Rasko v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 222 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Rasko v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 222

NCAT Administrative and Equal Opportunity|2023-07-19

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-07-19

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

REASONS FOR DECISION

On 13 April 2020, David Rasko applied to the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (Firearms Act) for a permit for Imitation Firearms Collection and a permit for Ammunition Collection. The application was refused on 7 October 2022. Mr Rasko applied for an internal review of the decision but that was not finalised within the time required and he has sought review of the deemed refusal decision by the Tribunal.
Mr Rasko no longer seeks a permit to collect imitation firearms. The only matter before the Tribunal is the application for a permit to collect ammunition.
The Commissioner submits that Mr Rasko is a not a fit and proper person to be issued with a permit that allows him to collect ammunition and it is also not in the public interest for him to be issued with the permit. The Commissioner argues that there are four bases upon which the Tribunal could be satisfied of these matters: 1. Mr Rasko has engaged in misleading and deceptive conduct; 2. he has committed safe storage and criminal offences; 3. he has been charged with assault occasioning actual bodily harm; and 4. his traffic record.
Mr Rasko says that he would like to collect ammunition for study purposes as he is interested in military history and has other military artefacts stored at his home. He understands the ammunition needs to be locked in a safe. He is a member of various associations and collecting is a personal interest he would like to pursue.
Mr Rasko submits that there are no matters which would prevent him from being issued with the permit. He acknowledges that he has made mistakes in the past but states he has learnt from them. He states he has no history of violence, has stopped drinking alcohol and does not have any mental disorders. He also states that his previous service in the army means he understands the responsibilities that stem from any involvement with firearms or ammunition.

The application for review

The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to refuse a permit.
In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
Under s 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal is to properly consider all relevant materials and ignore all irrelevant matters: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [82]. However, the Tribunal is required to base its findings of fact on "logically probative material": Meacham at [83] referring to Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68 and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93] at [5]-[8], [15]-[17]. There is no onus proof: Meacham at [75].

[4]

The relevant law

Section 3 of the Firearms 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": Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 at [30]; Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
Section 3 also provides that public safety is improved by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms. The general requirements for safe keeping of firearms are set out in s 39(1) of the Firearms Act: (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm …
The Commissioner is given a broad power to refuse permits, including if the applicant is not a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace and/or if it is not in the public interest for the person to hold the permit: s 29 Firearms Act. The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
It has been said that in considering matters under the Firearms Act public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
The Commissioner submits that the permit should be refused as Mr Rasko is not a fit and proper person to hold a permit and it is not in the public interest for him to hold that permit.

[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."
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 or permit. 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."
The expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community: Commissioner of Police v EMB [2021] NSWCATAP 63 at [60].
As noted above, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. 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].

[9]

Misleading and deceptive conduct

The Commissioner refers to two incidents involving Mr Rasko which she states involved misleading and deceptive conduct on his part and which demonstrate he is not a fit and proper person to be granted a firearms permit.
The first of these incidents occurred on 14 March 2014 when Mr Rasko was driving and was stopped by police for not wearing a seat belt. Checks by police revealed that the licence plates on the vehicle he was driving had been stolen from another vehicle sometime between December 2013 and February 2014. Mr Rasko told police that he had driven his car the night before and it had had the correct plates on it. The correct licence plates for his vehicle were in the boot of the car. Further police checks revealed that a vehicle bearing the stolen licence plates had been issued with a parking infringement notice two days before (on 12 March 2014) in the street behind Mr Rasko's residence.
Mr Rasko was charged with an offence relating to having possession of suspected stolen goods. The charge was later withdrawn. Mr Rasko states that he cannot explain how the stolen plates came to be fitted to his car and states he would never drive a vehicle with incorrect number plates.
The Commissioner submits, however, that no weight should be given to Mr Rasko's statement that he had driven the car the night before with the correct plates fitted. In the Commissioner's view it is clear that the plates were attached to Mr Rasko's car on 12 March 2014 and were still attached on 14 March 2014. She submits that this incident is evidence that Mr Rasko is not a fit and proper person to be granted a firearms permit.
This matter was also discussed in Rasko No. 1. In the case the Tribunal heard evidence that Mr Rasko told the police the car he was driving was his car and no-one else had access to it. When cross-examined at the hearing in Rasko No. 1 he said it was his mother's car and he later learnt that another family member had access to it and that it was this person who swapped the plates over. He did not inform police of this.
While accepting that the charge in this matter was withdrawn, Mr Rasko has not provided any explanation for why he told police the car was his if it was not and why he waited until his firearms licence application was being considered to provide an alternate story. His account is unsatisfactory. I also note that in 2009 plates belonging to another vehicle with which he had no connection were found in the boot of Mr Rasko's car and he was convicted of an offence as a result (see below). These matters do not reflect well on Mr Rasko.
The second incident occurred on 3 December 2022, when Mr Rasko attended the Railway Institute Pistol Club. When asked to sign in, Mr Rasko gave the name "David Wilard" and provided the person who had requested him to sign in, a Mr Hernandez, with his drivers' licence. Mr Hernandez called police as the licence was in the name of David Rasko, not David Wilard. Constable Kelly, who attended with another officer, records that at first Mr Rasko denied using a different name to sign into the club. When questioned further, Mr Rasko said that he didn't want to cause any problems because his "licence is under application".
The Commissioner states that Mr Rasko not only attempted to enter the club using an alias, he also attempted to lie to police after his deception was discovered. She submits that this behaviour demonstrates that he is not a fit and proper person to hold a firearms permit.
Mr Rasko states that the incident arose from a momentary lack of judgment on his part. He states that Mr Hernandez tried to carry out a citizen's arrest and physically prevented him from exiting the club. He states that he was assaulted during this process and accuses Mr Hernandez of being "mentally unstable". Mr Rasko says that he would have left the premises voluntarily if he had been asked to do so. He also complains of Constable Kelly's conduct and states that Constable Kelly told him that he would never get a licence but that his colleague complimented him on his compliant behaviour. He also points out that no charges arose out of this event.
Mr Rasko's behaviour on this occasion is inexplicable. At the time his licence application had been refused and he was awaiting the outcome of the review application before the Tribunal in Rasko No. 1. His actions in giving a false name to a pistol club and then lying to police about that do not indicate that he is an honest person who takes rules seriously. The fact that he has tried to shift blame onto a person at the club, Mr Hernandez, does not show that Mr Rasko is someone who takes responsibility for his own actions.

[10]

Safe storage and drug offences

Arising out of events occurring on 29 and 30 May 2009 Mr Rasko was convicted of the following offences:

possess unregistered firearm;
possess unauthorised pistol;
possess prohibited weapon;
two counts of failing to correctly store a pistol;
possess prohibited drug;
goods suspected stolen in/on premises (m/v); and
enter building/land with firearm or imitation firearm.

On 29 May 2009 at about 6:00 pm Mr Rasko picked up a semi-automatic pistol belonging to him from a gunsmith who was carrying out repairs to the trigger. Mr Rasko put the pistol in the boot of his car covered by some clothes and drove home. A friend was waiting for him at his home and he left the pistol in the car while he talked with his friend. He took his friend home later in the evening following which, at about midnight, he went to a bar in Kingsford. Mr Rasko took the pistol out of the boot and concealed it by tucking it into his belt at the back of his body. Mr Rasko then walked around the bar for about 15 minutes while he drank a beer.
After finishing his beer, Mr Rasko returned to his car where he was seen by a person waiting outside to place the pistol on the passenger side floor. He returned home and left the firearm on a coffee table beside his bed. The next day Mr Rasko taught guitar lessons to students in the front room of his home. The pistol remained on the coffee table in the bedroom during this time. At about 7:30 pm he took the pistol and left home intending to visit a friend. On the way he stopped again at the bar in Kingsford where he was identified by staff members who were aware of the incident the evening before. Police were called and Mr Rasko was arrested. In his car police found the pistol, a 23 cm hunting knife and two registration plates that belonged to another vehicle registered in the name of a company with no apparent association with Mr Rasko.
When police searched Mr Rasko's home they found a gun safe which only contained ammunition. Two firearms, one of which was loaded, were found in a cupboard along with two large glass jars containing cannabis (amounting to 34.2 grams). One of the firearms was not registered in Mr Rasko's name. Also located were a large air rifle mounted on the wall, a 35 round machine gun magazine (considered to be a prohibited weapon), fireworks, tear gas and stink bombs.
As set out above, Mr Rasko was found guilty of a range of offences. The Commissioner submits that these events demonstrate that Mr Rasko has a complete disregard for public safety and the requirements of the Firearms Act in relation to the safe storage of firearms, the requirement to register firearms and the requirement to obtain a prohibited weapons licence prior to obtaining the large capacity machine gun magazine. She submits these events clearly indicate that he is not a fit and proper person to be issued with a firearms permit and that it is not in the public interest for him to hold that permit.
Mr Rasko states that these events happened during a difficult period in his life when he was going through a separation. He expresses regret for his conduct and notes that he made complete admissions to police at the time. Sam Bornstein, Consultant Clinical Psychologist, in a report dated 8 December 2021 states that he prepared a report in 2010 for Mr Rasko and assessed him at that time as having moderate symptoms of depression following the breakup of his relationship.
In his submissions Mr Rasko makes a number of comments in which he states that pistol he carried into the bar was not loaded, disputes the amount of cannabis found, states that the fireworks, stink bombs and tear gas were children's toys and states that the loaded firearm identified by the Commissioner was an air pistol whereas more powerful firearms were not loaded. He also states that these events happened a long time ago.
This matter is the most serious of the issues raised by the Commissioner. As a result of these convictions Mr Rasko was prevented from having a firearms licence for 10 years having shown a complete disregard for the law and public safety. Of great concern, and despite saying he regrets his actions, at the hearing before me Mr Rasko sought to minimise some of his actions and to explain his conduct by stating he was going through a difficult time due to a relationship break down. The responsibilities of a firearms licence holder do not cease simply because life events are upsetting. He also sought to paint Mr Hernandez as a villain and responsible for what happened. Mr Rasko's statements do not provide me with any confidence that he understands the seriousness of his past actions or that he has the capability to abide by the rules if things don't go his way or he is suffering from some adversity.

[12]

Traffic record

Mr Rasko's traffic history extends back to 1988 and shows that he has been issued with a range of infringements since that time primarily for speeding, not wearing a seatbelt and disobeying traffic lights. On three occasions his licence has either been suspended or he has elected to have a good behaviour licence to avoid suspension. In December 2017 he was convicted of refusing to submit to a breath analysis after registering a high reading at a roadside breath test. At this time, based upon his appearance and behaviour, police had formed the view that Mr Rasko was under the influence of alcohol.
The Commissioner submits that Mr Rasko's adverse traffic history demonstrates he has had a long disregard for the law and demonstrates an unwillingness to change his behaviour.
Mr Rasko states that his traffic history is not as bad as that of some other applicants that have come before the Tribunal. In relation to not wearing a seatbelt, he states that he has always found it uncomfortable to wear a seatbelt and which he attributes to cardiac issues. He had a heart attack in January 2014. Mr Rasko has provided a handwritten certificate dated 24 March 2014 from Dr Nathan Glattstein who states that Mr Rasko has recurrent chest pains and suffered a heart attack earlier in the year. He states that Mr Rasko was not wearing a seatbelt as he felt acute discomfort. I place little weight on Dr Glattstein's certificate as it appears to be simply reporting what he had been told by Mr Rasko. The context in which the certificate was written is also not known.
While Mr Rasko may be right and his traffic history is not as bad as some others, it cannot be said that his history is good. Again, Mr Rasko's tendency to minimise or explain away matters that are adverse to him does not reflect well on his character or give confidence that he would act responsibly.
In relation to the refusal to undertake a breath analysis in 2017, Mr Rasko states that he has no explanation for the incident. In his report Mr Bornstein states that Mr Rasko had informed him that his mother had died not long before and he was still mourning her death. It appears that this was the reason given by Mr Rasko in Rasko No. 1 for his behaviour. In that case the Tribunal noted that his mother had passed away some 9 months previously. The Tribunal found that Mr Rasko had refused the breath analysis as he knew that he had been drinking and should not have been driving. I agree with that finding and also find, as did the previous Tribunal, that his conduct demonstrates that he is prepared to breach laws directed at public safety.
I also make the comment as set out previously, that if facing adversity such as here the death of his mother means that Mr Rasko is not able to abide by the law, I can have no confidence he would fulfil his obligations under the Firearms Act. Life throws up adverse circumstances from time to time but that is not an excuse to not comply with laws, particularly laws directed at safety.

[13]

Reports, references and other matters

Mr Bornstein in his report states there is no clinical reason why Mr Rasko should not hold a firearms licence and he does not present a danger to himself or others. Mr Bornstein accepts the excuses Mr Rasko has made for his behaviours relating to his state of mind at the time because he was upset. It is difficult to see how, in these circumstances, Mr Bornstein draws the conclusions he does when other events in Mr Rasko's life may have similar effects.
Mr Rasko has provided references from two people who speak highly of him. Both state they are aware of his firearms convictions and the failure to undertake a breath analysis. They both refer to events in Mr Rasko's life at the time of his offending which influenced him. The references are undated and I am not satisfied that the writers are aware of the exact details of Mr Rasko's offending and other behaviours
The Commissioner relies upon an Information Report submitted by Constable Kelly following the incident at the Railway Institute Pistol Club when Mr Rasko signed in under another name. In that report Constable Kelly states "It appears to police RASKO has a fixation with firearms." While this may be a view held by Constable Kelly, I do not consider him qualified to make this statement.
In October 2022, Mr Rasko undertook a course in firearms legislation in NSW which covers firearm licence holders' responsibilities. He states that this has provided him with a much clearer picture of his responsibilities. Mr Rasko also refers to the fact that in 2003, as part of the gun buy-back program he surrendered several handguns from his collection. The fact that Mr Rasko surrendered certain firearms in the buy-back is not a matter of any consequence in this decision.
It is commendable that Mr Rasko undertook the firearms course in October 2022. However, as the Commissioner points out, this was shortly before he attended the pistol club and provided a false name and lied to police. The course does not appear to have left a lasting impression on Mr Rasko.