Toube v Commissioner of Police, NSW Police Force [2025] NSWCATAD 286;

(1) the pellets he used to test the gel blasters, were not to his knowledge paintball pellets but gel pellets as the needed to be hydrated to be used; and

(2) most paintball pellets are much larger than that of a gel pellet and would not fit in the gel blasters he tested; and

(3) the firearms he tested did fire gel ball pellets.

1. It is also the evidence of Mr Schey that the firearms examined by Mr Grosmaitre could not be paintball markers as they:

(1) do not have the distinct features of the appearance of a paintball marker;

(2) do not have the distinct operating features of a paintball marker; and

(3) cannot be a paintball marker as they would be unable to fire a paintball.

1. In contrast to these proceedings, the Applicant did not claim in the course of his criminal proceedings that the items were imitation children's toys.

1. The applicants evidence stated that he purchased imitation toy firearms in 2021 from the SSAA Shot Expo which he attended on 20 June 2021 with his brother. Because police were in attendance at the Expo, he did not think that there was any issue with "imitation toy firearms" being purchased or possessed. He claims to have had complete regard for his firearms licence and had no intention to contravene any laws or the conditions of his firearms licence.
2. Shortly after purchasing the toy firearm at the Expo, he claims to have purchased a further 4 "toy" firearms from an Australian online retailer based in Queensland, the details of which he could not recall.
3. On 19 September 2021 he was charged with firearms offences by the NSW Police. The Applicant was initially convicted of the criminal charges but ultimately was successful on appeal in the District Court on 22 August 2023. In his Statement he claimed this was because the court was not satisfied beyond a reasonable doubt that the imitation toy firearms were prohibited firearms.
4. The Applicant claimed that he never had any intention to contravene firearms laws or any other laws. When he did hold a valid firearms licence, he primarily used the firearms for hunting and to maintain the upkeep of his in-laws' farmland property, which consists of 117 acres in the rural area of Gunning NSW. He would attend the rural property on a near weekly basis, to hunt and to assist with clearing wild and dangerous animals.
5. Under cross examination the applicant had difficulty agreeing that the items for which he was charged were, in fact, gel blasters. He maintained that the items were toys and claimed to have "bought these toys for my kids". The Applicant was unaware, when it was put to him, that the SSAA Shot Show he claimed to have purchased the first "toy" firearm at, was cancelled in 2020 because of COVID and that there had been no further SSAA Shot expos until 2024. When this was pointed out to him, further questions in relation to the Shot Show were answered with the response that he "didn't recall".
6. The Applicant was unwilling to accept that the items were prohibited firearms, claiming "why could I buy them from the Shot Show if they were illegal? They shouldn't be at the Shot Show". He eventually agreed that he knew at the time of their purchase that the items were gel blasters, that they could fire hydrated pellets, and he accepted that they were not authorised under the firearms legislation. He claimed, however, that they couldn't hurt anyone, and that "paintball would hurt people more", and would not accept that they could cause any more damage than "throwing a ball".
7. Under re-examination the applicant accepted that it was illegal to possess the items. When asked why, he said "because of what I've gone through and what I've looked into. They are illegal in NSW, not elsewhere."

1. At hearing the Applicant submitted that in issue was whether the Tribunal accepted the Applicant acted honestly but mistakenly in believing the items in issue were prohibited and unregistered firearms. The Applicant had not appreciated that a gel blaster was illegal, and was almost certainly not going to repeat possession of such items. He had learned from the honest mistake, was well regarded in the community, and a good man of good character. The public interest was better served by allowing the Applicant to possess and carry firearms.
2. There is no room for an honest but mistaken belief in the context of firearms possession. Such beliefs may determine whether or not criminal prosecutions can be made out, but the Act has strict requirements and obligations. Those individuals who want to avail themselves of the privilege of firearm possession and use must not only comply with those requirements, but have a full understanding and comprehension of their obligations under the Act.
3. The Applicant made admissions at the hearing that there were, in fact, breaches of the Act by him. In the criminal proceedings and in these proceedings prior to the hearing, he had maintained the opposite. These breaches were serious, as demonstrated by the penalties outlined in the Act of up to 14 years imprisonment for ss 7(1) and 36(1), and up to 2 years' imprisonment for s 39(1)(a).
4. In these proceedings he had introduced evidence of purchasing the first firearm at the Shot Show in 2021 as proof that they could not be illegal, because they had been on sale there when Police were present. This evidence was maintained in his cross examination, even after being informed that this was not possible. The objective evidence demonstrates that this is entirely false as there was no such expo in 2020, 2021, or any year until 2024.
5. The Applicant also introduced evidence in these proceedings, which was not raised in the criminal proceedings and was not supported by the Police bodyworn footage, that the prohibited firearms were just "novelty" items, referring to them as "toys" and "imitation toy firearms" that he "bought for my kids" in an attempt to diminish the seriousness of his conduct. They were located in or near his children's playroom, and it is clear from that evidence that he did not take seriously the threat such items can cause to public safety.
6. Even if I were to accept the Applicant's evidence that the he believed the items were just "imitation toy firearms", this would result in a contravention of s 4D(2) of the Act, which provides that an imitation of a pistol or prohibited firearm is taken to be a pistol or prohibited firearm, and to possess an imitation firearm, a person must hold a permit for possession of the firearm. The Applicant had no such permit.
7. In the bodyworn footage the Applicant clearly identified and accepted the items as gel blasters. In his District Court appeal, he argued that they were paintball guns. Paintball guns require a permit as well, pursuant to ss 6 and 7 of the Paintball Act 2018. The Applicant had no such permit, either.
8. The difference between paintball guns and gel blasters is significant because it is that issue which determined the Applicant's criminal proceedings in his favour. In his Statement in these proceedings, the Applicant said:

The appeal was upheld on the basis that the court was not satisfied beyond a reasonable doubt that the imitation toy firearms subject of the charges brought by NSW Police, were prohibited firearms.

1. That is an inaccurate statement. The Applicant did not argue in the District Court that the firearms were imitation children's toys. What was argued, was that the firearms were paintball guns (not gel blasters, or imitations, or toys), and the Court:

...was not satisfied beyond reasonable doubt that the pellet that the expert used to test the firearms in question, in the absence of more detailed evidence from him about this issue, was not a paintball.

1. That is the reason that the Applicant's appeal in the District Court was upheld. In these proceedings, the Tribunal was provided with that "more detailed evidence" which was missing from the District Court proceedings, and the expert's evidence was not challenged. His evidence was that he had tested a gel pellet, not a paintball pellet.
2. Additionally, these proceedings require an assessment of the Applicant's conduct to the civil standard of proof, which based on the balance of probabilities. In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20] the Tribunal said (our emphasis):

It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion.

1. The Applicant's contraventions of the Act, now admitted, are serious. Even if they had not been admitted by the Applicant, I would find on the evidence before me from the bodyworn footage and the expert evidence that they are made out. On the evidence before the Tribunal, the Applicant has contravened the Act by possessing a prohibited firearm (the M4 style gel blaster), possessing an unregistered firearm and unregistered pistols, and failing to store those firearms safely.
2. I agree with the Respondent's submission that the Applicant has no proper insight or awareness into the seriousness of his conduct, although it appears he is now aware that the possession of such items is illegal in New South Wales. Whilst he agreed that the items were firearms, and said "I made a mistake", he then reverted to defensive arguments of "why could I buy them". When confronted with the concept that the items could hurt people or cause damage, because they were able to fire hydrated pellets, he reverted to a defensive argument that "paintball hurts more" and "so could throwing a ball".
3. Whether the Applicant is a good man, a charitable neighbour, a helpful volunteer in the community, an excellent husband and father, and a respected and qualified telecommunications engineer - as referred to in his character references and qualifications, provided to the Tribunal - is irrelevant to these proceedings. The Respondent has not made its decision or submitted to this Tribunal that the Applicant is not a fit and proper person to hold a licence, so I will not consider or determine that question. The only issue is whether, pursuant to s 11(7) of the Act, it is in the public interest for the Applicant to hold a firearms licence.
4. The Applicant's conduct in obtaining and possessing unregistered and prohibited firearms put public safety at risk. The gel blaster he was seen holding on a public street looked like an M4 military assault rifle. There is an obvious risk to public safety where firearms or items which look like real firearms are exposed in public.
5. The other unregistered firearm and pistols obtained by the Police when they conducted a search of the Applicant's residence also posed a risk to public safety. They were located in the Applicant's children's playroom. If, as the Applicant claims, they were viewed as "toys" by the Applicant and his children, there is a very real risk that those children could have taken those firearms out in public and put public safety - and their own safety - even further at risk. The normalisation of the Applicant's children to firearms exposure is also concerning in circumstances where the appropriate registrations were not sought or obtained and there was no attempt at safe storage.
6. As a person with a Category AB firearms licence in 2021, the Applicant was obligated to not only comply with the requirements of the Act and its regulations, but be aware of and understand those requirements. He failed in both respects. His conduct gives serious concerns to the Tribunal of his suitability to hold a firearm's licence and future compliance with the strict requirements of the Act. His lack of insight into the seriousness of his conduct and his defence of it at hearing demonstrates those concerns must be ongoing.
7. In Jameson v Commissioner of Police, New South Police Force [2019] NSWCATAD 25, the Tribunal said at [40]:

The "public interest" is been held to require that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30.

1. In Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211, at [20] the Tribunal said:

Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

1. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24] to [25] (emphasis added):

The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d).

In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.

The Applicant has proven that not only is he unable to abide by the strict licencing requirements mandated by the Act, he is also incapable of informing himself, comprehending and understanding the requirements.

These contraventions, the Applicant's ignorance to his obligations under the Act and his attempted circumvention of liability, evidences that it is not in the public interest to grant the Applicant a firearms licence.

1. I agree. For the reasons I have discussed above, the evidence demonstrates that it is not in the public interest that the Applicant hold a firearms licence.
2. The correct and preferable decision is to affirm the Respondent's decision.

(1) The Respondent's reviewable decision 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.