Wombey v Commissioner of Police, NSW Police Force

Legal Principles

1. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the Administrative Decisions Review Act 1977 requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
2. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: (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, …
3. The power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].
4. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.
5. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. The Applicant's application for a firearms licence nominated his "genuine reason" for a firearms licence as "Sport/Target Shooting" and "Hunting/Vermin Control". In support of the "Sport/Target Shooting" reason, the Applicant identified that he was a member of a shooting club, specifically, the Sporting Shooters' Association of Australia (SSAA).
6. Section 24(2) of the Act states: (2) A licence may be revoked-- (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee-- (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
7. Clause 20 of the Regulation provides: 20 REVOCATION OF LICENCE--LICENCE NOT IN THE PUBLIC INTEREST The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
8. Clause 29 of the Regulation provides that: 29 Sport/target shooting A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject) - (a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members), (b) the licence does not authorise the use of a firearm except at a shooting range approved under Part 8 or under the authority conferred by clause 33 (Licences and permits extend to authorise sighting in, patterning and related activities).
9. Clauses 105 and 107 in Part 10 of the Regulation provide that: Part 10 Participation requirements for club members 105 Definitions In this Part - approved club for a particular category of licence means an approved shooting club (including an approved pistol club), approved hunting club or approved collectors' society or club of which the holder of a licence of that category is required to be a member under this Part. competitive shooting match means a shooting activity in which scores are kept and results recorded. compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members. participation in a shooting activity includes, in the case of a competitive shooting match, officiating at such a match. shooting activity of an approved club means the following - (a) a shooting activity that is conducted by the club at the club's shooting range, including a competitive shooting match, shooting training and target practice at the club's shooting range, (b) firearms safety training conducted by the club at the club's shooting range, (c) a competitive shooting match held at a shooting range other than the club's shooting range where the match is endorsed by the club (including such a match that is conducted outside NSW or outside Australia). ... 107 Participation requirements for sport/target shooters (other than pistol shooters) The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
10. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).
11. Within Part 10 of the Regulation, cl 108 of the Regulation provides: 108 Participation requirements for member of approved hunting club (1) The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events. (2) This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control. (3) In this clause - hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.
12. Clause 15(1) of the Regulation provides that, if a licensee's genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days after becoming aware that the licensee has ceased to have that genuine reason, notify the Commissioner of that fact in writing or in such other manner as may be approved.
13. Clause 16(1)(a) of the Regulation requires the holder of a licence to notify the Commissioner, in writing or in such other manner as may be approved, of any change in a particular stated in a licence, within 14 days after the change occurs. Section 16(2) provides that the clause "extends to a change in the genuine reason for which the person was issued with a licence (including the removal of a genuine reason or the inclusion of an additional genuine reason)" (emphasis added).

Public Interest

1. The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for 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."
2. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681: The purpose of the reference to public interest is to ensure that private interests are not the 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.
3. In Director of Public Prosecutions v Smith (1991) 1 VR 63 (Smith) the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
4. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
5. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.
6. 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: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
7. The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Consideration

1. The Respondent contended that the Applicant, despite not being charged with any offence, had contravened s 7A(2)(b) of the Act by failing to comply with conditions of his licence. The SSAA records confirmed that the Applicant failed to comply with minimum attendance requirements for sport/target shooting in the following compliance periods: 1. 2016/2017, with only two attendances recorded; 2. 2018/2019, with only two attendances recorded; 3. 2019/2020, with no attendances recorded; and 4. 2020/2021, with only one attendance recorded.
2. Records maintained by the SSAA also confirm that the Applicant failed to comply with minimum attendance requirements for recreational hunting/vermin control in the following compliance periods: 1. 2019/2020, with no attendances recorded; and 2. 2020/2021, with only one attendance recorded.
3. 'Compliance period' for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members: cl 105 of the Regulation. The compliance period for the SSAA is 1 April to 31 March.
4. Clauses 107 and 108 of the Regulation prescribe the participation requirements for licensees with the genuine reason of sport/target shooting and recreational hunting/vermin control, which are conditions of the Applicant's licence pursuant to cl 29 and 31 of the Regulation (see [15] to [18] above). The Applicant was required to participate in at least 4 target shooting attendances and 2 hunting attendances during each of the relevant compliance periods.
5. The Applicant admitted that he had missed the attendances as alleged but claimed there were extenuating circumstances, including various family issues, the death of his mother-in-law, relocation due to rental issues following eviction, work commitments and a lengthy commute, and the difficulties introduced by COVID 19 lockdowns in which he was assisting his wife to care for and home-school 8 children. He said that he had always intended to "downgrade" his licence to "hunting only" and wanted the Tribunal to consider his non-attendances with "leniency", relying on measures outlined by the NSW Firearms Registry on their website titled 'COVID 19 Firearms Registry Response', which included the following statements: Club Participation The Firearms Registry is aware that due to the ongoing pandemic and evolving circumstances, some licence holders may find it difficult to comply with their participation requirements given stay-at-home orders, self-isolation, quarantine or even due to a reluctance to congregate. Any club member - whether a sports target (pistol or longarm), hunting or collecting - needing to undertake participation activities do not have to do so while clubs and ranges are closed due to the health situation in NSW. To support this: - The Firearms Registry does not propose to revoke a licence on the basis that a licence holder cannot fulfil their participation requirements due to self-isolation, lockdown, quarantine, concerns about congregating due to COVID or club/range closure due to the health situation in NSW. - Licence holders in this situation do not need to notify the Firearms Registry on this matter.
6. The Applicant stated that prior to the revocation he had been doing pest control and had provided a Letter of Authority supporting that activity. Under cross examination, the Applicant was asked about his attendance at a protest on 24 July 2021 in breach of public health orders. He denied attending the protest on that date at Victoria Park and said that he had been visiting his father in law that day, in the same area as the protest, as part of his respite care. He relied on a letter from Department of Communities and Justice dated 21 April 2020, which he provided to the Tribunal, which provided an exemption for his children to visit their grandfather at an address at Avalon Beach for contact and respite, to continue during COVID 19 restrictions.
7. The 'affidavit of truth' on which the Applicant relied refers occasionally to the Applicant's ex-wife, Krista, in the first person, and seems in parts to have been authored by her. There was a distinct overlap in the Applicant's evidence in these proceedings and that provided by his ex-wife in Wombey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 84. The Applicant stated at hearing that he was not relying on various documents attached to his submissions as they had been prepared by her, including specifically that he was not contesting the valid enforcement of the Regulation and the public health orders.
8. In his 'affidavit of truth', the Applicant stated that he had complied with the shooting requirements of his licence in 2014/2015 and 2015/2016. In 2016 he had married Krista and became father to her 6 children. Her pregnancy in 2016 and birth of their son in 2017, as well as a commute to work of 4 to 6 hours per day, made it difficult for him to comply with the firearms licence participation requirements. His participation requirements for the 2016/2017 compliance period were therefore insufficient. He exceeded the participation requirements in 2017/2018, recording 5 target shooting attendances and 4 hunting attendances.
9. Following the 2017/2018 compliance period, the Applicant did not meet the participation requirements for his licence. The extenuating circumstances he referred to in his affidavit included that in 2018/2019 the Applicant and his wife were caring for her mother who died in early 2019 of pancreatic cancer, began caring for another nephew, and had difficulties obtaining a large enough vehicle for their family. In 2020 the COVID 19 restrictions had a huge impact on him and his family. They were evicted in December 2020 and had difficulties obtaining a new property due to a tight rental market and their large family size. The Applicant and his wife divorced in November 2021 due to the strain on their relationship imposed by those circumstances.
10. The Applicant claimed that he had attended the Sydney International Shooting Centre in Cecil Park on 22 January 2017 which should have counted towards his attendances in that compliance period. As evidence he relied on two photographs which were undated, purported to be of him and Krista Wombey shooting a firearm. Even if the Tribunal was to accept that evidence, which it doesn't, the Applicant does not satisfy the attendance requirements for the 2016/2017 compliance period for target shooting.
11. The Applicant's licence was renewed on 10 March 2020 despite his failure to fulfil the licence participation requirements, because the Applicant had certified in his renewal application: "I certify that I can satisfy the legislative requirements and produce evidence of my genuine reasons as specified within this application. (For example, club membership to support Sport/Target shooting)."
12. As discussed in Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] - [64], a licensee need not be convicted of any offence for a contravention to be found. I am satisfied that the Applicant has contravened s 7A(2)(b) of the Act in the compliance periods of 2016/2017, 2018/2019, 2019/2020, and 2020/2021, by contravening a condition of his licence by his failure to participate in sufficient target shooting attendances and hunting club events as required by his licence, and that these contraventions constitute an offence. These facts also support a finding that the Applicant has contravened clauses 29(a), 107, 31 and 108 of the Regulation.
13. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130] the Tribunal observed that: …the admitted total disregard of the requirement over a period of five years in that case was a substantial dereliction that could not be overlooked. In those circumstances it cannot be in the public interest for the license to continue to hold the licence.
14. In the case of Kassem v Commissioner of Police [2021] NSWCATAD 213, the Tribunal found at [24] that the applicant had contravened s7A(2)(b) of the Act by his failure to comply with the participation requirements of his licence, and that that conduct constituted an offence. In these proceedings the Applicant has failed to comply with his participation obligations over a number of years, specifically the compliance periods of 2016/2017, 2018/2019, 2019/2020, and 2020/2021. I accept that he faced difficulties in meeting those obligations at various times and take into consideration the Firearms Registry Response to COVID 19 as relevant to the 2020/2021 compliance period, but it is clear that the Applicant's licence obligations take a back seat to his adverse personal circumstances and family obligations. As discussed in Kassem, a licence attracts responsibilities that are ongoing irrespective of one's personal circumstances.
15. The Applicant had held a firearms for a number of years and previously demonstrated compliance with the participation requirements during certain compliance periods, being 2014/2015, 2015/2016, and 2017/2018. He therefore should have been aware of the strict obligations under the Act and Regulation. Consistent with the reasoning in Kassem and Todorovski, the Applicant's contravention of the condition requiring compliance with participation requirements is not technical, but fundamental, as it is relevant to the Applicant's genuine reasons for holding a category AB firearms licence. The Applicant's ongoing disregard for the legislative requirements in the context of the strict controls around firearms licencing is a substantial dereliction which cannot be overlooked.
16. In August 2021 the Applicant's licence was suspended and his firearms were seized. In his request for internal review the Applicant stated that he no longer had a genuine reason for maintaining a sport/target shooting licence. The Applicant stated: Early 2021 we discovered that there was no need to have target shooting on our licence as now our genuine reason to hold the licence would be for recreational hunting. We have a friend who has allowed us access on his land to hunt as we like. We frequently visit his land throughout the year. Attached is a letter of authority that he has given us permission to shoot on his land to help with vermin control. So if this decision is overturned, it would no longer be an issue that participation requirements would not be met. Our intentions of what we were using the firearms licence was shifting from wanting to do shooting practice to wanting to hunt. In hindsight, the target shooting should have been removed from my genuine reason for having a firearms licence. However, I sincerely was not aware that this information needed to be updated with the firearms registry within 14 days and I was burdened with so many tribulations at the time, I now regrettably did not invest the time to get this issue sorted. This is a mistake I have learned from and do reassure it will never be an issue again as I am fully aware of all my obligations and time frames I am required to notify the firearms registry of any changes.
17. These admissions support a finding that the Applicant has also contravened cl 15(1) of the Regulation, by not notifying the Firearms registry within 14 days when he no longer maintained the genuine reason of sports/target shooting for his firearms licence. Despite the Applicant's evidence that he was not aware of his obligations to notify the Commissioner regarding the change in his genuine reason for possessing or using a firearms, the public interest requires that all licensees be aware of, and comply with, the legislative requirements: see Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91 at [41]; Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34]; Bottomley v Commissioner of Police [2005] NSWADT 211 at [20].
18. The Applicant included three character references with his request to the Respondent for internal review. A letter dated 19 January 2023 from an Out of Home Senior Case Worker with the Department of Family and Community Services is concerned with the Applicant's suitability to provide care for a child. It makes no reference to the Applicant's firearms licence. An unsigned letter from John Gregson dated 11 September 2021, claiming to be a former work colleague of the Applicant's, refers to the Applicant being "a passionate shooter who only shoots on private property and rifle ranges". Neither indicates any specific knowledge of the Applicant's history with firearms and makes no reference to the subject of these proceedings.
19. An unsigned and undated letter from David O'Leary, another former work colleague of the Applicant's, includes reference to these proceedings in the following terms: I am aware of the reason for writing a character reference for James. Due to the suspension of his firearms licence, by not meeting requirements of range attendances. I know he must have previously met those requirements because it's something he always shared with me when he had gone, whether it was hunting or at the range".
20. The letter makes reference to "once the lockdowns are over" and on that basis I infer that it was written some time in 2021, similar to Mr Gregson's reference, at the time that the Applicant's licence was suspended. Mr O'Leary claims to have known the Applicant for 15 years and says "James has always gone above and beyond in tasks and is always willing to help". This does not assist the Tribunal in determining whether there is any risk to public safety, or if it is in the public interest for the Applicant to retain his firearms licence. Consistent with the reasoning in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at paragraph [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, in the circumstances I give those three character references no weight.
21. There is no evidence before the Tribunal, other than an assertion by the Applicant, that he is now cognisant of his firearms obligations, has learned from his mistakes and that his non-compliance "will never be an issue again". In the absence of any supporting evidence, in the context of a need to ensure public safety as well as public confidence in the licensing regime provided by the Act and Regulation, the Tribunal cannot rely on that assertion.

Breach of public health orders

1. In addition to the Applicant's contraventions of s 7A(2)(b) of the Act and clauses 29(a), 107, 31, 108 and 15(1) of the Regulation, the Respondent submitted that the Tribunal should find the Applicant was in breach of public health orders by attending a rally known as the "Rally 4 Freedom" in Victoria Park on Broadway on 24 July 2021 which protested against COVID-19 lockdown and stay at home orders (the rally). Participation in the rally was in contravention of the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 which prevented persons living or working in the Greater Sydney area from being away from their place of residence without reasonable excuse and prevented outdoor public gatherings of more than 2 persons.
2. The Applicant was issued an infringement notice for attending the rally, which was ultimately withdrawn. Detective Senior Constable Downy's evidence, which was not contested, was that the Applicant and Krista Wombey were identified at the rally through various reports made to police, which provided copies of social media posts with photos showing them at the rally.
3. The Applicant denies being present at the Rally but admitted that he was "in the area" on that date and gave various explanations for this, including permission by the Department of Communities and Justice to take his children to his father-in-law for respite, as discussed above at 33, although no explanation was provided as to how his father in law's residence at Avalon Beach was extended to Broadway in Sydney. In closing submissions the Applicant referred to a statement made by his former wife, Krista Wombey, in other Tribunal proceedings that he was "getting homeopathic medicine for his wife" on the date he was alleged to have attended the protest in breach of the public health orders.
4. In Wombey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 84 at [60] the Tribunal found that it could not be satisfied that Krista Wombey, the Applicant in those proceedings, had attended the rally on 24 July 2021. In these proceedings, however, Detective Senior Constable Downy's evidence was uncontested. The Applicant admitted he was in the area of the rally on 24 July 2021 but gave inconsistent explanations for why he was in the vicinity. I do not accept that the "permission letter" discussed above at 33 supports any of those explanations. I am satisfied by the Respondent's evidence that the Applicant was, in fact, at the rally on 24 July 2021 and thereby did breach the public health orders.

Conclusion

1. I am satisfied on the balance of probabilities that the Applicant contravened the participation requirements of his firearms licence as discussed above at [39] and [44]. This means that his licence may be revoked pursuant to ss 24(2)(b)(ii) and 24(2)(b)(iii) of the Act. The Tribunal has no confidence that the Applicant will, in fact, comply with the Act and Regulation if he were to have his licence returned. Additionally, the Applicant's contravention of public health orders demonstrates his lack of regard for rules and regulations that have been designed to ensure public safety.
2. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements: see Morris v The Commissioner of Police [2002] NSWADT 223, [21] to [27] above. In my view it is not in the public interest for the Applicant to retain his firearms licence. The correct and preferable decision is therefore to affirm the Respondent's decision to revoke the Applicant's firearms licence.

Orders 1. The Respondent's decision to revoke the Applicant's firearms licence 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: 16 June 2023