As well as the AVOs, the Respondent also asks the Tribunal to take into account the Applicant's other criminal history.
The first incident the Respondent relies upon is that on 17 January 2003, the Parramatta Local Court found the Applicant guilty of using an unregistered vehicle and sentenced him to a 12 month bond and found the Applicant guilty of using an uninsured vehicle and fined him $439. In his submissions in support of his internal review application the Applicant has explained that the relevant vehicle was a company vehicle and that he had been unaware of its insurance and registration status. This explanation was not challenged under cross-examination.
The second involves a "road rage" incident in August 2006, where the Applicant was involved in an incident with a bicycle rider and, according to the COPS Event report of the incident, the Applicant subsequently admitted to police that he punched the victim but was not charged as the victim did not wish to proceed with charges.
In cross-examination the Applicant was taken to the COPS Event report of the incident in the s 58 documents which states:
The POI, Nicholas UMBACA, contacted police about 15.30 on Wednesday 23/08/2006 via phone. UMBACA stated he had been driving the VOI on Friday 18th of August 2006 and was involved in the incident. UMBACA admitted of having an argument with a push bike rider on Hope Street and punching him once.
When asked if he did admit to the police having an argument with the rider and punching him, the Applicant responded that he "must have" but does not now remember clearly.
In relation to this incident, page one of the Applicant's submissions reads:
The second incident dated back in 2006, it states that I was involved in a road rage incident which I assaulted a bike rider. I informed police of my side of the story and at no stage did I assault him.
The Applicant denied that that was a knowingly false statement, at first saying that he did not recall punching the rider. When it was put to him that he in fact did punch the rider and admitted that to the police he said: "I don't remember what happened in 2006" and that this statement was not deliberately false.
The Applicant's evidence in this regard was inconsistent. On the one hand, he said that he did not recall punching the rider, on the other, he said that he could not remember what happened more generally. If the Applicant could not remember what happened, then it is inappropriate to positively assert to the Tribunal that he did not punch the rider and I do not accept that assertion. I note that the COPS Event record of the incident notes that the Applicant was given a warning about the incident and that he apologised.
The third incident is an alleged incident in 2008. The Respondent relies on a COP Events report which details allegations made by the alleged victim that the Applicant was involved in an altercation at his workplace at Flemington Markets in which he allegedly slapped a colleague to the face, however that report notes that the victim refused to provide the police with a statement and did not want any police action taken. In his submissions in support of his internal review application the Applicant explains that he was defending himself at the time of this incident and the Respondent did not challenge this under cross-examination.
The fourth incident relied upon is that on 26 February 2011, a vehicle driven by the Applicant was stopped by police after reports that the vehicle had been drag racing. A passenger in the vehicle, Nathan Umbaca (the Applicant's brother), was found to be in the possession of a red spray bottle containing Oleoresin Capsicum spray, a prohibited item under the Weapons Prohibition Act 1988 (NSW), and was cautioned and arrested.
The Respondent also contends that:
1. On 9 March 2014, the Applicant was involved in another altercation at Flemington Markets in which he verbally abused a man, Steven Hawthorn, and threated him by saying "I am going to smash you". The Applicant was physically restrained from hitting Mr Hawthorn by another man who intervened. The Applicant returned to his truck and said loudly "Wait till he sees what happens next".
2. On 12 March 2014, the Applicant had another altercation with Mr Hawthorn at Flemington Markets. The Applicant raised his left fist and struck out at Mr Hawthorn, making impact with a Styrofoam box behind his head, and then subsequently punched Mr Hawthorn in the face around his nose area. The Applicant and the man then wrestled for a period during which the Applicant struck the man several times to his face. Mr Hawthorn suffered a cut to the right side of his cheek and cut to below his nose, as well as intense pain to his left ribs. The Applicant was subsequently charged with assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900 (NSW) and common assault contrary to section 61 of the Crimes Act 1900 (NSW).
3. On 27 August 2015, the Burwood Local Court found the Applicant guilty of common assault in relation to the incident on 12 March 2014 and the Applicant was sentenced to a 2 year bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
In his submissions in support of his internal review application the Applicant said in respect of this incident:
The fifth incident dated in March 2014 …However, the victim pulled a knife out on me and that's why I assaulted him. Looking back at this event now I should've walked away and didn't have to assault the man. I was remorseful of my actions and at the time I wasn't thinking right because my wife at the time was diagnosed with terminal cancer and only given three months to live.
The Applicant pleaded guilty to the charge of common assault in respect of this incident. He was taken to a Facts Sheet at page 17 of the s58 documents prepared by NSW Police for the proceedings against him relating to that charge. That Facts Sheet details what the Police allege to have occurred on the days leading up to and the day of the incident in question. In particular, the Facts Sheet alleges that the Applicant punched the alleged victim at least five times prior to the victim pulling a knife on the Applicant.
The Respondent's solicitor put to the Applicant that his submissions in this regard were, accordingly, knowingly false. The Applicant's evidence was that he did not accept the Facts Sheet as an accurate statement of the events which occurred. He said that as his wife had been diagnosed with terminal cancer, instead of fighting the charges, the Applicant pleaded guilty to the charge of common assault because he was in a state of emotional distress and just wanted to get out of court. He denies that he assaulted the alleged victim before the victim pulled a knife on him and therefore stands by the statement in his submissions in support of his application for internal review at page 2 to the same effect.
There is some inconsistency between the Applicant's evidence in this regard and his submissions. In his submissions he states that at the time of the incident he "wasn't thinking right because my wife was diagnosed with terminal cancer and only given three months to live" whereas in his evidence I understood the Applicant to be saying that this happened around the time of the relevant court proceedings. Elsewhere in his submissions the Applicant states that his wife passed away in 2015. I accept that the Applicant was distressed both at the time of the incident and at the time of the court proceedings by reason of his wife's serious illness. It is nevertheless the case that he pleaded guilty to the serious offence of common assault and the Tribunal cannot go behind the finding of guilt based on the Local Court outcome.
[2]
The Applicant's evidence
The Applicant acknowledges that he has had a number of interactions with the police but points to the fact that he has had no interactions with police since the incident in March 2014. He says that since that time he has been of good behaviour. He started going to Church in August 2014 and has since turned his life around. He has become a leader in his Church and serves in multiple areas of the Church in a voluntary capacity including street ministry where he seeks to assist, in particular, lost youth by mentoring them and giving them direction in life to help them overcome problems such as drug addiction. At the time of his submissions in support of his internal review application, the Applicant had also signed up to do voluntary work in gaols, ministering to inmates. He has also recently co-founded a community outreach program within the Parramatta and Merrylands areas. He says that, in addition to wanting a firearms licence for hunting, he used his licence "as part of my ministry to take young men away on camps with me and to minister to them" although he did not expand upon that. He says he is a different person to the person he was prior to August 2014. He believes that in deciding to revoke his licence, he was not fairly judged as being a fit and proper person as he was judged according to who he was prior to August 2014 and not who he is today. He is a husband and father of three boys with another child expected and his life revolves around God, his family and his Church. He says that he lives by the word of God.
The Applicant also says that he has always abided by the laws surrounding being a firearms holder and safety requirements. He says he is familiar with the safety code and the Firearms Act and Firearms Regulation, his responsibilities under the Game and Feral Animal Control Act 2002 (NSW) and the requirements of the Prevention of Cruelty to Animals Act 1979 (NSW).
The Applicant says that he has been in steady employment as a sole trader and has owned his own business for the past two and a half years and is held in high regard by his clients and suppliers.
The Applicant has provided six character references to the Tribunal. One has been provided by a client, and five by other persons who have known the Applicant for the past five to seven years through their involvement in the Voice to the Nations Church. All references note that they understand the reference is in support of the review of the Applicant's firearms licence.
The five Church related referees include a lawyer, another member of the Church, a pilot who states that the Applicant helped him to obtain his job as a pilot, the Business Manager of the Church and the State President of the NSW Justices Association. These references are to the effect that the Applicant's behaviour has significantly changed for the better over the last five to seven years and that the Applicant is now a peaceful and hard working man who is dedicated to his wife, family and Church where he holds leadership positions and who does significant volunteer work in the community. Each of these references (other than that provided by the pilot) disclose that the referee is aware of the Applicant's criminal history and the Applicant has clearly been open with them about his past behaviour.
The client reference does not disclose any understanding of the Applicant's criminal history and I therefore afford it little weight. I do give some weight to the other references. However, none of these references discloses an understanding that the Applicant had provided false and misleading information in respect of his firearms applications and I accept the Respondent's submission that it was also during this period of time, when the Applicant's behaviour is said to have significantly improved, in 2017, when the Applicant provided false and misleading information in the Fourth Application.
[3]
False and misleading information
Under s 24(2)(b)(i) of the Firearms Act a licence may be revoked if the licensee supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the licence application.
The relevant application in this case is the Fourth Application which gave rise to his licence being granted. In the Fourth Application the Applicant incorrectly answered "no" to a clearly worded and unambiguous question in relation to whether he had ever been refused a firearms licence. The Applicant conceded under cross-examination that he knew at the time of the Fourth Application that he had been refused a licence on three previous occasions.
As the Applicant accepted in cross-examination, information as to whether a firearms licence has previously been refused is information which would be important to the Respondent in deciding whether to grant or refuse a licence.
Accordingly, the Applicant has supplied information which was to his knowledge false or misleading in a material particular in, or in connection with the relevant application such that it is open to the Respondent (and hence the Tribunal) in its discretion to revoke his licence under section 24(2)(b)(i) of the Firearms Act.
The Respondent submits that the Tribunal should, in the circumstances of this case, do so. The Tribunal accepts that submission. Had the Applicant answered correctly that he had previously been refused a firearms licence then the Respondent would have been concerned to consider the reasons why any previous applications had been refused and whether there had been a relevant change in the Applicant's circumstances. It is not to the point that this information may otherwise have been available to the Respondent. It is also relevant to the exercise of the Tribunal's discretion that this was not a case of a "one-off" mistake. The Applicant has supplied information which was, to his knowledge, false in relation to firearms licence applications on three separate occasions.
Under s 24(2)(a) a licence may also be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Under s 11(3)(a) a licence must not be issued unless the Respondent (and here the Tribunal) is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
Under s24(2)(d) a licence may also be revoked for any other reason prescribed by the Firearms Regulation. Clause 20 of the Firearms Regulation provides that the Respondent (and here the Tribunal) may revoke a licence if it is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The Respondent also submits that the Applicant's licence should be revoked under those sections because the Applicant is not a fit and proper person to hold a firearms licence and because it is not in the public interest for him to hold a licence.
The Applicant submits that he poses no risk to public safety and that holding a firearms licence would be in no way contrary to the public interest.
[4]
Fit and Proper Person
In Lukas v Commissioner of Police [2021] NSWCATAD 268, the Tribunal summarised the authorities relating to the meaning of fit and proper person as follows:
87.Section 11 (3) of the Firearms Act requires that the Tribunal be satisfied that Mr Lukas is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
…
88.Determination of whether a person is "fit and proper" requires an evaluative judgment, as explained in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. At 380 Mason CJ explained:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
89. Toohey and Gaudron JJ said at 380:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
90.A person's fitness is to be considered in the light of the activities that the person will undertake: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41].
91. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
The Applicant submits that as each of the incidents relied upon by the Respondent in the Applicant's criminal history occurred before his licence was granted they should not be taken into account. However, I accept the Respondent's submission that, if the Applicant had correctly filled out the Fourth Application then the licence may not have been granted, so this is not to the point. The Tribunal's task is to decide what is the correct and preferable decision based upon all of the material evidence relevant to whether the Applicant is a fit and proper person and whether it is in the public interest for the Applicant to continue to hold a licence, which requires an overall assessment of the Applicant's character and probity.
As the Respondent acknowledges in its submissions, much of the Applicant's criminal history relied upon is not recent. Further some of the matters relied upon are relatively minor in nature or did not lead to charges being laid and explanations the Applicant has proffered as to some of his conduct were not challenged. One of the matters relied upon relates principally to the Applicant's brother, not the Applicant, and I have little regard to that matter.
However, while I accept the Applicant was distressed at the time of the incident in 2014 and at the time of pleading guilty to the charge, he has, nevertheless been found guilty of the serious offence of common assault and was sentenced to a 2 year bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The Respondent submitted that the mere passage of time should not be sufficient for the Tribunal to be satisfied that conduct of this nature would be unlikely to reoccur.
However, there is some evidence, on the basis of the references provided, that the Applicant's behaviour has improved since that time and he appears to have undergone a period of personal growth. There is also no evidence that the Applicant has presented a risk to public safety in his possession and use of a firearm in the period between the grant and revocation of his licence which was a period of approximately four years, nor has he come to the attention of Police since 2014.
In light of that evidence, the Tribunal would not conclude, based on the Applicant's criminal history alone, that the Applicant is not a fit and proper person to hold a firearm's licence.
However, weighing against the above considerations, I do not accept the Applicant's assertion that he has always abided by the laws surrounding being a firearms holder. He clearly has not done so in failing to provide correct information in his firearms licence applications on multiple occasions.
When looking at the Applicant's conduct as a whole, including the Applicant's disregard for the provisions of the legislation concerning the supply of information and in the context where firearm possession and usage is to be regarded as a privilege, the Tribunal is not satisfied that the Applicant is a person of "sufficient moral integrity and rectitude of character to permit him to be safely accredited to the public ... as a person to be entrusted with" a firearms licence.
[5]
Public interest
The expression "public interest" is not defined in the Firearms Act or in the Firearms Regulation.
A decision in relation to the public interest in this context is to be informed by the underlying principles and objects of the Firearms Act and the strict controls under the Firearms Act in relation to licensing: Saxby v Commissioner of Police [2021] NSWCATAD 275 at [14].
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 Respondent (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 "public interest" allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring personal safety: Hook v Commissioner of Police [2020] NSWCATAD 250 at [77].
The public interest includes ensuring the integrity of the integrated licensing and registration scheme for all firearms as referred to in section 3(2) of the Firearms Act: Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240; Kogias v Commissioner of Police [2020] NSWCATAD 297.
The integrity of the licensing scheme depends on applicants providing true and correct information in their firearms licence applications, which is the reasoning behind s 70 of the Firearms Act: Kogias v Commissioner of Police [2020] NSWCATAD 297 at [114].
Section 70 of the Firearms Act imposes severe penalties on a person who, in connection with an application for a firearms licence, makes a statement or provides information that the person knows is false or misleading in a material particular. It shows the seriousness with which the provision of false or misleading information should be regarded.
In Saxby the Tribunal made the following observation in relation to the provision of false and misleading information:
74.If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.
In Kogias the Tribunal stated:
101.Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b).
102.Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…."
No issue was taken with those statements of principle on appeal: Kogias v Commissioner of Police [2021] NSWCATAP 165. See also Lukas at [82]-[85].
In light of the Applicant's reckless disregard for the provisions of the legislation concerning the supply of information and the integrity and effectiveness of the integrated licensing and registration scheme established under the Firearms Act, the Tribunal finds that it is not presently in the public interest for the Applicant to continue to hold a firearms licence.
[6]
Conclusion
The correct and preferable decision is that the Applicant's firearms licence be revoked under the following provisions of the Firearms Act:
1. under s 24(2)(b)(i) because the Applicant supplied information which was false in a material particular in, or in connection with, the Fourth Application;
2. under s 24(2)(a) on the basis that the Tribunal is not satisfied that the Applicant is a fit and proper person to hold a firearms licence and that is a reason for which the Applicant would be required to be refused a licence under s 11(3)(a); and
3. under section 24(2)(d) and clause 20 of the Firearms Regulation because the Tribunal is satisfied that it is not in the public interest for the Applicant to continue to hold a firearms licence.
[7]
The Tribunal orders:
1. The decision under review is affirmed.
[8]
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: 23 December 2021
Section 63 of the ADR Act provides that in determining an application for administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law.
The Tribunal is not bound by the rules of evidence. It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s38(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). There is no onus of proof, unless there is a provision to the contrary. Meacham v Commissioner of Police [2020] NSWCATAP 107 at [22].
The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principle and objects of the Firearms Act: Cusamano v Commissioner of Police [2001] NSWADT 50 at [23]. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354.