Rasko v Commissioner of Police, NSW Police Force

Applicable legislation

1. The general principles and objects of the Act are set out in s 3 as follows: (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner,
2. Section 11 of the Act sets out a range of circumstances where a licence must not be issued, including s 11(3)(a) as follows: 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,
3. Section 11(7) of the Act provides that despite any other provision of s 11, "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".

Respondent's Application

1. On 11 February 2022, the Respondent filed an Application seeking confidentiality for certain evidentiary material (the Application). At the commencement of the hearing, Mr Nowlan, counsel for the Applicant, submitted that he had been unaware of the Application until the previous Friday. Mr Zoppo, the solicitor on behalf of the Respondent indicated that the late notice was regrettable but he had only recently become aware of the material the subject of the Application. Having regard to ss 36 and 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), a confidential hearing was held pursuant to s 49(2) of the CAT Act (Confidential Hearing) following the conclusion of the open hearing. The Confidential Hearing was held in the absence of the Applicant and his legal representative.

The evidence

1. The matter was heard by audio visual link. The Applicant filed and tendered a bundle of documents (exhibit A1) with a number of annexures that included a statement from the Applicant (annexure A), a report from Sam Borenstein, Clinical Psychologist (annexure L) and a number of character references (annexure M). The Applicant gave evidence and was cross examined. The Respondent relied on the s 58 documents (exhibit R1) and a supplementary bundle (exhibit R2).

Confidential evidence

1. Confidential evidence was adduced at the Confidential Hearing and the Respondent tendered confidential evidence (exhibit CR3). Orders were made by me at the conclusion of the Confidential Hearing pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act.
2. [NOT FOR PUBLICATION]

Applicant's submissions

1. The Applicant relied on written submissions filed on 20 January 2022 together with oral submissions from Mr Nowlan of counsel. The submissions addressed the Applicant's criminal charges, including those for which he had been convicted and those that had been withdrawn. Mr Nowlan also made reference to the Applicant's statement and the annexures (exhibit A1) and submitted that these supported the Applicant's contention that he is a fit and proper person to hold a firearms licence.
2. Reference was made to the Applicant's service in the Australian Army Cadets, the Army Reserve and the Regular Army and the Applicant's training in the use and storage of firearms, including his time as an instructor teaching recruits how to handle firearms safely. The Applicant was deployed overseas on peacekeeping operations and was decorated with various medals. A copy of a letter from the then Prime Minister was included in the Applicant's bundle of documents (exhibit A1) that acknowledged the Applicant's service. After his honourable discharge from the Army, the Applicant studied music and founded a business as a music teacher. It was submitted that despite not holding a licence, the Applicant maintains his interest in both modern and historic firearms and is a current member of a rifle club, a pistol club and the Sporting Shooters Association and is also a director of the Antique Arms Collectors Society of Australia.
3. It was submitted that the Applicant's voluntary surrender of firearms in the gun buy-back scheme following a change of laws in 2003 show that the Applicant is not a person who holds himself above the law and when the law changes, he complies. It was submitted that the report from Mr Sam Borenstein concludes that there is no clinical reason that the Applicant should not hold a firearms licence. The Applicant relied on character references from 11 people to vouch for his good character and fitness to hold a firearms licence.
4. It was submitted that the firearms licencing system is designed to protect the community rather than to punish offenders and that the criminal courts had punished the Applicant. The legislation imposed a 10-year ban on the Applicant and not a lifetime ban. It was submitted that the legislation acknowledges that people can be rehabilitated and change their attitudes and practices regarding firearms over a 10-year period. The Applicant has acknowledged his mistake, expressed remorse, pleaded guilty and accepted and served his punishment. It is not the role of the Commissioner or the Tribunal to impose further punishment - only to determine whether the Applicant is a fit and proper person to hold a firearms licence. It was submitted that the character references are clear evidence that the Applicant is well regarded in the shooting, collecting and wider community.
5. It was submitted that the Applicant is firstly, a fit and proper person to hold a Category ABGH firearms licence and, secondly, that he is not a threat to public safety. The Applicant has promised to observe and abide by the firearms laws and knows the consequences if he does not. As such, it was submitted that the correct and preferable decision is to set aside the decision of the Respondent and substitute a new decision to grant a Category ABGH firearms licence to the Applicant.
6. In oral submissions, Mr Nowlan submitted that the Respondent had previously relied upon the Applicant not being a fit and proper person and had only recently made reference to the public interest test in the written submissions. The reference in the Respondent's written submissions to the Applicant tucking the pistol into his waistband "in a manner that one would expect a gangster" to conceal their weapon amounted to hyperbole and innuendo. He submitted that the Applicant had been honest and forthright in his dealings with police and continued to be so. Mr Nowlan submitted that the 2009 offences had been careless rather than carried out with criminal intent and that the Applicant had matured in the years since.

Respondent's submissions

1. Written submissions were filed on behalf of the Respondent on 11 February 2022 and Mr Zoppo made oral submissions at the hearing. The Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence and that the issue of a firearm licence to him would not be in the public interest. In particular, the Respondent relied upon the conduct of the Applicant in the 2009 offences, and it was submitted that a review of the Applicant's conduct demonstrates that over a period of time the Applicant had not had regard to the requirements under the Act in relation to the safe storage of firearms, the requirement to register firearms or the requirement to obtain a Prohibited Weapons permit.
2. The Applicant also relied upon the Applicant's conduct in relation to further offences, including an offence that was withdrawn in 2014 (2014 withdrawn matter) and another one in 2017 (2017 withdrawn matter) together with a charge of refuse or fail to submit to breath analysis 1st offence in respect of which the Applicant was convicted on 6 March 2018 (2017 offence).
3. It was submitted that whilst the character references relied upon by the Applicant refer generally to the Applicant's good character, the referees rely on what they have told by the Applicant with respect to the Applicant's previous convictions. The Respondent submitted that the reference from Paul Fletcher MP does not speak to a knowledge of the Applicant's recent past and that the correspondence from the Applicant was directed at misleading Mr Fletcher as to the true circumstances and the background of the Applicant and as a consequence, the reference should be given little to no weight. There must also be some doubt as to what the other referees were told before they provided their references. It was submitted that where a referee does not articulate an awareness of the circumstances giving rise to the refusal of the Applicant's firearms licence, these references must be approached with caution and given little to no weight.
4. It was submitted that the circumstances of the 2009 offences were serious and occurred over a period of time. The carrying of a concealed firearm in a public place carried with it potentially significant consequences. The storing of a loaded pistol in a cupboard not only contravenes the Act but also creates significant risks to public safety. The Applicant has failed or refused to comply with legal requirements and contravened laws that are directed at public safety. The decision of the Respondent in refusing the firearms licence should be affirmed.
5. In oral submissions, Mr Zoppo referred to the circumstances of the 2009 offences and submitted that the Applicant had failed to safely store the various firearms including transporting the pistol from Terry Hills with no case and no trigger guard. The Applicant had not explained why there was a loaded pistol next to the cannabis in the cupboard of his unit or why the rifle had been hung on a wall over a period of days.

Application for miscellaneous matters

1. Following the hearing of the matter, the Applicant lodged an application seeking that his name not be published on the Caselaw website. Directions were made by me on 16 May 2022 seeking submissions from the parties in relation to the application seeking non-publication of the Applicant's name and advising that the non-publication application would be considered as part of the substantive determination. Counsel for the Applicant subsequently advised the Registry that the application for non-publication was not pressed. The parties were advised that the application was withdrawn, and the directions made on 16 May 2022 were set aside.

Role of the Tribunal

1. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the respondent and there is no presumption that the decision of the respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues

1. As referred to above, the Respondent relied on the following grounds for the contention that the decision under review should be affirmed: 1. That the Applicant is not a fit and proper person to hold a firearms licence; and 2. That the issue of a firearms licence to the Applicant is not in the public interest.
2. The Respondent relied on the matters raised in the s 58 material (exhibit R1) and in particular the Applicant's conduct in the 2009 offences, the 2014 withdrawn matter, the 2017 withdrawn matter and the 2017 offence together with confidential exhibit CR3.

Fit and Proper Person

1. The meaning of the term "fit and proper person" has been considered by this tribunal and other courts and tribunals on many occasions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-157, Dixon CJ, McTiernan and Webb JJ said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability… It is evident that …the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or definite criteria and which in truth involves a very wide discretion.
2. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] BSWADT 254, [22].
3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: 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, or 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.
4. They went on to say at 388: The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for valuation 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.
5. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 at 76 Walters J said in respect of the term "fit and proper": The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving 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.
6. It was acknowledged by the Applicant that as a consequence of s 11(5)(b) of the Act, his convictions for the 2009 offences resulted in him being ineligible to hold a firearms licence for a period of 10 years from 13 April 2010. A similar provision relating to the issue of permits is also contained in s 10(3)(a) of the Weapons Prohibition Act 1998. Following the expiration of the ten-year period, s 11(5)(b) of the Act no longer applies to the Applicant and I accept the submission made by Mr Nowlan that the Applicant is now subject to the same tests as other members of the community.
7. Section 11(3) of the Act has the effect that a licence must not be issued unless the Respondent, and by derivation, this Tribunal 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. I have regard to the Applicant's submissions that the Tribunal is to take into matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 [62]-[64] (Joseph). It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 [30]. In taking criminal conduct into account, the tribunal may apply a lesser standard of proof than the criminal standard: Joseph at [60].

Improper conduct by the Applicant

1. The New South Wales Police Force Criminal History - Bail Report obtained on 22 November 2021 (part exhibit R1) (criminal history report) sets out the various matters with which the Applicant has been charged and includes matters that have been either withdrawn or dismissed.

2006 matters

1. The 2006 matters related to the Applicant being charged with two counts of assault on 8 April 2006 and a copy of the Facts Sheets was before me (part exhibit R1). The criminal history indicates that these charges were dismissed at Waverley Local Court on 10 November 2006. It was not contested that the 2006 matters were dismissed. The Applicant's evidence was that the matter proceeded to a hearing at Waverley Local Court in which he gave evidence and that the assault charges were subsequently dismissed as he was found to have acted in self-defence. Having regard to the dismissal of the 2006 matters and the Applicant's unchallenged evidence in relation to the outcome, I do not find that the Applicant's conduct in the 2006 matters is relevant to the issues to be determined in these proceedings and accordingly, I have no further regard to them.

2009 offences

1. It was not in dispute that the Applicant was arrested on 30 May 2009 and subsequently charged with a number of criminal offences to which he pleaded guilty, was convicted and sentenced. In his written submissions, counsel for the Applicant refers to a number of matters that the Applicant was charged with. It was submitted that the "Applicant cooperated with police, pleaded guilty and, after a severity appeal, was sentenced in the District Court on 13 April 2010 and bound over for three years under s 9 Crimes (Sentence Procedure) Act." Whilst the submissions do not specify which matters were the subject of a severity appeal to the District Court, these are set out in the criminal history report and for clarity, are set out below.
2. The criminal history report establishes the following matters were withdrawn at Waverley Local Court on 16 September 2009:

• The offence of Goods in Personal Custody Suspected of being stolen (not m/v).
• The offence of Use Unauthorised Pistol

1. The criminal history report establishes that the Applicant was sentenced in relation to the following matters relating to the 2009 offences at Waverley Local Court on 3 March 2010:

• Possess Unregistered Firearm -Pistol - order made pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 that the Applicant enter into a bond to be of good behaviour for a period of two years.
• Possess/Use a Prohibited Weapon without a Permit - order made pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 that the Applicant enter into a bond to be of good behaviour for a period of two years.
• Not Keep Firearm Safely - Pistol - directed to perform 100 hours of community service.
• Not Keep Firearm Safely (Not Pistol/Prohibited Weapon) - fined $1000.
• Possess Unauthorised Pistol - directed to perform 200 hours of community service.
• Goods Suspected Stolen in/on Premises (m/v)- fined $500
• Enter Building/Land with Firearm or Imitation Firearm- directed to perform 300 hours of community service

1. The criminal history report establishes that the Applicant was also sentenced before Waverley Local Court on 3 March 2010 in respect of an offence of Possess Prohibited Drug and two counts of Not Keep Firearm Safely (pistol). The Applicant appealed against the severity of the sentences imposed in relation to these matters and the appeal was heard before the Sydney District Court on 13 April 2010 with the following outcome:

• Possess Prohibited Drug - conviction confirmed - order made pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 that the Applicant enter into a bond to be of good behaviour for a period of three years and to subject to supervision by the NSW Probation Service
• Not Keep Firearm Safely (two counts) - conviction confirmed - order made pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 that the Applicant enter into a bond to be of good behaviour for a period of three years and to subject to supervision by the NSW Probation Service

1. The Facts Sheet (part of exhibit R1) sets out the Applicant's conduct in relation to the 2009 offences. The Applicant's conduct was generally not in dispute. At the time of the offences the Applicant was registered to possess a semi-automatic Beretta pistol (the pistol), an Enfield rifle (rifle) and a Smith and Wesson pistol that were generally stored in a gun safe in the Applicant's Bondi Junction residence. At approximately 6 pm on Friday, 29 May 2009, the Applicant picked up his pistol from an address in Terry Hills where it had been receiving repairs on the trigger. The Applicant then placed the pistol in the boot of his car and covered it with clothing, before returning to his unit in Bondi Junction where a friend was waiting for him. On arrival, the Applicant parked his vehicle and locked it, leaving the pistol inside the vehicle.
2. The Applicant went into his unit and spent time with his friend before driving him to his home to Tempe. The Applicant then drove to Churchills Sports Bar in Kingsford where he arrived about 12 am on Saturday, 30 May 2009. Upon arriving, the Applicant went to the boot of his vehicle and removed the pistol, tucking it into his belt at the back of his person. He then entered the bar where he purchased a beer and then walked around for about 15 minutes. After finishing his beer, the Applicant returned to his vehicle, removed the pistol and placed it on the floor of the front passenger side of the vehicle.
3. These events were witnessed by a male waiting in his vehicle outside of the bar. He informed staff of what he had seen and gave a description of the Applicant.
4. The Applicant returned to his unit at Bondi Junction where he parked his vehicle and removed the pistol. He went into his bedroom and placed the pistol on the coffee table beside his bed before going to sleep. After waking up later in the morning, the Applicant left the pistol on the coffee table whilst teaching guitar lessons all day to students in the music room which is located at the front of his unit.
5. At approximately 7.30 pm, the Applicant left his unit with the pistol as he was planning to drive to Tempe to show the pistol to another friend of his. The friend was unaware that the Applicant was coming to see him. Before going to Tempe, the Applicant again attended Churchill Sports Bar in Kingsford. Upon arriving, the Applicant left the pistol on the front passenger seat of his vehicle under a pile of clothing, locked the vehicle and entered the bar where he then ate a meal. Security staff, who were aware of the previous incident and the description of the Applicant, recognised him and called police. Police attended and the security staff identified the Applicant to them. The Applicant did not object to being handcuffed and was then escorted from the bar by police.
6. After being cautioned, the Applicant informed police that he had a pistol in his vehicle which was parked across the street. He told police about what had happened the previous evening and that he had brought the pistol into the bar because he didn't want to leave it in the car. The police searched the Applicant and found his current firearms licence. The police then searched the Applicant's vehicle and found the pistol on the front passenger seat. A further search of the vehicle located a 23 centimetre hunting knife in the front glove compartment and two New South Wales registration plates.

Applicant's evidence

1. The Applicant provided a statement (part exhibit A1) and was cross examined. In his statement, he acknowledges the 2009 offences and takes full responsibility for them but says that he wishes to provide an explanation. He said that on 29 May 2009, he took the gun into Churchill's Bar because he did not want to leave it unattended in the car. He accepts that this was unlawful and deeply regrets his mistake. On 30 May 2009, he again stopped at Churchill's Bar and this time he left the pistol in the fully locked car. He stated that the pistol was not loaded during any of these incidents and there was no ammunition.
2. The Applicant acknowledged that when police later attended his residence in the early hours of Sunday morning, the guns were not secured in the gun safe as required by law and that this was carelessness on his part. He said however that the firearms were in an internal room with no windows and behind three fully dead-locked solid core doors and that no one else lived at his home.
3. He said that the unregistered pistol found at his premises had belonged to his grandmother who had passed away and that he had taken possession of it because he had a gun safe. He is now aware it should have been registered under an 'heirloom permit' and accepts that he should have taken it to the police station and applied to have it registered but it was not a high priority as his grandmother had just died.
4. He stated that the 'prohibited weapon' offence related to a firearm magazine purchased at an auction in Melbourne and that the magazine was unrestricted in Victoria but not in New South Wales and he was not aware of the discrepancy in legislation. The magazine was unable to fire a bullet, there was no ammunition in it, and it was a totally inert collectible item. He said that the 'fireworks and tear gas' referred to in the Facts Sheet were children's toys bought at a magic shop and no charges were laid. The said that the "considerable quantity" of ammunition would not have amounted to more than three boxes, each holding either 15 or 20 rounds, and was all fully secured in the safe.
5. The Applicant admitted to possessing the cannabis but said that it had been left at his home by a music teacher colleague and he was not comfortable destroying someone else's property. He stated that he does not use cannabis or any other illicit drugs.
6. In cross-examination by Mr Zoppo, the Applicant confirmed that he lived in a three-bedroom apartment and that he taught students in what he referred to as the teaching room. The teaching room was not otherwise used as a bedroom. It was a central room with bedrooms on either side and was accessed by coming in through the front door with a secondary door. No evidence of the layout or floorplan of the Applicant's residence in May 2009 was before the Tribunal. The Applicant said that as far as he could remember, there would have been perhaps five students attending his residence for lessons on Saturday, 30 May 2009.
7. In relation to the pistol, he confirmed that when he picked it up from Terry Hills, it was not in a case and there was no trigger guard, and he placed it into the lockable boot of his sedan. He stated that the friend at his residence on 29 May was someone he had bought a guitar from and that he was there for an hour or two and he did not remove the pistol from his car as he did not want to alarm his friend who was not aware of his involvement with guns. He stated that his car was fully visible from the teaching room.
8. When he went to Churchills Sports Bar, the Applicant thought it was safer to take the pistol from the car as the car was not in his immediate presence. He had never been to that bar but as it related to Winston Churchill, he thought it would be interesting. He had one drink and when he got home, he placed the pistol on the coffee table in his bedroom. When asked why he did not put it into the firearms safe, he said there was no particular reason, and it was in a room that no one had access to. He added that it had been a long day and that he did not act responsibly. He denied that it was normal for him to leave his firearms lying around. Mr Zoppo put to him that when he woke up, he would have been aware of the pistol on the coffee table and that a number of students were coming for tuition. The Applicant stated that it did not cross his mind as the bedroom was locked, had no windows and was a totally sealed room.
9. The Applicant denied going to meet anyone at Churchill's Bar on 30 May 2009 and said he went there for dinner. He said it had been a mistake to previously take the pistol into the bar and that on this occasion he left it covered by clothing and that it was not visible to anyone outside the car. He agreed that he had left the pistol in the unattended car in a car park. He now realised how dangerous this was and in normal circumstances he would store it correctly. He said however that this was an extraordinarily difficult time as he had separated from his partner and was not thinking. Normally he would have stored the pistol in a safe as he was trained to do for so many decades. He said that it was a very stupid thing to do and that he was sorry that he had placed the public at risk.
10. In terms of the rifle, he said that it was not permanently mounted on the wall but was just there while he was servicing it. He said that he was in the process of oiling it and had left it on a gun rack. He said that it had taken some time to dry. He acknowledged that it should have been placed in the gun safe.
11. In relation to the two firearms found in the cupboard with the cannabis, he confirmed his evidence that one of the firearms had belonged to his grandmother and that he had taken possession of it earlier that year, perhaps in March. He had been in the process of researching heirloom permits at that time but that there was no reason for it not to have been stored in the gun safe. In relation to the wrapped pistol, he stated that it had been wrapped and oiled to reduce risk and that was where he stored things whilst working on them. He denied working on firearms when loaded. He said that the firearm was not being used and it should not have been loaded. He apologised and said that it should have been in the safe.
12. The Applicant acknowledged that the loaded and wrapped pistol was in the same cupboard as the cannabis and that the cannabis had been there for a month or two and did not belong to him. He denied that there was any connection between the cannabis and the firearm and that it was just coincidence. When asked about the licence plates, he stated that he discovered them in a council clean up. He thought that they were vintage plates and looked interesting and collectible, so he decided to claim them. He did not give them to police as they had been thrown out and instead left them in his car. He denied intending to use them at any stage.
13. In re-examination, the Applicant stated that the hunting knife found by police was a utility knife that he had used to open boxes and was not a combat knife.
14. I accept that the Applicant's background, especially his service in the Army and role as a recruit instructor, demonstrates that he has a high level of training and experience in relation to the safe use and storage of firearms. However, the 2009 offences demonstrate a blatant disregard by the Applicant of both this training and for the objects and provisions of the legislative scheme governing firearms in NSW. The Applicant's conduct in relation to the 2009 offences clearly establishes that he breached the requirements in relation to the safe storage of firearms, the requirement to register firearms and the requirement to obtain a Prohibited Weapons permit prior to obtaining the large capacity magazine, and in so doing presented a danger to public safety.
15. I accept the Respondent's submissions in this regard and that the Applicant's carrying of a concealed firearm in a public place carried with it potentially significant consequences. The risks were heightened given that the Applicant took the pistol into a Sports Bar that he had not previously been to and walked around the premises whilst drinking a beer at approximately 12 am. This conduct was witnessed by at least one other person who alerted the bar's security staff.
16. It is a condition of all firearms licences that the licensee must comply with the relevant safe keeping and storage requirements under the Act. The 2009 offences demonstrate that the Applicant failed to safely store the pistol on a number of occasions over two days. Upon returning home, the Applicant left the pistol on a coffee table in his bedroom, where it remained throughout Saturday, 30 May 2009 whilst approximately five students attended the premises for guitar lessons. It was not contested that the gun safe was located five metres from his bedroom and the Applicant's explanation that he was tired or careless does not justify his failure to safely store the pistol.
17. Although the Applicant advised police that his remaining firearms were in the gun safe, the police found that there were no firearms stored in the gun safe and instead the Applicant's rifle was mounted on a wall of a bedroom, and his handgun was found wrapped and loaded in a cupboard in the same room together an unregistered handgun and a quantity of cannabis. No clear explanation was provided by the Applicant as to why the two firearms were located with the cannabis nor how long the three firearms had been left unsecured. No clear explanation was given as to why the black firearm was loaded and why the rifle remained on the wall.
18. Whilst the Applicant accepted that the guns were not secured in the gun safe as required by law, he stated however that the firearms were in an "internal room with no windows and behind three fully dead-locked solid core doors" and that no one else lived at his home. When asked about the students who attended for lessons, he stated that the teaching room was between the bedrooms and that students entered through the front door and then through a secondary door to the teaching room.
19. The Applicant did not provide a floor plan of his residence and it was not clear where the three fully dead-locked solid core doors were located, nor why two of the bedrooms were said to have no windows. Accepting that this was the case, there is no evidence that the Applicant dead-locked each of the doors in the relevant period or that they were locked. Whilst the Facts Sheet refers to the Applicant providing the police with a key to open the gun safe, there is no reference to any internal doors of the unit being dead-locked or to the police requiring a key from the Applicant to open them. In any event, and as conceded by counsel for the Applicant, the law required the firearms to be secured in a gun safe.
20. As previously referred to, as a consequence of the Applicant's convictions for the 2009 offences, s 11(5)(b) of the Act rendered him ineligible to hold a firearms licence for a period of ten years. Section 10(3)(a) of the Weapons Prohibition Act 1998 contains a similar provision in relation to permits under that legislation. Whilst the convictions automatically rendered the Applicant ineligible to hold a licence or permit for a period of 10 years, the Applicant did not appear to understand the seriousness of his conduct. He was charged with the initial 2009 offences on 31 May 2009, his firearms licence was suspended on that same day and then revoked on 3 June 2009. However, the Applicant sought internal review of that decision on 1 July 2009 seeking that that decision to revoke his licence was premature. The decision to revoke his licence was affirmed on 20 July 2009. Notwithstanding that, and his subsequent convictions, the Applicant lodged three applications for a licence and permits within that 10-year period, all of which were refused.
21. The 2009 offences also included possession by the Applicant of vehicle registration plates that did not belong to him as well as cannabis that he said belonged to one of his teaching colleagues.
22. In cross-examination, the Applicant indicated that the 2009 offences occurred during an extraordinarily difficult time as he had recently separated from his partner. It appears from Sam Borenstein's report (part exhibit A1) that Mr Borenstein had previously interviewed and assessed the Applicant on 18 February 2010 at which time he prepared a report. That report was not in evidence in these proceedings, however Mr Borenstein stated that he had opined in February 2010 that the Applicant's mental state was defined by moderate symptoms of depression following the dissolution of his relationship. In his report, Mr Borenstein makes no reference to the Applicant undergoing treatment for these symptoms and there was no evidence from the Applicant that he had sought or received treatment.
23. I am satisfied that the Applicant's conduct in respect of the 2009 offences amounted to improper conduct and that at the time of the offences he was not a fit and proper person to hold a firearms licence. It is of course necessary to have regard to the Applicant's conduct since that time and s 63 of the ADR Act requires the Tribunal to decide what the correct and preferable decision is having regard to the evidence then before it.

2014 withdrawn matter

1. The Facts Sheet relating to this matter (part exhibit R1) sets out the events of 14 March 2014 and again, the facts were not in dispute. The Applicant was pulled over by police in Bondi Junction whilst driving a white sedan and breath tested with a negative result. Police enquiries then revealed that the registration plates on the vehicle being driven by the Applicant were last registered to a different vehicle and had been reported stolen sometime between 22 December 2013 and 4 February 2014, whilst that other vehicle was parked in Double Bay.
2. The Applicant was cautioned and assisted police in obtaining the vehicle's correct registration which was subsequently confirmed by the Applicant. He said that he did not know why the vehicle was displaying the incorrect registration plates and that he had driven the car the previous night and it had the proper plates on it. The correct registration plates for the Applicant's vehicle were located by police on the floor of the boot. When questioned, the Applicant said that no one else had access to the car that he knew of.
3. Further enquiries by police indicated that a Parking Infringement Notice had been issued by Waverley Council on 12 March 2014 in Bondi Junction to a white sedan with the same registration plates that had been attached to the Applicant's vehicle on 14 March 2014. The Applicant was issued with a Court Attendance Notice for the offence of Goods in personal custody suspect being stolen (motor vehicle). It was not contested that this offence was withdrawn at Waverley Local Court on 26 September 2014.
4. In his statement, the Applicant stated that he was not aware until stopped by police that his vehicle had irregular plates on it and that he would certainly not have driven a car with incorrect licence plates. He continued on to say that a family member had access to the car and drove it regularly. The Applicant confronted this person and they admitted that they had swapped the plates over to avoid paying for parking. He was unaware that they had done this and ultimately the charge was withdrawn.
5. In cross-examination, Mr Zoppo took the Applicant to the question by police on 14 March 2014 about who had access to the car and the Applicant's response of "No one that I know of". The Applicant stated in evidence that his response was true at that time but that he subsequently found out that another family member had access to the car. The car belonged to his mother and the Applicant, and another family member had access to it. The Applicant said that he had not been aware that anyone else used the car.
6. Mr Zoppo put to him that he was pulled over by police at 10 am and had told them that the correct plates had been on the vehicle the previous night and that in that short period the plates had been changed. The Applicant said that this appears to have been the case. He said that he would prefer not to identify the family member who had access to the car and that he had severely "reprimanded" this person and hopefully that was the end of the matter. When asked if he had told the police who it was, the Applicant said that he "didn't tell anybody".
7. It was not disputed that the charge against the Applicant in this matter was withdrawn. It was conceded by Counsel for the Applicant that the Applicant's conduct is still able to be taken into account when assessing whether the Applicant is a fit and proper person. Having regard to the evidence, whilst I find the Applicant's conduct highly suspicious, I am not satisfied that it is capable of supporting a finding to the relevant standard that the Applicant was responsible for placing the stolen plates onto the vehicle or that he knew at the time that he was stopped by police that the car was displaying stolen plates.
8. However, in his statement, the Applicant refers to being informed by police on 14 March 2014 that "my car" had irregular plates on it. The Applicant was then asked by police who had access to the car and his reply was "No one that I know of". It was only when being cross examined by Mr Zoppo, that for the first time the Applicant disclosed that the car that he was driving was his mother's car. The Applicant also gave evidence that at some time after 14 March 2014, he became aware that another family member had access to his mother's car and that it was this family member who had swapped the plates over. In circumstances where the registration plates had been reported as stolen, I find that the Applicant was not candid with police in failing to tell them on 14 March 2014 that the car belonged to his mother, and subsequently failing to inform police that he was aware of the person who had put the stolen registration plates on to the vehicle.

2017 offence and 2017 withdrawn offence

1. The factual circumstances of these matters were not in dispute and are set out in the Facts Sheet (part exhibit R1). At approximately 11.15 pm on 27 December 2017, the Applicant was observed driving a white sedan in Potts Point and turning right without indicating. He was stopped by police and subjected to a roadside breath test that returned a positive reading of 0.475. The Applicant was arrested for a breath test analysis due to the high reading. The Applicant told police that he had just consumed mouth wash immediately prior to the roadside breath test being conducted.
2. The Applicant said that he had driven from Double Bay to drop a friend home to Potts Point. After 15 minutes, a secondary roadside breath test was conducted which returned a reading of 0.152. After being arrested and taken to Kings Cross Police Station, the Applicant refused to take part in three breath analysis attempts offered to him. He also declined the services of a doctor to obtain a blood sample. Police observed that the Applicant's eyes were blood shot, and he was uneasy on his feet. His breath smelled of alcohol and police were of the opinion that he was affected by alcohol. Due to his refusal to take part in the breath analysis, the Applicant's driver's licence was suspended. The Applicant told police that he consumed "stubbies of beer at a BBQ" and that he had had his first drink at 3pm and his last drink at 9pm.
3. The Applicant was charged with two offences. The offence relating to alter concentration of alcohol before test was withdrawn before the Downing Centre Local Court on 6 March 2018. On the same day, the Applicant was convicted of an offence of refuse or fail to submit to breath analysis (1st offence) and an order was made pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 that the Applicant enter into a bond to be of good behaviour for six months. His licence was disqualified for a period of six months, and he was placed on the Alcohol Interlock Program for 24 months.
4. In his statement, the Applicant states that his mother passed away in 2017 and that he was distraught. He was drinking with a friend who had just arrived from the United Kingdom who was also very upset as he had been close to the Applicant's mother. The Applicant said that he made the very bad decision to drive his friend home, a journey of approximately five minutes duration and made it even worse by not co-operating with police with respect to a breath test. He acknowledged the mistake and took full responsibility for it. He further stated that he stopped drinking in 2016 and the one incident in 2017 was an aberration.
5. He said that he was suffering from severe grief at the passing of his mother and his friend had bought a very expensive bottle of Irish Whiskey to drink to her memory. He said that he has abstained from alcohol completely since this incident.
6. In cross-examination, the Applicant denied being aware that mouth wash was able to influence a breath test. He denied that after being pulled over by police, he had walked away and used the mouth wash, stating that he taken it earlier in the evening, probably when he left home, and that he liked to present himself in a clean way. He stated that there was no reason for not participating in the breath analysis and that he was not thinking properly. He said that the blood test was out of question as he has a reaction to blood tests. The Applicant said the police saw his convictions and treated him like a gangster and he felt humiliated.
7. In response to a question from Mr Zoppo, the Applicant acknowledged that it was his "statement at the time" to police that between 3 pm and 9 pm he had been drinking stubbies of beer at a barbeque. When asked if this was now true, the Applicant stated that it was. He admitted to drinking and that he should not have driven. He had some beer and whiskey but did not tell the police about the whiskey. The Applicant advised that the barbeque had been at his house and agreed that it had gone for "approximately" six hours.
8. The Applicant gave evidence that his mother passed in 2017 and in his report, Mr Borenstein records that this occurred in March 2017. No evidence was adduced from the Applicant's friend Brian.
9. Drinking alcohol and then driving clearly has the potential to put both the safety of the Applicant and the public at risk. Having observed the Applicant on 27 December 2017, the police formed the opinion that he was affected by alcohol. The Applicant now admits that he had been drinking and that he should not have been driving. The Applicant has provided conflicting versions in relation to the amount that he had to drink at the time of the 2017 offence. He initially told police that he had been at a barbeque drinking stubbies of beer between 3 pm and 9pm. His statement makes no reference to this and instead he refers to drinking a very expensive bottle of Irish Whiskey with his friend Brian. In cross-examination, he stated that both are true, and that he had been drinking stubbies of beer at his own barbeque between 3 pm and 9 pm as well as drinking whiskey. No medical evidence was provided in support of this contention that he has a reaction to blood tests.
10. The Applicant refers to being distraught at this time as his mother had passed away in 2017 and he was suffering from severe grief. It appears from Mr Borenstein's report that the Applicant's mother passed away in March 2017, some nine months previously. There was no evidence that the Applicant had sought any professional assistance in relation to his severe grief.
11. Having regard to the Applicant's evidence, I find that the Applicant refused the breath analysis as he knew that he had been drinking and should not have been driving. The Applicant's conduct clearly demonstrates that he was prepared to breach laws directed at public safety.
12. In relation to the 2017 withdrawn matter, the Applicant said in cross-examination that he was unaware that mouth wash was able to influence a breath test and stated that he taken it earlier in the evening, probably when he left home, as he liked to present himself in a clean way. No evidence was presented as to whether or not mouth wash is able to influence a breath test. I find however that the Applicant's statement in cross-examination is not consistent with the Applicant volunteering to police after returning the first positive reading of 0.475, that he had just consumed mouth wash immediately prior to the roadside breath test being conducted. I am satisfied that the Applicant's statement made to police on 27 December 2017 as to when he had consumed mouth wash was truthful and that his timing in advising police demonstrates that he believed that mouth wash could influence a breath test. On that basis, I find that the Applicant was not truthful in the evidence on this point that he gave to the Tribunal.

Current fitness

1. In order for a firearms licence to be issued to the Applicant, I must be satisfied that as at the date of the hearing, 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. Counsel for the Applicant submitted that s 11(5)(b) of the Act provided for a 10-year ban on the Applicant and not a permanent ban and that the legislation acknowledges that people can be rehabilitated and change their attitudes and practices over a ten-year period. It has now been more than 10 years since the Applicant's conviction for the 2009 offences and the Applicant has tendered various character references attesting to his good character together with a report from Mr Borenstein expressing an opinion that there is no clinical reason for the Applicant to hold a licence.
2. The Applicant relied on 11 character references attesting to his good character. The first was from Mr Fletcher MP dated 9 January 2021 in which he stated that he had known the Applicant since 1978 when they attended high school together. Mr Fletcher wrote in support of the Applicant's appeal to be granted a firearms licence and stated that in his judgment, the Applicant is someone of good character.
3. Attached to the reference was a copy of the correspondence dated 9 December 2021 sent by the Applicant seeking the reference. The Applicant refers to the Firearms Registry having identified some convictions from over twelve years ago which apparently were still "valid" and that "These offences involved unsafe storage (Firearms were behind three locked doors), possession of an unregistered pistol (that we had found at my Grandmother's place) and possession of a small amount of Cannabis (30g, which wasn't actually mine)."
4. The Applicant's correspondence does not disclose the full extent of the 2009 offences and makes no reference to the pistol or to any of the circumstances surrounding him leaving the pistol unattended in his car or bringing it into the Churchills Sports Bar. On this basis I am not satisfied that Mr Fletcher was fully aware of the extent and seriousness of the Applicant's criminal offending and accordingly, I give little weight to his character reference.
5. The reference from Micheal Cummins states that he is a friend of the Applicant and has known him for approximately 15 years in both a professional and social manner through their common interest in Japanese Swords, Militaria, Military History and Spanish Culture. Mr Cummins resides in Tokyo and is currently a lecturer at both Gakugei and Nihon Universities. Unfortunately, it is not apparent from the character reference what amount of time Mr Cummins and the Applicant have spent together and to what extent Mr Cummins's reference is based on his direct observations of the Applicant or has been gleaned from discussions with him.
6. Whilst Mr Cummins refers to being "aware of the precise circumstances behind the serious convictions of [the Applicant], and of his being placed on a good behaviour bond and alcohol interlock", he does not set out the details of the "serious convictions" that he has been made aware of. Mr Cummins refers to the Applicant's deep regret for the "carelessness and inappropriate handling of those weapons at that time", but does not provide any details of the "carelessness" or "inappropriate handling". Whilst I accept the references to the Applicant's military service, his background in music and his membership of various classes, I give little weight to Mr Cummins's assessment as to the Applicant's character.
7. The remaining character references all refer to the Applicant's offences in a very general way and provide little to no detail of the referee's knowledge of the Applicant's conduct. At most, some references indicate that the Applicant has made the author aware of his offences such as enter building, unsafe storage and non- registration of firearms, possess cannabis and to the more recent conviction involving refuse breath analysis from 2017, but they provide no detail of their knowledge of the Applicant's conduct in relation to these matters. Accordingly, I am not satisfied that the remaining character witnesses are aware of the full extent of the Applicant's offending conduct and accordingly, I give the remaining character references little weight.

Report of Mr Borenstein

1. Reference has previously been made to the report of Mr Borenstein. In that report he states that he previously prepared a report dated 20 February 2010 in relation to the Applicant "being charged with firearm's (sic) offence, namely having a firearm in his car covered with clothing, which he had picked up from a repairer". Mr Borenstein refers to the circumstances of the Applicant taking his pistol into the Churchill Sports Bar; however, his recording of the incident differs to the evidence before this Tribunal in a number of areas. In any event, Mr Borenstein's report does not refer to any of the Applicant's other conduct relating to the 2009 offences and makes no reference to cannabis or the other firearms or prohibited weapons offences. In circumstances where Mr Borenstein's report does not refer to the full circumstances of the 2009 offences and where he did not give evidence before me, I give no weight to the opinions expressed in his report, and in particular his opinion that there is not clinical reason as to why the Applicant should not hold a firearms licence, "given that in all the years he has been handling firearms, he has not presented a danger to himself or to others".
2. In his evidence before the Tribunal, the Applicant has expressed his remorse and stated that he takes responsibility for his actions. In his report, Mr Borenstein states as follows: Some two months ago [the Applicant] was notified by police, his application for a firearms licence was refused, and he was regarded as "not a fit and proper person", due to criminal history, which includes refusing breath analysis in December 2017. [The Applicant] said of that incident, "I felt being (sic) very poorly treated by police. It was not long after mum died, and I was pulled over for not indicating properly. They searched my car, I think for firearms because of my history. They took me to the Police Station. I refused to be breathalysed. The last time I cooperated with police, I got into a lot of trouble. I was still mourning my mother's death". When asked directly, [the Applicant] said he was taught to respect and comply with police, however on that particular occasion he felt judged and poorly handled".
3. Later in his report, Mr Borenstein records the following: [The Applicant] reflects on the recent offence of refuse to be breathalysed…[The Applicant] was triggered and cooperated with police fully in 2009, but felt disadvantaged. [The Applicant] states he felt judged and pigeon holed by police, and left feeling offended".
4. Mr Borenstein's report was tendered by the Applicant and no issue was taken by the Applicant in respect of Mr Borenstein's recording of what he was told by the Applicant. Accordingly, I give weight to those parts of the report that refer to the statements made by the Applicant to Mr Borenstein. The Applicant's statement that the last time that he co-operated with police, he got into a lot of trouble appears to relate to the 2009 offences. This statement does not reflect that the Applicant genuinely accepts responsibility for his misconduct. In relation to his refusal to be breathalysed, the Applicant suggests whilst he had been taught to respect and comply with police, he refused the breath analysis on this occasion as he felt judged and pigeon holed by police and left feeling offended. This in contrast to his evidence in these proceedings that he had been drinking both beer and whiskey prior to being pulled over by police and that he should not have been driving.
5. In his letter to Mr Fletcher (part exhibit A1), the Applicant writes that there "is also the matter of me refusing a breath test from 2017, which was around the time my Mother passed away. I guess that I don't appreciate being treated like a gangster". The Applicant makes no reference to him being pulled over for failing to indicate prior to making a turn and that he had in fact been drinking before refusing to participate in the breath analysis. I find that the Applicant's reference to "being treated like a gangster" does not show an acceptance of his misconduct and does not demonstrate genuine remorse.
6. [NOT FOR PUBLICATION]

Conclusion

1. Having regard to the Applicant's conduct since 2009 and his evidence before me, I am not satisfied that the Applicant is a fit and proper person to hold a firearms licence. Accordingly, the correct and preferable decision is that the decision under review be affirmed.

Orders 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of 1. any evidence given during the Confidential Hearing, 2. the confidential documents (exhibit CR3), and 3. matters contained in the confidential documents (exhibit CR3) is prohibited. 1. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of 1. any evidence given during the Confidential Hearing, 2. the confidential documents (exhibit CR3), and 3. matters contained in the confidential documents is prohibited. 1. Pursuant to ss 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the hearing of the Application by the Respondent, including any evidence given during the Confidential Hearing, is prohibited. 2. Except pursuant to order (6) below, all paragraphs marked "[NOT FOR PUBLICATION]" are not to be published pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013. 3. A copy of these reasons, without redaction, shall be released to the Respondent.

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: 23 December 2022