Sheehan v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2017-06-01

Solicitors: Office of General Counsel - NSW Police (Respondent) File Number(s): 2017/00058642

reasons for decision

This is an application for review of a decision by the respondent to revoke the applicant's Category AB firearms licence.
The applicant made an application for a Category AB licence on 12 February 2016, which was granted by the Commissioner of Police on 21 March 2016. The reason for the licence was stated to be for recreational hunting and vermin control. On 28 July 2016 a condition was imposed on the licence, following the applicant's acquisition of three firearms from the applicant's son Jared Lee Sheehan. The condition was: The licence holder is prohibited from storing or possessing firearms at any location where Jared Lee Sheehan, date of birth 29/4/1990, resides or frequents.
The applicant applied for internal review of the decision to impose a condition. On 2 February 2017 the internal review determined that on the basis of the criminal convictions of the applicant's sons, his domestic circumstances and a finding that he had breached the condition above, his AB firearms licence would be revoked.

The legislation

Section 3 of the Firearms Act 1996 (the Act) sets out the principles and objects of the Act: 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, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
Section 11 of the Act provides that the Commissioner may issue or refuse a firearms licence. Sub-s (4) of s 11 provides: (4) Without limiting the generality of subsection (3) (a), 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: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind.
Section 24 deals with the revocation of licences. Sub-s (2) provides: (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."
Clause 19 of the Firearms Regulation 2006 (the Regulation) provides: 19 Revocation of licence - additional reasons(cf 1997 cl 17) The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Factual findings

The respondent tendered police fact sheets and criminal histories concerning the applicant's three sons, the contents of which were not contested. The applicant resides on a rural property. It was not contested that his son Jared resided less than one kilometre away, his son Timothy resided with his father, and his son Daniel resided on a property a short distance away on the same road as his father.
On 23 June 2016 Jared Lee Sheehan was convicted of a number of firearms offences. These included: 1. Not having approved storage for category A or B firearms; 2. Possessing or using a prohibited weapon without a permit; 3. Not keeping a prohibited firearm safely; 4. Possessing a shortened firearm without authority; and 5. Possessing an unregistered prohibited firearm.
On 30 August 2016 a firearms prohibition order and weapons prohibition order was issued by NSW Police to Mr Jared Sheehan. This had the effect that he may not acquire, possess or use a firearm (s 74 of the Act). No expiry date applies to this order.
Timothy Sheehan has been convicted of an incident where he had pointed a semi-automatic .22 calibre rifle at his brother Daniel and threatened to kill him, on 8 December 2007. He is under a firearms prohibition order with an expiry date in 2020.
Daniel Sheehan has been prohibited from possessing or using firearms until 2028.
Ms Lindy Marson, a Computerised Name Index Officer at the Firearms Registry, gave evidence that she had received a call from the applicant on 5 August 2016. Her notes of the call recorded that he was upset about the special condition which had been imposed on his licence, that prohibited him from storing or possessing firearms at any location where his son Jared Sheehan resided or frequented. Her notes of the call recorded that she advised him that he could send a request for internal review. She said the applicant asked what address they had on their records for his son and said that his son had not lived there for some years. She did not recall the applicant asking about whether he should transfer the storage of his firearms.
On 29 January 2017 police attended the applicant's property to undertake a firearms audit and inspect the storage of the firearms. No deficiencies in relation to storage were noted. However, Senior Constable Roger Taig gave evidence that he heard the applicant say during his visit: "Jared only comes here about once a week and he does not have access to the guns." He considered from his observations of the safe that it had not been opened for some time, as it had cobwebs on it.
The applicant said he had a genuine use for using the firearms but he was not using them while his son was at his house while on bail. He previously had a firearms licence but it expired. He underwent a shooting course in February 2016. He did not deny that his son Jared was likely to come to the house from time to time. He said that he was told by Ms Marson over the telephone that he was responsible for the storage of the guns until after the internal review and that after that he might have to store them somewhere else. He did not intend to breach the condition. He believed he had 14 days to either transfer them or apply for an internal review.
The applicant's and Ms Marson's evidence is in conflict concerning whether she told the applicant that he was required to store the guns pending the internal review outcome, or otherwise had 14 days in which to transfer them.

The issues before the Tribunal

The decision to revoke the licence was a reviewable decision (s 74(1) of the Act). Under s 63(1) and (2) of the Administrative Decisions Review Act 1997, the Tribunal may determine an application for an administrative review of an administratively reviewable decision, and is to decide what the correct and preferable decision is having regard to the material then before it. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the Commissioner of Police.
In determining what is the correct and preferable decision, it is necessary to determine whether any of the following grounds for revocation of the licence are established: 1. whether there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances (s 11(4)(a) of the Act; 2. whether the Tribunal should be satisfied that it is not in the public interest for the licensee to continue to hold the licence (cl 19 of the Regulation); 3. whether any condition of the licence has been contravened (s 24(2)(b)(iii) of the Act).
With regard to (1), there is no evidence that the applicant may not personally exercise continuous and responsible control over the firearms. To the contrary, there was evidence that the storage met the legislative requirements and that the applicant took care not to take the guns out when his son was present. As noted in LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41] and [43] the phrase "reasonable cause to believe": 41 …requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief… 43 In my opinion, the abovementioned principle …equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 11(4)(a) of the Act.
The respondent urged that I should infer from the fact that the applicant acquired his son's firearms and that he had not previously had a firearms licence, that the firearms would be available to his sons. Based on the evidence, I am not satisfied that the fact that his sons live at or have access to the property where the firearms were stored, is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over the firearms. The evidence indicated that he was careful about their security. In addition, there is now a condition on the licence that the firearms be stored elsewhere. The applicant said if the licence was restored, he would store the firearms elsewhere than on his property.
With regard to (2), the issue is whether it is not in the public interest for the licensee to continue to hold the licence.
As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] with regard to security licensing legislation, the "public interest" is: "…an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual."
That definition has been applied to firearms cases (Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16.)
In Constantin at [33] the Appeal Panel stated concerning the Act: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In relation to public safety, in Tolley v Commissioner of Police, NSW Police Force [2006] NSWADT 149 at [31] Fitzgerald JM stated: "Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for distinguishing between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence."
In considering whether it is not in the public interest for the applicant to hold a licence, considerations of public safety are clearly relevant. The fact that his sons are each prohibited from owning or using firearms for a period of time, and each has criminal convictions, is a public safety concern even if the firearms are not stored at his property. This is because they have shown a disregard for the law and for private property. In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal said: "Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
This is a high standard to meet and I cannot be satisfied in the circumstances that there is virtually no risk. Consequently I am satisfied that it is not in the public interest for the applicant to continue to hold the AB firearms licence.
With regard to (3), the respondent submits that there has been an ongoing and serious breach of the condition by continuing to store the guns at a location where Jared Sheehan regularly visited.
I am satisfied on the evidence that Jared Sheehan was visiting the property of the applicant approximately once a week at the time of the police inspection and that the guns were stored at the property during that period. I am satisfied that the condition that prohibited the applicant from storing or possessing firearms at any location where Jared Lee Sheehan, resides or frequents, was contravened.
While Mr Sheehan said that he believed he was not in breach of the condition while the internal review process was undertaken, even if Ms Marson had given him the wrong information, it would not change the fact that he was in breach of the condition. I have determined that, given the seriousness of the prohibition order affecting his son, that the discretion should not be exercised in his favour and the contravention of the condition would also justify revocation.

Decision

The decision of the Commissioner of Police to revoke the applicant's AB firearms licence 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: 25 July 2017

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cited By (3)