Preece v Commissioner of Police, NSW Police Force

Relevant Legislation

1. Section 63 of the Administrative Decisions Review Act 1997 (NSW) (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.
2. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter and in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.
3. The principles and objects of the Act are set out in s 3, relevantly: Principles and objects of this 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: … (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 supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner,
4. Section 11(3), (4)(a) and (7) of the Act is in the following terms: (3) A licence must not be issued unless-- (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
5. Section 40 of the Act states: 40(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies-- … (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
6. Section 42 gives police the authority to seize firearms and ammunition if they have a reasonable cause to believe the firearms or ammunition are not being kept in accordance with s40 of the Act.

Evidence

1. Mr Preece relied on a statement filed in these proceedings dated 21 July 2022 (Exhibit A2). He was required for cross examination. Mr Preece's evidence was that he has held a firearms licence for some 40 years, since he was 19 years of age continuously without any concern until suspension in 2019.
2. In regard to the incident on 26 March 2019, Mr Preece explained that he was the primary carer for his father who was 91 years old. His father was in hospital having a part of his foot amputated and fighting sepsis when he became aware that his niece and her husband, Mr Shaw had been removing items from his father's home. He was also aware that this had happened at different times before. He telephoned his niece about this and the phone rang out. A short time later Mr Shaw rang him back. The conversation got heated very quickly, Mr Shaw got very abusive. After about two hours the police came to his home arrested him and took his firearms.
3. In regard to the alleged breach of AVO Mr. Preece stated that he was attending his sister's funeral and wake at the Clarence Town Bowling Club and he never went near Mr Shaw.
4. Mr Preece relied on statements made by Ms and Mr Dunning who were also at the Clarence Town Bowling Club. They were with Mr Preece for some of the time. Mr Preece was with his family and standing near the toilets. They did not see Mr Preece approach Mr Shaw. They saw Mr Shaw leave about an hour before they left.
5. Mr Preece's wife, Ms Debra Preece, stated that she was with her husband the entire time of the funeral and wake and at no time did he approach Mr Shaw.
6. Mr Preece also relied on a character evidence prepared for the purposes of the sentencing hearing, from persons who has known him for 30 years, Mr Walton and Mr Woodruff were aware of the charges and the AVO. They both stated that Mr Preece's conduct with Mr Shaw on 26 March 2019 was entirely out of character.
7. During cross examination Mr Preece denied that he said to Mr Shaw 'I am coming to blow your fucking head off'. He also denied that he approached Mr Shaw at the Clarence Town Bowling Club.
8. The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act (Exhibits R1 and R2) which included images from a body worn video and six still images. The still images and video were taken at Mr Preece's residence at the time the firearms were removed. It shows the location in which the firearms and ammunition was stored.
9. When police attended the applicant's residence on 26 March 2019, for the purpose of arresting him in relation to the intimidation of Mr Shaw, the applicant took police to the back of his premises into a large, shed type building in which the firearms were stored in an appropriate gun safe. During the seizure of the firearms, a number of boxes of ammunition were located on top of the gun safe, some of the ammunition was in black plastic containers that did not lock and other ammunition was in cardboard boxes.
10. Mr Preece worked in the large shed as a motor mechanic. The gun safe was kept in an out of the way area in the shed, however it was not in a separate locked space within the shed.
11. Exhibit R3 was a Fact Sheet produced by the respondent as to firearms ammunition safe storage, acquisition and possession.

Applicant's submissions

1. Mr Preece submitted that he had a firearms licence for a long time without incident. That the Tribunal should accept that Mr Preece's evidence given truthfully that he did not say the words alleged by Mr Shaw or approach Mr Shaw at his sister's funeral. The words said by Mr Preece did not rise so high as to be characterised as a threat and that he said those words when he was under significant stress and was provoked by Mr Shaw. He is remorseful and that it was entirely out of character. He now has no contact with Mr Shaw now.
2. As to the storage of ammunition, Mr Preece submitted that the Fact Sheet is not legally binding and that Mr Preece's shed is safe.

Respondent's Submissions

1. The respondent submitted that the Tribunal should find that Mr Preece is not a fit and proper person to hold a firearms licence and that it would not be in the public interest for the applicant to hold a firearms licence because of the allegations made by Mr Shaw.
2. The respondent also submitted that the applicant failed to keep the ammunition stored in a locked container of a type approved by the Commissioner.

Public Interest

1. Section 11(7) of the Act permits a refusal of a firearms licence if it is contrary to public interest. Public interest includes the applicant's safety and that of the whole community. In considering public interest, the objects and scope of the Act are amplified; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 at 681 per Wilcox and Keely JJ and are given paramount consideration Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
2. Consistent with s 3(1)(a) of the Act, the applicant's individual interest in obtaining or retaining a firearms licence is subservient to the public's right to safety.
3. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearms scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
4. Firearms possession is a privilege and is conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.
5. In Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25, the Tribunal set aside the Commissioner's decision to revoke the firearms licence. In Jameson, the applicant kept his firearms in the boot of his open car in an open garage. The firearms were stolen. The applicant immediately notified the police of the theft. The applicant was found guilty of failing to keep firearms safe under s39 of the Act. The applicant placed the firearms in the boot of the car to expedite travel the next morning and because of his knee problems. The applicant relied on the evidence of a psychologist that pistol shooting was a very large and important part of the applicant's life and that his well-being would be adversely affected if he could not participate in this sport with his wife and large network of friends.
6. In Uzelac v Commissioner of Police [2003] NSWADT 226 (Uzelac) the Tribunal set out some relevant considerations in regard to revocation of firearms on the basis of failure to keep firearms safely, these considerations are also relevant for the safe keeping of ammunition. In this case, there is no allegation that the firearms were not kept safely. The issue is that the ammunition was not stored in a locked container as required pursuant to s40(1)(d) of the Act. In Jameson at [63] SM Walker helpfully set out relevant considerations made in Uzelac: 1. the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence; 2. the reason for failing to store the firearm safely; 3. the length of time the firearm was not stored safely; 4. the potential or real danger posed by the failure to store the firearm safely; 5. the person's previous conduct in relation to storage of firearms and any related matters; and 6. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future.

Storage of ammunition

1. Mr Preece's evidence in regard to failing to store the ammunition safely, was unclear. He made no reference to this issue in his written statement. The Tribunal has reached the conclusion that Mr Preece was not aware of his legal obligation to keep the ammunition in a locked container. He did not consider it to be of much importance or significance. Mr Preece's submission in regard to the Fact Sheet explaining the details surrounding s40(1)(d) of the Act was that it was merely a Fact Sheet and little weight should be placed on this issue. The length of time the ammunition was stored unsafely is unknown.
2. I do not consider that a failure to keep the ammunition stored safely is a trivial or excusable issue, however, ultimately in making the correct and preferable decision, the Tribunal must determine whether there is virtually no real and appreciable risk to public safety if the applicant is granted a firearms licence. The context of that analysis occurs squarely within the terms of the objects of the Act. The focus is on future risk. This is a protective and not a punitive jurisdiction.
3. As set out below, the Tribunal does have significant concerns about Mr Preece's failure to keep the ammunition stored safely. However, there is no public interest reason to refuse to issue the firearms licence in this particular case as there is no evidence of any risk to the safety of the public if the applicant was granted a firearms licence.

Stalk/Intimidate charge

1. The Commissioner relies on Mr Shaw's accounts and rejects Mr Preece's accounts of what occurred between them.
2. The Tribunal accepts Mr Preece's evidence as to the conversation he had with Mr Shaw that he said to him 'I am going to come up there and rip your head off.' Mr Preece was charged with stalk/intimidate intend fear physical etc harm (domestic). Mr Preece pleaded guilty at the earliest opportunity.
3. There is no evidence of past violent or abusive conduct by Mr Preece towards any person. I accept evidence from Mr Walton and Mr Woodruff who have known Mr Preece for over 30 years and stated that Mr Preece's conduct towards Mr Shaw was unlike him and did not reflect his character. I also accept Mr Preece's evidence that he did not approach or speak to Mr Shaw at his sister's funeral.
4. I do not consider that Mr Preece would pose a risk to the safety of the public if he was granted a firearms licence. Mr Preece has had a firearms licence for a very long period of time without any issue.

Fit and Proper Person

1. There was no dispute between the parties as to the meaning of the term 'fit and proper person' within the terms of s11(3)(a) of the Act. As Toohey and Gaudron JJ explained in the context of a commercial broadcasting licence in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 [36]: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
2. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156-7 [9] the content of fitness and propriety was considered to have three components -'honesty, knowledge and ability'.

Storage of ammunition

1. Based on the material before the Tribunal and in assessing Mr Preece while he was subject to cross examination, the Tribunal has no concern about his honesty or ability. However I do have a concern about Mr Preece's knowledge as to the storage of ammunition.
2. There is no factual dispute that contrary to s40(1) of the Act, the ammunition was not kept in a locked container. While Mr Preece's solicitor submitted that this is a minor technical irregularity, in the context of the Act, it is a serious issue of non-compliance with Part 4 of the Act, and I consider that while Mr Preece has had a firearms licence for a long time it is likely that he has not stored the ammunition safely in the past.
3. During the hearing Mr Preece gave no evidence in regard to why he failed to store the ammunition safely, how long it had been stored unsafely, any understanding about the potential or real danger posed by his failure to keep the ammunition safe. Critically there was a lack of evidence as to Mr Preece's understanding of the importance of safe storage and how the ammunition would be stored safely in the future.
4. I consider that once Mr Preece undertakes and completes some relevant training he is likely to have the knowledge component of the fit and proper test requirements.
5. In applying the law to the facts before the Tribunal, I am of the view that Mr Preece is not a fit and proper person to be presently issued with a firearms licence.

Stalk/Intimidate charge

1. Based on the factual findings set out above, I do not accept that Mr Preece made numerous threats against Mr Shaw. I accept that Mr Preece made a single threat against Mr Shaw on 23 March 2019 when he said to him that he would rip his fucking head off. I accept that Mr Preece was remorseful for those words and was truthful to the police when questioned about it. I accept that such conduct was out of character, and it occurred at a time when he was under significant stress about his father.
2. I do not consider that Mr Preece is not a fit or proper person to hold a firearms licence because of a single incident with Mr Shaw in light of the fact that this is a single stain on his otherwise clean criminal record.

Conclusion

1. The correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr Preece's application for a firearms licence on the basis that Mr Preece has contravened s40(1)(d) of the Act by failing to store the ammunition in a locked container and is such is not a fit and proper person to hold a firearms licence pursuant to s11(3)(a) of the Act.

Orders 1. The Respondent's decision 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: 16 December 2022