Rahman v Commissioner of Police, NSW Police Force - [2023] NSWCATAD 64 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

Rahman v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 64

NCAT Administrative and Equal Opportunity|2022-07-25

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NCAT Administrative and Equal Opportunity

Decision date

2022-07-25

Source

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Judgment (15 paragraphs)

[1]

REASONS FOR DECISION

This is an application by Adam Rahman seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to revoke his category AB firearms licence. The firearms licence was issued on 14 November 2017 for the genuine reason of Recreational Hunting/Vermin Control. The decision to revoke the licence was made on 8 October 2020 and was affirmed on internal review on 17 January 2022.
The decision of the Commissioner was that Mr Rahman is no longer a fit and proper person to hold a firearms licence and it is not in the public interest for Mr Rahman to hold a firearms licence. The Commissioner relies on the following matters in support of her decision to revoke Mr Rahman's firearms licence: 1. Mr Rahman's associations, including: 1. connection to the family home, where there have been public shootings and incidents; 2. association with individuals who have been subject of criminal allegations, criminal convictions and firearms prohibition orders; 1. Mr Rahman's criminal and traffic records from 2002, including: 1. over 20 infringements; 2. 6 criminal offences; 3. a number of defects in heavy vehicles owned or operated by him, which collectively demonstrate a continual disregard for regulatory schemes aimed at ensuring public safety; 1. Mr Rahman's dishonesty and lack of candour, as demonstrated by his: 1. dishonesty in information provided to police to avoid arrest; and 2. obtaining a drivers licence (while disqualified from driving) by false statement or misrepresentation; 1. Mr Rahman's past disclosure of self-harm attempts and non-disclosure in his firearms licence application; 2. Mr Rahman's lack of cooperation and respect for police activities aimed to ensure public safety; and 3. Mr Rahman's past conduct, including; 1. threats of violence to others, including an implied threat to use a firearm; and 2. attempt to escape from police arrest.
Mr Rahman states that he is not a risk to public safety and there are no public interest concerns with respect to him. Furthermore, he states that the incidents referred to by the Commissioner occurred before he was issued with his firearms licence and were known to police at the time. He states that he has turned his life around since he was young and has not had any recent dealings with the police.

[5]

Fit and proper

Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184).
It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
Consideration of whether a person is fit and proper can involve an assessment of their honesty (Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 at 156-157). In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an 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" (Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45]).

[6]

The public interest

What is meant by 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 Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [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."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at [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."
Importantly, s 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 [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."
That case dealt with 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 [130] - [134].
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 [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

[8]

Criminal and traffic record

Mr Rahman has criminal convictions for being a learner unaccompanied by a driver, driving an unregistered vehicle, driving while disqualified from holding a licence on four occasions, providing a false name and escaping police custody. The offences occurred in 2003 and 2004 and resulted in community service orders and a period of imprisonment in 2004. The Commissioner submits that this criminal history adversely affects the public interest in Mr Rahman holding a firearms licence.
Mr Rahman states that he has been out of trouble for around 19 years which proves he has changed and moved forward with his life. He states that at the time of the offences he was immature and a teenager and made some bad decisions which he now regrets.
Mr Rahman's wife, Souraya Eldebal, states that she has known her husband since 2003 and they married in 2008. She states that he has changed since his reckless teenage years and has moved on and kept away from negative people and surroundings that could impact his reputation.
[Not for publication]
Mr Rahman has a lengthy traffic history dating back to 2003. The offences include speeding offences, driving unlicenced, not complying with licence conditions and driving incorrectly.
Mr Rahman states that the issues regarding his driving record occurred when he was young and irresponsible and do not reflect his character today. He acknowledges that he should not have engaged in the behaviours. He states he has taken part in a driver offenders' program which has taught him to be more safe, responsible and aware of consequences.
Records provided by the Commissioner include offences up to April 2021 and the Commissioner submits (with reference to Tannous v Commissioner of Police [2011] NSWADT 116 at [37]) that Mr Rahman's conduct shows his ongoing disregard for a regulatory scheme aimed at ensuring public safety. The Commissioner also notes that Mr Rahman undertook an Online Traffic Offenders Rehabilitation Program in June 2022 which was after these proceedings were commenced and not at the time of his offending.
Mr Rahman owns an earthmoving and excavation business which operates three heavy vehicles. On three occasions between 2017 and 2020 vehicles owned or operated by him were issued with defect notices.
Mr Rahman states that there will always be some sort of wear and tear on his trucks that he may have been unaware of or missed at the time. He states that the trucks are driven by workers who should notify him of any issues requiring repair. The Commissioner states that Mr Rahman's attitude demonstrates his failure to take accountability for compliance with safety regulations for the vehicles which he owns and which are registered in his name. The Commissioner also points out that on one occasion Mr Rahman was in fact the driver the vehicle. Mr Rahman said at the hearing that he now has a mechanic who goes over the trucks to check for defects.

[12]

Lack of cooperation with police

The Commissioner submits that Mr Rahman has displayed an obstructive attitude towards law enforcement and a lack of appreciation for law enforcement over a period of time. The Commissioner refers to Mr Rahman's attempt to escape police custody in 2004 as discussed above and two incidents occurring in July 2016.
In 2016 Mr Rahman's mother and siblings lived at an address in Fairfied. Mr Rahman had previously lived there. On 28 June 2016 two rounds of bullets were fired into the premises. When Mr Rahman's brother, Rabah Adbul-Rahman, was questioned by police he is recorded as stating that he had no enemies but his brothers may have had problems with people in the past. The Commissioner takes this to be a reference to Mr Rahman and his other brothers. Mr Rahman stated at the hearing that Rabah is mentally ill. He also said that Rabah could have been referring to his brother Loukman. He said that the shooting was nothing to do with him.
Senior Constable Latham states that the Fairfield address had been identified as an address of interest due to conflict between two organised crime gangs - DLASTHR and True Kings. [Not for publication.]
The Commissioner alleges that Mr Rahman delayed in reporting the shooting to police as the incident was at 4:10 am and he attended the premises shortly after but did not report the incident to police until 5:50 am. Mr Rahman stated that he went to the house after his mother called him and called the police straight away.
A further shooting took place at the Fairfield address on 12 July 2016. Rabah Adbul-Rahman was shot and injured on that occasion. Following the shootings, the Fairfield address (among others) was the subject of police patrols.
[Not for publication]
Following the 12 July 2016 shooting, police attended the Fairfield address on 17 July 2016. They spoke with Mr Rahman who was reported to have been "rude and dissuasive" and that he said to police "I am getting sick of you coming around 15 times a day." Mr Rahman then refused to answer any further questions.
Mr Rahman said at the hearing that the police were harassing his mother and brother following the shooting despite them having told the police they did not know who had shot at the house.
Senior Constable Latham records that on 19 July 2016 police from the Middle Eastern Organised Crime Squad conducted a patrol in the Fairfield area and stopped at the Fairfield address where Mr Rahman was standing on the road talking with two others, one of whom was his brother Loukman Abdulraham. Senior Constable Latham states that police were suspicious that there may have been weapons in one of the vehicles. Mr Rahman refused to allow police to inspect the vehicle. Mr Rahman said that he and the others had come out because they had heard sirens. He agreed he refused to let police search the car and said the police were very aggressive and he was worried they would damage the vehicle.
Senior Constable Latham states that Mr Rahman was later issued with several infringements regarding parking and registration plates. At the hearing Mr Rahman disputed Senior Constable Latham's evidence regarding the parking infringements which were dismissed at court and accused him of removing number plates from Mr Rahman's vehicle. Senior Constable Latham said that Mr Rahman removed the plates as the vehicle was unregistered and said the infringements were dismissed on a technicality.
The Commissioner refers to a further incident in July 2016. Senior Constable Latham stated that on 21 July 2016 police were conducting patrols of the area near the shooting at Mr Rahman's family home. He stopped a vehicle on a nearby street as the driver was driving very slowly and appeared to be scanning houses as he passed them. The driver of the vehicle was Mr Rahman. Mr Rahman told police that his sister had called him as someone was banging on the back fence of the address where the shootings had occurred. Senior Constable Latham states that this was concerning as, instead of calling police, Mr Rahman was taking matters into his own hands and was searching for the person who he thought had threatened his mother's house.
Mr Rahman denies that he was trying to deal with the incident himself rather than calling police. He said he just wanted to make sure nobody was jumping the fence.
[Not for publication]
[Not for publication]
[Not for publication]

[13]

Associations

The Commissioner submits that Mr Rahman associates with individuals with firearms prohibition orders, with criminal histories and individuals who have engaged in threatening behaviours. Some are members of his family. The Commissioner submits that this is of legitimate concern. The evidence relied upon by the Commissioner is as follows.
Mr Rahman's brother, Loukman Abdulrahmen, is subject to a firearms prohibition order. Police state that Loukman Abdulrahmen is a close associate of a member of the True Kings gang in South West Sydney who narrowly escaped being shot in March 2016. He has also been incarcerated for supplying a commercial quantity of a prohibited drug.
[Not for publication]
The Commissioner also refers to Issa Abdul-Rahman, another of Mr Rahman's brothers, who was with Mr Rahman and participated in the incident at Bankstown Hospital where they are alleged to have threatened a woman who was waiting in accident and emergency.
The Commissioner states that Mr Rahman's association with individuals of concern is ongoing. For example, on 22 May 2022 Mr Rahman was located near a vehicle owned by Ahmed Dib, a person who is subject to a firearms prohibition order. Mr Rahman advised police that he is friends with Mr Dib. Police also record that on 14 June 2022 Mr Rahman was found in the company of Mr Dib, Ali Arab and Imran Houchar who police state are individuals with "extensive history for drugs supply, possession along with violent offences and their participation in organised crime". Mr Houchar Is also subject to a firearms prohibition order.
At the hearing Mr Rahman stated that he sometimes hires vehicles from Mr Dib and sees him every two or three months. He does not socialise with Mr Dib.
The Commissioner submits that is not in the public interest that firearms be permitted in Mr Rahman's household as it could lead to harm to the public as he continues to associate with individuals who are subject to firearms prohibition orders and he could give or be pressured to provide a firearm to those individuals. Furthermore, he has been associated with the Fairfield address, his family home, which has been subject to shootings.
Mr Rahman states that the vast majority of issues which led to the revocation of his licence were known to the NSW Police at the time he was issued with a firearms licence in 2017. He further submits that these matters would have been taken into account at the time and there does not appear to be any new or significant material or matters relied upon to justify the decision to revoke the licence.
Mr Rahman referred to the case of Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 where at [47] the Tribunal stated, in the context of determining whether the applicant is a fit and proper person to hold a licence: Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that he would present any risk to public safety or the peace if his licence were reissued.
Mr Rahman submitted that the matters raised by the Commissioner do not cross the threshold required to give sufficient cause to revoke his firearms licence. This is particularly the case as there have been no issues with his licence in the past, other matters were known to police prior to the granting of the licence and he has demonstrated remorse for his past actions.
Mr Rahman also referred to a number of other cases including Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24 where Mr Petricevic was involved in a series of incidents largely in the context of drug use in the past but with no incident for seven years. The Tribunal found that because of the passage of time and a change in lifestyle that there was no real and appreciable risk that Mr Petricevic would not comply with his obligations if granted a firearms licence. Mr Rahman argues that his situation is similar as he has turned his life around. He submits that the defects with his trucks and his associations with others who have a criminal record also do not meet the required threshold.
Senior Constable Mario Pasalic states that he was the officer who reviewed the licence granted to Mr Rahman and made a recommendation that the licence be revoked. He states that his searches of systems managed by the NSW Police revealed that Mr Rahman had changed his name from Ahmed Abdul-Rahman to Adam Rahman in 2011. He further states that the criminal history, traffic history and known associates of Ahmed Abdul-Rahman were not considered when the licence was granted to Adam Rahman.

[14]

Consideration

In relation to Mr Rahman's submissions that his past actions were taken into account when the licence was issued in 2017, it has now come to light that those offences were committed under another name. It is therefore disingenuous to say that earlier matters were taken into account when the licence was issued in 2017.
In any event, it is the Tribunal's role is to make the correct and preferable decision based on all the material before it. In this case, that material relates to all available information about Mr Rahman that is relevant to the issues of whether he is a fit and proper person to hold a licence and whether it is in the public interest that he does so. In Tannous v Commissioner of Police [2011] NSWADT 116 the Tribunal noted that the question is whether viewing the applicant's conduct as a whole, the Tribunal is concerned that the applicant's breaches of the law indicate a lack of regard for the law and public safety. The Tribunal went on to state at [33] that if it was so satisfied of such a lack of regard for the law and public safety, then it would conclude that it was not in the public interest for the applicant to hold a firearms licence.
I accept that Mr Rahman's criminal convictions occurred when he was much younger and that he has not been charged with any recent offences. The same may be said for much of his traffic record. The Tribunal has recognised that traffic laws and regulations are designed to ensure public safety and that repeated breaches of the rules indicate a disregard for public safety as well as the safety of the person concerned (Tannous at [32] and [37]; Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]). As was stated by the Tribunal in Khan v Commissioner of Police [2022] NSWCATAD 20 at [96]: …repeated breaches of traffic laws over a long period of time, as in the applicant's case, are relevant to the disposition of the current matter. Both the traffic laws and the firearms provisions are directly concerned with the aim of ensuring public safety.
The evidence submitted shows that Mr Rahman has committed some traffic offences in recent years and these cannot be discounted.
As for the defects in his trucks, as the owner, it is Mr Rahman's responsibility to ensure their safety and roadworthiness. While I note he states he now has a mechanic who checks the vehicles, his initial response that others should have informed him of any issues does not demonstrate his willingness to perform his obligations.
In relation to the matters raised by the Commissioner about self-harm, I am not at all convinced that Mr Rahman had attempted self-harm prior to being detained in 2003 or 2004. I accept his statement that he believed he would get a room by himself if he said he had self-harmed in the past. The statement is entirely plausible given his age and the context of his offending.
As noted above, there was some dispute between Mr Rahman and Senior Constable Latham about certain alleged infringements relating to disabled parking and registration plates which the Commissioner submits went to Mr Rahman's honesty. This can be taken no further. Other matters, however, go to honesty. It is concerning that he deliberately changed his name to obtain a drivers licence in circumstances where he knew he was disqualified from driving for many years. I acknowledge that this action was taken in 2006, but it was apparent at the hearing that Mr Rahman does not regret his actions. His statement that it was hard not to be able to drive for 20 years does not indicate his willingness to abide by the law. He wanted to drive and so set about obtaining a licence when he knew he was disqualified.
The incidents that the Commissioner refers to from 2003, 2004 and 2005 took place when Mr Rahman was young and I accept that he was immature at the time. It is concerning, however, that he appears to have been of the view that threatening behaviour was acceptable. The fact that he ran away from police on one occasion and was pursued over a number of fences before being arrested demonstrates that he had little regard for the law or authority.
The incidents at the family home in Fairfield in 2016 demonstrate that at least some members of Mr Rahman's family, if not himself, are involved in activities that could result in indiscriminate harm to others. The shootings show a complete disregard for life and public safety. Whether the shootings related to gang conflict appears not to have been established, although the evidence of Senior Constable Latham that the Fairfield address was identified as an address of interest due to conflict between DLASTHR and True Kings raises issues of concern, particularly in relation to the use of firearms.
The Commissioner argues that Mr Rahman delayed reporting the first shooting to police for some time. Mr Rahman states he reported the matter as soon as he arrived at the house. There was, however, a delay of one and half hours between the shooting and it being reported which indicates an unwillingness to involve police.
Mr Rahman's attitude towards police following the second shooting on 12 July 2016 where he refused to answer questions and refused permission for a vehicle to be searched are also not in keeping with someone who is willing to provide police with information to assist in solving crime.
[Not for publication]
I do not make much of the incident where Mr Rahman drove his vehicle to the rear of the house to see if anybody was jumping the fence after his sister had told him someone was banging on the back fence. It is not particularly clear why his vehicle was stopped on that occasion. I note that at the hearing Mr Rahman's representative suggested that Senior Constable Latham had engaged in "some sort of regimented attack" on Mr Rahman and his reputation, which was denied by Senior Constable Latham. Whether or not Mr Rahman was particularly targeted is unclear, but it is apparent that he was intimately involved in matters concerning his family.
This brings me to the matter of Mr Rahman's associates. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] the Tribunal stated that, given the breadth of the Commissioner's discretion and the overriding object of public safety, there is no basis for differentiating between conduct an applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
More recently, in Pittorino v Commissioner of Police (No 2) [2022] NSWCATAD 166 at [45] the Tribunal stated that where an applicant voluntarily associates with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create a danger to public safety with which the Commissioner is concerned. That person may therefore be not fit in the public interest to be in possession of a firearm. The Tribunal went on to agree with the views expressed in Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194 at [90] that even when there is no evidence that an applicant has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities, they could come under pressure to make guns or ammunition available to criminals or criminal organisations if association with the same continues.
The information provided by police establishes that Mr Rahman's brother, Loukman Abdulrahmen has a significant criminal history and is presently incarcerated. Loukman Abdulrahamen and two other people with whom Mr Rahman associates - Ahmed Dib and Imran Houchar - are subject to firearms prohibition orders. At the hearing Mr Rahman sought to downplay his relationship with Mr Dib but it is clear he has regular contact with him. I agree with the submissions of the Commissioner that Mr Rahman could be pressured to provide firearms to these individuals.
The shootings at the family home in 2016 are a matter of significant concern. It is also clear that Mr Rahman, quite naturally, was involved with his family at the time and protective of them. Mr Rahman continues to see his family about once a week. It is not far-fetch to suggest that he may take matters into his own hands if pushed.
[Not for publication]
Mr Rahman insists that he is a different person to the young man who committed criminal and traffic offences almost 20 years ago. While it is true that he has not reoffended, I am not satisfied that his attitude towards the law and regulation of his activities has changed significantly. In light of Mr Rahman's past history and in particular his association with persons who have a significant criminal history and are subject to firearms prohibition orders (particularly in light of the incidents occurring at the family home), I cannot be satisfied that after considering all relevant matters permitting Mr Rahman to have a firearms licence would be consistent with a need to reduce any risks to public safety to a minimum (see Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36]. I am therefore not satisfied that he is a fit and proper person to hold a firearms licence or that it is in the public interest for him to do so.
It follows that the correct and preferable decision is to affirm the decision of the Commissioner to revoke Mr Rahman's firearms licence.