Pascoe v Commissioner of Police, NSW Police Force [2025] NSWCATAD 154

1. In this matter, the following questions require determination:

(1) Should the Applicant's licence be revoked because he is currently subject to a conditional release order for the offence of affray?

(2) Is it in the public interest for the Applicant to hold a firearms licence?

1. The Respondent confirmed at the hearing that the Respondent does not take issue with the Applicant's fitness and propriety and makes no submission that this is a ground for revocation of the Applicant's firearms licence.
2. In applying the reasoning in Cusumano, the Tribunal is to exercise its discretion in relation to determining whether to revoke a firearms licence by considering:

(1) the principles and objects of the Firearms Act

(2) the nature and seriousness of the improper conduct

(3) the applicant's explanation of the circumstances giving rise to the improper conduct

(4) the consequences, if any, for the applicant if the licence is revoked; and

(5) the likelihood of the applicant repeating the improper conduct in the future.

1. The consideration of these matters will also assist the Tribunal in assessing whether there is a real and appreciable risk to public safety if the Applicant holds a firearms licence.

Principles and objects of the Firearms Act

1. The principles and objects of the Firearms Act refer to the "strict" approach in terms of the firearms licensing scheme, which prioritises public safety over an individual's privilege to use and possess firearms.
2. A strict approach in this matter would weigh in favour of the Applicant's licence being revoked. While the Applicant is subject to a conditional release order for the prescribed offence of affray, he would be mandatorily refused a new firearms licence. Reflective of the strict approach, the Respondent's position in affirming the revocation decision at internal review, is that the Applicant should not be authorised for firearms whilst he is subject to the conditional release order for a prescribed offence and where there were no exceptional or special circumstances which would warrant the return of his licence.
3. In Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 (Hogan), the Appeal Panel held that there is no such requirement that there be special or exceptional circumstances before a firearms licence may be retained after conviction for an offence which will preclude the renewal of the licence. At [53], the Appeal Panel noted that the Firearms Act does not expressly require that there be special or extraordinary circumstances before there may be an exercise of discretion in favour of a licensee maintaining their licence in circumstances where they are not eligible to obtain a licence. The Appeal Panel in Hogan preferred the approach of the Tribunal in Grant v Commissioner of Police [2020] NSWCATAD 158 at [30]- [31], where the Tribunal adopted the approach of asking what exercise of discretion would promote the principles and objects of the Act. At [55], the Appeal Panel in Hogan stated:

"The Appeal Panel is satisfied that the Act calls for some circumstance, or justification to not treat a relevant conviction as the basis for revocation. That justification would not be present merely because the offence was a first offence or because the person had a history of compliance with the Act. To do so would be akin to giving every licensee a single opportunity to breach the conditions of the licence or the Act. Given the purpose of the Act is to protect the public, that would not promote its objects. Something more must be engaged before the privilege of maintaining a licence would be extended to someone who is no longer eligible to hold a licence. There must be some clear basis to justify the continuation of a licensee's licence, in circumstances where the Act is clear that that person is ineligible to obtain a licence."

1. The Respondent's position at internal review was that there needed to be exceptional or special circumstances to warrant the return of the Applicant's licence. The Respondent's submissions for the hearing, however, adopted the Appeal Panel's approach in Hogan, which the Tribunal also adopts, that there must be some clear basis to justify the continuation of the Applicant's licence, in circumstances where the Firearms Act expressly provides that he would otherwise be ineligible to obtain a licence due to the conditional release order for the prescribed offence of affray.
2. The Applicant has explained his role in the two incidents, which will be examined by the Tribunal further below, and maintains that he is an honest person of good character. The Applicant, in his statement, attested that he is a person of good behaviour and asks the Tribunal to "reinstate the privilege of me having a firearms licence".
3. During cross-examination, when asked why the privilege of a firearms licence should be extended to the Applicant when he would not otherwise be eligible to be granted a firearms licence, the Applicant stated that he did not want to lose his firearms licence or the ability to participate with a firearm in sport and recreation. The Applicant stated that he had a "clean record", and he needed his clean record for his job. The Applicant currently works in a supervisory role preparing underground miners in Papua New Guinea. The Applicant stated that he is not a threat to anyone in public and that he does not "go drinking and then fighting with people".
4. The Applicant gave evidence during the hearing that he visits his rural property, which adjoins his father's property, approximately one week out of every six weeks. The Applicant has relocated to another suburb and otherwise spends most of his time working in Papua New Guinea (four weeks on, two weeks off). The Applicant stated that he goes clay pigeon shooting.
5. There was no reliable or corroborative evidence before the Tribunal of any urgent or significant need for the Applicant to hold a firearms licence in connection with his rural property or for his current employment.
6. The Tribunal is not satisfied that the Applicant has presented a clear basis or any significant circumstances to justify restoring the privilege of holding a firearms licence in circumstances where the Applicant would no longer be eligible to obtain a licence of the same kind. The Tribunal is of the view that in the absence of the requisite justification, it would not promote the principles and objects of the Firearms Act to extend the privilege of holding a firearms licence to the Applicant.

1. The Hotel incident and the Club incident, which occurred within approximately 15 minutes of each other on the same date, both involved the Applicant committing the offence of affray. The offence of affray, in s 93C of the Crimes Act 1900 (NSW), involves a person using or threatening unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. There was no dispute that this offence is serious, however the Applicant submitted that his case was on the lower side of objective seriousness.
2. The Tribunal has considered the Police records, the Applicant's statement and oral evidence, and has viewed the CCTV footage of the Hotel incident.
3. In relation to the Hotel incident, it is evident that the Applicant reacted to the name calling from a member of his ex-partner's family who was affected by alcohol, and rather than leaving the premises, the Applicant approached the members of his ex-partner's family (three males in total) in a confrontational manner. This then led to a physical altercation where the parties ended up on the ground wrestling. The Applicant's evidence during the hearing was that the other party had hold of him and the Applicant threw the first punch which did not connect. The parties had to be physically pulled apart and told by staff to leave. It appears that had it not been for the intervention of others, the altercation would have continued.
4. The Applicant stated that after leaving the Hotel, he went to the Club and ordered a drink at the bar, but did not commence drinking before members of his ex-partner's family, who had been at the Hotel, arrived at the Club. The Applicant stated, and the Police records indicate, that a member of his ex-partner's family first pushed the Applicant's father who fell to the ground. This person then began wrestling with the Applicant. In the wrestle, the Applicant punched the member of his ex-partner's family who had initiated the verbal name calling at the Hotel. This caused further punching from a member of his ex-partner's family towards the Applicant. The group was dispersed by other patrons and left the premises before the Police arrived.
5. The offences were committed in public places and directly impacted on members of the public. The Police records for both incidents, which were included in the s 58 documents, noted that both licensed premises had witnesses present who were "appalled and disgusted" with the behaviour of the Applicant and others involved. During cross-examination, the Applicant conceded that the incidents had put other patrons at risk and that people would be concerned for their safety. The Applicant also conceded that the staff during the Hotel incident were shocked, and a staff member during the Club incident could not believe what had happened and was shocked. The Applicant stated that after the Club incident, a nurse who was having dinner at the restaurant section of the Club, came and asked the Applicant if he was OK and indicated that he (the nurse) "could not believe what had happened".
6. The Tribunal is satisfied that the improper conduct in this case is serious, adversely affected members of the public, required intervention from members of the public and placed members of the public at risk.

Applicant's explanation of the circumstances giving rise to the improper conduct

1. The Applicant said in his statement that when he was physically attacked first by a member of his ex-partner's family during the Club incident, "I felt that I had no choice but to react" and that "I should have just walked out of the hotel".
2. The Applicant was asked, during cross-examination, what he meant by stating he had no choice to react and whether physical violence was the only option in the circumstances. The Applicant stated he felt intimidated at both establishments and when a member of his ex-partner's family told him to go outside during the verbal name calling exchange, the Applicant believed it was going to happen inside or outside and he was going to get attacked anyway. The Applicant stated that next time he would "just cop it, take it" and "let them assault me" as it had given him "too much grief" and he would "let the Police deal with it afterwards".
3. In relation to the Club incident, the Applicant conceded that as he had physically participated in this incident (punching one of the members of his ex-partner's family), self-defence was ruled out. It was still submitted by the Applicant, however, that in circumstances where his 74-year-old father had been pushed to the ground, this would elicit some self-defence. When it was put to the Applicant, during cross-examination, that self-defence was difficult to accept and that the physical altercation in the public setting was undeniably serious, the Applicant stated that he "should have just copped a bashing. What could I do with three people coming at me?".
4. The Police records noted there was a "long running hatred" between the Applicant's family and his ex-partner's family. The Applicant, under cross-examination, stated that he did not believe that it was hatred towards himself, but that his ex-partner's family had been involved in multiple altercations for about 30 years in the local area, associated with alcohol use. The Applicant stated that he had previously seen a member of his ex-partner's family get drunk and verbally attack people at family gatherings.
5. The Applicant stated that it had been six years since he had separated from his ex-partner, and he was not expecting to have an altercation with his ex-partner's family. The Applicant stated that while there were some issues for a short period of time after the relationship ended, he now communicates with his ex-partner when it is necessary to see his children, who reside with his ex-partner. The Applicant stated that he does not have any issues with his ex-partner.
6. Given that the Applicant had knowledge of the alleged prior conduct of his ex-partner's family, in terms of violence and/or verbal abuse while affected by alcohol, the Applicant should have foreseen what might occur as a result of how he (the Applicant) behaved, particularly during the Hotel incident. The Applicant, however, continued in a verbal exchange of name calling, approached the three males in a confrontational manner, threw the first punch, had to be dragged away from the physical altercation and told to leave, and continued with the verbal name calling as he left. All this behaviour of the Applicant would likely have led to the Club incident, 15 minutes later, where a physical altercation extended to the Applicant's father (74 years old at the time) and another member of the ex-partner's family.
7. The Tribunal is of the view that while the Applicant may not have initiated the verbal name calling at the Hotel incident, the Applicant's response during the Hotel incident contributed to the affray occurring. It was the Hotel incident that then led to the Club incident where a second affray occurred with more physical violence involving more people and placed more members of the public at risk. The Tribunal does not place much weight on the Applicant's explanation that he did not instigate the incidents and that he had, to some extent, acted in defence of his father. The Applicant's statements in response to how he should have responded also, in the Tribunal's view, demonstrate a lack of remorse and insight into his own behaviour, and how this impacted on members of the public.

The consequences, if any, for the applicant if the licence is revoked

1. The Applicant stated that he still has a property in the local area, next to his father's property, which he visits about one week out of every six weeks, but his father "takes care of most things". The Applicant stated that "I probably need my gun licence for the farm for vermin control". The Applicant stated that he would like to keep his licence for his farm, and he would also like to do clay pigeon shooting from time to time. The Applicant stated that he did not want to lose his firearms licence over one incident.
2. The Applicant stated that Police checks must be done for him to be allowed access to mine sites in his current employment. However there was no evidence before the Tribunal about what specific impact the revocation of the Applicant's firearms licence would have on his current employment in mining overseas.
3. The main consequences for the Applicant of having his firearms licence revoked is the loss of sport and recreation and not being able to undertake vermin control for his rural property when he visits it, although the Applicant stated that his father who owns the adjoining property and has a firearms licence assists with this.
4. The Tribunal is not satisfied that there are any significant consequences for the Applicant if his firearms licence was revoked.
5. Further, the Respondent submitted that it is open to the Applicant to reapply for a firearms licence when the conditional release order expires in October 2025. At that point, the mandatory application of s 11(5)(d)(iii) of the Firearms Act and clause 5(2)(a) of the Firearms Regulation would not have effect.

The likelihood of the Applicant repeating the improper conduct in the future

1. The Applicant stated that he had moved to another suburb, although he visits the local area when he sees his father, about one week out of every six weeks. The Applicant stated that his ex-partner's family were people to "stay right away from", which is why he had relocated. The Applicant stated that he only goes to the local area to check on his property occasionally and spend time with his father. The Applicant stated that he had seen the same members of his ex-partner's family in the local area since the incidents, but he avoided them.
2. The Applicant stated that the Police Officer who had responded to the incidents had made it very clear to all who were involved that if there was another incident in the future it would be very serious. The Applicant stated that he would be avoiding any interaction with members of his ex-partner's family. The Applicant stated that the only person he has contact with is his ex-partner.
3. There was no evidence before the Tribunal that the dispute (or whatever led to the offences of affray) between the Applicant and his ex-partner's family was resolved.
4. The Applicant submitted that the main reasons that a similar incident would not occur again in the future is that he is no longer in the local area on a full-time basis and he had limited his exposure to his ex-partner's family. The Applicant submitted that there was a general and specific deterrent, noting the Police Officer's warning if any future incident was to occur. The Applicant stated that it was a one-off incident where things went bad on the night and that he is otherwise not a violent person.
5. The Applicant relies on one character reference from a Former Pastoral Assistant who has known the Applicant for 30 years. This person stated that from his knowledge of the Applicant, the Applicant would not usually engage in this type of behaviour and the Applicant had said that the stress of his marriage breakdown and the level of provocation from the family members of his ex-partner made him act out of his normal calm character.
6. The Applicant does frequent the local area regularly (at least one week out of every six weeks), owns a property in the area which he visits, and spends time with his father who resides in the area. The Applicant stated that the local area is a small town with about 600 residents where "everyone knows everyone's' business". While avoidance of the members of the Applicant's ex-partner's family may prevent any future incidents occurring, there remains a risk of improper conduct occurring in the future, particularly given that the dispute between the families is long-standing and remains unresolved and there is a lack of remorse and insight on the part of the Applicant in relation to his own behaviour.

1. Having considered the nature and seriousness of the improper conduct that led to the revocation decision, the Applicant's role in the improper conduct in terms of his response and contribution to the offences of affray, the lack of insight and remorse that the Applicant had demonstrated about his own behaviour and the likelihood of the improper conduct occurring in the future, the Tribunal is of the view that there is a real and appreciable risk to public safety if the Applicant were to hold a firearms licence. This is not a risk that is minimal, fanciful or theoretical.

1. In relation to the question of whether the Applicant's licence should be revoked because he is currently subject to a conditional release order for the offence of affray, the Tribunal finds there is no clear basis or any significant circumstances to justify restoring the privilege of holding a firearms licence in circumstances where the Applicant would no longer be eligible to obtain a licence of the same kind.
2. In relation to the question of whether it is in the public interest for the Applicant to hold a firearms licence, the Tribunal is of the view that it would not be in the public interest for the Applicant to hold a firearms licence. This is because the Tribunal has assessed, in all the circumstances, that there is a real and appreciable risk to public safety, and the public's right to safety must outweigh the Applicant's privilege to possess and use a firearm.
3. It follows that, the Tribunal is satisfied that the correct and preferable decision is to affirm the decision under review.

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.