Tolley v Commissioner of Police, NSW Police [2004] NSWCCA 165 | Case summary

REASONS FOR DECISION Background 1 On 28 September 2005, Mr Tolley was notified that a condition had been placed on his Category ABH Firearms Licence No.405597888 pursuant to section 19(1) of the Firearms Act 1996. The condition imposed was "firearms are not to be stored or possessed at your residential address". On 1 February 2006, Mr Tolley applied to the Tribunal for review. This was after the decision had been affirmed following internal review on 16 January 2006. 2 A number of firearms are registered to Mr Tolley. Mr Tolley has stated that his need for firearms was for target shooting at authorised clubs and for vermin control at a property that was not his residential address. As a result of the condition being imposed, Mr Tolley has moved his firearms to the residence of the president of his pistol club who holds the required storage certificate. 3 The basis for the condition being imposed was stated to be concerns held regarding Mr Tolley's domestic circumstances especially in relation to his son Stuart Tolley. There was no suggestion that the condition resulted from the conduct of Mr Tolley, the Applicant. The Commissioner's representative confirmed this at hearing. 4 The New South Wales Police Service "Criminal History - Bail Report" record of Stuart William Tolley and Police Facts Sheet for his current charges were in evidence. A report of Detective Senior Constable O'Neill of 26 September 2005 was also in evidence. Detective Senior Constable O'Neill adopted that report and gave some additional short oral evidence at the hearing. The Commissioner's representative also drew the Tribunal's attention to R v Tolley [2004] NSWCCA 165 and the findings of fact contained within it. 5 In summary, Stuart Tolley has been convicted and is again charged with serious drug offences, including commercial supply. He is in custody awaiting sentence. It is apparent from the Police Facts Sheet relevant to these recent offences that the police had undertaken significant investigation in relation to Stuart Tolley and his associates and that these offences had occurred while he was on parole for other offences. 6 It has been found previously and is again alleged that Stuart Tolley's drug offences were conducted from the premises of the Applicant (see paragraph 12 of R v Tolley [2004] NSWCCA 165). 7 Although the current charges against Stuart Tolley do not relate to firearm use, a search warrant executed at the premises of his alleged co-accused found a number of prohibited and unregistered firearms. In relation to previous offences of Stuart Tolley, police searches found 2 rifles and a locked metal safe at the back of the shed on the premises (see paragraph 8 of R v Tolley [2004] NSWCCA 165). 8 Stuart Tolley's criminal history is not limited to these matters. He has also been charged with driving and other offences. 9 Mr Tolley did not dispute any of the above. Mr Tolley stated and the Commissioner accepted that Mr Tolley had no knowledge of his son's activities. Respondent's Case 10 The primary argument of the Commissioner was that the safety of the public as well as that of Mr Tolley was jeopardised by him continuing to hold firearms in circumstances where Stuart Tolley or associates of Stuart Tolley knew that there may be firearms at the premises. 11 The Commissioner relied on the seriousness of Stuart Tolley's criminal history as well as the fact that the offences were drug related and that he had previously come to police attention regarding possession of an unregistered firearm. Mr Pisani representing the Commissioner stated that drug supply attracted a certain type of people in whose presence firearms were dangerous. 12 The Commissioner acknowledged that Mr Tolley always kept his firearms locked with the only keys on his person but considered that fact only served to increase the danger to him. The Commissioner also did not consider that there was any basis for assuming that Mr Tolley's son would not return to live with him once released from custody and raised the possibility that, in the interim, Stuart Tolley may seek to be released on bail. 13 The Commissioner pointed to the underlying principles of the Act to improve public safety by imposing strict controls on the possession and use of firearms. In arguing that public safety must be regarded as of paramount importance, the Commissioner relied on Aubrey v The Commissioner of Police, New South Wales Police [2005] NSWADT 266 at paragraph 22: "… in the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if (a person) were given access to a firearm." 14 Vella v Commissioner of Police , New South Wales Police Service [2003] NSWADT 91 at paragraph 35 was also relied on in this regard. 15 Mr Pisani directed the Tribunal to Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph 22 where the Tribunal stated that "…a decision maker should not shy from an exercise of [their] discretion merely on the grounds that the licensee may suffer hardship and or inconvenience". This was in the context of a revocation of licence. Applicant's case 16 Mr Tolley's position is that he should not be punished for his son's crimes. He further argued that his son cannot access his firearms as his son is (and is likely to be for some time) an inmate of a correctional facility. Mr Tolley did not think it likely that his son would return to his home once released and noted that at no time when residing at Mr Tolley's home did Stuart Tolley as a matter of fact have access to the firearms. He also stated that his son had no intention of applying for bail. 17 Mr Tolley noted that his son had not yet been convicted of the offences alleged and that the people who visited his son had always been courteous to Mr Tolley and his wife. In any event Mr Tolley said that his son had never been convicted of a crime of violence, would not hurt himself or others and would never steal Mr Tolley's firearms nor assault him to get the keys. 18 Mr Tolley argued that he was no more likely than any other member of his pistol club (due to publication of winners of competitions) to be the subject of a theft or home invasion to gain access to his firearms. He noted that his son has been in custody since September 2005 and that he has not been robbed. Mr Tolley stated that he has video surveillance of his property and vigilant neighbours. 19 It was Mr Tolley's position, accepted by the Commissioner, that he always acted responsibly particular regarding the safe keeping of his firearms and that he did not let anyone have access to them. He further put that his firearms were always located in approved storage for which there was one set of keys which he always kept on his person. When tested Mr Tolley had been found to be compliant with the Firearms legislation requirements. Mr Tolley would distinguish Aubrey from his own case on the basis that he had not threatened anyone, acted aggressively or threatened to harm himself. 20 Mr Tolley also pointed to the fact that he was a serious competitive pistol shooter and that the special condition caused hardship to him as he was likely to lose his competitive standard. He stated that he was not able to properly practice as he would normally do as a result of which his competition scores have dropped. He also stated that he had missed several important competitions because he was reluctant to request the person holding his firearms to get out of bed at 5am or earlier (so he could pick them up to travel to competitions) and that at times was not able to retrieve his guns because of that person being on holidays. 21 Mr Tolley offered to accept a condition that he keep confidential the fact that he had his guns back. This was rejected by the Commissioner's representative as inadequate to address their safety concerns. 22 Although not evident on the papers Mr Tolley raised a concern that the condition imposed had been later changed to "firearms are not to be stored at or possessed at your residential address or any premises where Stuart Tolley is residing or has access". Mr Pisani acknowledged that this was broader than necessary in referring to premises to which Stuart Tolley has access. This decision proceeds on the basis that the condition in place is that set out earlier and is limited in effect to Mr Tolley. Relevant Law 23 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferable one, see section 63 Administrative Decisions Tribunal Act 1997. 24 The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct (section 63(1) of the Administrative Decisions Tribunal Act 1997; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357.) The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 25 Section 19(1) of the Firearms Act 1996 provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. 26 The discretion given to the Commissioner to impose conditions is very broad and there is no indication within the Firearms Act as to how it is to be exercised. See Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph 23: "There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act" 27 The Firearms Act 1996 sets up a comprehensive scheme for licensing persons in New South Wales to possess and use firearms. The principles and objects of that Act are set out in section 3. Relevantly they are to confirm that firearm possession and use is a privilege conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms. 28 This was acknowledged in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at 27: "One of the objects of the Act, as set out in s 3, is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." 29 This principle has again recently been confirmed as fundamental to the Firearms Act 1996 in Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 at paragraph 20. 30 At paragraph 28 of Ward the Tribunal continued: "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk." 31 Although in that case the consideration for the Tribunal was whether the Applicant themselves would pose any risk to public safety if access to firearms were granted, similar considerations apply in the present case. Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. 32 Public safety is not defined in the Firearms Act 1996. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licencing in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph 25 it stated that the public interest is: "... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. 33 These comments have been held to apply equally to the firearms legislation (see Ward at para 33). 34 See also Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 131 ALR 657 at 681: "The purpose of the reference to public interest is to ensure that private interests are not 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". 35 Public safety is similarly broad and involves similar considerations. Decision 36 The correct and preferable decision is that the decision of the Commissioner's delegate be affirmed and Mr Tolley's Category ABH Firearms Licence No.405597888 be subject to the condition that "firearms are not to be stored or possessed at your residential address". 37 Although it is clear that Mr Tolley has himself committed no conduct or omission that would jeopardise public safety and that he may also be inconvenienced by the imposition of the condition, the need for him to retain his firearms licence without condition is subordinate to the need to ensure public safety. 38 It cannot be said that there is virtually no risk to public safety if Mr Tolley keeps the firearms at his premises. Determining hypothetical questions such as whether Stuart Tolley will return to reside with his parents and whether Mr Tolley is at greater risk of theft or home invasion is unnecessary to reach this decision. There is a risk to public safety by the existence of the firearms on premises where Stuart Tolley and his associates may be aware firearms are present. 39 I note that these considerations are in the context of the imposition of a condition on a licence rather than revocation and that Mr Tolley still has access to his firearms. 40 It may be that once it is clear what the position is with regard to Stuart Tolley that Mr Tolley would seek to have the condition lifted but it is not appropriate at the current time. Order 41 The decision of the Commissioner's delegate be affirmed and Mr Tolley's Category ABH Firearms Licence No. 405597888 be subject to the condition that "firearms are not to be stored or possessed at your residential address". 42 Parties to approach the Tribunal if the condition currently in place is other than as set out in order 1.

Tolley v Commissioner of Police, NSW Police

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