Petricevic v Commissioner of Police, NSW Police Force

Issue for determination

1. The issue for determination is whether it is contrary to the public interest for the Applicant to hold a firearms licence.

Applicable legislation

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: section 9(1) Administrative Decisions Review Act 1997 ("the ADR Act").
2. Section 75 of the Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.
3. The role of the Tribunal in reviewing the decision is to decide what is the correct and preferable decision having regard to the material before it, including (a) any relevant factual material and (b) any applicable written or unwritten law: see section 63(1) of the ADR Act. The Tribunal stands in the shoes of the Respondent. The review under section 63 is to be conducted without any presumption as to the correctness of the decision. A review is a review on the merits and is not concerned with whether there was challengeable error in the process or reasoning by the original decision maker.
4. 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: section 38(2) of the Civil and Administrative Tribunal Act 2013. Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.
5. The Tribunal may affirm or vary the decision that is the subject of the application, set aside that decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator.
6. Two of the principles and objects of the Act are set out in section 3: 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 ... (2) The objects of this Act are as follows - … (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 supply of firearms, ...
7. Section 11(7) of the Act empowers the Commissioner to refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest.
8. Section 24 of the Act sets out the circumstances in which a licence may be revoked. It relevantly provides: "24 Revocation of licence … (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or … (d) for any other reason prescribed by the regulations."
9. For the purposes of section 24(2)(d) of the Act, clause 20 of the Firearms Regulation 2017 provides: "20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence."

The public interest

1. 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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
2. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [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."
3. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [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."
4. Section 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 paragraphs [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."
5. Ward v Commissioner of Police dealt with the issue of 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 paragraphs [130] - [134].
6. 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 paragraphs [64] - [66].
7. In determining this issue it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. As noted above, Included in this material are a number of records held in the COPS database showing interactions between police and the Applicant.
2. Mr Zoppo provided written and oral submissions.
3. The Applicant relies on his own evidence. He provided a brief statement and appeared at the hearing and was cross-examined. The Applicant also relies on a report prepared by psychologist Michael Kruger-Davis and a number of written references. The material filed pursuant to section 58 of the ADR Act includes written submissions in support of an application for internal review provided by the Applicant's solicitor, Mr Kable. Mr Kable also provided oral submissions at the hearing.

The Respondent's case

1. As noted above, the Respondent relies on the COPS records. The COPS entries include information relating to the allegations referred to above. The Respondent also relies on the Applicant's traffic record.

Submissions

1. Mr Zoppo provided written and oral submissions. He noted that the Tribunal's discretion is to be exercised to promote the objects of the firearms legislation. This requires that concerns in relation to public protection, public safety and public confidence in the administration of the licensing system are to be taken into account. The Applicant's Interest In retaining his firearms licence must be subordinate to the public interest in ensuring public safety.
2. Mr Zoppo submitted that the Applicant's traffic record and record for complying with regulatory schemes is relevant to both the Applicant's fitness and propriety and the public interest. He submitted that the Applicant's significant and ongoing traffic related offences demonstrate a disregard for traffic laws that are not only intended to protect himself, but also the general public. These instances demonstrate an unwillingness of the Applicant to comply with regulatory laws that, like the Act, are directed at ensuring public safety.
3. Mr Zoppo submitted that the Applicant has demonstrated that he is not prepared to cooperate with police. This causes the Commissioner concern with respect to the Applicant's future willingness to comply with the Act and the strict requirements and the Commissioner's reasonable requirements.
4. Mr Zoppo further submitted that the Applicant's threat to harm himself by using a firearm or jumping or falling to his death is of great concern.
5. With respect to the report of Mr Kruger-Davis, Mr Zoppo noted that Mr Kruger-Davis assessed the Applicant over telephone and video conference, sending questionnaires to the Applicant's email address and receiving the completed questionnaires by email. In relation to the report it is submitted:

• Mr Kruger-Davis has no personal knowledge of the facts asserted and he relies on what he is told by the Applicant;
• The statements of fact on which the report is based are not supported by the Applicant in his statement filed in the proceedings and should be afforded no weight;
• Without the Applicant establishing the facts on which the report is based, the conclusions of the report should be provided little or no weight;
• Mr Kruger-David relies to a great extent on the results of the questionaries that were exchanged by email. It is not clear how Mr Kruger-Davis can be sure that the Applicant completed the questionnaire, nor is there any real consideration of the reliability of the results or answers;
• There is no real consideration in the report as to why the Applicant turned his mind to self-harm, apart from a frustration at the lack of service. That explanation of itself doesn't provide the Tribunal with any comfort as to why the Applicant would tell the person that he was going to harm himself;
• Mr Kruger-Davis was only provided the Notice of Refusal and he has not considered any other material filed by the Commissioner in the proceedings; and
• Mr Kruger-Davis' recommendation about the overturning of the refusal is not within his area of expertise or the task given to him.

1. Mr Zoppo noted that the objectives and principles of the Act make it clear that public safety is the primary consideration with respect to the possession and use of firearms. He submitted that the history of the Applicant's behaviour and his traffic record demonstrate a disregard for the regulatory scheme aimed at ensuring public safety.
2. Further, the Applicant's history of aggressive behaviour especially directed towards the Police should be given serious weight in consideration of the Applicant's level of self-control and suitability to hold a firearms license. In the circumstances the Tribunal could not be satisfied that there is virtually no risk, should the Applicant be given the privilege of a firearms licence that allows him to possess or use firearms. Therefore, the decision of the Commissioner should be affirmed.

The Applicant's case

1. As noted above, the Applicant relies on his own evidence. In his statement he stated: I wish to obtain my firearms licence because my grandfather still lives and hunts in South Australia, and I wish to join him while he still active. Prior to the 2017 incident I considered myself to be very immature, and certainly did not make good life choices. In relation to the 2017 incident, as has been explained in the internal review request, I was frustrated and made a silly off-the-cuff remark, which I deeply regret. I have learnt a valuable lesson and will never do likewise again. I am not proud of my driving record, much of which occurred while I was young, and even though there are a number of more recent incidences, I am working hard on improving this area of my life. I now run my own contracting company undertaking infrastructure projects and employ 6 staff. I am still actively involved with raising my 8-year-old son and am trying to be the best role model I can be for him.
2. In his evidence before the Tribunal, the Applicant expanded on several aspects of this evidence:

• The Applicant's grandfather wishes to go hunting with him. The Applicant's grandfather lives in South Australia but the Applicant would prefer to hunt with him in NSW. He said that this is not the primary reason for wanting the licence. He said that he currently has an R-Licence issued by the NSW Department of Planning, Industry and Environment. An R-Licence allows him to hunt game and feral animals using a compound bow;
• The Applicant is ashamed of his past behaviour. He considers that he was young and stupid and could have done better;
• He agreed that in his younger days he made poor decisions. He also agreed that his conduct suggested that he had a dislike for police. He now accepts that it was a silly way to relate to authority. He did not agree that he acted against police;
• He agreed mostly with the contents of the 2011 - 2014 COPS entries. He disagreed that he disliked police or that he had been looking for trouble;
• In relation to the October 2011 incident at the Scary Canary in Kent Street Sydney he accepted that he had resisted Police direction. He explained that he was with a person who was being arrested and was trying to help police in gathering the person's possessions and he was filming the incident. He accepted that he was extremely intoxicated by alcohol and but he denied that he had taken any prohibited drugs;
• In relation to the October 2014 incident at the Coogee Bay Hotel he accepted that he had resisted Police direction to move on. He denied that he had struck out at a police officer as is alleged in the COPS entry. He said that CCTV of the incident showed that was not the case;
• In relation to the January 2017 incident the Applicant admitted that he threatened self-harm while speaking to an Apple service technician over the phone. He said that he was frustrated because he had been waiting on the phone for about two hours before getting to speak with the technician and that the technician offered no help. He was hoping that the issue might have been escalated to get a better result and get the issue resolved. He thought that the threat might make them understand how frustrating the process had been. He denied that he had been consuming cannabis prior to the call to the Apple service technician. He agreed that a former housemate had been smoking cannabis prior to the police attendance at his apartment. He said that he was extremely confronted and intimidated by the police attendance and he agreed that he had refused to allow police inside. He refused them permission to search the premises as they did not have a good reason to search. He agreed that he did allow paramedics to enter and said that a police officer had entered as well. He denied that he told an ambulance officer that he regularly smoked cannabis. He denied taking any prohibited drugs.

1. In relation to his traffic record the Applicant accepted that it was a poor record but he does not accept that it reflects his attitude to authority. He said that it reflects his level of immaturity at the time. He said that he has been trying to get a good record for the past six years.

References

1. The Applicant relies on a number of character references provided in support of his application.

Cassandra Nikolis

1. Ms Nikolis was in a relationship with the Applicant between June 2017 and August 2020. They have remained friends and continue living in the same household. She stated that she has never seen the Applicant violent or aggressive to anyone and never seen him express the urge to harm himself either.
2. She stated that the accumulated events that have been recorded in the COPS entries do not reflect the Applicant's character and she would feel safe if he held a firearms licence.

Joseph Patrick Petricevic

1. Joseph Petricevic is the Applicant's father. He wrote: I have watched Nik grow from a quiet, shy and adventurous child through teenage years of self-discovery and purpose to a serious young man with drive and ambition, who now owns his own successful company with responsibility for 9 employees, hundreds of thousands of dollars in assets and a small but impressive collection of clients including some of Australia's best known engineering companies. Nik works on average 80 hours per week. Nik has made some small mistakes in his life. I don't know too many young teenagers or young adults that have not, but I have never had to worry with Nik due to his high moral and ethical code and his steadfast attitude of doing the right thing and looking after those he cares about. Nik will not always blindly accept information but will think about and assess its merit before making a decision on most things, that generally errs on the side of caution. Nik is not perfect but when he is wrong he will be the first to admit it and apologies. I have watched Nik's communication skills improve over the years and it is impressive to watch him talk to highly positioned clients with candour and confidence. When he was much younger I have also seen Nik get frustrated in situations where help provided did not meet expectations, however I have not seen this in a very long time and in general the communications I have watched him have recently have ended in a laugh.
2. He addressed each of the issues that have been raised by the Respondent. In relation to the threat of self-harm he wrote: Nik called me straight up after this had happened admonishing himself for having said such a stupid thing and the resultant fuss that followed it. He admitted to me that he had been talking to the apple IT people to try and resolve an ongoing issue that had caused a lot of frustration and that had been resulted in a lot of back and forward phone calls that got nowhere. Nick had never before and never since threatened to take his own life and he did not mean it then, to shoot himself jump off a bridge and hang himself was just an expression and a clique one at that of venting his frustration
3. In relation to the accusation of drug use by the Applicant he stated that he has not known the Applicant to indulge in drugs.

Karen Victor

1. Ms Victor has known the Applicant for the past 15 years. She said that he was an adventurous young man, free-spirited with an inquisitive nature. He took responsibility for the younger kids and always stood up and learnt from any mistakes that he may have made. She said that the Applicant seemed to be born with insight and integrity. As a young boy he portrayed these traits and now as a young man these characteristic have only strengthened.
2. She said that as he matured the Applicant displayed a high degree of integrity, responsibility, and ambition. He has successfully and single headedly forged an extremely successful business. He employees a team of highly skilled remedial trades in a specialised field of Remedial Rectification works.
3. In her opinion the Applicant he has learnt from his previous mistakes and is responsible enough to obtain the firearms licence.

Leith Stewart

1. Mr Stewart is a professional engineer who spent time in the army. He has known the Applicant for a total of 17 years. He has seen the Applicant grow from a young timid schoolboy to a young man with a very bright future. He said that the Applicant demonstrates excellent focus, drive and willingness to learn from experiences and regularly surprises with his inventiveness, the depth of thinking he applies and the application of his craft. He does not take unnecessary risks, always come very well prepared and has always put safety as the first consideration.
2. He has not known the Applicant to be aggressive or to have any mental health issues. He has never known the Applicant to be a drug user.
3. He said that it was especially out of character for the Applicant to threaten himself on the phone to a service consultant. He said that he is confident that the Applicant did not intend to hurt himself in any way when he made the threat.
4. In all of his interactions with the Applicant he has never observed any behaviour that would cause him concern for the Applicant's ability to own a firearm. He can vouch for the Applicant's understanding of the importance of firearm safety. He said that he intends to spend time hunting with the Applicant and will be witness to his responsible ownership and handling of firearms.

Vinko Steve Seman

1. Mr Seman has known the Applicant since 2015 through their work. He is aware that the Applicant has been refused a firearms licence due to previous aggressive behaviour towards police, a mental health incident and established drug use. However, he said that these incidents do not reflect the character of the Applicant who he has come to know. He said that the Applicant is extremely remorseful and regretful for all of the incidents and he believes that the Applicant wants nothing more than to move forward from his past and continue to grow as a person.
2. He has never witnessed the Applicant lose control of himself. Even in some of the most difficult situations, with difficult people, he has held his character.
3. He believes that the Applicant would be a responsible firearms owner and a valued member of the hunting community.

Submissions

1. Mr Kable provided written submissions in support of the application for internal review. He also made oral submissions at the hearing. He submitted that:

• the threat of self-harm is out of character;
• all the incidents prior to 2017 were either trivial in nature, were explained or were simply unsubstantiated. Most should be afforded little, or no weight, in deciding this matter;
• the Applicant has matured since the initial concerns raised by police;
• the circumstances relating to the threat of self-harm were that the Applicant was clearly frustrated and agitated by the delay and lack of answer that he received to his issue;
• the Applicant has shown remorse and understanding in addressing that situation;
• the Applicant's referees have all indicated that the conduct was out of character. On all indications, the conduct would be highly unlikely to occur again;
• Mr Kruger-Davis provided an expert opinion as to the Applicant's mental health, including self-harm concerns. His opinion is that the Applicant does not pose a suicide risk. He did not harm himself and has not done so before or since the incident;
• the Applicant does not dispute that he made dire life choices. However, he has accepted responsibility for his past behaviour and expressed remorse. He has learnt from his mistakes and moved on. There is no indication that his previous behaviour will be repeated. His behaviour over the last four years has not raised any concerns. He now has his own business, with several employees;
• The Tribunal can be satisfied that there is virtually no risk to the public if the Applicant is allowed to possess or use firearms.

Discussion

1. In this case the Respondent does not contend that the Applicant is not a fit and proper person to hold a licence, but rests his position on section 11(7) of the Act. The issue in this case is thus whether the grant of a licence would be contrary to the public interest.
2. The law is largely settled in regard to applications of this kind.
3. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act. The underlying principles stated in section 3(1) of the Act emphasize that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.
4. The licensing regime is not about punishment. It is about protecting the public. Persons who have access to firearms must act responsibly. The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms.
5. It is not possible to predict with absolute certainty where the risk lies in any particular situation. As has been frequently noted, 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. The Tribunal must make decisions that are consistent with a need to reduce any risks to a minimum.
6. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.
7. Where there has been, or is, a 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.
8. Any past and present conduct that may be relevant in deciding whether the Applicant is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance.
9. The Respondent relies on a number of COPS entries that indicate a history of difficult interactions between the Applicant and police. The most recent of those incidents is 2014. Most significantly, in my view, is the incident from January 2017 in which the Applicant threatened self-harm. The Applicant also has a long history of traffic infringements. I agree with the Respondent that this demonstrate a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety. However, I note that there have been a limited number of infringements in recent years.
10. In my view, the circumstances of this matter can be distinguished from those that I considered in Lee v Commissioner of Police Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144. In that matter I considered that Mr Lee's extensive history of traffic infringements was such that I could not be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme. In the present matter I do not have those same concerns.
11. In my view, the fact that the Applicant has not repeated the conduct for which he came to the attention of the Respondent over several years indicates his preparedness to learn from his experience and adapt his behaviour in an effort to comply with his legal obligations.
12. The references that have been provided in support of his application all suggest that the Applicant has in fact moved on from his prior behaviour and is now a responsible citizen. In my view, the risk that the offending conduct would be repeated in the future has significantly reduced.
13. I agree with the concerns that Mr Zoppo has raised in regard to the medical report provided by Mr Kruger-Davis. I note that, to some extent, limitations have been imposed on the conduct of psychological assessments as a result of the impact of the COVID-19 pandemic. However, in my view it should have been possible to take precautions to remove the possibility that the results or answers to the questionnaire might be unreliable because of the intervention of persons other than the Applicant. There is no suggestion that this occurred however the process that Mr Kruger-Davis adopted left the possibility open.
14. The Applicant only relies on Mr Kruger-David's report in support of his contention that there are no mental health issues that would prevent him possessing firearms. On the material before me I am not concerned that the Applicant's mental health is a significant factor. I would have reached the same view in the absence of Mr Kruger-David's report.
15. It is necessary that I form a view in regard to the risk to the public safety if the Applicant is granted a firearms licence. I have to decide whether there is a real and appreciable risk to the safety of the public, bearing in mind all the relevant circumstances. The risk must be assessed by reference to the Applicant's prior conduct and must take account of the circumstances in which that conduct occurred and any relevant changes that have occurred since.
16. As I have also indicated, a significant period has passed since the Applicant's conduct which brought him to the attention of police. Since that time, it appears that he has changed his lifestyle. It indicates a level of maturity that can be contrasted with that suggested by his previous conduct.

Conclusion and Orders

1. In the circumstances I am not satisfied that there is any real and appreciable risk that the Applicant will not comply with the obligations imposed by the firearms legislation if the licence is granted.
2. I am satisfied that the Applicant is able to meet the standards required of a firearms licence holder and therefore I do not consider that it would be contrary to the public interest to grant the licence.
3. In my view, the correct and preferable decision is that the licence should be granted.
4. Accordingly, the Orders of the Tribunal are as follows: 1. The decision under review is set aside. 2. In its place, the decision is made that the application by Mr Nikola Petricevic for the grant of a licence under the Firearms Act 1996 is granted.

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: 21 January 2022