Wilson v Commissioner of Police, NSW Police Force

Mr Wilson's criminal history

1. In August 2001, as an 18 year old, Mr Wilson was fined in the Local Court and ordered to pay compensation for the offence of obtain money by deception.
2. In April 2003, when he was aged 20, he was charged with one count of malicious wounding a person with intent to inflict grievous bodily harm and 3 counts of malicious wounding, and was committed for trial on all counts. At the District Court he pleaded guilty to 2 counts of malicious wounding and one count of assault occasioning actual bodily harm. Following an appeal on sentence to the Court of Criminal Appeal, he was sentenced to four years' imprisonment, with a non-parole period of two years.
3. On 20 January 2005 he was sentenced to 12 months' imprisonment, having been found guilty in the Local Court of a break and enter offence which occurred in November 2002, when he was aged 19. The sentence was served concurrently with the earlier offences.
4. In the original decision the delegate relied upon the Applicant's conviction break, enter and steal offence of January 2005, and his convictions in respect of two counts of malicious wounding and assault occasioning actual bodily harm. Pursuant to s 10(4) of the FA Act the Commissioner is entitled to rely on spent convictions "in relation to an application for a licence"; and is entitled to rely on the circumstances relating to those convictions. I consider that, such considerations should also apply to a FPO.
5. The Respondent made extensive submissions about the details of the 2003 charges, the circumstances of which were the subject of Agreed Facts tendered in the District Court and signed by Mr Wilson, his father and the Crown Prosecutor. Mr Wilson was cross-examined before me about inconsistencies in the accounts in the Agreed Facts and that which he had given to forensic psychiatrist Dr Bruce Westmore, whose report dated 17 May 2004 was part of Exhibit R2.
6. The Applicant said he accepted the version of events in the Agreed Facts on legal advice; the effect was that some of the charges were not proceeded with. He noted that he was also bashed in the altercation that gave rise to the charges and was therefore unable to remember much about the incident. Also, I observe, the Applicant was being asked about events which are now 15 years in the past.
7. Mr Wilson had reportedly told Dr Westmore that at around the time of the assaults he was taking, among other prescription drugs, a mood-stabilising drug, and that he disclosed that when he "starts drinking he can't stop" and that his pattern of alcohol consumption was a "binge pattern". Further, he had started using cannabis on an occasional basis at the age of 15 and then regularly from the age of 17 to around his 21st birthday when he claimed to have ceased. In his report Dr Westmore diagnosed the Applicant with attention deficit disorder with hyperactivity (ADHD), alcohol abuse, cannabis (in remission), depression and a conduct disorder in childhood. Dr Westmore also expressed the opinion that Mr Wilson's (then) very recent cessation of the mood-stabilising drug would have had no bearing on the assault offences as it was likely the effects of that drug (and other prescription drugs) were still in his system. Dr Westmore recommended Mr Wilson receive further assistance with anger management, among other matters.
8. Overall, Doctor Westmore's prognosis was reasonably good. He anticipated that the Applicant would mature and he noted that the Applicant continued to receive the care and support of his family all of whom were aware of his problems.
9. Likewise, in Mr Wilson's account given to a Probation and Parole Officer which was recorded in a brief pre-sentence report dated 21 May 2004, he reportedly told the Officer that he disagreed with the Agreed Facts. He reportedly said that he had learnt from the experience. He was noted to have "developed a balanced view of life". He was regarded as a suitable candidate for a Community Service Order and a Periodic Detention Order.

The Applicant's recent conduct

1. The Applicant did not come to attention again following his release from goal in 2007 until 24 April 2015 when he was charged in the Local Court with possessing housebreaking implements pursuant to s 114(1)(b) of the Crimes Act 1900 (NSW); however that charge was dismissed. Arising out of the same events (discussed below), he was also charged and convicted of two counts of possession of a knife in a public place pursuant to s 11C(1) of the Summary Offences Act 1988 (NSW) (SO Act). Fines were imposed and the knives were forfeited. When Mr Wilson appealed to the District Court, the charges were found to be proven but were dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.
2. The Respondent made extensive submissions about the details of the 2015 charges, and the Applicant was cross-examined about the circumstances that led to those charges.
3. The police evidence in relation to both offences was that they were alleged to have occurred in the early hours of 26 November 2014 at Caves Beach. During a patrol of the area following a recent spate of break and enter offences in that area, the Applicant was observed as a passenger in a vehicle with no lights on. A police constable observed the vehicle pull into a car spot and the vehicle was turned off. The driver, known to the Applicant only as "Richard", was a person said to be known to police for drug supply and outlaw motor cycle gang (OMCG) affiliation. "Richard" explained to the police that he and his passenger, the Applicant, were in the area to look for the Applicant's little dog which had gone missing earlier in the day when they were in the area for a family barbecue. When police conducted a search of the vehicle they located a camouflage bag with two knives, lock-picking equipment and other items. When Mr Wilson was arrested, he told police that they were not looking for a dog, but were hunting foxes. He said in his evidence before me that he knew "Richard" to have previously been in a "motor cycle club" but did not understand him to still be a member; he understood "Richard" had wanted to leave the club and was on bail, but Mr Wilson was unaware of the nature of the charges.
4. The Magistrate found that when Mr Wilson was apprehended by police he had been out fox-whistling with his companion, as he claimed. The Magistrate also found that the Applicant he had been in possession of the lock-picking equipment for some time, had used the equipment in his previous employment and had developed an interest, and practised at home. It was also accepted that the Applicant had used the lock-picks on the fox trap which he had set earlier. As a result, the Magistrate found that the Applicant had established a lawful basis for being in possession of the lock-picking equipment and dismissed the charge in relation to housebreaking equipment.
5. The Magistrate however did not accept that the Applicant had the knives for the purpose of recreation or sport, which is a defence under s 11C(2)(a)(iii) of the SO Act, and found that neither was it reasonably necessary for him to have had the knives in his possession, thus rejecting the Applicant's evidence that he had forgotten they were in his bag or alternatively, that he kept them in his bag just in case a mate rang up and asked him if he wanted to go hunting.
6. On appeal, the convictions were set aside, and the charges dismissed. In sentencing the Applicant, his Honour North DCJ noted that despite Mr Wilson having "quite serious antecedents a long time ago", he found Mr Wilson had "completely turned his life around". These observations, in my view, are entirely consistent with the prognosis of Dr Westmore and the views of the Probation and Parole Officer, expressed 10 years beforehand.
7. More recently, in September 2017, an anonymous female contacted police alleging that a male, aged in his 30s and "possibly" the Applicant was driving up and down the mostly dirt road near the Applicant's parents' property, shooting out the driver's window "all day and night". Despite police enquiries at nearby properties, no other complaints were made. Police attended the Wilson property to make enquiries. The premises were searched and the security of Mr Wilson senior's firearms was checked, and there was no evidence that anything untoward was found. The Applicant's father, when spoken to by attending police, reportedly said words to the effect, "my son is trying to do the right thing but keeps getting targeted'. In the stay proceedings in this matter Mr Wilson senior gave evidence that the police attended his property twice in response to the complaint but on neither occasion was his son present.
8. When asked in cross-examination about the complaint, the Applicant, noting he did not hold an a firearms licence, said that the last time he had fired a weapon was in about 2004. He gave evidence at the stay hearing about assisting his father in his father's vermin-control business; although he would not be using firearms, he would be helping his father with heavy lifting, opening gates and other similar activities. The Respondent contended that the proximity to his father's firearms would be a "temptation". I observe though, that the Applicant no longer lives with his parents, and his unchallenged evidence was that, in any event, his father has moved his firearms to another location, of which he was unaware.

Matters taken into account in the internal review

1. 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 at 357. It is nonetheless instructive to consider the matters taken into account by the delegate of the Commissioner in reaching the decision under review.
2. On 1 May 2018 the delegate, in undertaking the Internal review, found that the Applicant had a "significant" criminal history and relied on the conviction in 2001 for obtaining money by deception, the conviction for malicious wounding and assault occasioning actual bodily harm, and the conviction for break, enter and steal in January 2005. The delegate also relied on that the Applicant had been charged in 2004 with affray and common assault, although both charges withdrawn. In addition, the delegate relied on the 2015 charges of being in possession of house-breaking implements and custody of a knife in a public place, both of which were also ultimately dismissed.
3. The delegate also relied on Mr Wilson having three times (2002, 2014 and 2016) applied for and been refused a firearms licence. I observe though that the two earlier refusals were on mandatory grounds, given the Applicant's conviction for prescribed offences: s 11(5)(b) of the Act.
4. Finally, the delegate said, Mr Wilson is "known to associate of an [unnamed] person who is well known to police and who has criminal antecedents similar to, or exceed [the Applicant's]".

Confidential material relied on by the Respondent

1. There was also confidential evidence and confidential submissions that were heard in closed session, pursuant to orders made under ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]

Is Mr Wilson currently not fit, in the public interest, to have possession of a firearm?

1. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, at [25], albeit in respect of the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act as follows: 25. [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
2. Hence, consideration of the public interest goes differs from consideration of the applicant's character. Relevant 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].
3. The approach to be taken in relation to the public interest in matters concerning FPOs in particular was considered by SM Walker in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 (Hamid) at [50]-[57] and was adopted by SM Montgomery in Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79 (Dalziell) at [49]-[50].
4. In Hamid it has held that the language, "not fit, in the public interest" is "materially different" from the "fit and proper person" test in the FA Act's licensing provisions. SM Walker considered that the test with respect to FPOs implies that even though a person may have an unblemished record, public interest considerations may render a person unfit and therefore make it appropriate to issue an FPO against the person. While I agree with this observation, I note though that the general licensing provisions also include a consideration of public interest: eg s 11(7) of the FA Act. In that way, it seems to me, there is little practical difference between the test for a FPO and that for a general licence.
5. The public interest is distinct from the interest of one or more individuals. In this regard the broader interests of the community are given priority over the private interests of one or more individual persons. In this way, an applicant's personal interest, for example, in being granted or retaining a licence may give way to the protection of the public interest. In his evidence, the Applicant, referring to the stop and search powers of an FPO said that he wanted the FPO lifted because it was affecting people around him. He said he had worked hard to rehabilitate himself and 'wanted a second chance'. One of his children is already in counselling because of issues with the mother, and constant police attendance, as permitted by the FPO, he said, would affect the child. While I give the effect of the FPO on the child less weight than the Applicant suggested, I cannot discount it altogether; the child, and the other 4 children now in his care, are part of "the public" too. Still, there remains the major consideration of protection of the public.
6. In Hamid SM Walker observed that in the New South Wales Ombudsman's Review of Police Use of the Firearms Prohibition Order Search Powers (August 2016), the Ombudsman had said that police had informed him that an FPO would generally be made where the authorizing officer formed the view that a person's possession of a firearm or ammunition would compromise public safety, and set out a number of examples of the types of situations that might give rise to the issuing of an FPO. The examples included OMCG membership, persons convicted of armed robbery, murder, conspiracy to murder, serious assault and other serious violence-related matters and persons involved in firearms trafficking. In Hamid none of the listed circumstances applied to the applicant. Although the list of circumstances is not exhaustive, I observe that in this matter, there is no evidence that the Applicant is a member of an OMCG; he has not been convicted of armed robbery, murder, conspiracy to murder or firearms trafficking. He was convicted of assault occasioning actual bodily harm and malicious wounding, but those offences were about 15 years ago, when he was aged 20.
7. Further, as SM Walker observed, the New South Wales Legislature had indicated that the classes of people to whom it was expected the powers to apply, included persons engaged in gun crime, persons who should not have access to guns because of their criminal record, persons involved in drug use or supply, and persons who police had good reason to believe were members of organized criminal groups. None of those circumstances applied to the Applicant, other than having something of a criminal record, and having previously used drugs about 10 years ago.
8. In both Hamid and Dalziell the Tribunal held that the applicant who voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, an FPO may be justified. In Hamid, although the applicant had never come to the attention of police, the concerns about the Respondent related to her very close association with two men who had significant criminal histories and who themselves had FPOs against them. There was a suggestion that she could be coerced by those persons into storing weapons. Her associations created the danger to public safety which concerned the Respondent. In Dalziell, at the time the Commissioner issued the FPO, the applicant was also issued with a pre-emptive consorting notice, which is an official warning that it is an offence to consort with named convicted offenders. The applicant admitted that he was regarded as a senior member of an OMCG for a long period and on numerous occasions had been contacted by the New South Wales Police, including those involved in targeting OMCGs and associated criminal enterprises (Operation Raptor).
9. In this matter, the Applicant has a criminal history: in 2001, as an 18 year old, he was convicted of obtaining money by deception; he was sentenced to 12 months' imprisonment in 2005 for a break and enter offence which occurred in November 2002, when he was aged 19. In 2003, when he was aged 21, he committed offences for which he was sentenced to 4 years goal with a non-parole period of two years. As can be observed, all these offences occurred over 15 years ago. In addition, while the FPO search powers were clearly introduced to give police additional tools to prevent gun crime, none of Mr Wilson's charges were gun-related.
10. Mr Wilson senior, in the stay proceedings, observed that it was following the complaint referred to paragraph 21 that the FPO was imposed on his son. He asked, rhetorically, why, if his son was such a threat to the public, that a FPO, issued in November 2017, was not served until March 2018. This may be a legitimate observation, and there was no evidence from police to explain the delay.
11. Mr Wilson is currently 35 years of age and, up until recently, lived with his parents on a rural property in northern New South Wales. He is in a relatively new relationship with a woman with 3 children, and is moving to her location on the mid-north coast. The Applicant gave evidence that since his incarceration he had been working until he had to take on the role of fulltime carer for his 2 children in 2013, following their mother's mental illness. He has a truck licence, forklift driving, traffic control and asphalting qualifications, some of which he obtained while in goal in an endeavor to improve himself.
12. Evidence was given by Dr John Sjostedt, a clinical psychologist who is the Applicant's treating psychologist. He has seen Mr Wilson 11 times between November 2017 and August this year. In his report dated 9 August 2018 he wrote that, upon initial consultation, he had administered various psychological tests and found the Applicant to score in the extremely severe range for depression, anxiety and stress. He said in his evidence that, at that time, the Applicant had poor self-esteem. Since then though, Mr Wilson, has undergone changes which are Dr Sjostedt considered to be "quite noticeable" and said he found the marked changes in the Applicant to be professionally rewarding. He observed the Applicant was remorseful for his past offences, has adopted a healthy lifestyle, is in a new relationship and is seeking work. He said Mr Wilson had tried to make his previous relationship work and to help his former partner with her problems. He is trying to be a good father to his children.
13. He noted that the Applicant's convictions were a long time ago. He specifically considered that the Applicant was not a danger to society. He considers him now to be very much "in control". He is not at all aggressive; he is "not the same person" he was in 2004. He considered him to be a "fairly balanced" person and that he was unlikely to re-offend. He does not believe the "police restrictions" on him are warranted.
14. In cross-examination Doctor Sjostedt said he was aware of the Applicant's criminal history. In his view Mr Wilson is not the "young tearaway" he was 14 years ago. At the start of his treatment Mr Wilson was very anxious and introverted. Now he comes across as law-abiding and quiet and devoted to his children. The Respondent contended that the psychologist had not conducted a "risk assessment", and had relied on the Applicant's self-report. The Respondent suggested the psychologist was not aware of the Applicant's full history, however, I observe that he was provided with the Respondent's submissions which I regard as most comprehensive.

Conclusion

1. Taking all the available evidence into account and for the reasons given above, I find that the Applicant is not a person who is not fit, in the public interest, to have possession of a firearm. Consequently, a FPO is not appropriate.

Orders 1. The decision under review is set aside.

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: 30 November 2018