Samuel Peake v Commissioner of Police

NCAT Administrative and Equal Opportunity|2024-02-23

Introduction

The applicant seeks administrative review of the internal review decision of the respondent dated 27 September 2023 which refused his application for a Category AB Firearms Licence.

Background

The applicant lives in regional New South Wales. He was first issued with a firearms licence in 2010. He was for several years self-employed as a feral dog controller, contracted to Local Land Services and private landholders. His work involved, amongst other things, the use of firearms to euthanise wild dogs. His firearms licence was renewed in 2015 and again in 2020. On 10 August 2021 his licence was suspended due to pending drug related charge and three weeks later it was revoked because Information reveals that you were found in possession of the prohibited drug methylamphetamine. On 22 February 2022 he applied for a firearms licence which was refused three days later. On 31 March 2022 he requested an internal review of that refusal decision and on the same day, the review was finalised affirming the refusal. On 3 July 2023, the applicant made another application for a licence which was refused on 28 July 2023. On 25 August 2023 the applicant sought an internal review of that decision and on 27 September 2023 the internal review decision upheld the licence refusal. It is that decision which is the subject of this review.

Evidence

The applicant attended the tribunal hearing by audio-visual link and gave evidence under oath. The applicant tendered the following documents: a Local Land Services "wild dog and fox control" contract; a letter from his spouse; a character reference from Mr McPhee; a letter of apology from himself; a letter from Ms McLennan describing the invaluable service that he provides and a similar letter from Ms Williams; a certificate of completion of the Online Traffic Offenders Rehabilitation Program dated July 2021 and a report from Akers Psychology and written submissions.
The respondent tendered documents pursuant section 58 of the Administrative Decisions Review Act 1997, and a USB device containing police body-worn camera video. The documents include a Criminal History - Bail Report, two NSW Police statements and some NSW Police Event Reports, known as COPS. The records show the applicant was charged with Drive Vehicle, Illicit Drug Present in Blood - 1st Offence and Possess Prohibited Drug, for which he received Conditional Release Orders for 18 months and 6 months, respectively.
The first NSW police statement of detective senior constable Carberry describes an incident on 24 July 2015 when the police we're about to execute a search warrant at premises suspected of being used for dealing in prohibited drugs. The police observed the suspected occupier of the premises approach the applicant and undertake what they believed to be a drug transaction. When questioned by the police, the applicant stated that he had attended the premises with the intention of purchasing cannabis. He was subjected to a search and his telephone was examined. The telephone revealed a number of text messages between the applicant and the suspected drug dealer. The text messages suggested the applicant had attended the premises to purchase in excess of one gram of methyl amphetamine. Detective Carberry stated the applicant had admitted attending the premises to purchase methyl amphetamine but had never done so before that day. The detective stated the applicant was found to have $800 in his wallet and vehicle which was consistent with the contents of the text messages indicating the intention to purchase drugs.
The second police statement, of leading senior constable Hodson, describes an incident on 28 April 2021, in which the applicant's vehicle was stopped for random testing. It is this incident which is recorded on the USB device. Senior constable Hodson states the applicant was subjected to an oral drug test which produced a positive result to methamphetamine. He states the applicant told him that he had used methamphetamine two days prior and that he had a pipe in the front of his vehicle. The vehicle was searched and senior constable Hudson located a black plastic container inside which was a glass smoking pipe and small resealable bags with a crystal granular substance within. The applicant told the police he had paid $300.00 for the substance and was going to smoke it.
The NSW police documents also contain a traffic record report, which details several speeding offences, two licence suspensions and warnings not to drive while licence suspended.

Applicant's submissions

It is submitted the applicant has admitted his mistakes and has demonstrated his remorse for them in his written apology and has undertaken the traffic offenders program. The methylamphetamine use was a single mistake and he had no prior or subsequent involvement with it. He needs a firearms licence to undertake his employment and has a contract offer from Local land Services. He relies on the income to support himself and his family. There is no history of him misusing weapons and little weight should be given to COPS reports.

Respondent's submissions

The respondent submits the applicant has a history of using prohibited drugs and may continue to have dealings with persons involved in the distribution of prohibited drugs, the applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety. The respondent submits it would be contrary to the public interest for the applicant to be issued with a firearms licence.

Legislative framework

The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms
Section 11 of the Act relevantly provides: (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (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.

Consideration and findings

Under s 63 of the Administrative Decisions Tribunal 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).
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). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.
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 firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

The public interest: section 11(7)

The expression "public interest" is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The applicant requires a firearm for recreational purposes and to undertake contract work in wild dog and fox control, both for a government agency and for private land holders. There is a significant financial benefit that would accrue to him from having a firearms licence and participating in these activities. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an 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 at [33]. The concept includes 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. Accordingly, the applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. The question of risk is not to be 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.
In this matter, the degree of risk can be gleaned from the police records. The applicant questions the accuracy of those records. However, they are the Commissioner's business records and the applicant has not specifically challenged their content, or produced contradictory evidence. The tribunal accepts the records. In particular, the signed statements of the two police officers are of considerable weight.
The traffic offences have occurred over a period of 20 years, most recently in June 2023, and demonstrate a longstanding disregard for a regulatory regime designed to protect the public.
The two police reports concerning actual and suspected drug use occurred in 2015 and 2021. In 2015, the applicant was observed to transact with a suspected drug dealer and to have engaged in text messaging with that person for the purpose of purchasing prohibited drugs. In 2021 he was found in possession of and admitted to using prohibited drugs. He told Akers Psychology that he had purchased methyl amphetamine from an acquaintance the day before, when it was offered to him. He had not planned to purchase the drug…was unable to provide a reason for purchasing the drugs, but on further questioning he revealed that he had been missing his son and felt powerless to obtain further regular access, and that he accepted the offer to purchase drugs on the spur of the moment.
I had the benefit of observing the applicant give evidence and be cross examined. I am not satisfied that he was being wholly truthful in his evidence. He claims these drug incidents were 'one off' matters and that he is not a regular user of prohibited drugs. In 2015, the police drew the clear inference from his text messaging history that the applicant was planning drug use. Six years later, in 2021, the applicant was using methamphetamine. I do not accept the claim this purchase of a container, a pipe, bags of drugs and possession of used granular substances, was another 'one off'. I am satisfied the applicant has consistently demonstrated, over many years, impetuous behaviour, and a propensity to use prohibited drugs.
I have considered the written and oral evidence of what Mr. Peake has done to address his past. It is to his credit that he has expressed remorse, undertaken the Traffic Offenders Program and that he has consulted a psychologist. However, I am not satisfied those actions amount to significant steps on a path to improved behaviour. Ms Akers' report provides little in the way of evaluative assessment of the applicant's likely future behaviour. Even if I were to accept genuine remorse and commitment to reformed behaviour, the tribunal cannot ignore the applicant's history. The weight of that history is such that it cannot be overcome by recent counselling and training.
I have considered the caselaw concerning remorse and financial burdens to which I was referred noting the applicant's position. However, in all the circumstances, I am satisfied the risk of granting a firearms licence to the applicant is real and appreciable. I find it would not be in the public interest to grant a firearms licence to the applicant.
For these reasons, I find that section 11(7) of the Firearms Act operates to exclude the applicant from being granted or holding a firearms licence.

Decision 1. The decision under review is affirmed.

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: 02 April 2024

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Judgment (10 paragraphs)

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Cases Cited (11)