Schultz v Commissioner of Police, NSW Police Force

Consideration

Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (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, New South Wales Police Service 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] Vic Rep 6; (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]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
The Respondent's revocation power, and by derivation that of this Tribunal, is a discretionary one. In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43, [37] the ADT Appeal Panel noted that "No guidance is given in the provision [s 24(2)(b)(ii)] as to what factors might be relevant [to the exercise of the discretion]. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations".
In his 23 July 2021 letter, the Applicant acknowledges his "breach of failure to store his firearm safely as per safe storage regulations" and that his actions in "forgetting to lock the firearm in its usual secure gun safe were negligent". The Applicant states that he accepts full responsibility for the fact that the firearm was stolen. In his evidence before the Tribunal, the Applicant said that he deeply regretted allowing this incident to have happened and to not upholding the provisions of his licence requirements. The Applicant was issued with a penalty notice for not keeping his firearm safely which he subsequently paid.
The Applicant's contravention was neither trivial nor purely technical. The tribunal has held that breaches of the statutory safe storage requirements are of a fundamental character in that they go to the crux of the principles and objectives of the Act: Bevan v Commissioner of Police, New South Wales Police Service [2004] NSWADT 1 at [26]. In this case the risk to public safety from the Applicant's contravention is clear, as the firearm was stolen and has not been recovered.
Safe storage contraventions however do not automatically lead to licence revocation. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 there was a conviction in respect of a safe storage infringement, which was affirmed on appeal. The tribunal nevertheless allowed the applicant to retain his licence, saying "As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi's, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account": at [32].
In Uzelac v Commissioner of Police [2003] NSWADT 226 at [19], Hennessy DP set out the principles applying to licence revocations, particularly involving safe storage breaches, in a passage that has been widely approved and followed: 19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted: · while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]); · the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include: · the reason for failing to store the firearm safely; · the length of time the firearm was not stored safely; · the potential or real danger posed by failure to store the firearm safely; · the person's previous conduct in relation to storage of firearms and any related matter; · the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and · the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25]) · in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 · the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].
The first consideration in Uzelac is the reason for failing to store the firearm safely. The Applicant told the attending police on 20 February 2021 that he "must have left [the rifle] out…tucked to the side there and so someone's come in…And they've obviously, they've seen…seen my rifle…leaning up against the rug there…and just and taken it". Senior Constable Rigelsford cautioned the Applicant who then said "Yeah, it must have been that stage that I pulled [the rifle] out cause having that many in there…It's…so I pulled it out and put it to the side, gone off and done something, locked it back up and left it there, yep." The COPS Event Ref E77853730 created by Senior Constable Rigelsford at 16.42 on 20 February 2021 refers to the Applicant not having placed his rifle in the gun safe when he "re organised his firearms."
In his 23 July 2021 letter, the Applicant said that "Around the time the firearm was stolen from my premises, I had taken some of my firearms out of the gun safe to clean. I sat the rifle aside and inadvertently forgot to return it to its usual locked position". The Applicant also referred to his actions in "forgetting to lock the firearm in its usual secure gun safe".
The Applicant has provided differing reasons as to why he initially removed the firearm from the gun safe. The Applicant told police on 20 February 2021 that he pulled the rifle out "cause having that many in there". In the COPS Event, the police refer to the Applicant re organising his firearms and in the 23 July 2021 letter the Applicant says that he had taken some firearms out to clean. Whilst the reason for the Applicant removing the firearm is not clear, it is not contested by the Applicant that after removing the rifle from the gun safe he forgot to return it and instead left it unsecured in his garage.
The next consideration is the length of time the firearm was not stored safely. It is not clear exactly when the Applicant removed the firearm from the gun safe and the Applicant does not appear to have a clear recollection of the exact time and circumstances of removing it. In his 23 July 2021 letter, the Applicant states that he had taken the rifle out of the gun safe "[a]round the time the firearm was stolen from my premises". The Applicant told police when they attended his property on 20 February 2021 that he had packed up to go camping on Friday 12 February 2021, returning on the Sunday and "tools and that were there on Friday". Senior Constable Rigelsford asked the Applicant if the shed was unlocked, and the Applicant replied that it was. The Applicant agreed that the roller door was down and he told the officer that he had closed it at approximately 10 o'clock on Friday, 12 February 2021.
Senior Constable Rigelsford asked the Applicant him if he remembered when he removed the firearm from the gun safe. The Applicant said, "I was in there a couple of weeks ago." The officer asked, "And you said that was probably a couple of weeks ago" to which the Applicant responded "Yeah, had to have been."
Having regard to the Applicant's responses to police, I find that the Applicant removed the firearm from the gun safe by at least 10 am on Friday, 12 February 2021, some eight days before he reported the theft of the firearm to police on Saturday 20 February 2021. However, the Applicant told Senior Constable Rigelsford that the firearm had been removed from the gun safe a couple of weeks before, meaning that the firearm may have been left unsecured from an earlier date, namely for a couple of weeks prior to 20 February 2021.
It is also not clear when the firearm was stolen from the Applicant's premises. The Applicant advised Senior Constable Rigelsford on 20 February 2021 that he had been pulling his motor apart the previous day, 19 February 2021 and when he went to get his grinder, he realised that his tools were gone. He said that he had had his firearm out and thought that he had put it back in the gun safe but thought he had better check. He said that he got the keys to the gun safe and "looked in there and it wasn't there so I've left, must have left it out…tucked to the side there and so someone's come in, they've walked past those…chain saws, left everything…just taken the angle grinder and me drill…And they've obviously, they've seen …seen my rifles…leaning up against the rug there and…[A]nd just and taken it". When asked when that happened, the Applicant said "Look I'm not sure, I packed up to go camping there last weekend on Friday…and tools and that were there on Friday".
The Applicant said, "Like I was coming in and out of the shed all week but I was coming in to get some mouse baits and stuff like that and it wasn't until yesterday I thought oh hang on". He confirmed that he had returned from his camping trip on Sunday but that he did not notice that the firearm and tools were gone "until yesterday afternoon". He later said that this was at 6.30, the previous afternoon, 19 February 2021. He was not able to advise when the firearm was taken, stating "[t]hat's all I've got".
In his letter of 23 July 2021, the Applicant states "[a]t the time of the theft, the premises were occupied by my wife and the garage was unlocked as she had parked her car inside earlier in the evening after returning home from work". It is not clear what the Applicant means by the "time of the theft" as this is not known. It may be that the reference to the premises being occupied by his wife is a reference to the weekend commencing 12 February 2021 when the Applicant went camping and his wife remained at home.
As referred to above, the Applicant told police on 20 February 2021 that the area where the firearm and tools had been left was unlocked, although he had put the roller door down at around 10 am on Friday, 12 February. This area is referred to at various times as both a shed and a garage. The COPS Event Ref E 77853730 refers to the area as a detached garage and records that the "victim stated that both rollers door's (sic) and side door are normally closed but never locked. The victim did not notice at any time between the above dates that the roller's (sic) doors or door were left open. It is not known where entry was gained to garage. No other items within the garage appear to have been moved."
The Applicant's wife did not provide a statement and did not give evidence at the hearing. It is not clear why the 23 July 2021 letter makes reference to the garage being unlocked at the time of the theft due to the Applicant's wife parking in the garage earlier in the evening after returning from work, in circumstances where the Applicant had previously told police that he had closed the roller doors at 10 am on Friday 19 February and that the 'shed' was unlocked at that time. It appears from the transcript of the NSW Police body worn video that neither the Applicant nor his wife knew when the theft occurred.
In the transcript, the Applicant's wife referred to being at home the weekend that the Applicant was away and said that she did not hear or see anything. She told Senior Constable Rigelsford that she had gone to Gunnedah on the Sunday and noticed black sandshoes near the property on her return which she thought was a "weird thing" but did not know if it was related to the theft or not.
It is not possible on the evidence before me to determine the precise length of time that the firearm was not stored safely. On the basis of the Applicant's statements to police on 20 February 2021, the firearm was removed from the gun safe at some time prior to 10 am on Friday 12 February and may have been removed a couple of weeks prior to police attending the Applicant's property. The date of the theft is not known but appears to have occurred sometime between 10 am on Friday 12 February 2021 and the discovery of the missing items at 6.30 pm on Friday 19 February 2021. The Applicant advised police of the theft by phone on the morning of 20 February 2021. As a consequence, the period of time that the firearm was not safely stored could have been as long as a couple of weeks.
In Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25, the Tribunal found that a period of between 12 and 15 hours was a considerable time. A period of up to a couple of weeks is substantially longer than that in Jameson. Whilst the exact length of time is not known, it was clearly sufficient to enable a person or persons unknown to enter the garage and to steal various tools and the firearm without being detected or leaving evidence of their entry.
The potential or real danger posed by the Applicant's failure to store the firearm safely was the risk that the firearm could be stolen, given that it was left in an unlocked garage, including at various times when the Applicant and his wife were absent from the premises. The firearm was stolen and has not been recovered which poses a risk to the public safety.
The next Uzelac factor is the person's previous conduct in relation to the storage of firearms and any related matter. The Applicant had five other firearms that were safely stored in the gun safe in his garage. The Applicant told police that he was usually "pretty diligent" with keeping his firearms safe. I accept that the Applicant has an unblemished record in relation to firearms and that no compliance issues were raised in relation to his gun safe. However, in his 23 July 2021 letter, the Applicant states that he has always stored his firearms and ammunition in a gun safe which is situated inside a locked garage next to his home. This statement is not consistent with the Applicant telling police that the garage was unlocked when he closed the roller doors at 10 am on Friday 12 February 2021 before he left on his camping trip or with his reference in the 23 July 2021 letter to the garage being unlocked after his wife returned from work and parked her car in the garage. Moreover, COPS Event No E77853730 refers to the Applicant stating that both roller doors and side door to the garage are normally closed but never locked. No challenge was made to this reference by the Applicant.
The next consideration is the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future. In the Applicant's Administrative review application form of 1 September 2021, the Grounds for Application state that the Applicant "has learnt a lesson, will never re-offend, and for that reason can be considered no threat to the public". In his 23 July 2021 letter, the Applicant took responsibility for the failure to safely store his firearm and in his evidence, he expressed his deep regret for the incident. Since the theft of the firearm, the Applicant has upgraded the locks to the garage, installed security lighting and CCTV cameras.
Mr Kable referred to the 23 July 2021 letter that had been prepared by the Applicant and submitted that it was a credit to the Applicant, who had researched and found the case of Jameson and re-educated himself in relation to the relevant safe storage provisions. Mr Kable noted that the Applicant's breach had been inadvertent rather than an intentional act. As was the case in Jameson, the Applicant was of good character, had expressed remorse for his actions, had taken steps to increase security around his garage and it was highly unlikely that the Applicant would re-offend in the future.
I accept that whatever the reason was for the Applicant removing the firearm in the first place, that the Applicant subsequently forgot to return the firearm to the gun safe and left it unsecured in the garage. He said that when he left to go camping on Friday 12 February 2021 the "tools and that" were there. The Applicant did not provide any further evidence to the Tribunal to clarify the circumstances in which the firearm was removed from the gun safe, when this occurred and the length of time that the firearm was left out of the safe. The Applicant did not provide any evidence as the systems that he had in place at that time for securing his firearms in the gun safe. He also did not provide evidence as to what, if any, system was in place to ensure that the Applicant secured all six of his firearms in the gun safe and why it took the Applicant at least seven days, if not a couple of weeks, to become aware that the firearm had not been safely stored and had been stolen.
Whilst it is to the Applicant's credit that he has upgraded the locks in the garage and has installed security lighting and CCTV, there was no evidence before me that the existing garage locks were inadequate or faulty at the time that the Applicant failed to safely store the firearm or when the firearm was stolen. It appears that from at least time to time, the doors to the garage were left unlocked and possibly were never locked. The additional security measures undertaken by the Applicant do not of themselves address his failure to safely store the firearm in the gun safe and ensure that such an incident would not happen again. There was no evidence of reflection from the Applicant around this issue or any evidence of new systems or practises that the Applicant would be implementing to ensure such an incident would not occur again.
The Applicant held a firearms licence for the purpose of recreational hunting/vermin control with permission to shoot from the owner or occupier of rural land. In his 23 July 2021 letter, the Applicant says that he participates in recreational hunting and feral animal control on properties in the North-West Slopes and Plains, Upper Hunter and Mid-North coast. Whilst there is no doubt that this purpose is a genuine one, the requirement to hold the licence does not relate to his own property or to his livelihood. No further evidence as to his reasons for a firearms licence was provided.
Hennessy DP said in Uzelac that "in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety". Notwithstanding, the Respondent's action in issuing a penalty notice, I find that the Applicant's failure to securely store the firearm occurred was neither trivial nor excusable.
In his re-application for a firearms licence dated 4 November 2020 (part exhibit R1), the Applicant declared that he fully understood and could comply with the firearms safekeeping requirement of the Act and associated Regulation. However, the Applicant's only explanation for not storing the firearm in the gun safe with his other firearms was inadvertence. As a consequence, the firearm was set aside in the garage and left unsecured for a considerable amount of time. The theft of the firearm only came to light following the discovery of missing tools. During this time period, the Applicant left the premises to go camping, leaving the garage unlocked. His wife was present at times over that same weekend, but according to the Applicant, also left the garage unlocked on at least one occasion.
In Uzelac, Hennessy DP prefaced her remarks by saying that for the Tribunal to set aside a decision revoking a licence based on failure to store firearms safely, the applicant needed to show persuasive and relevant circumstances that take the matter outside the ordinary case.
The Applicant submitted that the facts in Jameson were largely analogous to his circumstances and relied upon the decision to have his firearms licence reinstated and his firearms returned. Mr Kable submitted that as in Jameson, the Applicant was of good character. The tribunal found in that matter that Mr Jameson had an unblemished prior record in relation to firearms and the general law and referred to his high reputation and standing in the community and in pistol shooting circles. Whilst the letter of 23 July 2021 enclosed two character references attesting as to the Applicant's good character, neither of the referees provided statements in the Tribunal proceedings or gave evidence before me. The character references did not refer to firearms, the Applicant's failure to store his firearm safely, the revocation of his licence or to his attempt to have his firearms licence reinstated. As a consequence, I afford little weight to these references. The Applicant did not file and serve any evidence in relation to his application, relying only on material in the Respondent's documents.
Whilst I accept that the Applicant has an unblemished record in relation to firearms, he has a number of traffic offences, the most recent of which was on 9 May 2021 for exceeding the speed limit by no more than 10 kilometres per hour whilst driving a motor vehicle. The Applicant was also charged on 23 December 2007 with driving with a low range concentration of alcohol. The matter went before the Gunnedah Local Court on 4 March 2008 and the offence was proved but dismissed pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999. I accept the Respondent's submission that these are not major matters and would not be sufficient on their own to justify revocation of the Applicant's firearms licence but reflect a failure by the Applicant to comply with legislative requirements from time to time.
Mr Kable referred to the Applicant expressing remorse for his actions, and I accept this to be the case. In Jameson, the tribunal referred to Mr Jameson's acute remorse and contrition over the event, attested to by all witnesses. These witnesses included Mr Jameson's partner, the club captain of Mr Jameson's pistol club as well as a registered psychologist, who said that Mr Jameson was remorseful and demonstrated an advanced level of empathy. The Applicant relied upon his 23 July 2021 letter and his limited evidence before the Tribunal. No other witnesses were called by the Applicant.
As previously discussed, it was submitted that like Mr Jameson, the Applicant has also taken steps to increase security around his garage. In Mr Jameson's case, there was evidence that his security precautions before the theft of his firearms exceeded those required by law and that since the theft, he had upgraded the already strong security precautions. His provision of the CCTV footage to police enabled the wrongdoer's apprehension and three of the stolen guns. Whilst it was not contested that the Applicant's gun safe met the relevant legislative requirements, there is no evidence to suggest that his security precautions exceeded those required. Mr Jameson undertook another firearms safety course and had pursued further enquiries to ensure that he was fully aware of all regulatory requirements. There was no evidence to establish that the Applicant had undertaken any such courses or pursued such further enquiries other than preparing the 23 July 2021 letter that referenced the case of Jameson.
Mr Kable submitted that it was highly unlikely that the Applicant would re-offend in the future. In the case of Jameson, the tribunal relied on a range of evidence, including the psychological evidence that in the future Mr Jameson was likely to be hypervigilant and obsessive over firearm security precautions and was highly unlikely to reoffend. Whilst there is no requirement for a psychological report, the only evidence in the current matter came from the 23 July 2021 letter.
Reliance was also placed by the tribunal in Jameson of his contacting the police immediately on becoming aware of the theft, accepting full responsibility and assisting police. I accept that when police attended the Applicant's home on 20 February 2021, the Applicant was truthful and provided assistance to them. However, in his letter of 23 July 2021, there were a number of inconsistencies in the Applicant's version of events, including him stating that "around the time" his firearm was stolen from his premises he had taken some of his firearms out of the gun safe to clean. Setting aside the inconsistency in the reason for removing the firearm from the gun safe, the time of the subsequent theft is not known, and the firearm could have been left out for a period of a couple of weeks. The Applicant's use of the term "around" in the 23 July 2021 appears to be an attempt by him to minimise the significant period of time between the time that the firearm was left unsecured in the garage and his discovery that it had been stolen.
In his 23 July 2021 letter the Applicant states that he noticed the firearm and other items were missing on 20 February 2021 and "immediately" contacted the Boggabri Police Station to report it. The evidence from the COPS Event Reference E 77853730 and the statements made by the Applicant to Senior Constable Rigelsford on 20 February 2021 establish that the Applicant became aware of the theft of the items at 6.30 pm on 19 February 2021 and reported it to police at around 9.30 am on 20 February 2021. No evidence was before me as to the reason for the delay in reporting. In his oral submissions, Mr Kable conceded that whilst the reporting was not immediate it was done so in a reasonable timeframe. There is no evidence available as to the reason that the theft of the firearm was not immediately reported to police by the Applicant. I find that in the circumstances a delay of approximately 15 hours by the Applicant in reporting the theft to police is considerable and there is no evidence to establish that the delay was reasonable.
In his 23 July 2021 letter, the Applicant makes reference to advice he received from Detective Iles and uses quotation marks in reference to the statement as follows: "I imagine you would be ok to have your licence reinstated and therefore have your firearms returned". The statement of Detective Iles (exhibit R3) attaches the email correspondence from which this extract is taken. The full sentence in the email is as follows (bold added) "I imagine you would be okay to have your licence reinstated and therefore have your firearms returned but that is up to the Firearms Registry". The words shown in bold do not appear in the 23 July 2021 letter.
There was no evidence from the Applicant addressing the inconsistencies in his account to police on 20 February 2021 and in his 23 July 2021 letter. Whilst the Applicant has expressed his deep remorse over the incident, I am not satisfied having regard to all of the evidence that the Applicant has demonstrated that he accepts full responsibility for the incident.
I find that the Applicant contravened a condition of his firearms licence to comply with the safe keeping requirements in the Act. I find that whilst there are some superficial similarities between the current case and that of Jameson, there are a large number of differences. Each case must of course be determined on its facts. I find that unlike Mr Jameson, the Applicant has not shown persuasive and relevant circumstances that take his matter outside the ordinary case. I am satisfied that it is not in the public interest for the Applicant to continue to hold a category AB Firearms licence.

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Judgment (7 paragraphs)

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