Mr Shannon Rivero ("the Applicant") has applied to the Tribunal for review of a decision by the Respondent to refuse his application for the grant of a licence under the Firearms Act 1996 ("the Act"). The decision was affirmed on internal review.
[3]
Background
The Applicant was issued with a category AB licence for recreational hunting in 2007 and was issued a category H licence in 2012.
He purchased four firearms in 2008 - during the period in which he was licenced. He also sought to obtain permits to acquire four pistols and had discussions relating to the purchase of those pistols but did not ultimately acquire them and the permits lapsed.
The Applicant's firearms were stored in a metal cabinet in the laundry of his property. The laundry is accessed from a verandah which is external to the main part of the house. The cabinet had been inspected and approved as suitable storage in August 2010.
On 16 June 2017, the Applicant reported a break and enter that had occurred at his property on the previous night ("the break-in"). He advised Police that thieves had stolen a motorcycle, four firearms, a box which contained the bolts for three of the firearms and a small assortment of ammunition. One of the stolen firearms was unregistered although the Applicant maintains that he believed that it was registered.
On the night of the break-in, the stolen firearms were stored in the cabinet in the laundry. Access to the premises was via a shed off a laneway. The Applicant confirmed that door to the laundry was not locked and the shed and a gate to the rear of the property were left open. However, the Applicant's evidence is that the laundry is not in close proximity to the shed or the laneway.
At the time of the break-in a number of other break-ins and firearm thefts had occurred in the local area.
The police subsequently inspected the property and they formed the opinion that the cabinet did not meet with the requirements recommended for storage of Category AB firearms. The Applicant was issued with a Notice of Suspension of his firearms licence.
In November 2017, the Respondent issued a Notice to Show Cause to the Applicant giving him the opportunity to provide reasons why his licence should not be revoked.
The licence was to expire on 13 December 2017. Prior to the date of expiration the Applicant re-applied for the issue of a licence. That application was refused. The refusal was affirmed on internal review and the Applicant has applied to the Tribunal for external review of that decision.
[4]
The issue for determination
The Tribunal is empowered to determine the application for review under section 75(1)(a) of the Act. The Tribunal's role is to determine, having regard to the underlying facts in the matter and the applicable law, whether the Commissioner's decision is the correct and preferable one: section 63 of the Administrative Decisions Review Act 1997.
In determining this review, the Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.
The Commissioner does not contend that the Applicant is not a fit and proper person to hold a licence. The issue is whether the Tribunal is satisfied that it is not in the public interest for the Applicant to hold a licence.
[5]
Applicable legislation
The standard of proof that applies in these proceedings is the civil standard, that is, the balance of probabilities. There is no burden or onus of proof.
The underlying principle, set out in section 3(1) of the Act, is that firearms possession and use is conditional on the overriding need to ensure public safety.
Section 11 of the Act provides:
11 General restrictions on issue of licences
(cf 1989 Act s 25, APMC 4, 5, 6)
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
...
(3) A licence must not be issued unless:
(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and
…
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
...
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
...
Section 39 of the Act provides for the safe keeping of firearms:
39 General requirement
(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.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. Reference to a pistol includes a prohibited pistol.
(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
Section 40 of the Act provides for the storage of firearms:
40 Category A and category B licence requirements
(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:
(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,
(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,
(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,
(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,
(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section..
Section 50 of the Act sets out the basis on which firearms can be acquired.
A person must not acquire a firearm unless the person is:
(a) authorised to possess the firearm by a licence or permit, and
(b) except in the case of a licensed firearms dealer, authorised to acquire the firearm by a permit (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned).
Section 51A of the Act places restrictions on that acquisition. Section 51A(2) provides:
51A RESTRICTIONS ON ACQUIRING FIREARMS
…
(2) A person other than a licensed firearms dealer must not acquire a firearm from another person who is not a licensed firearms dealer unless:
(a) the supply has been, in accordance with the regulations, arranged through a licensed firearms dealer, or
(b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available--the supply is witnessed by a police officer authorised by the Commissioner.
...
Clause 146(2) of the Firearms Regulation 2017 states that,
146 Restrictions on supply and acquisition of firearms
...
(2) For the purposes of sections 51(2)(b) and (2A)(b) and 51A(2)(b) of the Act, a licensed firearms dealer is not reasonably available for the purposes of the supply or acquisition of a firearm if the nearest location of a licensed firearms dealer's place of business is more than 100 km from the ordinary place of residence of both the receiver and the supplier.
[6]
Not in the public interest
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. This issue has been considered in a number of matters before this Tribunal and the former Administrative Decisions Tribunal.
The Applicant's individual interest in obtaining the licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:
"The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, in the context of the licensing regime for the security industry, the Administrative Decisions Tribunal Appeal Panel pointed out at paragraph [25] that the "public interest" is:
". . . an inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
There is discretion with respect to whether to grant the licence. The Act does not list factors which a decision maker must take into account, however the discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest rather than an individual's private interests. That view has been followed in numerous decisions. See for example views expressed by Deputy President Hennessy in Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 at paragraph [25].
A firearm licence is a privilege and not a right. 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, New South Wales Police [2005] NSWADT 75 at paragraph [25].
The 'public interest' allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
The broad concept of the public interest does not directly identify right or wrong notions or positive attributes and assign weight to them. It requires an analysis of the whole circumstances and whether the result sits positively within the public interest: Cory v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 32 at paragraph [109].
Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph [28], Deputy President Hennessy said that in terms of public safety, while the Tribunal could never be totally satisfied that a person would not pose any risk to public safety if a licence is granted, "the Tribunal must be satisfied that there is virtually no risk".
The case of Ward involved a decision to revoke a firearms licence under section 24(2) of the Act. In Hoffman v Commissioner of Police, NSW Police Service [2003] NSWADT 89, the Tribunal confirmed that the test laid down in Ward also applied to the public interest test under section 11(7) of the Act for the refusal of a firearms license. Subsequent cases have affirmed this interpretation of public interest in the context of the Act: Saba v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 129 at paragraph [63].
In Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 I stated at paragraph [32]:
32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
This view has been adopted in several decisions of this Tribunal See for example Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where in referring to Webb the Tribunal stated at paragraph [66]:
The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.
The Applicant's prior conduct must be taken into consideration when assessing whether there is a real and appreciable risk associated with the grant of the licence. Against this must be weighed his long history of firearms use that is incident free and the Applicant's present knowledge, attitude and circumstances.
[7]
The material before the Tribunal
The Respondent relies on a statement of Sergeant Brett Ryan and a bundle of material filed pursuant to section 58 of the ADR Act. This bundle includes records in regard to the Applicant held in the NSW Police Computerised Operational Policing System ("COPS"). The COPS records include entries relating to the break-in, the stolen firearms and location and details of the storage cabinet.
The Applicant relies on his own evidence and that of Mr John Macdonald who provided affidavits and also appeared at the hearing and was cross-examined.
Each of the parties has provided written and oral submissions.
[8]
Sergeant Brett Ryan
Sergeant Ryan has been the Licensing Supervisor in the Murrumbidgee Police District since 2009. He attended the Applicant's premises in June 2017, in response to the report of the break-in and the theft of the firearms from the property. He stated that he inspected the Applicant's safe storage facility and formed the view that it did not meet the standard required for category A and B firearms. He said that the firearms were stored in a flimsy locker fitted with a small padlock which was easily broken. It was not of sturdy construction and was easily penetrated. It was only secured to the wall with tek screws. It was not secured to the floor to prevent easy removal.
Sergeant Ryan conceded that an inspection of the Applicant's storage facility was undertaken in 2010 and that the facility was passed.
He also accepted that the Applicant had acquired a new storage facility following the break-in and that he had inspected that facility in November 2017. The new facility was a purpose built "Lokaway" metal safe and Sergeant Ryan determined it to be compliant with category A and B firearm safe storage requirements.
In regard to the stolen firearms, Sergeant Ryan's evidence is that his check of the Respondent's Internal Licensing System revealed that only 3 firearms had been registered to the Applicant. Those firearms were stolen during the break-in. A further firearm that the Applicant reported as stolen during the break-in, a Sterling 22 calibre rifle ("the Sterling"), was not registered to the Applicant.
As noted above, for the purposes of section 51(2)(b) of the Act a licensed firearms dealer is not reasonably available for the purposes of the supply or acquisition of a firearm if the nearest location of a licensed firearms dealer's place of business is more than 100km from the ordinary place of residence of both the receiver and the supplier. Sergeant Ryan gave evidence of a number of licensed firearms dealers whose place of business is less than 100km from the Applicant's residence.
He disputes the Applicant's contention that police at Leeton police station would have dealt with the registration and transfer of the Sterling to the Applicant. The basis of this dispute appears to be the availability of licensed firearms dealers less than 100km from the Applicant's residence and that there was no reason for the Applicant to have attended the Leeton police station for the transfer of the Sterling. He nevertheless accepted that discrepancies had arisen in relation to registration and transfer of ownership of firearms that were processed through the Narrandera Police station. Five firearms had been removed from Mr John Macdonald's control when seized by police in September 2015.
On that issue, Sergeant Ryan gave evidence in relation to transfer of ownership of firearms that were owned by Mr Macdonald. He did not dispute that this process had occurred at the Police station.
He conceded that Mr Macdonald contacted him in July 2017 and asked him about getting the firearms back. He also agreed that he went to Mr Macdonald's house in August 2017 and that at that time the necessary paperwork was completed and Mr Macdonald's storage facilities were inspected. However, notwithstanding that the necessary paperwork had been completed, Sergeant Ryan failed to lodge the paperwork with the firearms registry.
Sergeant Ryan also gave evidence that he had checked the Applicant's Facebook page and that he had found photographs of the Applicant in the company of children under the age of 10 using firearms. He provided copies of those photographs to the Tribunal.
[9]
John Macdonald
Mr Macdonald said that he was not given any written notice in relation to the seizure of his firearms in September 2015 or any receipt for the firearms that were taken. A subsequent order of this Tribunal resulted in the return of the firearms to Mr Macdonald.
Mr Macdonald's son, Alastair Macdonald ("Alastair"), applied to the Firearms Registry for permits to acquire the five firearms and in December 2015 went to the Narrandera Police station to collect the firearms. At the time, Alastair did not possess the registration papers required for completion of the transfer to him. Nevertheless, he was given the firearms without the proper paperwork having been completed.
As a consequence, the firearms registry had no documentation at all that indicated that Alastair ever had possession or owned the firearms. Alastair was in possession of firearms that were not registered to him for approximately 12 months. In that time he understood that all paperwork had been correct and handed into the firearms registry. The error only became apparent when he decided to transfer ownership of the firearms to a family friend. He had to take the firearms to a dealer in Wagga Wagga and the firearms had to be transferred into the dealer's name so that correct registration documents could be created by the firearms registry. Only then could the firearms be transferred into the friend's name. This became an expensive process for all involved.
Mr Macdonald provided affidavits in regard to the issue of the transfer of his firearms to Alastair and in regard to the proposed transfer to the Applicant of four pistols that were registered to Mr Macdonald. His evidence is that he handed the pistols to the Narrandera District Pistol Club Armourer in February 2009. The intention was that the Applicant would ultimately acquire the pistols from the Club if the necessary permits to acquire were obtained. When this process was not completed, the Applicant relinquished his intention to purchase the pistols.
The Club Armourer completed the appropriate documentation to take possession of the pistols and transfer registration of the pistols to the club. Mr Macdonald said that he completed forms for the disposal of the firearms to the Pistol Club. He denied that he transferred the pistols to the Applicant or that the Applicant had ever had possession of the pistols. He gave evidence that the proposed transfer of the pistols to the Applicant had not proceeded as the Applicant had not taken the necessary steps to complete the acquisition.
[10]
The Applicant
The Applicant gave evidence and was cross-examined.
He stated that he is dyslexic and that, as a consequence, reading has always been challenging for him. He said that he now has a system of support in place to limit the impact on his decision making. However, he did not have the same support structure in place when he purchased and sought to register his four firearms. Nevertheless, he believes that he had done all that was necessary to register all four firearms. He was unaware that registration of the Sterling was not processed.
His evidence is that he kept all four firearms in the gun storage locker. After the break-in he advised the police that four guns had been stolen. He did not try to hide anything as he was not aware that there was a non-registration issue.
He had inherited two of the firearms from his grandfather and transfer of the registration was arranged through a local dealer. Another was acquired from a chiropractor in Leeton and Narrandera. He doesn't remember the name of the seller or the date when it was acquired. He and the seller attended the Leeton Police Station to arrange for the transfer of the registration.
The Applicant stated that the remaining firearm, the Stirling, was inherited from Gary Firth, a friend who had died. He stated that he had spoken to the firearms registry about that firearm and that the local firearms dealer where he would normally have taken his guns to be registered had closed. He asked the registry officer to advise where he could now go within the area to have his guns registered. He was advised that where there is no firearms dealer within 100km he should take the guns to the police station.
He said that he believed that there was no available firearms dealer within 100 km of his residence and that the advice was to take the guns to the police station, which is what he did. He stated that he advised the Leeton police of his discussion with the firearms registry and that the Leeton police commenced the process of gun registration. The Leeton police did not advise him to take the guns to licensed dealers in Wagga Wagga or Griffith. If he had been given that advice he would have followed it. He believed that the Stirling had been registered to him. Any error in the registration of the firearm must have occurred in either that part of the process or in the firearms registry.
He agreed that when asked about the Stirling after the break-in he could not remember how he had acquired it. However, he subsequently remembered that he had inherited it from Gary Firth. He conceded that he did not advise the Police that he had remembered how he had acquired the firearm but as Gary Firth had died he didn't think that the information would have assisted. He stated that at all times he believed that the firearm had been registered in Leeton and that this belief is supported by the fact that he reported that it had been stolen.
He stated that he sought to comply with his legal obligations fully. He purchased and installed the original gun cabinet which had been inspected by police and passed inspection. He stated that he had no reason to suspect that there was any issue with its compliance until the police advised him following the break-in. He subsequently purchased another safe which has also been inspected by police and passed inspection. He has also moved the location of the safe and that it is now inside his house and he always carries the keys with him.
The Applicant conceded that at the time of the break-in the cabinet was located in an external laundry. The bathroom and laundry access is via the verandah and the doors were closed but not locked at the time of the break-in. The break-in occurred while the family were sleeping in the house. He said that the door is not locked when people are at home.
He also conceded that the cabinet was not adequately fixed to the wall. However, he noted that this was not the means by which the cabinet was compromised and that it remained in situ. He also conceded that some tools were located nearby and that it was possible that his tools could have been used to break into the locker. However, he noted that his tools were not used.
He stated that the intruders utilized their own tools to both break and enter the premises and to access the safe. Access to the safe was by cutting the opening and prying the door open. The safe's padlock was not compromised in the break-in.
The Applicant conceded that he had intended to acquire pistols from Mr Macdonald, and that he obtained permits to acquire them, but the permits lapsed and he never took possession of the pistols. He couldn't meet the obligations necessary to acquire the pistols and so Mr Macdonald signed them over to the Pistol Club.
The Applicant acknowledges that the photographs of his children using firearms were on his Facebook page. He said that he photos were taken in Qld about 10 years ago. He accepts that it was not, and is not, appropriate to allow children to access firearms and that it will not happen again.
[11]
The Respondent's Submissions
The Respondent contends that the Applicant had failed to take all reasonable precautions to ensure that his firearms were not stolen, in breach of section 39 of the Act. The Applicant conceded that he had not locked the laundry in which the firearms were kept or the gate to his property, during a period of crime in the local area.
The Respondent relies on Sergeant Ryan's evidence that the Applicant's safe storage facility did not meet the standard prescribed by section 40 of the Act.
The Respondent does not dispute that the Applicant's safe storage facility was inspected in 2010 but notes that the laundry was renovated since that time and submits that what was regarded as satisfactory in 2010 is not the same as what is regarded as satisfactory in 2017.
The Respondent contends that as a result of the Applicant's failure, firearms were stolen and remain in the possession of unauthorised persons. The Respondent further contends that the Applicant does not accept that his failures in relation to the storage of his firearms contributed to the theft of the firearms, and therefore the Tribunal could not be satisfied that he would do anything differently in the future. The Respondent submits that the Applicant does not understand that the precautions that need to be taken can vary with circumstances and therefore the Tribunal could not be satisfied that he has the ability to take adequate precautions to ensure compliance with section 39 of the Act.
The Respondent also raised issues in relation to the Applicant acquisition of pistols. This concern arose because of the Applicant had stated that he had donated four pistols to the Narrandera Pistol Club.
It is not in dispute that the Applicant sought but did not obtain a permit to acquire the pistols. Clearly, if he had in fact donated pistols to the club he must have acquired the pistols and he must have acquired them without a permit. The Respondent submits that the Applicant must have acquired firearms when not authorised to do so under any licence or permit, in breach of section 50 of the Act.
One of the firearms stolen from the Applicant's property was the unregistered Stirling. The Respondent's evidence is that the Applicant was never issued a Registration Certificate with respect to that firearm. The Respondent also submits that the Applicant did not have a permit to acquire the firearm. Further, there is no record that it was sighted during the safe storage inspection undertaken in 2010. That inspection noted that a serial number on one of the Applicant's registered firearms was incorrect.
In regard to the Applicant's assertion that any error in the registration of the firearm is an error on the part of the Firearms Registry or the Police Station that witnessed the acquisition, the Respondent noted that there were firearms dealer within 100 km of the Applicant's residence.
The Respondent submits that the Applicant adopted a frivolous attitude to the use of firearms around his children, allowing them to handle firearms and posting pictures of it on social media. It contends that this demonstrates a lack of understanding in relation to the safe use and possession of firearms. In those circumstances, the Tribunal could not be satisfied that there is virtually no risk to the public safety if the Applicant was granted his firearms licence.
The Respondent also relies on the Applicant's traffic record and notes that this record indicates infringements that date to when the Applicant first obtained a P licence. The Respondent submits that this record demonstrates a disregard for public safety and that this can be taken into account when considering the public interest.
The Respondent contends that it is not in the public interest for the Applicant to be granted a licence. The principal issue for determination is whether or not there is a risk to the safety of the public if the licence is granted. The likelihood of risk is to be assessed by reference to prior conduct and this requires consideration of:
1. non-compliance with safe storage requirements;
2. non-compliance with registration requirements;
3. acquisition of firearms without a permit or licence; and
4. attitude towards use of firearms around minors.
[12]
The Applicant's Submissions
The Applicant notes that he was not charged with any firearms offences. He refutes the Respondent's contention that he failed to take all reasonable precautions to ensure the firearms were not stolen or lost. He points to the fact that the safe was assessed and passed by police as suitable for storage of the firearms. He also disputes the suggestion that the strength of the locker or the availability of his tools were factors in the theft of the firearms because the intruders used their own tools to break into the locker.
In regard to the possession of the Sterling, the Applicant said that after his discussion with the Firearms Registry he believed he was doing the right thing in presenting the firearm at the Leeton police station. He submits that the evidence of Mr MacDonald indicates that Police in the area regularly process firearms paperwork. He said that the Leeton Police initiated the process of registration and consequently he believed that the Sterling was registered to him.
He contends that at the time of the inspection of his safe in the 2010, all four long-arms were in the safe. He further contends that the Sterling was in fact sighted by police at that time.
In regard to the pistols, the Applicant submits that he has never possessed a pistol outside of the pistol club. He does not dispute that he wanted to acquire the four pistols owned by Mr MacDonald but decided against it. Those pistols had been set aside for him but when he decided against the acquisition he asked that they be donated directly to the club. He was never in receipt of the pistols.
In regard to photographs of the Applicant's children using firearms he notes that the photos were taken in 2008 whilst he and his family were vacationing in Queensland. He stated that he now recognizes the stupidity, danger and illegality of these actions and that this is not a decision he would make today.
In regard to the Applicant's traffic record he notes that he spends about 72 hours per week working as a truck driver and submits that when the offences are considered in that context they should not be regarded as significant for the purposes of this application.
The Applicant submits that the evidence shows that he is always learning and always willing to take advice. He refutes the Respondent's contention that it is not in the public interest for him to hold a firearms licence.
[13]
Discussion
The Respondent contends that the Applicant has breached certain provisions of the Act even though he was not charged or convicted of any offences. However, it was the conduct rather than convictions that triggered the action taken in regard to the Applicant's licence.
The main areas of objection to the Applicant being granted a licence relate to assertions of the Applicant's non-compliance with safe storage requirements; non-compliance with registration requirements; acquisition of firearms without a permit or licence; and attitude towards use of firearms around minors.
The Respondent submitted that the breaches of the Act demonstrate a disregard for the strict requirements of the Act and that the Tribunal could not be satisfied that the Applicant would do anything differently in the future. The Respondent also expressed concern that the Applicant does not accept that his failures in relation to safe storage of firearms contributed to the theft of firearms.
Stolen firearms which remain unaccounted for pose a significant risk to public safety. The Applicant disputes the contention that his previous storage facility was inadequate to prevent the theft of his firearms. He presented the safe at the hearing and cross-examined Sergeant Ryan in regard to his view that it does not comply with the legislative requirements. Having viewed the storage locker I accept Sergeant Ryan's evidence on this issue.
It is not in dispute that the storage facility had previously been inspected and found to comply with the requirements. In my view it was reasonable for the Applicant to rely on that fact. However, I also note that the laundry where the locker was kept had been renovated since the 2010 inspection. It is my view that the Applicant should have informed the Respondent of those changes so that a further inspection could have taken place. The legislation requires that the storage facility is adequate and also that it is adequately secured to the floor to prevent easy removal. If it was moved during the renovation the security would have been affected.
The Respondent also expressed concern that the storage locker was kept in the laundry and that the laundry was unlocked at the time of the break-in. I agree with the Applicant that it is not realistic to expect that the laundry and bathroom would be locked when children are in the house. However, it is incumbent upon the Applicant to ensure that the legislative requirements are met. The locker should not have been kept in a room that is regularly left unlocked.
I note that the Applicant maintains that these factors were not relevant to the theft of the firearms. He also maintains that the unlocked shed and unlocked gate were not contributing factors. There is no evidence on which I could conclude whether or not that is correct. If the break-in was purely opportunistic, then an open gate and unlocked doors may have been an influencing factor. If that were the case, in the circumstances where there had been a spate of break-ins in the area, it is difficult to agree that the Applicant had taken all reasonable precautions to ensure that the firearms were not stolen or lost.
Notwithstanding his view that his precautions were reasonable at the time of the break-in, the Applicant has now taken additional steps in an effort to show that he would be able to comply with the safe storage requirements if he were to be granted a licence. It is common ground that his new firearms safe complies with those requirements and it is now kept within the house.
In my view, this indicates the Applicant's preparedness to learn from his experience and adapt his behaviour in an effort to comply with his legal obligations. I do not agree with the Respondent that the Tribunal could not be satisfied that the Applicant would do anything differently in the future.
In regard to the issue of the unregistered Sterling firearm, I note that the Applicant's evidence regarding his discussions with the Firearms Registry and presenting the firearm at the Leeton police station has not been contradicted. I also note the evidence of Mr MacDonald which indicates that Police had failed to properly process the registration of firearms with the result that firearms were not properly registered and in the possession of Mr MacDonald's son when he was not authorised to possess them. It does not follow that the same deficiency occurred in relation to the processes relating to the registration of the Sterling if that were commenced by the Leeton Police. However that does provide a possible explanation for why the Sterling was not registered.
In the circumstances, I accept the Applicant's evidence that he believed that the Sterling was registered. I agree with his submission that this view is supported by the fact that he reported the Sterling as stolen.
I note the Applicant's evidence that the Sterling was stored in the locker with the other registered firearms and that it would have been inspected in 2010. It is difficult to reconcile this evidence with the evidence that the inspection noted that a serial number on one of the Applicant's registered firearms was incorrect and does not record that the Sterling was sighted during the inspection. Either the record of the inspection is incorrect or the Applicant's recollection is incorrect.
In regard to the pistols, it is clear from the evidence that the Applicant wanted to acquire Mr Macdonald's pistols and that he had sought a permit to acquire them. It is equally clear that when this was not pursued the Applicant did not take possession of the pistols. The Respondent's concern arose because of the Applicant's statement that he had donated four pistols to the Narrandera Pistol Club. I am satisfied that the Applicant neither owned nor had possession of the pistols so he could not have donated the pistols to the club. The reference to donating the pistols appears to be a reference to abandoning any intention to purchase the pistols and suggesting to Mr Macdonald that they be donated to the club. I make no negative finding in regard to the Applicant's role in seeking to acquire the pistols.
I agree with the Respondent that the Applicant adopted a frivolous attitude to the use of firearms around his children, allowing them to handle firearms and posting pictures of it on social media. I accept the Applicant's evidence that the photos were taken about ten years ago. I also accept that he now recognizes the issues associated with that conduct and that this is not a decision he would make today.
I agree with the respondent that the Applicant's driving record does not do him credit. However, it must be viewed in the light of the amount of time that he spends on the road in his role as a truck driver. In that context, I do not consider that the inference that the Respondent contends should be drawn.
It is necessary that I form a view in regard to the risk to the public safety if the Applicant was granted a firearms licence. The relevant principles are well established. I have to decide whether there is a real and appreciable risk to the safety of the public, bearing in mind all the relevant circumstances. The risk must be assessed by reference to the Applicant's prior conduct and must take account of the circumstances in which that conduct occurred and any relevant changes that have occurred since.
As I have indicated above, I do not consider that the Applicant took all reasonable precautions to ensure that the firearms were not stolen or lost. However, since that time he has obtained appropriate firearm storage facilities. He has done so as significant expense notwithstanding that he does not agree that the previous locker was inadequate. With the exception of the adequacy of the locker and the issue relating to his children handling the firearms, there is no suggestion that the Applicant otherwise failed to store or handle his firearms appropriately.
I have also indicated that I accept that the Applicant believed that the unregistered Sterling firearm was in fact registered to him. I am not satisfied that there is any real and appreciable risk that the Applicant will acquire unregistered firearms if the licence is granted. Nor am I concerned that he would allow children to handle his firearms.
It is my view that the original decision to refuse the licence was the correct and preferable one at the time it was made. However, in determining this review I am required to consider the evidence before me and the circumstances as they now exist.
As I stated in Wiltshire, 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. A licence should not be granted unless the Tribunal is satisfied that an applicant is able to meet those standards. In the circumstances of this matter I am satisfied that the Applicant is able to meet the standards and therefore I do not consider that it would be contrary to the public interest to grant the licence.
In my view, the correct and preferable decision is that the licence should be granted.
[14]
Orders
1. The decision under review is set aside.
2. In its place, the decision is made that the application by Mr Shannon Rivero for the grant of a licence under the Firearms Act 1996 is granted.
[15]
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: 18 March 2019