This is an application by Christopher Reid 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 ABH firearms licence. The decision to revoke the licence was made on 11 March 2021.
The decision to refuse the licence was made on the basis that Mr Reid had been charged with firearms offences and on 18 January 2021 was sentenced to a two year conditional release order without conviction for the offence of Not keeping firearm safely - pistol. The decision of the Commissioner was that it was not in the public interest for Mr Reid to hold a firearms licence. The sentence was reduced on appeal and the conditional release order is due to conclude on 12 April 2022.
[2]
Background
Mr Reid had been granted a category ABH licence for the genuine reasons of recreational hunting/vermin control and sport/target shooting. He has held a licence since 2016. His licence was due to expire on 8 December 2021. Prior to the incident outlined below, Mr Reid had held his licence for four years without any adverse events and did not have a criminal history.
The general background is not in dispute between the parties.
On 16 August 2020, Mr Reid participated in a pistol club event in the Southern Highlands where he used his Glock 17 pistol. When the event had been arranged, the club captain had proposed an overnight camp on his property following the shoot and a hunt the following morning. Mr Reid's plan was to attend the event and then the hunt and continue on to Bondi State Forest for a week-long hunt. To that end, he took two weeks off work and booked the forest. He also took a .308 calibre rifle and bow with him on the trip for the purposes of hunting.
At around lunchtime Mr Reid found out that the hunt on the captain's property had been cancelled. He decided to continue with his plans for Bondi State Forest and drove south. That night he camped off the Snowy Mountains Highway somewhere between Kiandra and Talbingo.
Mr Reed had recently purchased a 4WD vehicle which replaced a small Peugeot he previously owned. Prior to leaving the club in the Southern Highlands, he packed up his gear. He put a cable lock through the barrel of the Glock, placed it in its original case, tied another cable lock around the handle and placed the case in his duffel bag along with a padlocked ammunition case which held ammunition and a .308 rifle bolt. Mr Reid states that this is how he had always transported the pistol in his Peugeot where the bag was placed in the hatchback area out of sight. He put the bag in the back cab of the 4WD next to a box of kitchen equipment near the back passenger door. It seems that the .308 rifle was also packed in the car but not with the Glock.
That night, when he stopped off the highway, Mr Reid pushed all the gear from the driver's side of the vehicle onto the passenger side to make room to sleep in the back. In doing so, he placed the bag with the pistol in it on top of the box of kitchen gear. Early the next morning, he continued on and stopped at a picnic area in Talbingo to have something to eat. The box of kitchen gear was difficult to remove from the vehicle and he ended up taking it and the pistol bag out of the car. He placed the box on the seat of a picnic table and placed the pistol bag next to the box. He made his breakfast, ate, cleaned and repacked the car and drove off.
Mr Reid drove towards Bombala. At about 11:00 am he realised he had left the bag containing the pistol and ammunition at the park. He called police to notify them of the situation and headed back to Talbingo.
At about 12:30 pm that day a man handed the bag containing the pistol and ammunition in to Gundagai Police Station. The man told police that he had picked up the bag at about 11:00 am after seeing it lying on the side of the road near Talbingo. He drove to his parents' house where he opened the bag and saw a black and a green box. He did not attempt to open the boxes and drove to Gundagai Police Station.
Police rang Mr Reid to tell him the bag had been found and asked that he drive to Tumut Police Station. When he arrived at Tumut Police station Mr Reid handed in his .308 rifle and firearms licence and made a statement to police. His firearms licence was suspended that day, 17 August 2020. Police state that Mr Reid was forthcoming when interviewed and made it clear he was deeply sorry and regretful. Mr Reid was advised that, when he returned home, he was required to hand in his other firearms.
Police report that the Glock pistol case was solid plastic with a black safety lock around the handle. They state, however, that the pistol could still be removed from the case. The police report that the pistol had a red safety lock secured through the ejection port and down the barrel. This stopped the pistol from being cycled to the rear and loading the action. The green ammunition box had a brass padlock and could not be opened.
That night Mr Reid camped at Blowering Reservoir just south of Tumut. He decided to continue to Bondi State Forest as he still held a hunting license along with the hunting permit and had a compound bow with him. His permit did not start until the Thursday and he made his way to Towamba BlazeAid where he intended to do work as a volunteer assisting with fencing. However, when he arrived there, because Sydney had been declared a Covid hotspot, they were not keen on having him there. He camped in a local forest and the next morning, Wednesday, 19 August 2020, made his way to Bondi State Forest. He decided not to stay and went to Eden where he went fishing for a couple of days before returning to Sydney.
Mr Reid arrived in Sydney on Friday evening, 21 August 2020 and took his remaining firearms and ammunition to Waverley Police Station.
As noted above, on 18 January 2021 Mr Reid was sentenced to a 2-year Conditional Release Order without conviction (later reduced) after being charged with Not keep firearm safely - pistol. His firearms licence was revoked on 11 March 2021 on the basis that it was not in the public interest for him to hold the licence.
[3]
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 firearms licence. Mr Reid applied to the Tribunal for review on 11 June 2021.
The grounds upon which the Commissioner submits that Mr Reid's licence should be revoked are:
he would be required to be refused a licence of the same kind;
he has contravened firearms legislation; and
it would not be in the public interest for him to continue to hold the licence.
Mr Reid states that there is no risk to the public in him possessing a firearms licence and that the decision under review should be set aside.
[4]
The relevant law
Two of the underlying principles of the Firearms Act are:
1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
2. to improve public safety:
1. by imposing strict controls on the possession and use of firearms, and
2. by promoting the safe and responsible storage and use of firearms.
Additionally, the Firearms Act's objects include:
to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and
to ensure that firearms are stored and conveyed in a safe and secure manner.
A person must be licenced to possess and use firearms and licences are issued in various categories. The Firearms Act provides for the mandatory refusal of a firearms licence in certain circumstances as well as discretionary grounds for refusing a firearms licence. The Commissioner is also given a broad power to revoke licences. Section 24 sets out the circumstances in which the Commissioner may revoke a licence. Relevantly, these are:
for any reason for which the licensee would be required to be refused a licence of the same kind (s 24(2)(a);
if the licensee contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention (s 24(2)(b)(ii)); or
for any other reason prescribed by the regulations (s 24(2)(d).
Clause 20 of the Firearms Regulation 2017 provides:
The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
It has been said that in considering matters under the Act public safety is to be given paramount consideration (Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218).
Under s 11(5)(d) of the Firearms Act a licence must not be issued to a person who is subject to a conditional release order in relation to a prescribed offence. Relevantly, clause 5 of the Firearms Regulation provides that an offence relating to the possession or use of a firearm is prescribed for this purpose.
In McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 the Tribunal referred to previous authority and concluded that the Tribunal cannot canvas the correctness of a conviction or finding of guilt. That is, once the fact of the conviction or finding of guilt is proven, the applicant must be refused a licence and neither the Commissioner nor the Tribunal has discretion in this regard. When it comes to revocation of a licence, however, under s 24 of the Firearms Act the Commissioner, and on review the Tribunal, retains a discretion to revoke a licence where, as in this case, a person is subject to a conditional release order.
The Firearms Act contains several provisions relating to the safe storage of firearms. Section 39 provides that a person who possesses a firearm must take all reasonable precautions to ensure:
1. its safe keeping, and
2. that it is not stolen or lost, and
3. that it does not come into the possession of a person who is not authorised to possess the firearm.
[5]
The public interest
Sub-section 11(7) of the Firearms Act provides that, despite any other provision of s 11, the Commissioner may refuse to issue a license if the Commissioner considers that issue of the licence would be contrary to 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 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].
It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
[6]
Evidence at the hearing
Mr Reid provided a statement in the proceedings and was questioned at the hearing. As noted above, there is no real controversy about what happened with the pistol. A number of questions were directed to Mr Reid, however, about the events leading up to him leaving the bag containing the pistol and ammunition at the park and his understanding of and attitude towards his responsibilities as a licensee.
Mr Reid said that the only time in his two-week trip that he intended to use the Glock pistol was at the shooting range in the Southern Highlands on the Saturday. He said he had intended to speak to others who were attending the hunt at the captain's property the next day about how he should secure the Glock while he was at Towamba BlazeAid and hunting in the Bondi State Forest. His permit for Bondi State Forest commenced on Thursday. He said that he had hoped that the captain would be able to store the pistol for him while he was away. Mr Reid said that, when the hunting trip to the captain's property fell through, he thought that he may be able to leave the pistol at the police station in Bombala. He agreed that he had not in fact made any arrangements prior to leaving Sydney for the safe storage of the Glock after he had attended the pistol club event.
Mr Reid said that he had done a few overnight hunting trips before where he had taken his rifle but this was the first time he intended to be away for more than a day or so and the first time he also had his pistol with him. He said that his new 4WD vehicle had lockable drawers which could be accessed from the back of the vehicle but he did not put his firearm in there. He instead stored food and electronic equipment in the drawers. He also had a locked toolbox on the roof of the vehicle and could have put the pistol in there but did not. He said that he transported the pistol in the same way as he had previously when he drove a hatchback.
Mr Reid said that the container that the Glock came with does not have a hole to attach a padlock as do other pistol cases. He therefore used a cable lock and also had another cable lock through the pistol's barrel. He said the cable had a hardened resin around it to make it difficult to be cut with a bolt cutter. Mr Reid bought the cable lock from a firearms shop and it was specifically designed for use with pistols. The pistol could not be fired.
Mr Reid could not explain why he did not place the bag containing the pistol and ammunition back in the Landcruiser after he had removed it when trying to get the kitchen box out of the vehicle. He said he has thought about the incident a lot since it occurred and felt stupid about it. He said it was a silly, silly thing to have done.
Mr Reid was referred to a Fact Sheet issued by the Firearms Registry concerning the transportation of firearms which states that category A & B firearms must be conveyed in a manner that ensures compliance with s 39 of the Firearms Act; must not be loaded with any ammunition while being conveyed and must not be visible from outside the vehicle. In relation to a category H firearm, the Fact Sheet states that the firearm must be conveyed unloaded with the ammunition kept in a locked container separate from the firearm. The firearm must also be rendered temporarily incapable of being fired or must be kept in a locked container that is properly secured within the vehicle. When asked what he understood he had to do when transporting his firearms, Mr Reid stated that he needed to make sure the public did not know what they were, that he should not leave them in the vehicle and the vehicle should not be accessible.
When asked what he would now do differently, Mr Reid said that there were a number of things: he would lock the firearm in the vehicle or attach it to the vehicle in a lockbox. He also said that he could buy another case for the Glock which was more secure.
[7]
Consideration
It is not in contention that Mr Reid has contravened a provision of the Firearms Act, although no conviction has been recorded. It is agreed that, were Mr Reid to apply for a firearms licence it must be refused as he is subject to a conditional release order in relation to a prescribed offence, that is, an offence of not keeping a firearm safe. Whether his firearms licence should be revoked, however, is discretionary. In Grant v Commissioner of Police [2020] NSWCATAD 158 the Tribunal stated at [28]:
The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way.
It is clear, as evidenced by the fact that the offence of not keeping a firearm safe was proven against Mr Reid, that he committed a serious error in leaving the bag containing the Glock and ammunition in the park when he repacked his car after having had breakfast. It was fortuitous that the bag was discovered by somebody who immediately handed it into police. As the Commissioner points out, the error could have had serious consequences if the pistol had fallen into the wrong hands.
The Commissioner argues that, in addition to the fact that Mr Reid has been found guilty of a firearms offence, it is not in the public interest for him to hold a firearms licence as his lack of planning about how to store his firearms during his trip and the manner in which he stored his pistol raises serious concerns about his attitude towards and understanding or appreciation of the requirements for the safe storage of his firearms.
Mr Reid acknowledged that, prior to embarking on his trip, he did not have a firm plan for how to store his pistol following the shoot in the Southern Highlands. He said he had hoped the captain of the club would assist him to store the pistol but that plan fell through when the shoot on the captain's property was cancelled. He had not, however, made any prior arrangement with the captain. Mr Reid said that he then had thought he would approach the Bombala Police Station and ask to store the pistol there while he was in the area. This is what he told police when he was interviewed by them at Gundagai Police Station when he reported the pistol missing. He had not, however, contacted the Bombala Police Station to enquire whether this was possible before proceeding towards Bondi State Forest.
It is apparent that Mr Reid did not plan thoroughly for this trip and lacked experience to deal with any contingencies. I note that this was his first trip away for more than one night. At the hearing the Commissioner suggested that Mr Reid should have returned home to Sydney and properly stored the pistol there before proceeding on to his hunting trip. While no doubt that is something that Mr Reid could have done, it was not a necessary step if alternative arrangements could be made for the safe storage of the pistol. That being said, he had clearly not thought through what he would do with his firearm when not in use.
The Commissioner also casts doubt on the manner in which the pistol was stored within the vehicle. Despite the vehicle having lockable drawers and a lockable container on the roof, Mr Reid continued to store and transport the pistol in a bag in the back of the vehicle as he always had done when he had a much smaller car. The Commissioner refers to the fact that the pistol could in fact be removed from its case as the case itself was not padlocked and only had a cable lock around it as evidence that it was not stored appropriately. The Commissioner also states that the ammunition case should not have been stored with the pistol.
Mr Reid holds a category ABH licence. Sections 40 and 41 set out particular provisions in relation to the safe storage of these firearms, although do not specifically refer to requirements while a firearm is being transported. Regulation 149 of the Firearms Regulation sets out the requirements for non-commercial transportation of category A and B firearms. There is no similar regulation with respect to a category H firearm, which as I understand it, includes the Glock pistol belonging to Mr Reid.
As noted above, the Firearms Registry has issued a Fact Sheet which provides guidance to licence holders on the transportation of firearms. In relation to a category H firearm the fact sheet states that firearm must be conveyed unloaded, with the ammunition kept in a locked container separate from the firearm. In addition, the firearm must be rendered temporarily incapable of being fired or must be kept in a locked container that is properly secured to, or is within, the vehicle.
Neither the Firearms Act nor the Firearms Regulation make any specific provision with respect to the transportation of category H firearms. While the fact sheet is useful in providing general guidance, the legislative obligation placed upon a person who possesses a firearm is contained in s 39 of the Firearms Act. He or she, amongst other things, must take all reasonable precautions to ensure the safe keeping of the firearm. Mr Reid referred to the statement of Judge Ellis in Diamond v Commissioner of Police (unreported), District Court, 5 October 2017 where he stated:
[T]aking all reasonable precautions does not involve being perfect; it does not involve all possible precautions; it does not involve being prescient as to all conceivable even unique possible safety problems in circumstances; and it does not involve second-guessing all possible criminal conduct of unknown individuals.
Mr Reid points out that at the relevant time he was transporting his pistol and submits that he did take all reasonable precautions. He states he was not required to take his pistol back to Sydney after his arrangements changed. He never in fact arrived at his final destination where he would have been required to make arrangements for the safe storage of the pistol as he would not be using it. He points out that the pistol could not be fired and the ammunition was stored in a separate locked container which complied with all requirements for such a container. I note that the police were unable to open this container and there is no evidence before me that it is not of a type approved for the storage of ammunition. The Commissioner made much of the fact that the pistol could be removed from its case. I note that even the fact sheet does not appear to require a firearm to kept in a locked container if it is incapable of being fired. The Commissioner also suggested that the cable preventing the firearm from being fired could be cut. That may be possible, but I accept the evidence it was a purpose built cable purchased from a firearms shop and which rendered the firearm temporarily inoperable.
There is a requirement in s 41 of the Firearms Act that the ammunition and firearm be stored separately at the safe storage premises. While no doubt it would be preferable for the ammunition to be kept in a separate location to the firearm itself (and this is indicated in the fact sheet), there is no specific legislative requirement that that occur while the firearm is being transported. No doubt it would have been better for Mr Reid to have locked the pistol and the ammunition away in different compartments in the vehicle. If the pistol and ammunition had been locked in drawers or other receptacles in the vehicle, he would not have taken the bag out when he was moving his gear around to get to the kitchen box.
The Commissioner raises no concerns about the general character of Mr Reid. He has no prior criminal record and, prior to this instance, no concerns have been raised about his suitability to have a firearms licence. Mr Reid provided several references in support of his application which attest to his good character. There is no question that he notified police immediately he realised his error and was cooperative at all times. I am satisfied that in general Mr Reid is of good character and a valuable member of the community. I'm also satisfied that he is deeply sorry and remorseful about what happened during his trip. Indeed, this was noted by the police who interviewed him at Gundagai Police Station and expressed again at the hearing.
Mr Reid was questioned at the hearing about what he would now do differently. He was able to put forward several options for transporting the pistol which would have avoided what happened during his trip. It was apparent that he had thought about it and had gone over in his mind what had occurred. I am mindful that when the incident occurred Mr Reid was relatively new to shooting and had not embarked on any such trip in the past.
The issue for me is one of looking to the future and whether Mr Reid will pose a risk to public safety if he has access to firearms. The fact that he has committed a firearms offence is one which weighs heavily in determining risk. His actions in leaving the firearm behind were extremely careless even taking into account his inexperience at the time and cannot be said to be a mere technical or trivial breach. There is no evidence, however, that there has been a pattern of conduct on Mr Reid's behalf that would mean he is generally unaware of his obligations with regard to firearms or dismissive of them. Indeed, his referees who have knowledge of his handling of firearms speak favourably of him in this regard. At the hearing Mr Reid could state his obligations and it was apparent that he has learnt a significant lesson through what occurred. Mr Reid has no criminal convictions and his good character is not in doubt.
Mr Reid acted immediately he became aware of the loss of the firearm, has expressed sincere remorse since the incident occurred and has been angry with himself for his lack of attention. In my view, the likelihood of something similar occurring in the future is extremely low as Mr Reid now has a greater understanding of how to safely store a firearm while transporting it and will be vigilant in ensuring compliance with all legislative requirements. I note that no issue has been raised with the safe storage at his home. While he does not require a licence as part of his livelihood, I accept that he has a genuine and keen interest in the sport of shooting and that the activity is important to his overall well-being.
I am satisfied that there is virtually no risk that Mr Reid will fail to adhere to safety and safe storage requirements in the future. I am also satisfied that there is virtually no risk to public safety if Mr Reid retains his licences and that it is not contrary to the public interest for him to hold a category ABH firearms licence.
[8]
Orders
1. The decision under review is set aside.
2. The applicant's category ABH firearms licence is to be restored to him.
[9]
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
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Decision last updated: 08 October 2021