Allouche v Commissioner of Police, New South Wales Police Force
[2013] NSWADT 248
•05 November 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Allouche v Commissioner of Police, New South Wales Police Force [2013] NSWADT 248 Hearing dates: 29 October 2013 Decision date: 05 November 2013 Jurisdiction: General Division Before: G D Walker, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Firearms licence - revocation-discretion-- grounds for exercise. Legislation Cited: Administrative Decisions Act 1997; Firearms Act 1996; Firearms Regulation 2006 Cases Cited: Bevan v Commissioner of Police [2004] NSWADT 1
French v Commissioner of Police [2013] NSWADT 221
Lynch v Commissioner of Police [2006] NSWADTAP 43
Vella v Commissioner of Police [2003] NSWADT 91
WN v Commissioner of Police [2007] NSWADT 72.Category: Principal judgment Parties: Tarek Allouche (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)Representation: T Allouche (Applicant in person)
Bartier Perry (Respondent)
File Number(s): 133219
reasons for decision
Background
The applicant Tarek Allouche on 22 July 2013 applied for a review of a decision by the Commissioner of Police on 13 May 2013 to revoke the applicant's category AB firearms licence No. 410734154. That decision had been affirmed by an internal review on 10 July 2013 (exhibit R1, tab 7).
The Commissioner's initial decision to revoke relied on the fact that on 26 February 2013 the applicant was placed on a 12 months bond for the offence of failure to have approved ammunition storage. He also concluded that it would not be in the public interest for the applicant to continue to hold a firearms licence.
The internal review affirmed that decision, again on the ground that the applicant was subject to a bond for an offence prescribed under cl. 5 of the Firearms Regulation 2006, and also because the applicant had contravened a licence condition by failing to maintain safe storage and because it was not in the public interest for the applicant to retain his licence.
Pursuant to s 63 of the Administrative Decisions Tribunal Act 1997, the tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For that purpose it may exercise all the functions conferred or imposed by any relevant enactment on the administrator who made the decision. The issue in this case is thus whether the Commissioner's revocation of the applicant's firearms licence is the correct and preferable decision.
On 2 December 2012 the applicant was found to be travelling in a motor vehicle with a Mr Bland Saleh, who police believed to be an associate of the Hell's Angels Outlaw Motorcycle Club (OMCG), the Soldiers of Allah, the Brothers for Life criminal gang (BFL) and the Notorious Organised Crime Network [sic]. He has a number of convictions for violent offences.
Apparently as a result of that observation, police on 19 December 2012 conducted an unannounced inspection of the applicant's firearms storage. They found that he had contravened the storage requirements of the Act by failing properly to secure ammunition. He had left 2 boxes (32 rounds) of .243 cartridges, two boxes of shotgun shells and four boxes of .22-250 ammunition (totalling 80 rounds) unsecured. The last-mentioned cartridges were not compatible with the .243 rifle or the 12-gauge shotgun owned by the applicant. The applicant's firearms licence was thereupon suspended and the two firearms were seized.
At Parramatta Local Court on 26 February 2013 the applicant pleaded guilty to the charge of not having approved ammunition storage. The charge was found proved but was dismissed under s 10 upon the applicant's entering into a good behaviour bond for 12 months.
In their application for an internal review of the Commissioner's revocation decision, his then solicitors submitted that the applicant is a 20-year-old man who appeared before the Local Court with no criminal convictions and could be described as a person of prior good character. Shortly before this incident he had successfully passed a safe storage inspection. He pleaded guilty to the offence under s 40(1) of the Act at the first available opportunity, and expressed remorse and contrition for his offence. He resided (as he still does) in a stable family environment with his parents and an elder brother. He was gainfully employed full-time as a senior hairdresser.
He had been compliant with police at all times and the inspection showed that both of his firearms were locked in an approved safe. His explanation for his failure to secure all the ammunition in his possession was that he had driven back from a hunting trip at Bendemeer, a five and a half-hour drive, had secured in his firearms and as much ammunition as he could fit in the safe and had fallen asleep exhausted. It was submitted that he had learned a significant lesson and was extremely unlikely to reoffend.
The Firearms Act 1996 (the Act) s 24(2) provides as follows:
(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.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
The evidence
Apart from the question of the applicant's association with members of criminal gangs, to which I return below, the facts of the case are not in dispute.
The applicant elected to adduce no oral evidence but tendered a short statement signed by himself and a statement from his employers Johnny and Jowell El-Zreiby (exhibit A1). The latter document is unsigned and thus of little weight in itself, but it appears to be an unsigned copy of a signed reference prepared by the employers for the purposes of the Local Court hearing in February 2013 (exhibit R1, tab 5d). That reference states that the applicant had been their employee for two years. It speaks highly of his family and of his qualities as a hard worker who is popular with the salon's clients. They had never had any problems with him and had even opened their home to him. They found him a dedicated and loyal employee and very honest. He had expressed how sorry he was for the offence and that he would ensure never to break the law again.
In his oral submissions the applicant made a number of statements of fact. Being unsworn, they carry less weight than testimony from the witness -box, but may be taken into account. He stated that he did not know who owned the .22-250 cartridges. They had been left in his utility truck, which the party had been using for the purposes of the hunt. As regards connections with BFL, he had known Hicham Ismail since high school, but had not known that he was a BFL member until the police had told him. He thought perhaps Hicham had not told him of his membership because he knew the applicant would be upset by it. As far as he knew, Bland Saleh was not a club member, but he had no clue about his activities.
He had left his employment with the El-Zreiby salon about a month and a half previously as he was looking for premises in which to start his own business. He was still living with his parents and his brother and they were having cameras installed around the house the following Sunday in order to ensure better security.
In addition to the s 58 documents (exhibit R1), the respondent relied on a statement by Constable Robert Luikens dated 18 October 2013 (exhibit R2). In it he stated that he had been informed that the applicant had been found travelling in a vehicle with Mr Ismail, who was known to be a member of BFL, a Middle Eastern organized crime gang. Upon performing a search he saw that the applicant had recently acquired a new firearm, which had not yet been the subject of an inspection. In view of his known association with Mr Ismail, Const. Luikens and decided to undertake a safe storage inspection.
When he announced the purpose of his visit to the applicant at his front door, the applicant appeared agitated but led the officers into the house, where they observed the unsecured ammunition. He admitted that he knew it was a condition of his licence to secure it.
Const. Luikens stated that BFL is heavily involved in extortion, drug supply and violence. Hicham Ismail and Bland Saleh were both known members of BFL and were present at a violent and unprovoked attack on a passerby in George Street which was recorded on video. Mr Ismail has been charged with a total of 11 offences involving drugs, weapons, traffic, violence, prohibited weapons and knives. He is currently awaiting trial on serious violence charges. Mr Saleh had been convicted of a number of violent offences including assault and affray.
When conducting the inspection on 19 December 2012, he asked the applicant about his association with Mr Ismail. The applicant replied that he had known him since childhood and that he is not violent or dangerous, but "does tend to take things too far". The applicant has also been observed on two occasions in the company of Mr Saleh.
Const. Luikens said he was greatly concerned about the applicant's links to BFL. In recent times there had been an increase in thefts of licensed firearms. If BFL members knew the applicant owned firearms, they might force him to hand them over unwillingly. He also thought the applicant's links to BFL could result in his diverting legally- purchased ammunition to gang members, whether voluntarily or under coercion.
The other statement relied on by the respondent was that of Sarah Lithgow, solicitor, dated 22 October 2013 (exhibit R3). It states that on two separate occasions Ms Lithgow contacted the El-Zreiby salon but was told that the applicant had ceased working there about two months previously. As with exhibit R2, the author of this statement was not called for cross-examination.
Consideration
In support of the decision under review, the respondent relied in part on s 24(2)(a) of the Act, which is to be read with a number of other provisions of the same statute, in particular those providing that if a person applies for a firearms licence, the respondent is in certain circumstances bound to refuse the application.
Section 11(5)(d) of the Act provides that a licence must not be issued to a person who is subject to a good behaviour bond in relation to an offence prescribed by the regulations. Clause 5(2)(a) then states that the prescribed offences include those referred to in cl. 5(1)(a), namely "An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction...."
At the time his licence was revoked, the applicant was subject to a good behaviour bond in relation to the offence of failure to store ammunition in the prescribed manner under s 40(1)(d) of the Act. He is still subject that bond, which in the normal course of events should expire on 26 February 2014.
The Commissioner has a discretion whether or not to revoke a licence under s 24(2)(a), whereas s 11(5)(d) leaves no such discretion in relation to refusing an application for the issue of a new licence. That difference in treatment has sometimes been seen as anomalous, but that is not necessarily so (see French v Commissioner of Police [2013] NSW ADT 221; Bevan v Commissioner of Police [2004] NSW ADT 1 at [26]).
The tribunal has held, however, that the discretion should be exercised in favour of the licensee's retaining the licence only in special circumstances: WN v Commissioner of Police [2007] NSW ADT 71 at [28]-[30]; Bevan, loc. cit.
The applicant at various stages has advanced the argument that he has a keen interest in hunting. That proposition, however, in varying degrees would be true of most sporting shooters in New South Wales. I also take into account the considerations advanced by his then solicitors in their submissions to the internal review, which are outlined above, but none of them individually or together constitute the kind of special circumstances that would lead to a favourable exercise of the discretion in the applicant's favour.
The respondent also relies on the applicant's contravening of a provision of the Act and of his licence under s 24(2)(b)(ii) and (iii) of the Act.
On 26th February 2013 the applicant was found guilty of an offence under s 40(1) of the Act. The fact that the charges were dismissed subject to his entering into a good behaviour bond and no conviction was recorded is irrelevant for the purposes of s 24(2)(b), which requires only that the licence holder has "contravene[d]" a provision or condition, and the Local Court found that he had done so.
The internal review concluded that the nature of the applicant's offence "may be considered at the lower end of the scale of seriousness" (exhibit R1, tab 7). Presumably, the Local Court took the same view.
In the applicant's favour, I also take into account his prior good record, his stable family background and his passing of a safe storage inspection shortly before the incident in question. On returning from his hunting trip, he had properly secured his rifle and shotgun in his safe. It is not disputed that he had also secured in the safe as much of his ammunition as the appropriate compartment would hold. Nevertheless, the remaining boxes of cartridges were left in plain sight. They were left in that condition for a day and a half, but there is no way of knowing how long they would have remained unsecured if the police had not arrived to perform the inspection. The applicant acknowledged at that time that he was aware of the storage requirements under the legislation.
The evidence does not, however, in my view, point to the existence of special circumstances that would warrant exercise of the discretion in favour of the applicant's retaining his licence.
The respondent also submits that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) of the Act together with cl. 19 of the regulations.
In support of that contention the respondent submitted inter alia that the applicant had failed to comply with the safe storage requirements of his licence and provided no reasonable excuse for that failure. Some of the ammunition left unsecured was of a calibre different from those of his own weapons and he had made no attempt to locate the true owner, who he said had left the cartridges in the applicant's utility by mistake.
The contravention took place early on in his possession of a licence and demonstrated , the respondent argued, a lax attitude towards requirements that are in place to protect public safety. The respondent also submitted that the applicant had provided an apparently untrue reference in support of his claim to retain his licence.
Is not clear that the reference was false. It appears to be an unsigned photocopy of a genuine signed reference that was given for the purposes of the Local Court proceedings. The respondent also submits, however, that the applicant it is known to associate with members of an organised crime gang that is known to be involved in gun crime, violence and extortion.
The applicant does not dispute that he was several times found in the company of Mr Ismail and Mr Saleh, both of whom have a criminal history and who police believe to be BFL members. The applicant has consistently denied any knowledge of Mr Ismail's gang membership, saying that he has known him since schooldays but has never taken any interest in his activities. He knew nothing of Mr Ismail's BFL involvement until told about it by police and had not spoken to him since the relevant incident. He thought that Mr Ismail had not told him himself because he feared that the applicant would be upset by the news.
As regards Mr Saleh, the applicant has consistently maintained that Mr Saleh is not a gang member, nor does he participate in gang activities. The respondent, of course, maintains the opposite.
In view of the conclusions I have reached on the preceding two grounds, it is not necessary for the purposes of these reasons to resolve that conflict. Plainly, however, any involvement with criminal gang members is highly inadvisable on a number of grounds, including those outlined by Const. Luikens in his statement. In particular, should the applicant after the expiration of his good behaviour bond reapply for a firearms licence, he can be confident that the respondent would closely scrutinise his connections in search of indications that he is associating with any members of such organizations or any persons involved with their activities.
In Lynch v Commissioner of Police [2006] NSWADTAP 43, the tribunal appeal panel stressed the overriding public interest in the need to ensure public safety in firearm use and possession. Thus the principal issue in considering public safety is whether there is a risk to the safety of the public if the applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.
In the present case, I consider that the applicant's continuing bond for a safe ammunition storage violation, and his knowing disregard of the relevant provisions, make his holding of a licence at the present time a public safety risk.
The decision under review is therefore affirmed.
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Decision last updated: 05 November 2013
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