Ying v Commissioner of Police, NSW Police Force

Background

1. The background facts are not in dispute. Mr Ying first obtained a firearms licence in 2017 for primary production and recreational hunting/vermin control. When the firearms were stolen they were stored in a gun safe in a shed on a rural property at Coolongalook owned by Mr Ying. At the time Mr Ying's principal place of residence was in Sydney but he spent periods of time at the property where he runs cattle. He moved the firearms from his house in Sydney to Coolongalook on 10 July 2021. On 5 July 2021 he notified the Firearms Registry of the change of address.
2. On 19 September 2021 Mr Ying left the property and returned to Sydney. The firearms were stored in the safe within the locked shed when he left. Mr Ying returned to Coolongalook with his son late in the afternoon on 24 September 2021. He drove into the shed but did not take any notice of the safe at that time. He locked the shed. Mr Ying had CCTV cameras set up to monitor the shed but he turned them off that evening as he kept getting notifications on his phone from animals moving about.
3. Mr Ying went to the shed at about 6:00 am on 25 September 2021 and noticed that the safe was open and his three guns and ammunition were missing. A pinch bar was lying on the floor next to the safe. A piece of farm equipment had also been stolen. Mr Ying called police and they attended the property. Police believe the pinch bar was used to jemmy open the safe.
4. Mr Ying's firearms licence was suspended and he was subsequently charged with an offence under s 40 of the Firearms Act of not having approved storage. He pleaded guilty to this offence in September 2022 and was given an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 with no conviction recorded.
5. Mr Ying's licence expired on 15 June 2022 while it was suspended. On 6 July 2022 he applied for a new licence and this application, as noted above, was refused. He seeks review of that decision.

The application for review

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to refuse a firearms licence.
2. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
3. Under s 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The standard of proof that applies is the civil standard, that is, on the balance of probabilities. There is no onus proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [28]-[34].

Evidence before the Tribunal

1. The Commissioner relied on:

• the documents lodged pursuant s 58 of the ADR Act;
• a record of Mr Ying updating his safe storage address;
• an extract of the Prosecution Brief relating to Mr Ying's offence in failing to keep firearms safe which includes statements from Constable Maddison Eady;
• body worn video footage of Constable Eady dated 25 September 2021 and a transcript of that footage.

1. Mr Ying relied upon two affidavits affirmed by him on 7 February 2023 and 23 March 2023. He also relied upon a fact sheet titled SAFE STORAGE LEVEL ONE - Category A & B Requirements published by the Firearms Registry.
2. Both parties provided written submissions and made further oral submissions at the hearing. Mr Ying was not cross-examined at the hearing.

The relevant law

1. Two of the underlying principles of the Firearms Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
2. Additionally, the Firearms Act's objects include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and
• to ensure that firearms are stored and conveyed in a safe and secure manner.

1. The general requirements for safe keeping of firearms are set out in s 39(1) of the Firearms Act: (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. …
2. Mr Ying held a category AB licence and further requirements for that category are set out in s 40(1): (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
3. Of relevance to this matter is cl 28B of the Firearms Regulation 2017 which sets out further storage requirements. Due to the location at which Mr Ying's firearms were stored, he was required to comply with cl 28B(3) which provides that: 1. the firearm must be - 1. stored in a safe of an approved type, and 2. fitted with a trigger or barrel lock that prevents the firearm from being discharged, and 3. secured individually on, or in, a locked device within the safe, 1. the safe must be fitted with an alarm of an approved type that is monitored off-site, 2. the premises on which the firearm is stored must have an intruder alarm and duress facilities that are monitored off-site and are of an approved type.
4. The Commissioner is given a broad power to refuse licences, including if it is not in the public interest for the person to hold the licence: s11(7) Firearms Act. The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
5. It has been said that in considering matters under the Firearms Act public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

The public interest

1. The Commissioner submits that it is not in the public interest for Mr Ying to hold a firearms licence.
2. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court 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 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. 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."
4. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
5. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 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."
6. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
7. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Safe storage

1. The "public interest" has been held to require that all licensees are aware of, and comply with, the legislative requirements: Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 at [41]. These requirements include safe storage requirements.
2. In Uzelac v Commissioner of Police [2003] NSWADT 226 at [19] Deputy President Hennessey said in relation to setting aside a decision revoking a licence based on failure to store firearms safely that an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. She went on to say that the principal issue is whether there is a risk to public safety if the applicant retains a licence. Relevant considerations included: 1. the reason for failing to store the firearm safely; 2. the length of time the firearm was not stored safely; 3. the potential or real danger posed by the failure to store the firearm safely; 4. the person's previous conduct in relation to storage of firearms and any related matters; and 5. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future and 6. the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.
3. The Deputy President then added, "In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety".

Consideration

1. In their submissions both parties addressed the considerations identified in Uzelac and they form a useful basis upon which to assess Mr Ying's conduct and whether it is in the public interest for him to once again be granted a licence.

Reasons for failure to store firearms safely

1. In moving his firearms from Sydney to the Coolongalook property Mr Ying failed to understand that there were different safe storage requirements as the firearms were to be stored at a place which was not his principal place of residence and where the firearms would be left unattended for periods of time. He simply replicated the safe storage arrangements he had in place at his home in Sydney. There is no suggestion that there was any fault with the safe storage arrangements he had had in place at his home.
2. The Commissioner points out that when Mr Ying applied for the licence in March 2017 he declared, after having attended firearm safety training: I fully understand and comply with the firearms safety requirements of the Firearms Act 1996 and associated regulations.
3. Mr Ying, however, was not aware of what he had to do. In his affidavits Mr Ying indicates that his error was in not having installed alarms as required. As the Commissioner points out, however, his failures were in fact several in that there was no alarm as required, the safe was next to an array of tools which appears to have given the thief the means to open the safe and the firearms were not secured individually on, or in, a locked device within the safe as required by cl 28B(3)(a)(iii) of the Firearms Regulation.
4. Mr Ying's representative stated at the hearing that the reason the focus in the affidavits (and indeed in his submissions) is on the fact there was no alarm was because this was the only basis of the police charges against Mr Ying. The representative stated that Mr Ying is now aware of his legislative responsibilities. Mr Ying was not cross-examined at the hearing about his current knowledge.
5. I accept the submissions made on behalf of Mr Ying that his failure to store the firearms correctly was not dishonest or intentional. In her submissions the Commissioner refers to Mr Ying's "ignorance" being the cause of the failure. I agree with the Commissioner that he should have known the requirements or taken steps to find out if there was anything else he had to do when he moved the firearms to Coolongalook, particularly as he knew that the property would be unattended for periods.

Length of time not stored safely

1. The firearms were incorrectly stored at Coolongalook from 10 July 2021 until they were stolen 24 or 25 September 2021, a period of about two and a half months. The Commissioner is critical of Mr Ying's use of the word "only" in his 7 February 2023 affidavit where he stated that the firearms had "only been stored at the Coolongalook property in about early July 2021". The Commissioner states that his use of the word "only" is a matter of concern and indicates that Mr Ying does not recognise the significance of his period of non-compliance. However, in my view it is more important to look at all the circumstances and the overall conduct of Mr Ying rather than to focus on the use of a single word in a single sentence in an affidavit prepared for the purpose of these proceedings.
2. That being said, two and a half months is a considerable period during which for various periods the property was left unattended.
3. Mr Ying, as he was required to do, notified the Firearms Registry of his change of address where the firearms were stored. He states that he believed that the local police would attend the property after he had notified the change of storage details to check compliance with the safe storage requirements but they did not do so. Mr Ying refers to a Fact Sheet issued by the Firearms Registry (SAFE STORAGE LEVEL ONE - Category A & B Requirements) which advises what to do if a licence holder changes the address at which their firearms are stored. After giving information about how to notify the change of address, the Fact Sheet states: "Police will contact you when the new safe storage address needs to be inspected." Mr Ying submits that his reasonable belief was that police would come to the property to inspect his storage after he had notified them of the change of address. This would then have provided him with the opportunity to ask questions and ensure compliance.
4. As the Commissioner states, however, irrespective of the police inspecting the safe storage at the Coolongalook address, it was Mr Ying's personal responsibility to ensure that his safe storage was complaint with the relevant requirements. It is clear that he made an assumption that there were no different requirements and did not make any inquiries.

Danger posed by failure to store safely

1. The stolen firearms remain in the community. Mr Ying accepts the danger posed by the fact that the firearms were stolen from his safe and that he had failed to ensure that the safe storage of the firearms met the requirements. The fact that the firearms remain unaccounted for is a significant risk to public safety.

Previous conduct

1. Mr Ying has not been the subject to any adverse reports regarding his firearms licence prior to this incident. He has no other criminal convictions and the references he has provided indicate that he is a well-respected person in the community. There is no doubt that Mr Ying contacted police as soon as he became aware of the theft and was open and cooperative with police throughout.
2. The Commissioner raises several issues concerning Mr Ying's conduct leading up to the theft of the firearms. She again points to the failure of Mr Ying to comply with the relevant requirements for safe storage where the location of the storage of his firearms was not his primary place of residence. She notes that Mr Ying left the property where his firearms were stored for about five days before returning. The Commissioner states that he took no precautions before leaving to ensure the firearms were safely secured for the five days he was away. However, Mr Ying has provided evidence that he stored the firearms and ammunition separately in the lockable compartments in the safe, removed the bolts from the firearms and placed the bolts along with the ammunition in the separate compartment within the safe. He also states that the door to the firearm safe was locked. Mr Ying was not cross-examined on his evidence.
3. The Commissioner also states that, on his own account, Mr Ying did not check or notice the safe upon his return and stored the firearms next to tools, allowing a thief to use them to easily break into the safe. From the body worn video when police attended on the day Mr Ying reported the firearms missing it is clear but he was unaware of the risks associated with storing his firearms next to his tools. The Commissioner is also critical of the fact that Mr Ying turned off the CCTV monitoring on the evening of 24 September 2021 as the fact that his phone kept alerting him was annoying.
4. The Commissioner states that the above conduct demonstrates a lax approach to firearm safety, especially on premises that had a history of break and enters. This latter comment appears to derive from an interview with a person who from time to time was employed to assist on the property who told police that there had been a break and enter at the property when he had worked for the previous owner. Mr Ying denies that there had been any break and enters during his ownership prior to the theft of the firearms. The Commissioner has not provided any evidence to the contrary.
5. There is no doubt that Mr Ying could have taken greater care and precautions with respect to the storage of his firearms, including by not turning off the CCTV cameras. The major issue concerning his conduct is, however, that he failed to follow the requirements set out in the Regulations with respect to the firearms stored at Coolongalook.

Understanding of requirements and likelihood of future failure

1. Mr Ying states that he has learnt a very confronting but valuable lesson from being charged by the police in this matter. He states that he understands why the law imposes a very high onus on holders of firearms licences to keep their firearms stored safely and states that he understands the expectations placed on him. Mr Ying also states that his plea of guilty reflects that he accepts his previous wrongdoing.
2. Mr Ying's intention now that he is retired is to spend more time at the Coolongalook property and he intends to make it his principal place of residence in the future. He has purchased and had installed CCTV cameras and alarms at the main residence and in the shed at Coolongalook at a total cost of some $12,500. He states that, if he regains his licence he will ensure that a compliant safe is fitted with a compliant alarm that can be monitored off-site.
3. The Commissioner is critical of the fact that Mr Ying has not attended a course on firearms safety and the legislation since his offence. As noted above, Mr Ying's representative states that Mr Ying is aware of his responsibilities. He was not questioned at the hearing about his knowledge. His representative states that Mr Ying intends to store the firearms at Coolongalook if a new licence is granted. It is not clear why he should attend a training course when the only issue is safe storage at those premises and that issue has been canvassed in the criminal proceedings and in these proceedings. The requirements are clearly set out in literature available from the Firearms Registry.
4. I am satisfied that, given the history of the matter and its affect upon him, Mr Ying understands the safe storage requirements in relation to the Coolongalook property.
5. In determining the likelihood that Mr Ying will not store firearms safely in the future, the Tribunal has recognised that the past conduct of an applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; Cooper v Commissioner of Police [2022] NSWCATAD 195 at [60]. In O'Brien v Commissioner of Police [2022] NSWCATAD 259 at [59] the Tribunal noted that it has been widely accepted that, while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance.
6. In this context the Commissioner refers to Mr Ying's 16 speeding offences incurred between 1997 and 2021 and states that this indicates that Mr Ying fails to learn from his past mistakes. The Tribunal has recognised that traffic laws and regulations are designed to ensure public safety and that repeated breaches of the rules indicate a disregard for public safety as well as the safety of the person concerned: Tannous at [32] and [37]; Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]; O'Brien v Commissioner of Police [2022] NSWCATAD 259 at [58]-[60].
7. Mr Ying has held a drivers licence for 26 years. While the speeding offences can't be excused, they are, in general, at the lower end of offending. He has never been disqualified from driving or faced serious driving charges. Despite reservations expressed by the Commissioner, I am satisfied that Mr Ying would comply with the safe storage requirements in the future. As previously noted, he has no other adverse firearms or criminal history.

Reason for licence

1. Mr Ying states that he requires the licence to deal with vermin on his property and to humanely destroy cattle if they become ill or are injured. The Commissioner agrees that Mr Ying has legitimate reasons to seek a firearms licence but notes that, as referred to above, private interests cannot outweigh the public confidence in firearm safety.
2. The Commissioner states that Mr Ying would have other means available to him to control vermin. Mr Ying concedes that the option of contracting someone else to control and bait vermin may be available but submits that is not necessary as he poses no risk to the public if he were to regain his licence.

Conclusions

1. As Mr Ying's representative said at the hearing, human nature being as it is, the Tribunal can never be satisfied that there is no risk in a person being licenced to own firearms. The issue for me is one of looking to the future and whether Mr Ying will pose a risk to public safety if he has access to firearms. The fact that he has committed a firearms offence is one which weighs heavily in determining risk. It is of serious concern that his firearms remain unaccounted for.
2. The Commissioner raises no concerns about the general character of Mr Ying. He has no prior criminal record and, before this instance, no concerns have been raised about his suitability to have a firearms licence. There is no evidence that there has been a pattern of conduct on Mr Ying's behalf that would mean he is generally unaware of his obligations with regard to firearms or dismissive of them. It is clear that Mr Ying is not blameless. However, there is nothing to suggest he acted dishonestly or with intent to subvert the legislation. It is also not a case where Mr Ying left firearms unsecured and not in any type of locked receptacle.
3. Mr Ying provided several references in support of his application which attest to his good character. There is no question that he notified police immediately he realised what had happened and was candid and cooperative at all times. I am satisfied that in general Mr Ying is of good character and a valuable member of the community. I'm also satisfied that he is deeply sorry and remorseful about what happened and regrets that he did not make inquiries about whether he needed to make any changes to his safe storage arrangements when he moved the firearms to Coolongalook.
4. In my view, the likelihood of something similar occurring in the future is extremely low as Mr Ying now has a greater understanding of what is required if firearms are stored at a location other than an inhabited dwelling and will be vigilant in ensuring compliance with all legislative requirements. I note that he had already upgraded security at the property.
5. Overall, I am satisfied that there is virtually no risk that Mr Ying will fail to adhere to safety and safe storage requirements in the future. I am also satisfied that there is virtually no risk to public safety if Mr Ying is granted another licence and that it is not contrary to the public interest for him to hold a category AB firearms licence.

Order 1. The decision to refuse the applicant's Category AB firearms licence is set aside. 2. The respondent is to grant the applicant a Category AB firearms licence 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: 08 November 2023