Stove v Commissioner of Police - [2022] NSWCATAD 246 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

Stove v Commissioner of Police

[2022] NSWCATAD 246

NCAT Administrative and Equal Opportunity|2022-07-15

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-07-15

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

REASONS FOR DECISION

The Applicant, Melissa Stove, has held a Category AB firearms licence for the genuine reason of recreational hunting/vermin control since 26 April 2017, which was to expire on 16 November 2022. On 2 March 2021 the Respondent decided to revoke the Applicant's firearms licence, on the basis that she no longer had a genuine reason in having a firearms licence and that it is not in the public interest for her to continue to hold a firearms licence.
That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

[2]

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 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 sales 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.

[8]

Genuine reason

Section 12 of the Act specifies that a person who hold a licence for the genuine reason of recreational hunting/vermin control, if not the owner or occupier of rural land, must produce proof of permission given by an owner or occupier of rural land to shoot on the rural land (or some government-issued authority).
On 10 May 2018 the Firearms Registry wrote to the Applicant at the Bombay address informing her that the permission to shoot at that address had been withdrawn. The letter stated that she could no longer be considered as having a genuine reason to hold a firearms licence, and that her licence would be cancelled if she did not provide a response within 28 days. The Applicant said, she never received the letter. The Applicant said that after she left the Bombay address, she would drive by and check the mailbox which was on the road. Later, she arranged a re-direction.
The Applicant was critical of the Firearms Registry for not having contacted her at her current address in regards to the genuine reason issue. She said she could have provided all the information that they requested, instead only one letter was ever sent asking for the information, and she had not received it. Before me, the Applicant said she had done nothing wrong and had assumed the authorisation would continue notwithstanding she had left the Bombay address. Her evidence was that she had never shot at the Bombay address after she had moved from the property.
In failing to notify the Firearms Registry of her move, her genuine reason, supported by Mr Royds, had lapsed. She did, as discussed above, notify the Firearms Registry on 19 June 2018 of the change of address, albeit 3 months late.
After the Applicant had moved to her current address, she is likely then to have had a genuine reason as the owner/occupier of rural property.
The Applicant has demonstrated a lack of understanding of the obligations imposed upon her as a firearms licence holder. When she moved in 2018, she failed to notify the Firearms Registry of her change of residential address, the change of place of safe storage of her firearms and also the change in circumstances of the basis of her genuine reason for having a firearm. She was clearly in breach of cl 15(1) of the Regulation.

[9]

Public interest

The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. The term is not expressly defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects 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 deciding whether to exercise a discretion adversely to an individual.
The Tribunal is required to look at the Applicant's conduct, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the 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: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Respondent also relied on the Applicant's history of domestic unrest, particularly in consideration of the public interest.
In March 2004 a neighbour of the Applicant contacted Police to report "a lot of screaming and crying" coming from the Applicant's Queanbeyan home, where, at that time, she resided with her de facto Paul Smith (Smith). Police attended but took no further action. In March 2005 the Applicant called Police after an argument with Smith over money. Police attended and spoke to the parties. No further action was taken. I have placed little weight on these incidents because these matters are now 18 and 17 years ago, respectively. More significantly, these matters were known to Police at the time the Applicant was issued with her firearms licence in 2017 and no concern was raised at that time.

[11]

22 January 2021

According to the COPS Event, the Applicant received a phone call from Smith during the afternoon of Friday 22 January 2021. She said he sounded angry. In her evidence she said that during the afternoon she received several calls from Smith who was in Braidwood. Smith's father had passed away about 12 months beforehand and Smith was still very emotional about his father's death. Smith told her he was angry following a conversation that he had with his mother's new boyfriend. The Applicant said she tried to calm him down over the phone, without success. The Applicant decided to go into Braidwood and see if she could persuade Smith to come back to her home and spend some time with her and the children.
The Applicant said in her evidence that, when Smith had phoned she had been mowing the lawn and tidying the yard with the children. It was a hot day and she had refreshed herself with alcoholic beverages, but she could not recall how many she consumed; she conceded she had already consumed alcohol before leaving her home to travel to Braidwood. Although she had been drinking, she said she did not feel intoxicated. She took the three children with her in the car and dropped them off at a friend's place before continuing to a hotel in Braidwood where she met up with Smith and other members of his family. The Applicant told Police she consumed several more beers and two 'shots' at the hotel, although before me, said it was only two beers and one shot of Sambuca.
The group were outside on the footpath drinking and smoking when the publican came out and confronted them. Smith took offence at this and yelled at the publican. The Applicant tried to get Smith to leave, but he continued to yell. The publican then called the Police due to Smith's aggressive behaviour, but Police were delayed in arriving at the hotel, by which time the Applicant and Smith had left. As Police were talking to the publican, the Applicant drove past the hotel. The Applicant's three young children were also in the car. A member of the hotel bar staff pointed at the vehicle and informed Police that the Applicant was involved in a domestic violence incident and that she was well intoxicated due to the amount of alcohol she had been observed to have consumed.
Police followed the Applicant and pulled her over. The Applicant told Police that she had been drinking from 12 pm until 6 pm and had not eaten much. A breath test registered 0.246, which is five times the legal limit. A breathalyser test subsequently performed at Braidwood Police Station returned a reading of 0.211. Police described the Applicant as "well affected"; her speech was "slurred'; her balance was "unsteady"; her movements were "clumsy". The Applicant's evidence was that she "didn't feel drunk". Police later seized the Applicant's five firearms.
The Applicant was charged with drive with High Range PCA. She was convicted, with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. She was disqualified from driving for six months and ordered to undertake an alcohol interlock program for 24 months.
Police had concerns for the welfare of the children in circumstances where they were being conveyed in a car whilst the Applicant had a high range PCA. When it was suggested to her in cross examination that she had been happy to drive the children notwithstanding that she had consumed a significant amount of alcohol, she said that she was trying prevent the children's father from doing something stupid.
The Applicant said that she drinks little because, as she has only one kidney, she is not able to metabolise alcohol well. Consequently, she will only have a couple of glasses of alcohol on the weekend if she has friends over. In January 2021, the Applicant clearly did not engage in this level of restraint.
Police attended the Applicant's current address on 28 January 2021 investigating the welfare of her children and compliance with the ADVO. Smith was spoken to there and informed Police that he was again residing with the Applicant a few days a week to help out following the suspension of her driver's licence. He also stated that they had "rekindled" their relationship and they were talking formally about getting back together again as a couple. Before me though, the Applicant said there was never any likelihood that they would resume their relationship. The Applicant said Smith lives now in Queanbeyan - an hour and 20 minutes away. He comes to visit the children most weekends, or she takes them to him; they only see each other for the sake of the children.

[12]

Applicant's mental health

In the original decision and in the internal review concerns were expressed about the Applicant's mental health. The Applicant denied that she had any mental health issues and was perplexed as to where that information had come from. She said she had never suffered from any mental health issues; she offered to undertake a test to demonstrate that she does not suffer from any mental health issues.
In her evidence the Applicant said she had not been "properly assessed" by DOCS; she said there had been two sessions conducted by welfare workers as a result of her high range PCA and she had been "given the all clear". She assumed that was the source of the report of mental health issues. While there was reference to the checks, details of the review were not available to me. The Applicant however was unable to explain why arresting Police on 22 January 2021 had recorded that she suffered from depression and anxiety.
The Applicant's emplpyer, Mr Mills wrote that there was "no evidence of health issues". Clearly, Mr Mills is not a medical practitioner so that aspect of his reference can be given no weight. The Applicant relied on the report dated 2 June 2022 of her GP, Dr Puri, who she has been consulting for over 4 years. The doctor specifically recorded that "to the best of [his] knowledge and recent assessment of [the Applicant] she has no underlying depression or anxiety symptoms". Although the report is not particularly detailed, I accept, in the absence of evidence to the contrary, and the Applicant's strong denial, that the Applicant does not suffer from any depression or anxiety symptoms.
Dr Puri's report also recorded that the Applicant had told the doctor about her smoking habit, which was noted by the doctor, but, in respect of alcohol he had noted "none recorded". She said she had told him about the PCA and could not explain why he had had made no reference to alcohol when she had clearly brought the PCA to his attention and had showed him the Internal Review. To the extent that the Applicant may rely on the report as evidence that she does not have a problem with excess alcohol consumption, I reject the proposition that the report says she has no alcohol problem.
The Applicant wrote that she believes that she is a very responsible person when it comes to firearms; they are always locked in the safe and she keeps the safe keys on her at all times.
The Applicant said that she had worked for Mr Mills since January 2022. Mr Mills wrote of her being hardworking, honest and reliable. Mr and Mrs Morriss have known the Applicant for 7 years. They wrote of her going "above and beyond" to help people, and she had helped them in a time of (unspecified) stress. They wrote that she has "sensible reactions in all the circumstances they had seen her in". She was described as a "wonderfully devoted mother".
I consider little weight can be attached to the references because it is unclear whether the referees were aware of the Applicant's serious driving offence and whether, despite that offence they still believe her to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53]. Clearly, Mr and Mrs Morriss' view was that she was supportive of those in need; this would be consistent with the Applicant attempting to stop Smith doing something "stupid" when he telephoned her in an agitated state on 21 January 2021. I have difficulty though reconciling their view that the Applicant had "sensible reactions" when, clearly her decision to drive the car with the children aboard was far from sensible, and was made worse by her decision to drink more alcohol and again drive them; those were hardly the actions of a "wonderfully devoted mother".
The "public interest" factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. 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, 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 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] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicant said that she requires a firearms licence because she is on the land and undertakes vermin control. She had lost chooks to foxes. A pet dog was bitten by a snake and the children had to see their pet suffer, as it takes about 25 minutes to reach the vet in town, and, in any event, the incident occurred out of hours. She said in her evidence that there are also feral pigs which destroy the land. The property is large but there are no stock as the fences need to be repaired; she also does not grow crops. She said that, when she had her licence she had shot more than 25 foxes on the property. She did not know how many pigs she had shot. She had shot no snakes as she and the children just "keep away from them" and there were none around the house.
The Applicant wrote in her statement that she wishes for nothing more than to be able to go and do recreational hunting as that is something that she really loves to do on weekends with her children, who, from the information contained in the various COPS Events, the children are presently aged approximately 10, 8 and 6. I cannot attach much weight to an interest in shooting which involves young children. I observe that the Applicant said she now has a caravan to which she takes the children some weekends.
I accept that, there is some public interest in law-abiding farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66]. The Applicant, however, cannot be regarded as a farmer and grazier. She appears to run the farm for the enjoyment of the rural lifestyle.
Private interests such as those of the Applicant however, are not the only matters 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. As I have observed many times, these matters 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].
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
The Applicant has had a long relationship with Smith which, at times, has been volatile. He did not cope well with the passing of his father and this appears to have precipitated an increase in his aggression towards the Applicant. His behaviour at the Braidwood hotel in January 2021 involved the consumption of a large amount of alcohol and Police were called to deal with the disturbance he and his associates were causing. While the Applicant's evidence is that there is no prospect of their relationship recommencing, they continue to see each other, at least fortnightly, it would appear, with the children. The AVO against Smith for the protection of the Applicant and their children has only fairly recently expired. I consider that there has not been a sufficient elapsing of time since the last altercation between the Applicant and Smith and I cannot be confident such friction may not re-occur.
It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. The evidence was that the Applicant had consumed alcohol before she took her three young children into Braidwood on 21 January 2021. She continued drinking at the hotel and again placed the safety of the children at risk when driving home even more affected by alcohol. Other users of the road were placed at risk by the Applicant driving whilst intoxicated. The Respondent submitted that the actual level of alcohol consumption may suggest the Applicant has an alcohol problem. Certainly, the Applicant, even with her knowledge of her inability to metabolise alcohol, disregarded her own health. Even before attending the hotel in an effort to calm Smith, she had, while engaging in yard work, refreshed herself with alcohol. She claimed not to have felt drunk when apprehended by Police, but the description by the arresting officers suggests she lacked the ability to assess her own capabilities. Moreover, she was prepared to jeopardise the safety of others and she demonstrated a disregard for road safety laws. It is now only about 18 months since the Applicant engaged in this serious misconduct. This, in my view, establishes a real and appreciable risk to public safety.
Based on the circumstances discussed above in relation to the Applicant's failure to comply with aspects of the regulatory scheme, her disregard for another licensing regime and public safety, including the safety of her children, and her ongoing relationship with Smith, I cannot be confident that the Applicant would continue to possess and use firearms only in accordance with the strict legislative requirements. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I cannot be so satisfied at this time.
I therefore find that it would be contrary to the public interest for the Applicant to hold a firearms licence at this time. This does not, of course, preclude her from making another application.