Alex Denton (a pseudonym) v Chief Commissioner of Police
[2024] VSC 771
•24 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2024 03198
BETWEEN:
| ALEX DENTON (A PSEUDONYM) | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | Gobbo AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2024, further written submissions on 19 December 2024 and 20 December 2024 (in respect of costs) |
DATE OF JUDGMENT: | 24 December 2024 |
CASE MAY BE CITED AS: | Alex Denton (a pseudonym) v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2024] VSC 771 |
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FIREARMS REGULATION — Family violence — Police — Application to be declared not to be a ‘prohibited person’ — Applicant subject to a final apprehended domestic violence order — Whether good reason for applicant to have access to firearms — Whether real risk of danger to life of protected person if application granted — Firearms Act 1996 (Vic), ss 3(1), 47(1), 189 — Family Violence Act2004 (Tas) — Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Brnovic of counsel | Maddocks |
| For the Defendant | Ms D Gaspersz, solicitor | Victoria Police |
HER HONOUR:
Background
In this proceeding, the plaintiff[1] applies for a declaration under s 189(1) of the Firearms Act 1996 (Vic) (‘Firearms Act’) deeming him not to be a prohibited person.[2] The plaintiff was previously the holder of a Category A and B Longarm Licence issued by the Chief Commissioner of Police under the Firearms Act.
[1]This judgment has been published using a pseudonym and redacting information which may lead to identification of a related party in an action commenced under the Family Violence Act 2004 (Tas).
[2]Firearms Act 1996 (Vic), s 189.
The plaintiff became a prohibited person on 21 July 2020 when a final family violence order was made against him in favour of his ex-wife (‘Protected Person’), by consent and without admission, pursuant to Part 4 of the Family Violence Act 2004 (Tas) (‘FFVO’). The FFVO remained in force for a period of 12 months and did not include conditions cancelling or revoking a licence, permit or authority under the corresponding Tasmanian law.
Pursuant to the Firearms Act, a person who is subject to a final order under the Family Violence Protection Act 2008 (Vic) or its interstate equivalents, as is the case here, becomes a ‘prohibited person’ and may not possess, carry or use a firearm.[3] Any firearms licence held by the person is immediately suspended upon becoming a prohibited person.[4]
[3]Ibid, ss 3(1)(c)(i) (definition of ‘prohibited person’) and 5.
[4]Ibid, s 47A(1).
Section 47A(1) of the Firearms Act is, in turn, in the following terms:
Suspension of licence—certain prohibited persons
Immediately on becoming aware that the holder of a licence under this Part is a prohibited person for the reason referred to in paragraph (c)(i) or (c)(ib) of the definition of “prohibited person”, the Chief Commissioner must suspend the holder's licence.
On the evidence, it is clear that the plaintiff did not receive notice from the Licensing and Regulation Division of Victoria Police that his Victorian firearms licence had been suspended.
As from 20 July 2021 when the FFVO expired, the plaintiff was no longer considered to be a ‘prohibited person’ as defined in the Firearms Act.[5]
[5]Ibid, s 3(1)(c)(i).
On 3 November 2021 the Licensing and Regulation Division of Victoria Police wrote to advise the plaintiff that his licence had been cancelled pursuant to s 49(4) of the Firearms Act because he had not applied to the Court within three months of the grant of the FFVO to be declared a non-prohibited person. Further, it deemed the plaintiff a ‘prohibited person’ until 21 July 2026.
Section 49(4) of the Firearms Act is in the following terms:
Power of Chief Commissioner to cancel licence under this Part
The Chief Commissioner must cancel a licence that has been suspended under section 47A(1) on the expiry of 3 months after the suspension of the licence, unless the holder of the licence makes an application under section 189 before the expiry of the 3 month period for a declaration referred to in—
(a) section 189(1)(a) or (1)(b); or
(b) section 189(1AA)(a) or (1AA)(b).
Section 189(2B) of the Firearms Act provides the defendant and the Protected Person may appear before the Court and be heard on an application made under s 189(1) of the Firearms Act.
On 21 October 2024, and subsequently at the hearing before me, the solicitor for the defendant informed the Court that the defendant did not oppose the application or seek to be heard. The solicitor for the defendant also noted that the Protected Person had indicated she was opposed to the application but had not heard further from her. The Court has not heard from the Protected Person.
Legal principles
Section 189(1) of the Firearms Act provides as follows:
Application to be deemed not to be a prohibited person
A person who is a prohibited person referred to in paragraph (c)(i) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person –
(a) is deemed not to be a prohibited person by virtue of being or having been subject to a final order of a kind referred to in that subparagraph; or
(b)is so deemed for limited purposes only.
The Court has discretion as to whether or not to make an order under s 189(1) of the Firearms Act. When considering whether or not to make a declaration that a person is deemed not to be a ‘prohibited person’ by virtue of having been subject to a final order under the Family Violence Protection Act 2008 (Vic) or its interstate equivalents, the Court should have regard to the purpose of s 189(1) of the Firearms Act.
In Pickford v Chief Commissioner of Police,[6] Nettle J identified the purpose of s 189 of the Firearms Act as being:[7]
…to enable a person to be relieved of the consequences of being a prohibited person when, viewed objectively, the circumstances which gave rise to that status, or developments since, or both in combination, impel the conclusion that it is not appropriate or desirable that the person be afflicted with the consequences of bring a prohibited person. Such guidance as is to be derived from the Parliamentary debates is at least not inconsistent with that view.
[6][2002] VSC 435 (‘Pickford’).
[7]Ibid, [6].
Nettle J went on to consider that the following factors should lead to a conclusion that the applicant should be relieved of those consequences:[8]
[8]Ibid, [7].
(a) firearms were not involved in the circumstances which led to making the restraint order;
(b) there were strong indications that the application for the restraint order was motivated by collateral motives;
(c) the applicant had an exemplary record;
(d) the applicant has a genuine and not unhealthy interest in firearms and legitimate reasons for wanting a licence; and
(e) the Chief Commissioner of Police did not oppose the application.
In Clark v Chief Commission of Police,[9] Osborn J considered factors to be favourable to the Court’s discretion under s 189 of the Firearms Act as including the revocation of the restraining order, the relationship within the context of which the restraining order was made, the current status of that relationship and whether the rationale for the restraining order has ceased.[10]
[9][2010] VSC 144.
[10]Ibid, [7].
The authorities concerning applications under s 189 of the Firearms Act were recently surveyed by Daly AsJ in Russo v Chief Commissioner of Police.[11]I respectfully adopt her Honour’s distillation of the following principles from those authorities:[12]
(a)the discretion contained in s 189 of the Act is broad, but its limits are to be determined by implication from the subject matter, scope and purpose of the Act;[13]
(b) the purpose of the Act is to give effect to the principle ‘that the possession, carriage, use, acquisition and disposal of firearms are conditioned on the need to ensure public safety and peace’;[14]
(c) factors relevant to the exercise of the discretion include the purposes for which the applicant wishes to possess and use firearms, the reasons why the ADVO was made, the views of the person protected by the ADVO, the views of the police, and the risks to the protected person and the community generally of the applicant being able to possess and use firearms;
(d) the views of the police may be of particular importance given that the police force is said to represent the public interest, and also has the necessary expertise to reach an informed opinion on the risk posed by particular individuals having access to firearms; and
(e) it may be appropriate to impose conditions upon an order granting an application under s 189 of the Act, including limiting the purpose for which firearms may be possessed and used by reference to the reasons for which a licensed person may be permitted to hold a firearms licence.
[11](2024) 72 VR 571 (‘Russo’).
[12]Ibid, 583-584 [37] (Daly AsJ).
[13]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 (Mason J).
[14]Firearms Act 1996 (Vic), s 1.
Analysis and consideration
What are the nature and circumstances of the FFVO?
On 19 December 2019, an interim Police Family Violence Order was made by Tasmania Police against the plaintiff in favour of the Protected Person for a period of 12 months (‘PFVO’). The PFVO contained an order relating to the surrender of the plaintiff’s Tasmanian firearms licence and firearms.
At the time of the PFVO, the plaintiff and the Protected Person were involved in an acrimonious family law proceeding. The Protected Person made an allegation of family violence against the plaintiff, for which he was later charged with one count of common assault. The allegation did not include that the plaintiff had threatened any person with firearms or misused firearms in any way.
On 10 January 2020, the Protected Person made an application to extend the PFVO. The plaintiff consented to the application for extension without admission.
On 29 January 2020, the plaintiff pleaded not guilty to the single common assault charge. By consent of the informant, the charge was adjourned sine die with no admissions made or conviction recorded, to be dismissed after 12 months provided that the plaintiff did not commit family violence within that period. The charge has since been dismissed.
On 21 July 2020, the FFVO was made by consent, without the making of admissions as to the content of the application, on the basis that the orders on the PFVO relating to firearms would be removed from the FFVO. The FFVO did not include conditions cancelling or revoking a licence, permit or authority under the corresponding Tasmanian law. The FFVO has since expired on 20 July 2021.
A copy of the prior convictions record from Tasmania Police dated 30 April 2024 shows that the plaintiff has never been convicted of any firearms related offences, violence offences or any criminal offences. The plaintiff deposes to not having been charged with or found guilty of any offences in Australia since that date.
What are the risks to the community?
The purpose of the Firearms Act is to give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace by, amongst other matters, establishing a system of licensing and regulating the possession, carriage and use of firearms and related items.[15] The legislation provides for quite substantial restrictions upon the ability to own and use firearms in Victoria, and its interaction with the legislative scheme addressing the problem of family violence indicates that community safety is prioritised over individual freedom when it comes to the possession of firearms.[16]
[15]Firearms Act 1996 (Vic), s 1.
[16]Russo (n 11), 586 [46(a)] (Daly AsJ).
Domestic violence is unacceptable behaviour in any form and is contrary to the fundamental social value of non-violence.[17] The risk to the community of domestic violence is not to be minimised because it usually takes place in private and is often directed towards an intimate partner, as alleged in this case.[18]
[17]Family Violence Protection Act 2008 (Vic), Preamble.
[18]Jones v Chief Commissioner of Police [2024] VSC 432, [24] (Richards J).
That said, there is no evidence to suggest that the plaintiff poses a risk to either the Protected Person or the wider community.
The plaintiff deposes to having had no contact with the Protected Person since the PFVO was granted on 19 December 2019 and does not know her whereabouts or current contact details. The plaintiff is in different personal circumstances such that the rationale for the FFVO has long since ceased.
The plaintiff deposes to a history of safely using firearms as a member of the following organisations:
(a) Sporting Clays Australia Association Incorporated;
(b) Sporting Shooters’ Association of Australia Incorporated;
(c) Tasmanian Field and Game Association Incorporated; and
(d) Australian Deer Association.
As a member of these organisations the plaintiff is required to comply with their codes of conduct.
Further, the plaintiff deposes to his extensive training on the handling and safety of firearms including military training as an Army Cadet and a TasTAFE certification on the safe use of Category A and B firearms which states that he has demonstrated an understanding of Tasmanian firearms legislation, community safety and firearms.
Additionally, the Court draws comfort from the fact that following the expiration of the FFVO and since 13 January 2022, the plaintiff has qualified for a Category A and B firearms licence in the State of Tasmania, and has subsequently obtained and holds a valid Tasmanian firearms licence. Given that Tasmania Police have determined in the public interest that the plaintiff is permitted to hold a firearms licence, it would appear incongruous for Victoria Police to hold an inconsistent view, particularly given the plaintiff’s history and residence in the State of Tasmania.
For what purpose does the plaintiff wish to use firearms?
The reasons for which the plaintiff held a firearms licence were for hunting and sports shooting. The plaintiff wishes to regain a Victorian firearms licence so that he can resume those activities in the State of Victoria.
What are the Chief Commissioner’s views?
Prior to the hearing, the Chief Commissioner of Police advised that he did not oppose the plaintiff’s application or seek to be heard. Nonetheless, Ms Gasperez attended the hearing on behalf of the Chief Commissioner. I infer from this position that Victoria Police does not know of or consider that there may be any reason why the application should not be granted.[19]
[19]Pickford (n 6), [7] (Nettle J).
Conclusion
I am satisfied that declaring the plaintiff to be a non-prohibited person would not materially increase the risk to the Protected Person or any other person.
There is no appreciable risk to community safety in circumstances where the plaintiff has not posed a risk of harm through having access to firearms throughout his life.
The plaintiff has not been found guilty of any domestic violence related offences. Nor has there been any civil finding that the plaintiff posed harm to the Protected Person. The allegations leading to the making of the FFVO did not involve firearms, nor was there basis to consider that they were relied on in an intimidatory way. Moreover, the FFVO was made by consent, without the making of admissions as to the content of the application. The FFVO lapsed over three years ago, on 20 July 2021. There was no instance of breach of the FFVO in the period during which it was in force. The plaintiff no longer has contact with the Protected Person.
I am fortified in my view that there is no material increase in the risk to the Protected Person in granting the application by the lack of opposition of the defendant to the grant of the application. It is clear from the authorities that the attitude of the defendant is a relevant factor.
The attitude of the Protected Person is also a relevant factor. However, the Protected Person, while informing Victoria Police of her opposition to the application, has not appeared before the Court or sought to be heard.
I consider that the plaintiff has a genuine and not unhealthy interest in firearms and legitimate reasons for wanting a licence. His extensive history of safely using firearms was not challenged.
Finally, I do not consider that any conditions ought to be imposed upon the grant of the plaintiff’s application.
Granting the application will not automatically result in the plaintiff regaining his firearms licence. Pursuant to the Firearms Act, the plaintiff will be required to make an application for a firearms licence to the Chief Commissioner of Police.[20] Accordingly, I will direct that a copy of these reasons be provided to the Licensing and Regulation Division of Victoria Police to assist in its consideration of any application made by the plaintiff.
[20]Firearms Act 1996 (Vic), s 31.
The Court will make the following declaration:
Pursuant to s 189(1) of the Firearms Act 1996 (Vic) (‘Firearms Act’), the plaintiff is deemed not to be a prohibited person, for all purposes, by virtue of being or having been subject to a final order of the kind referred to at paragraph (c)(i) of the definition of ‘prohibited person’ in s 3(1) of the Firearms Act.
Whilst the Chief Commissioner did not seek to be heard in respect of the substantive application, both parties filed costs submissions. As neither party sought costs, I will make no costs order.
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