Romanos v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2019-12-18

reasons for decision

The applicant Mr Panagiotis (Peter) Romanos applied to this tribunal on 10 July 2019 for review of a decision by a delegate of the respondent dated 30 May 2019 affirming a decision to revoke his category AB firearms licence.
The applicant lives on a 2.2 hectare property at Greg Greg, New South Wales, which is about a half-hour drive from Tumbarumba. On 27 March 2018 he was issued with a category AB firearms licence for the reasons of recreational hunting and vermin control. The identified lands at which shooting was proposed to be carried out were the applicant's own property at Greg Greg and the property of Mr Geoffrey Waters on the same road at Greg Greg.
On 29 September 2018 police conducting patrols along W****** Road, Greg Greg, observed a Toyota Prado parked on the roadside near where the road terminates and enters Kosciusko National Park. They spoke to the two occupants, the applicant (who was the driver) and his passenger Alan Thacker, who said they had driven from the applicant's property with the intention of going shooting. In the passenger seat next to Mr Thacker was his loaded rifle. An inspection of the vehicle also revealed a 22-250 rifle in the rear cargo section of the vehicle. That weapon belonged to the applicant.
The police fact sheet then states that "Police spoke to the accused and informed him that it is an offence to transport a firearm with the bolt fitted to the firearm and rounds not kept separate from the firearm" (exhibit R1, p 16). They also informed him that he was failing to take all reasonable precautions to ensure that a firearm was safely kept and transported.
On 10 January 2019, the applicant pleaded guilty at Tumbarumba Local Court to the offence of failure to keep a firearm safely. The offence was found proved, with no conviction being recorded and no penalty imposed, and he was made subject to a conditional release order for a period of 12 months under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, commencing on 10 January 2019 and concluding on 9 January 2020.

Applicable legislation

The revocation of licences is governed primarily by s 24(2) of the Firearms Act: 24 Revocation of licence (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
Under s 11(5)(d), a licence must not be issued to a person who "is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations". The Commissioner may also refuse to issue a licence if the Commissioner considers that "issue of the licence would be contrary to the public interest": s 11(7).
Section 39 sets out the general requirements for the safe keeping of firearms: (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. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
For the purposes of s 11(5)(d), cl 5(2)(a) provides in relation to persons subject to good behaviour bonds that offences referred to in scl. (1)(a), (c), (e) or (g)-(k) are prescribed. Clause (5)(1)(a) relevantly provides that- 5 Offences that disqualify applicants (1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed - (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under - (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).
Clause 149, which was added in the 2017 version of the Regulation, lays down requirements for the transportation of category A and B firearms. 149 Requirements for non-commercial transportation of Category A and B firearms (1) A person who transports a firearm to which a category A or category B licence applies and that the person possesses under the authority of a category A, category B or firearms collector licence must convey the firearm in accordance with the following requirements - (a) the firearm must be conveyed in a manner that ensures compliance with section 39 of the Act, (b) the firearm must not be loaded with any ammunition while it is being conveyed, (c) while the firearm is being conveyed in a vehicle it must not be visible from outside the vehicle.
Under cl 77(1) (c), Sch 2 of the Crimes (Sentencing Procedure) Act, a good behaviour bond is taken to include a reference to a community correction order or a conditional release order or both.
The issue in the present application is whether the respondent has made out grounds in relation to which the discretionary power to revoke should be exercised against the applicant. The grounds advanced are:

that the applicant is subject to a good behaviour bond;
that the applicant has contravened a provision of the Act;
that the applicant is not a fit and proper person to hold a licence;
that the applicant has breached a condition of his licence in relation to safe storage; and
that it is not in the public interest for a licence to be issued to him.

All four grounds turn on the single incident that occurred on 29 September 2018 outlined above.

The evidence

The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and on the applicant's evidence in cross-examination.
The applicant had not lodged a witness statement but gave oral evidence. He said he had moved to Tumbarumba 2½ years ago and applied for a firearms licence 6 months later. He had not held a licence before, having no need for one, but living in a rural area where there were numerous pests including foxes, rabbits, pigs, goats and feral cats and dogs, and because he wanted to go hunting and liked to eat game, it became a necessity. He raises miniature goats and currently has six of them. He earns some income selling the goats, which bring about $400 each. He had, however, lost five kids to the foxes. Previously he had poultry, but the foxes killed them all. He had lost half of his garden to rabbits.
He owns three category A and B firearms which he kept at home in the manner required by the legislation. On the day of the incident he had been with a visitor, Alan Thacker, a friend of his ex-partner, who was on his first visit. He was not sure if Mr Thacker had ever hunted, but he did have a licence.
On his property firearms were a necessity, but if his licence were returned he would be honoured to have the privilege of firearm ownership. He would make sure that his firearms were secured and he had already purchased trigger locks for them, as well as ex-army steel ammunition boxes fitted with combination locks.
In cross-examination he said that his licence application had nominated his property and also the property of his friend, Mr Geoff Waters, whose property lies on the gravel section of the same road as his own property is on. The police had stopped them on that road. He had ammunition in the rifle because he had previously been shooting rabbits on the property of Henry Spink, who had given him oral permission to shoot on his property when he obtained his licence. As he was "old school", he had not put his approval in writing but had said that he would tell the police that he had given permission if he were asked. The applicant said he only shoots on Mr Spink's property when the latter is there.
He acknowledged that the reference from George Brown stated that he had been assisting Mr Brown for approximately three years with vermin control but noted that Mr Brown had described his estimate as approximate. He had not done any shooting before obtaining his licence, but was under the impression that a separate licence was not needed as long as one was with a licensed shooter.
He had on occasion put down an injured goat using one of his firearms. Asked whether he would be able to do that with a captive bolt gun similar to those used at abattoirs, which is not a firearm and can be purchased freely from an agricultural supply store, he agreed that it would be possible but he did not require firearms solely for the purpose of dispatching injured animals, but also for vermin control. He also liked to eat game, rabbits in particular, and liked to have the fresh eggs that his poultry produced. He agreed that he could buy eggs and chicken at the local IGA store, but said that game and fresh eggs were tastier, were free range, cheaper and contained no chemicals.
The applicant acknowledged the convictions listed in exhibit R1, pp 7-8 but argued that they were 18 years old. The reference to possession of an explosive related to fireworks. He could not recall what the regulated weapon was, but said it could have been that he was carrying a knife in the car. The affray referred to an incident where he was crushed between two cars. He could not recall what the attempted theft related to. He had no criminal record in New South Wales and he thought the convictions were immaterial because they were more than 10 years old.
In re-examination the applicant said that on the basis of the questions in the application form he had thought that the only years of concern as regards criminal convictions were the last 10. He earns income from raising the goats and would prefer to keep his own chickens. He could sell the eggs if he had more chickens and could produce more eggs than he needed himself. Maintaining a vegetable garden was a source of pleasure to him. He also assisted other property owners, such as Mr Brown, with vermin control. He was under the impression that he could lawfully shoot on someone else's property if he was with another shooter who did have express permission.
The applicant also relied on two references (part exhibit A1). Mr Tomislav Mirkovic of Tumbarumba Road on 27 September 2019 wrote that he has known the applicant for the last 18 months. He speaks highly of his character and adds that "Peter and I are also hunting partners and I have trust in him when we hunt together which is saying something about his character. Peter has shown great respect for person and property during our hunts together and has never shown me an ounce of being dangerous with or without a rifle on him".
Mr George Brown is the owner of GAD Rural Services, which carries out a number of different tasks in the Rosewood area. One of those tasks is vermin control on different properties. He wrote on 16 September 2019 that the applicant is one of the shooters who assist him with vermin control on the properties. He has been doing so for "approx. 3 years". In that time "I have not had any trouble with him and he shows that he can be trusted to be safe with his weapon. I have found Peter to be of good character when he is with me and if possible I would like him to continue assisting me with vermin control".

Respondent's submissions

The respondent filed written submissions (exhibit R2) setting out the relevant legislation, the facts and other matters. They then turned to the grounds for revocation, the first being that the applicant was subject to a good behaviour bond (which includes a conditional release order) for a prescribed offence. The applicant did not dispute that the elements of the ground were made out, and the respondent submitted that the discretion to revoke in s 24(2) should be exercised so as to affirm the decision.
In oral submissions Mr Grey on behalf of the Commissioner referred to Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, Hocking v Commissioner of Police, New South Wales Police Service [2002] NSWADT 214, Kalinic v Commissioner of Police, New South Wales Police [2006] NSWADT 227, Parisi v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 155 and Fisher v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 239.
Those cases, it was submitted, maintained that special or exceptional circumstances were needed if the discretion to revoke were to be exercised against cancellation. In Parisi, Isenberg SM had said that it would be anomalous if a conviction after a licence had been granted were treated totally differently from a conviction before a licence application. Only in special or exceptional circumstances should the discretion not to revoke be exercised (at [10]). The need to control vermin could not constitute special circumstances because all landholders had to do it. The present applicant, the respondent contended, had displayed a poor attitude and inadequate knowledge of the legislation's requirements.

Consideration

This tribunal has jurisdiction to entertain this application by reason of s 75(1)(c) of the Firearms Act, which creates a power to review a decision by the Commissioner revoking a licence or permit.
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. 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, 77.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].

The contravention and the conditional release order

The first ground for revocation raised by the respondent relates to the applicant's conditional release order. Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which a licence would be required to be refused. Section 11(5)(d) provides that a licence must be refused if the person is subject to a good behaviour bond in relation to an offence prescribed by the regulation. For the purposes of s 11(5)(d), cll 5(2)(a) and 5(1)(a) prescribe an offence relating to the possession or use a firearm.
On 10 January 2019 at Tumbarumba Local Court, the applicant pleaded guilty to a charge of not keeping a firearm safely. Without recording a conviction, the court made him subject to 12-month conditional release order (CRO) expiring on 9 January 2020. The charge was laid under s 39(1)(a) of the Firearms Act in conjunction with s 39(2) and cl 149 of the regulation.
The offence occurred on 29 September 2018 when police patrolling W***** Road, Greg Greg, found the applicant sitting in his parked vehicle with a companion with his firearm visible in the cargo compartment. The police informed the applicant that he would be issued with a court attendance notice for the offence of "not keep safely in public place" (exhibit R1, p 16).
Clause 77(1)(c), schedule 2 of the Crimes (Sentencing Procedure) Act provides that in any Act, a good behaviour bond is taken to include a reference to community correction order or a conditional release order, or both. Consequently, a mandatory ground for refusal to grant a licence exists, as the applicant is subject to a CRO until 9 January 2020. Licence revocation on that ground, however, is discretionary by reason of s 24(2)(a) the Act, which states that a licence may be revoked on that ground.
The same set of facts means that the applicant's licence could also be revoked under s 24(2)(b)(ii) for "contravene[ing] any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention".
The incident also created a liability to revocation under s 24(2)(b)(iii), which applies where the licensee "contravenes any condition of the licence". The condition in question is the one contained in s 19(2)(a), which applies to all licensees and requires them to comply with the statutory safe keeping and storage requirements under the Act. The applicant's category AB licence was thus clearly liable to discretionary revocation.

Fit and proper person

The second sub-issue is whether the applicant is a fit and proper person to hold a licence. Section 24(2)(c) provides that a licence may be revoked "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". Section 11(3)(a) (which must be read in conjunction withs 24(2)(a)) provides that a licence must not be issued unless "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".
The applicant does not have a criminal record in New South Wales (apart from an indifferent traffic record that includes a suspension that was not implemented), but his record does include a number of convictions in the state of Victoria. They are:

1994: Criminal damage
1994: Attempted theft (of which he said he had no recollection)
1994: Affray (which he said occurred when he was crushed between two vehicles, but he gave no other details)
2000: Possess prohibited weapon (which he thought might have been because he had a knife in his car)
2000: Possess explosive substance (which he said was fireworks)
2000 - 2003: 3 charges of possessing or using cannabis.

The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
The applicant is a disability pensioner aged 46 who lives alone on a 2.2 hectare rural property. His offence under the Firearms Act involved no violence or threat of violence and occurred in a relatively remote area where there seems to be little risk to public safety or any danger that his firearm could be stolen. The Local Court appears to have taken the view that the contravention lay at the lower end of the scale of seriousness, as it did not impose any penalty but issued a 12-month CRO.
Mr Romanos has no criminal convictions in New South Wales but does have several in Victoria. Most, however, date back to 2000 or earlier. Apart from the 1984 conviction for affray, which arose in unclear circumstances, he has no record of violence, domestic violence or self-harm. There is no evidence of a drug or alcohol problem or of any mental disorders. He appears to be on good terms with other residents in the area. His referees speak well of him, and in particular in relation to his responsible attitude to firearms use.
The suspension and subsequent revocation of his licence appear to have had a salutary effect on him. He is emphatic that, if his licence is restored, he will comply with the statutory requirements to the letter, and in the meantime he has acquired some trigger locks and some steel ammunition boxes with combination locks.
Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that he would present any risk to public safety or the peace if his licence were reissued. I therefore conclude that he is a fit and proper person to hold a firearms licence.

The public interest

Under s 24(2)(d), a licence may be revoked "for any other reason prescribed by the regulations". Clause 20 provides that the Commissioner may revoke a licence if satisfied that it is no longer in the public interest for the licensee to continue to hold the licence.
The phrase "public interest" is not defined in the Firearms Act. In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n 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.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: 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.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
The respondent's submissions did not dwell unduly on the question of public interest, nor was any evidence specifically relating to that sub-issue adduced. The evidence and submissions relating to the other sub-issues, however, are relevant here. The applicant gave evidence that he has been inconvenienced and financially affected by the loss of goats and chickens to predators since his licence was revoked. As is noted below, the tribunal has held that there is a public benefit in persons being able to engage in gainful business or employment. The applicant's preference for game and home-produced eggs for his table, however, relates to his private interests, and in relation to this issue the tribunal is concerned with the broader public interest (Hill v Commissioner of Police [2002] NSWADT 218, [22]).
As I have already found that the applicant is a fit and proper person to hold a firearms licence, including that he presents no danger to public safety or the peace, public interest considerations do not weigh against the applicant's case, however.
In addition, as I have found in a number of other cases (e.g. McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98, [66]), there is a public interest in law-abiding farmers and graziers having access to long arms, without which New South Wales could scarcely have had a primary industry to begin with.
While a captive bolt gun would provide a way of putting down injured stock, as the respondent submitted, it would be useless against vermin and feral pests that damage the environment and productive industry. Firearms are the only humane and effective means of countering them without endangering native fauna. I therefore find that it would not be contrary to the public interest for a licence to be issued to the applicant.

Exercising the discretion

I have concluded above that the respondent has made out three grounds for licence revocation:

the applicant is subject to a CRO (i.e. good behaviour bond);
that he has contravened a provision of the Act; and
that he has contravened a condition of his licence.

The phrase "may be revoked" in s 24(2) shows that in each case the revocation power is a discretionary one. Hennessy DP gave consideration to how the discretion should be exercised in Cusumano at [22]: "There is no guidance on the legislation in relation to how these discretions should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. Those principles and objects are set out in section 3…." They are overwhelmingly concerned with the protection of public safety.
It is sometimes said that the interaction of ss 11(5)(d) and 24(2)(a) creates an anomaly, as a person who has committed an offence and is subject to a bond is disqualified from applying for a licence, but if the same person commits the same offence and becomes subject to a bond after the licence is granted, the Commissioner or the tribunal has a discretion with respect to whether the licence should be revoked.
The situation is not necessarily anomalous, however. In the case of a person who already holds a licence, the Commissioner can consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in favour of the applicant (see also McGrath at [35] - [36]).
The respondent pointed out that in Hocking, the tribunal affirmed a licence revocation in relation to an applicant who had inadvertently left a rifle in his car overnight, while in the present case the breach was intentional. While that is correct, in Hocking the consequences were more serious in that the applicant's vehicle was broken into and his rifle stolen by a gang of youths who had been carrying out similar firearms thefts in the area for some time.
The respondent also relied on Kalinic and Parisi as instances of the tribunal upholding revocation on the ground that the controlling vermin and feral pests was an insufficient reason for exercising the discretion in the applicant's favour. In those cases, however, the licensee did not have any livestock. Further, in Parisi the applicant had brandished a gun and threatened to shoot a group of bikers who were trespassing on his land. Isenberg SM thought his action was disproportionate to the threat presented by the intruders. When viewed in light of their material facts, therefore, those authorities do not appear to fetter the broad statutory discretion, subject to the overriding direction to give effect to the legislation's primary concern with public safety.
The fact that loss of his licence has made it impossible for him to protect his property from predators, and therefore to raise livestock and laying chickens to generate income, should be taken into account. In Hocking, Higgins JM said categorically that "I do not agree with the submissions of the Commissioner that the question of loss of income is an irrelevant factor in the exercise of his discretion" as to whether or not to revoke a firearms licence.
It was a relevant consideration, though it had to be weighed against the overriding need for public safety (at [24]). Similarly, in Wright v Commissioner of Fair Trading and Commissioner of Police [2017] NSWCATAD 98, [127], Scahill SM observed in the context of tattooist licensing that there is a public benefit in persons being able to engage in gainful employment rather than being kept by the taxpayer. In this case, therefore, restoring the capacity of a man with a disability to supplement his no doubt modest pension may be a factor weighing in favour of reissuing his licence, subject to the overriding concern for public safety.
The police fact sheet recorded in relation to the applicant's rifle that "An inspection of a firearm revealed that there was a round chambered in the firearm. The bolt was fitted to the firearm, but not actioned locking the round into battery. The firearm safety latch was on, with the firearm ready to fire" (exhibit R1, p 15).
A firearm is said to be "in battery" when the bolt or breech block is in the fully forward position, locking the round in the chamber in preparation for firing (whether there is actually a round in it or not). The fact sheet states that the mechanism was not actioned and not in battery, which suggests that the action was open. The conclusion that the rifle was "ready to fire" introduces an element of ambiguity, unless it is taken to mean that because there was a round in the chamber, it could have been fired if the shooter had closed the action and released the safety catch. Nevertheless, the applicant was in breach of cl 149 as the rifle was loaded and in public view.
But although the applicant had committed an offence, he did so in circumstances in which the risk to public safety was exceedingly small. The firearm as it was could not have been discharged accidentally, and as the applicant and his companion were both seated in the vehicle, there was no realistic possibility that a thief could steal it. No doubt it was for those reasons that the learned magistrate did not record a conviction or impose a penalty.
The respondent contended that the applicant's conduct displayed an insufficient familiarity with the legislation as he was unaware of his obligations in relation to the transportation of firearms and was under some other misconceptions.
As Ms Carruthers pointed out, however, cl 149 was at the time a new provision. The previous version of the regulation contained no equivalent restrictions. Consequently the same conduct engaged in 12 months earlier would have been quite lawful.
Indeed, it is clear that the attending police were themselves mistaken about the operation of the clause. The fact sheet records that when they spoke to him they "informed him that it is an offence to transport a firearm with the bolt fitted to the firearm" (exhibit R1, p 16). But that requirement does not apply to category A or B firearms such as the one the applicant had in his vehicle. While a licensee has an obligation to be familiar with the complex legislative requirements, an isolated handling lapse not involving a danger to public safety may be regarded as excusable.
The factors noted above in connexion with fitness and propriety and the public interest, including the applicant's unreserved acceptance of responsibility for the offence and his emphatic commitment to strict compliance with the legislative requirements in the future, also tend to favour exercising the discretion in his favour.
I qualify that, however, in connexion with the ground arising from cl 5 of the regulation, relating to the conditional release order. As regards that ground, the applicant would certainly need to show special circumstances before the discretion could be exercised in his favour. Although the CRO has almost expired, the applicant should not be granted a licence until after that has occurred. In other respects the decision under review should be set aside and a category AB licence should be issued to the applicant after 9 January 2020.

Orders 1. Decision under review set aside. 2. Not before 10 January 2020, a category AB firearms licence is to be issued to the applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2019

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (16)

Cited By (30)