Sbat v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-04-26

Introduction

This case concerns a firearms prohibition order (FPO) pursuant to s 73(1) of the Firearms Act 1996 made by the Commissioner against Mr Sbat, the applicant, on 25 February 2019.
The FPO was served on Mr Sbat on 25 March 2019 in person. He was entitled to an internal review of the decision under s 75(1)(f) of the Firearms Act and s. 53(1) of the Administrative Decisions Review Act 1997 (the ADR Act). Section 53(2)(d) of the ADR Act requires an application for internal review to be made within 28 days of the date on which he was notified of the FPO or such later date as the decision maker may allow.
Mr Sbat made an application for internal review of the decision on 16 September 2020. The respondent refused to undertake an internal review on the basis that the application was not made within a reasonable time. Nevertheless the applicant's internal review submissions were considered by a delegate of the respondent who decided to decline to revoke the FPO.
Mr Sbat has applied for administrative review of the decision by this Tribunal. Under s 55 of the ADR Act he is not entitled to administrative review unless he duly applied for an internal review and that internal review was finalised under s 53(9). However the Tribunal may deal with the application for administrative review if the Tribunal is satisfied that: 1. the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or 2. it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned (s 55(4) ADR Act).

Legislative context

Sections 73 to 74 of the Firearms Act provide: "73 Firearms prohibition orders (1) The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm. (2) A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made. (3) The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason. 74 Effect of firearms prohibition order (1) Prohibition on persons acquiring, possessing or using firearms, firearm parts or ammunition A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm. Maximum penalty - imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case. Note - Reference to a pistol includes a prohibited pistol. (2) A person who is subject to a firearms prohibition order must not acquire or possess a firearm part. Maximum penalty - imprisonment for 14 years if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case. (3) A person who is subject to a firearms prohibition order must not acquire or possess ammunition for any firearm. Maximum penalty - imprisonment for 5 years. (4) Prohibition on supplying firearms etc to persons subject to orders A person must not supply or give possession of a firearm or firearm part to another person knowing that the other person is subject to a firearms prohibition order. Maximum penalty - imprisonment for 14 years if the firearm is a pistol or prohibited firearm or if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case. (5) A person must not supply or give possession of ammunition for any firearm to another person knowing that the other person is subject to a firearms prohibition order. Maximum penalty - imprisonment for 5 years. (6) Prohibition on persons residing at premises where there are firearms etc A person who is subject to a firearms prohibition order is guilty of an offence if a firearm, firearm part or ammunition for any firearm is kept or found on premises at which the person is residing. Maximum penalty - 50 penalty units or imprisonment for 12 months, or both. (7) It is a defence to a prosecution for an offence under subsection (6) if the defendant proves that the defendant - (a) did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on the premises, or (b) took reasonable steps to prevent the firearm, firearm part or ammunition from being on the premises. (8) Prohibition on persons attending certain premises A person who is subject to a firearms prohibition order must not without reasonable excuse attend - (a) the premises specified in a firearms dealer's licence, or (b) a shooting range, or (c) the premises of a firearms club, or (d) any other premises of a kind prescribed by the regulations. Maximum penalty - 50 penalty units or imprisonment for 12 months, or both. (9) Membership of a firearms club is not a reasonable excuse for the purposes of subsection (8). (10) Exemptions The Commissioner may by order exempt a person, either unconditionally or subject to conditions, from a specified provision of this section. (11) Proof of possession of firearm parts and ammunition For the purposes of any proceedings for an offence under this section, a reference in section 4A to a firearm is taken to include a reference to a firearm part or ammunition. 74A Powers of police to search for firearms in possession of person subject to firearms prohibition order (1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3). (2) A police officer may - (a) detain a person who is subject to a firearms prohibition order, or (b) enter any premises occupied by or under the control or management of such a person, or (c) stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person, and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition. (3) In this section, premises includes any place, whether built on or not.
Sections 53 and 55 of the ADR Act provide: "53 Internal reviews (1) Who may apply for an internal review if an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section. (2) Requirements for an application An application for an internal review is: (a) to be in writing, and (b) to be addressed to the administrator concerned, and (c) to specify an address in Australia to which a notice under subsection (6) may be sent, and (d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person: (i) if the person has requested reasons under section 49 - was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the person has not requested reasons under section 49 - was notified of the making of the administratively reviewable decision, and (e) to comply with such other requirements as may be prescribed by the regulations in respect of the making of applications for internal reviews. (3) Who is to deal with an application? An application for an internal review of a decision is to be dealt with by an individual (other than the administrator) who is directed to do so by the administrator (the internal reviewer). The internal reviewer directed to deal with an application must be, as far as is practicable, an individual: (a) who was not substantially involved in the process of making the decision under review, and (b) who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed, and (c) who is otherwise suitably qualified to deal with the issues raised by the application. (4) Material to be considered In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant. (5) Review of the application Following the internal review of the decision, the internal reviewer may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a decision in substitution for the decision that is set aside. (5A) Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed. (5B) Reviewer to notify administrator of decision An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision. (6) Notice of result of review and appeal rights Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of: (a) the outcome of the internal review, and (b) the reasons for the decision in the internal review, and (c) the right of the person to have the decision reviewed by the Tribunal. (7) Statement of reasons For the purposes of subsection (6), an applicant is notified of the reasons for a decision in an internal review only if the applicant is given a statement of reasons setting out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the understanding of the internal reviewer of the applicable law, (c) the reasoning processes that led the internal reviewer to the conclusions the reviewer made. (8) Status of decisions made on internal review For the purposes of this Act, an administratively reviewable decision that is affirmed, varied or set aside and substituted under subsection (5) is: (a) taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer), and (b) taken to have been made on the date on which the applicant is given a notice under subsection (6). (9) When an internal review is finalised An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on). Note - Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection. (10) No internal reviews of decisions previously reviewed under this section A person is not entitled to a review under this section of any decision previously reviewed under this section or a decision made under subsection (5). (11) Regulation-making powers The regulations may: (a) prescribe requirements to be observed in relation to the conduct of an internal review under this section, or (b) exclude any class of administratively reviewable decisions from the application of this section, or (c) alter the period within which an internal review must be conducted or a notice given under this section." "55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note - The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests."

Factual background

The following facts are not in dispute.
Mr Sbat is 30 years old, married and has six children. He does not have a criminal record.
On 20 February 2019 he was arrested and charged with a number of offences including two charges of offences under ss 193B and 193C of the Crimes Act 1900. These offences related to dealing with proceeds of crime in the amount of $120,000 in one case and $267,100 in the other case.
He was granted bail in relation to these charges.
On 9 April 2019 he was charged with an additional 17 charges. These included 2 counts under s 25(2) of the Drug Misuse and Trafficking Act 1985 of supplying or knowingly taking part in the supply of a prohibited drug namely 11.944 kg of cocaine in one case and 5.277 kg of 3,4 Methylenedioxymethamphetamine in another case. He was also charged with a number of firearms offences of possessing ammunition without a licence, permit or authority and possessing an unauthorised pistol, among others.
Mr Sbat was refused bail for these offences. The exact date on which he was incarcerated after bail was refused was in dispute; it was either 9 April 2019 as the applicant claims, or 12 April 2019 as the respondent's records indicated.
On 1 July 2019 he was granted conditional bail with respect to the later charges. From 1 July 2019 until 27 September 2019 he was subject to bail conditions which included: 1. To report to Bankstown Police Station once daily 2. Not to go within 500 metres of any point of departure from Australia 3. To reside at home 4. To only leave his address if in the company of his wife 5. To not make contact with his co-accused.
The later charges were withdrawn by the DPP on 27 September 2019 and the initial charges were also withdrawn on 14 August 2020.

The evidence

Video footage of police serving the FPO on Mr Sbat was played at the hearing. This footage was taken by police on 25 March 2019 at Mr Sbat's residence. The FPO was served by Sergeant Henshaw who was a witness for the respondent. Sergeant Henshaw attended Mr Sbat's residence on 25 March 2019 and served the FPO on Mr Sbat. Mr Sbat's wife was present.
Sergeant Henshaw said that he did not recall Mr Sbat asking him any questions about the FPO.
Mr Sbat gave evidence. He stated that he had "literacy problems" and that his reading, writing and comprehension in English was poor. He did not complete his Year 12 school studies. Under cross examination he said that he could understand spoken English.
He agreed under cross-examination that he was told that the FPO was being served on him in the video and that he was asked for and gave his name, address and date of birth. He agreed that he said "Yep" when he was told that he had a right of review and that he had to apply within 28 days and that he might also have a right of review in this Tribunal.
He said however that at the time his house was being raided by police and tactical officers and he did not recall the conversation. He was not paying attention to what he was being told, he was watching what the police were doing. He did not bother to read the FPO as he did not think he would understand its contents. He said that he was told by the officer serving it that the FPO provided police with a warrant to raid his premises at any time. He said that being raided at that moment was overwhelming and he was unable to completely understand what was occurring.
Having viewed the video, it shows Sergeant Henshaw at the door of Mr Sbat's residence at about 8.33 am. There are police in tactical gear inside the premises. It is apparent that Mr Sbat listened to and responded to what Sergeant Henshaw was telling him or asking him. However Sergeant Henshaw spoke quickly, some of Mr Sbat's responses were abrupt and he appeared distracted by the movements and conversations of the tactical police officers. Sergeant Henshaw informed him of his review rights and the time frame in which he should apply for an internal review.
After this event, Mr Sbat said he was preoccupied by dealing with the criminal charges against him and being in custody for 63 days. Being in custody was very stressful and combined with fighting the charges, consumed his available time, money and mental energy. He believed that the FPO and the charges were connected because they occurred close together and the reasons for the FPO. As a result, he did not think he would be in a position to credibly challenge the FPO while he still faced criminal charges.
He said he had been raided 5 times while the FPO was in place but he had not been charged with any further offences as a result of those raids.
He was no longer able to engage in recreational hunting and shooting, which he enjoyed. He said that he was a member of the Riverlands Pistol and Shooting Club from 2013 to 2015 and provided a copy of his membership record (this actually states his membership expired on 9 June 2016). He said he had been licensed to use rifles since 2011 but had never owned one.

The respondent's submissions

The respondent submitted that the applicant was made aware of the effect of the FPO and his review rights on 25 March 2019. The Tribunal should infer from the video of Mr Sbat answering "Yep" to the information provided by Sergeant Henshaw that he was indicating his understanding and he knew what his rights were. His comprehension of spoken English is not poor.
His bail conditions did not prevent him from making an application or seeking legal advice and instructing his solicitor to make the application.
It was not reasonable for him to defer making an application for internal review until the charges were dropped. This was a forensic choice.
The charges were withdrawn on 3 August 2020 and he obtained legal advice 3 days later. This reinforces the interpretation that it was a strategic choice to delay the application.

The applicant's submissions

Counsel for the applicant submitted that in order to succeed in his application, the Tribunal must be satisfied that the applicant made an application for internal review within a reasonable time as required by s 55(4) of the ADR Act. He submitted that in the circumstances it was reasonable for the applicant to believe that the FPO was connected to the criminal charges as he had no criminal record prior to the first set of charges. The FPO was served about a month later and then the second set of charges were laid about 2 weeks after the FPO was served.
His belief in this regard impacted on how reasonable it was for him not to apply for an internal review until after the charges were discontinued. It was also understandable that he would not prioritise the FPO for the more than 90 days in which he was incarcerated until bail was granted by the Supreme Court.
He said that he sought legal advice about challenging the FPO on or around 9 April 2019. He states that the advice received was that the charges should be resolved before challenging the FPO. He again asked his solicitors for legal advice about challenging the FPO on 17 August 2020 and had other meetings with them about this in the month that followed. His solicitors requested an internal review on his behalf on 16 September 2020.
The applicant agreed he was told about his rights by Sergeant Henshaw but he was distracted at the time as his house was being raided by police.
The factual basis for the FPO has changed since the charges were withdrawn and he has no other criminal record. He is not able to seek judicial review until seeking administrative review. The powers under the FPO infringe his common law rights

Consideration

The issue is whether the Tribunal is satisfied that either: 1. the applicant made a late application for the internal review which the person dealing with the application unreasonably refused to consider, and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or 2. it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
In Libdy v Commissioner of Police [2020] NSWCATAD 276, Senior Member Isenberg held that an applicant who made his application for internal review some months after the expiry of the statutory time limit, had not "duly applied" for an internal review within the meaning of s 55(3) and in such a case the applicant may seek administrative review by this Tribunal under s 55(4). Section 55 provides guidance on what the Tribunal is to take into account in considering an application under s 55(4): 1. the time when the applicant became aware of the making of the decision 2. the period allowed for lodging the internal review application 3. such other matters as it considers are relevant.

Whether the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned

The reference to the administratively reviewable decision is the decision of the administrator to issue the FPO. This decision was made on 25 February 2019 but was served on 25 March 2019. It takes effect when it is served.
The applicant's request for an internal review was received on 16 September 2020. The statutory time limit is 28 days.
On 28 September 2020 an officer in the Firearms Registry wrote to the applicant stating that as the request was received "significantly out of timeframe for lodgement (over 17 months)", it had been referred to the Commissioner's delegate for consideration under s 73(3) of the Firearms Act. Under that section the Commissioner may revoke a FPO for any or no reason and at any time. The Commissioner's delegate wrote to the applicant on 13 January 2021 advising that the FPO would not be revoked.
The applicant's application to the Tribunal was lodged on 1 February 2021.
In my view it was reasonable for Mr Sbat not to apply for internal review while he was in custody after bail had been refused. I accept that attempting to have bail granted would have been his priority during that period. He was granted bail on 1 July 2019. While on bail he was able to leave the residence in his wife's company. While he was facing multiple serious criminal charges initially, the majority of the charges were withdrawn on 27 September 2019. He was still facing charges relating to dealing with proceeds of crime, but his failure to take any action to challenge the FPO after September 2019 indicates that he was waiting until all charges were withdrawn before taking that action. In Libdy, facing multiple criminal charges was accepted as a possible factor in additional delay in addressing an error by the applicant's solicitor. It was not said in that case that facing multiple criminal charges excused a failure to act at all until those charges were resolved.
Mr Sbat's evidence was that prior to August 2020 he did not understand what his rights were with respect to the FPO. He blames this on his poor understanding of written English, the fact that he did not understand everything that Sergeant Henshaw said to him when it was served, and that his solicitors advised him to postpone challenging the FPO until the charges were resolved.
While I accept that Mr Sbat was distracted, I do not accept that he did not understand anything about the FPO. He understood enough to seek legal advice about challenging it on around 9 April 2019, and he received advice. His evidence is that his solicitors advised him not to challenge it until the later charges were resolved. However he did not challenge it until all the charges were resolved.
The respondent submits that any strategic or forensic reason for delaying an internal review should not be taken into account when determining what is a reasonable time under s. 74(4). The applicant disagrees, and submits that seeking to challenge a FPO would have waived Mr Sbat's right to silence. Had he commenced Tribunal proceedings, he would have had to seek an indefinite stay of those proceedings as he was not in a position to mount a credible appeal while he was facing criminal charges.
I do not agree that applying for an internal review would have automatically involved Mr Sbat waiving his right to silence, however, had the matter then come before the Tribunal, I accept that a practical approach would have been to seek a stay, assuming that he would have submitted that he was innocent of the charges. That is a practical problem involved in litigation, however it is not sufficient reason to ignore the requirements of the statute. He would not have been subjected to a compulsory examination as was the case in the decision referred to by the applicant's Counsel (Coleman v Health Care Complaints Commission [2020] NSWCA 337).
In my view the evidence indicates that the application to the Tribunal was not made within a reasonable time.
As I am not satisfied on this point, it is not necessary to consider the other criteria in s 55(4). The application should be dismissed.

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: 21 June 2021

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