intervention.
Mr Kruger-Davis considered there were a number of "protective factors for Gantiya to assist her if she feels overwhelmed again". This clearly left open the possibility that there may be a recurrence. In the absence of evidence that she no longer experiences extreme mood swings because her hormonal condition is under control, I cannot be satisfied that such a severe and prolonged outburst would not occur again. Even if her conduct was unrelated to menstruation, in the absence of medical evidence discounting the likelihood of a recurrence, I cannot be reasonably satisfied that such concerning conduct would not occur again.
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by an applicant's interest in holding a firearms licence. While on this occasion Gantiya did not attempt to access the firearms, I observe that, in any event, they were not stored at the family home; it is unknown, of course, what may have occurred had they been at the Dunedoo property when the incident occurred, given that, on Gantiya's evidence, she had a key to the gunsafe.
Both Applicants obtained their licences in 2021, and did not adversely come to attention until the events of March 2023. Because of their relatively short licence history I could not gain comfort from a long blemish-free history of licence-holding.
I find the evidence establishes that there is a real and appreciable risk to public safety should Gantiya have access to firearms (per Webb). Risk to the public includes, of course, risk to Gantiya herself, and I am satisfied that she may have engaged in some self-harm in the past: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74].
I therefore find that it would be contrary to the public interest for Gantiya to hold a firearms licence at this time.

Should the condition be imposed on Mark's firearms licence?

Having found that it is not in the public interest for Gantiya to hold a firearms licence at this time, this must necessarily inform my view about whether a condition is appropriate on Mark's licence which prohibits Mark possessing and storing firearms where Gantiya resides or frequents.
The condition which was initially imposed on Mark's licence is in the following terms:
The licence holder is prohibited from possessing or storing firearms, firearms parts and ammunition at any location where Gantiya PARKINS (DOB:XXX) resides or frequents.
The condition was varied on internal review, as follows:
The licence holder is prohibited from possessing or storing firearms, firearms parts and ammunition at any location where Gantiya PARKINS (DOB:XXX) and Adam Mark PARKINS (dob: XXX) reside or frequent.
When the condition was first imposed on Mark's licence on 19 May 2023, in response to the events of 29 March 2023, Mark arranged off-site secure storage for his firearms.
I accept that in refusing to re-instate Gantiya's licence and imposing the condition on Mark in relation to Gantiya, they will not be able to enjoy their shared activity of shooting. Private interests, however, are not the only matters to be 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.

Incidents Involving Adam

If I find that there are concerns about Mark having firearms where Adam resides or frequents, this also informs the decision in relation to the condition on Mark's licence. I observe that both Applicants were granted their licences in 2021 notwithstanding that, at that time, they shared the family home with Adam, who had come to attention in 2016 and 2017. I do not know why, in 2023, after at least 6 years, Adam's prior conduct should have given rise to the Respondent's concern, resulting in a condition on Mark's licence which prohibits Mark possessing or storing firearms where Adam resides or frequents.
According to a COPS record, on 15 October 2016, Police were called because Mark's son, Adam, reportedly spoke of self-harm, death, God and the devil and was pacing around the backyard. Adam informed Police that he saw demons swirling around his head when he looked into the mirror, he was scared the world was ending, and he was anxious. He reportedly had been acting "very out of character" for the previous 3 days. An ambulance was called and he was conveyed to hospital for assessment. No information was available as to his assessment at hospital or subsequently.
On 15 June 2017, Adam was observed to become very agitated when he accompanied Gantiya to his stepbrother's preschool. According to the relevant COPS Event, an employee tried to remove Adam from the preschool, after he called her evil and said that the children were in danger. When he did not leave, the preschool went into lockdown and Police were called. Adam told Police that the children were in danger and the world was ending, and saying, on a number of occasions "help me, help me". Adam was scheduled under the Mental Health Act and conveyed to hospital. No information was available as to his assessment at hospital or subsequently.
Mark relied on Adam's brief statement that since 27 December 2022, he has not resided at the family home. Adam's statement does not address whether he still frequents the address, or more simply put, if he continues to go there and, if so, how often. It was submitted that the Respondent's records suggest that Adam's registered address remains to be that of the family home, but no evidence was brought to my attention to that effect.
Mark's evidence was that Adam does not reside at the family home, but comes about every 6 weeks and that Adam had only visited the Dunedoo property once in the last year. I am satisfied that Adam has not visited the Dunedoo property for some time, although there was no suggestion that he would not be welcome there. The evidence is that while he has moved out of the family home, Adam attends about every 6 weeks; there was no evidence that he would not be welcome to visit more often: cf Mekhitarian v Commissioner of Police [2022] NSWCATAD 198 (Mekhitarian). Also, this is not a matter like Mekhitarian where the applicant there had cut off all association with his errant son. I could locate no authorities about the meaning of "frequent" and the Respondent's solicitor was unable to assist, but I am satisfied that, in visiting the family home every 6 weeks, Adam attends with some regularity and that this suffices to amount to "frequenting" the family home.
Concerningly, there was nothing before me as to Adam's current mental health. In the absence of this evidence, given his previous bizarre conduct, I cannot be satisfied that there is virtually no risk to public safety, should he be around the Applicants' firearms.
The Tribunal is to consider whether the inconvenience suffered by an applicant as a consequence of the imposition of conditions is necessary to ensure public safety: Mascot Security v Commissioner of New South Wales Police [2008] NSWADT 17. A decision-maker should not shy away from an exercise of the discretion merely on the grounds that the licence holder may suffer hardship or inconvenience: per Hill at [22]. I accept off-site secure storage was inconvenient to Mark and may have been expensive, but it was an effective means of complying with the imposed condition. I consider, on balance, the imposition of a condition is not unduly onerous.
I observe that the condition, as amended on internal review, suffers from some inelegant drafting; I do not think it was intended to apply to household circumstances where Gantiya and Adam both reside or frequent at the same time, but rather if either one of them resided at, or frequented, a location. This then would apply to the situation where Adam may not frequent the Dunedoo property. On the basis of this interpretation. Conditions should go no further than necessary to protect public interest: Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83 and I am satisfied that the condition, as amended on internal review achieves this. DECISION
The decision under review in relation to Gantiya Parkins is affirmed.
The decision under review, as varied in the internal review, in relation to Mark Parkins 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: 06 February 2024

At a glance

Court

Decision date

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Judgment (9 paragraphs)

Cases Cited (11)

Cited By (1)