White v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-10-05

REASONS FOR DECISION

This is an application by Mr White seeking a review of the decision of the Commissioner of Police (the Commissioner) to refuse the Category A and B firearms licence in a letter dated 28 August 2022.
For the reasons that follow, the Tribunal affirms the Commissioner's decision.

Background

On 15 June 2018, Mr White applied for a firearm licence (2018 application). That application was refused on 14 September 2018 because of a conviction of a mandatory offence of stalk/intimidate made on 3 November 2009. Mr White applied for a firearms licence again on 18 November 2019.
The Statement of Reasons given by the Commissioner on the internal review dated 28 August 2022, relied on: 1. Mr White's prior criminal convictions from 1999 to 2009 including stealing, assault, intimidation and stalking; 2. Mr White's serious driving offences from 1999 to 2001; 3. Mr White's unlawful use of drugs from 2000 to 2007; 4. Instances of aggression to others in 2017, 2019 and 2020.
In refusing to issue the firearms licence, the Commissioner relied on s 11(7) of the Firearms Act 1996 (NSW) (the Act) which is, that it is not in the public interest to grant Mr White a firearms licence. The Commissioner also referred to the fact that in the 2018 application, Mr White incorrectly indicated that he had not been convicted of an offence in the last ten years. The same incorrect answer was given by Mr White on the Firearm Training Declaration.

Relevant Legislation

Section 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.
Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter and in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.
The principles and objects of the Act are set out in s 3, relevantly: Principles and objects of this 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 … (2) The objects of this Act are as follows: … (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,
Section 11(7) of the Act is in the following terms: (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Evidence

Mr White relies on two statements filed in these proceedings. He was required for cross examination. Mr White's evidence is that his historical criminal record must be put into the context that he has not used drugs for 12 years and has taken responsibility for his past wrongdoing. He stated that he had extensive drug and family problems when he was young and had nobody to guide him through life as he lost his father at the age of 12 and clashed with his stepfather. He has now changed his life for the better. Mr White has three grown children and a loving partner and they love the outdoors, camping, fishing and hunting. Mr White's evidence is that he is a social drinker.
Mr White states that he has never self-harmed. The incidents in 2017, 2019 and 2020 demonstrate that the incidents did not spiral out of control and he was not charged with criminal offences and that he was a victim in the 2017 and 2020 incidents. His evidence was that he did not intentionally fail to disclose his criminal conduct in the 2018 application but that he simply failed to check the date of his last criminal conviction.
The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act (Exhibit R1).

Criminal History

Mr White has an extensive criminal history between 1996 to 2009. He was convicted with about 20 offences. Mr White admitted that during this time he was under the influence of illicit drugs.

Traffic Infringements

Mr White has an extensive history of traffic infringements from 1995 up to 2002. He has about 28 traffic offences that led to his driver's licence being disqualified on six occasions and on two occasions he was declared a habitual offender.

Other Matters

In April 2016 police received information that Mr White was seen on a property illegally hunting pigs. Mr White's evidence was that he did not enter the property unlawfully. Mr White's evidence was that he had permission to hunt on the mine site. He did not use a firearm and that he was hunting with dogs.
In July 2017, an altercation occurred outside the Condobolin Hotel. Mr White's evidence was that he had an argument with another person who assaulted him. He was punched and knocked down. He admitted that he had been drinking prior to this incident. He denied that he was the aggressor or that he had assaulted the other person.
In August 2019, Mr White drove to the home of his son's employer, who terminated his son's apprenticeship and allegedly failed to pay his wages. Mr White stated that he was angry at the way his son was treated. He agreed with the facts set out in Exhibit R1 which were that he drove to the person's home together with is partner and son. Mr White was revving the engine excessively and activating the horn. The person came outside and an argument with Mr White ensued. Mr White said 'We will take this to court … come down to may place and we'll have a go.' The person attended the police station later that day and was informed that it was not established that Mr White made a direct threat to him.
In September 2020, Mr White went to visit his daughter. When he arrived at her home with his partner, his daughter was still at work. He saw his daughter's neighbour and they had some alcoholic drinks together. When his daughter arrived home they had dinner and continued to consume alcohol. Later in the night the neighbour refused to leave his daughter's home and became aggressive. A physical fight between Mr White and the neighbour occurred. Mr White's partner telephoned the police. Mr White indicated to the police that he did not wish to press charges.
Mr White stated that it would have been better if these incidents in 2017, 2019 and 2020 did not occur.
In regard to the 2018 application, Mr White stated that he was 'stupid' not to check the dates and did not realise how important and serious it was to be accurate on the application. He denied that he intentionally answered the question incorrectly or that he intended to mislead the Commissioner.

Mr White's Submissions

In the oral submissions and in the written statements, Mr White submitted that he does not pose a risk to the safety of the public as he has been brought up to have great respect for firearms and that firearms are a 'tool for food and sport and are never to be used in a malicious manner'.

Commissioner's Submissions

In the written and oral submissions, the Commissioner set out the factual matters on which she relied to assert that the licence was correctly refused based on s 11(7) of the Act.
The Commissioner also submitted that the Tribunal should find that Mr White intentionally failed to disclose in the 2018 application for a firearms licence that had been convicted in the previous 10 years and that he had self-harmed in the previous 12 months.
The Commissioner pointed to the absence of any medical evidence from Mr White as to risk of relapse of drug use, no evidence as to how he manages anger issues and no evidence of ever receiving professional assistance to treat his past drug addiction. The Commissioner submitted that there was no character references and that the incidents in 2017 and 2020 included alcohol, although admitting that in both these cases, Mr White was a victim.
The 2019 incident was instigated by Mr White, led to an altercation and escalation to police involvement.

Consideration

The Commissioner of Police relies on s11(7) of the Act and submits that it would be contrary to the public interest to grant Mr White a firearms licence.
Section 11(7) of the Act permits a refusal of a firearms licence if it is contrary to public interest. Public interest includes the applicant's safety and that of the whole community. In considering public interest, the objects and scope of the Act are amplified; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 at 681 per Wilcox and Keely JJ and are given paramount consideration Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
Consistent with s 3(1)(a) of the Act, the applicant's individual interest in obtaining or retaining a firearms licence is subservient to the public's right to safety.
In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal said: The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.
In Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Hennessy DP said: 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."… 28 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.
In Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 110 the Tribunal stated that: 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
In Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 at [66] the Tribunal observed: The question of risk is therefore not 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.
Mr White admitted that he provided incorrect or false information in response to a question in his 2018 application in regard to being convicted of an offence involving violence in the previous 10 years. Mr White denies self-harming and states that he answered that question correctly.
I do not accept the Commissioner's submission that Mr White has been dishonest in answering the two questions on the 2018 application. Mr White was a forthright and direct witness. He made numerous admissions during cross examinations that were contrary to his interests. I accept Mr White's evidence that he was careless in filling out the 2018 application by not checking the exact date of his last criminal conviction. I also accept Mr White's evidence that he had not self-harmed. The evidence from the Commissioner is that allegedly he stated to the police in 2000 that in the past he had self-harmed but refused to discuss details. Even if he did self-harm sometime before 2000, in 2018, the question on the application form was in regard to self-harm in the previous 12 months period.
However, failing to take care in filling in a firearms licence application does have serious ramifications as it demonstrates a lack of the requisite care and attention to the firearms scheme. The application process is part of a scheme the provides a strong measure of protection to the public consistent with the principles and objects of the Act.
The Tribunal has concerns about whether Mr White would exercise the requisite care and attention in maintaining the firearms safely to the very high level of standard required because of his carelessness in filling in a firearms licence application.
The Tribunal also has concerns about Mr White's combined criminal history and driving history record. While it is true that Mr White has not been convicted or charged by the police for over 10 years, firearms ownership is a privilege and is not generally available to people who have demonstrated a disregard for public safety.
In determining the correct and preferable decision the Tribunal must consider whether, based on all the evidence, Mr White would pose a risk to public safety if he was granted a firearms licence.
In applying the law to the facts before the Tribunal, I am of the view that it would be contrary to the public interest for Mr White to be presently issued with a firearms licence because of the extensive criminal history and traffic offending history as well as the lack of care Mr White demonstrated in filling in the 2018 application. Mr White by his own account did not even check whether he was answering the question in regard to his prior criminal conduct correctly. This is a critical question on the application form and Mr White's conduct demonstrates that he approached the firearms licencing regime without sufficient care and diligence.
The public expects to be protected from the misuse of firearms. There is in place an onerous legislative requirement for those that seek to have access to firearms for this reason. Past criminal conduct and wrongdoing combined with a careless approach to the firearms management regime demonstrates that it is in the public interest for Mr White to not be granted a firearms licence.
The correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr White's application for a firearms licence.

Orders 1. The Respondent's 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. 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: 18 October 2022

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