AMJ v Commissioner of Police NSW Police Force

[2012] NSWADT 228

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AMJ v Commissioner of Police, NSW Police Force [2012] NSWADT 228
Decision date:	07 November 2012
Jurisdiction:	General Division
Before:	S Frost, Judicial Member
Decision:	Set aside the decision under review; substitute a decision that the applicant's application for a firearms licence is granted.
Catchwords:	Firearms licensing - applicant attempted suicide - application for firearms licence refused on public interest grounds - decision set aside
Legislation Cited:	Firearms Act 1996
Cases Cited:	Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28; Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Category:	Principal judgment
Parties:	AMJ (Applicant); Commissioner of Police, NSW Police Force (Respondent)
Representation:	Mainstone Lawyers (Applicant) Sparke Helmore (Respondent)
File Number(s):	123089
Publication restriction:	S75 of the Administrative Decisions Tribunal Act applies

Reasons for decision

1. GENERAL DIVISION (S FROST, JUDICIAL MEMBER): The applicant, referred to for the purpose of publication of these reasons as "AMJ", got her first firearms licence under the Firearms Act 1996 in 1998. She is a sports shooter, and by all accounts a very accomplished one.

1. She held a licence until early 2011, when the Commissioner refused to renew it. That decision was based on the applicant's suicide attempt in May 2010. It was when she applied for a renewal of her licence that she disclosed the suicide attempt, in response to a question on the renewal form. The Commissioner refused the licence renewal application, and sent officers to the applicant's home to confiscate her firearm and any ammunition she had.

1. The applicant sought review of that decision in the Tribunal but eventually withdrew her application.

1. She made a subsequent application for a new firearms licence in December 2011 but that application was refused. The decision was reviewed internally but affirmed. The applicant now wants the Tribunal to review the decision.

1. I have decided to set aside the respondent's decision and to substitute a decision that a firearms licence should be granted to the applicant. My reasons follow.

The legislation and relevant authorities

1. Originally the decision to refuse the licence was based on ss 11(4)(b) and 11(7) of the Firearms Act.

1. The Commissioner does not now press s 11(4)(b), which refers to the Commissioner having reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's previous attempt to commit suicide or cause a self-inflicted injury.

1. The case turns solely on s 11(7), which provides that the Commissioner (or the Tribunal on review) may refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest.

1. The parties agreed that certain comments of Deputy President Hennessy in Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 are relevant to a consideration of whether the issue of the licence may be contrary to the public interest. The Deputy President, although dealing with the "fit and proper person" requirement elsewhere in the Act, focused on the importance of protecting public safety. At [28] she said:

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.

1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, an Appeal Panel of this Tribunal had said at [25], in the context of the licensing regime for the security industry, that the public interest is:

. . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

The applicant's history

1. The following factual background does not appear to be in dispute. It is taken largely from the report written in July 2012 by a forensic psychologist ("Mr J") who evaluated the applicant's psychological state in June 2012.

1. The applicant's parents separated when she was 12 months old. Her mother told her that her father had been a paranoid schizophrenic and following the separation of her parents the applicant only had contact with her father about once every five years.

1. The applicant and her siblings, an older brother and sister, were raised by their mother. The mother found it difficult being a single parent and became depressed. The applicant was not close to her mother while she was growing up.

1. The applicant became depressed at around the age of 15 or 16; she reports having felt "constantly devalued and not supported". This continued until she was 25 years old when she commenced treatment with a psychologist in Adelaide.

1. The applicant left home when she was 17. She told Mr J that she left because she felt she was not getting any support from her mother.

1. The applicant commenced a de facto relationship at the age of 17. This relationship apparently lasted about 18 months.

1. She married when she was 23 years old. The marriage ended after three years.

1. She married again when she was 27 years old. That marriage continues, despite a separation in 2005 which lasted until 2010.

Work history

1. The applicant was raised in South Australia. It seems that her first job was as a clerk with the Public Service, where she worked for about seven years. She moved to New South Wales and worked in the NSW Public Service for three or four years. She did temporary secretarial work with an agency for about 12 months and then did office work in her husband's trucking business for about eight years. From 2005 until the present time she has been doing contract administration work. She also works as an adjudicator and co-mediator from time to time.

1. She is undertaking a university degree in Criminology which she is close to completing.

The attempted suicide

1. The suicide attempt, through an overdose of phenobarbitone, came after the death of her two dogs. One of the dogs, to whom the applicant had been particularly close, had died from a liver disorder after a long illness. Seven months later the second dog died. At the time the applicant and her husband were separated.

1. The applicant attributes the suicide attempt to having severe feelings of loss rather than anger.

Treatment since the suicide attempt

1. The applicant was discharged from hospital two weeks after the suicide attempt. She immediately came under the care of local mental health professionals. Progress notes indicate regular contact with the applicant for several weeks, with consistent reports that her mood was "good" or "OK" and that she denied thoughts of self harm or suicidal ideation.

1. In late June 2010 her mother became extremely ill and the applicant travelled to Adelaide to care for her. The mother recovered, and by early August 2010 the applicant had returned to Sydney.

1. A mental health assessment on her return noted "some evidence of dysfunctional upbringing" and that the applicant continued to present some suicide risk as she felt "hopeless about the future". The mental health service continued to engage with and visit the applicant. In late August 2010 (three months after the suicide attempt) a psychiatrist was reporting "no suicidal thoughts or plan". In mid November 2010 the same psychiatrist noted "not suicidal ... nil plan of self harm".

1. The psychiatrist also wrote a letter dated 6 January 2011 to the firearms licensing branch which stated:

...

[The applicant] is a 40 year old lady living with her partner. She is a highly functional woman working as Contract Administrator. She had been a patient of our service [...] since May 2010. She had taken an overdose of prescribed medication in the context of relationship issues.

I have first come in contact with [the applicant] as an ongoing patient of the service on 30 August 2010. Since then I have reviewed her once over approximately a three month period. On both occasions she presented as calm and stable. She had been discharged from our service on 11 November 2010 to her regular General Practitioner as she was doing well.

Her diagnosis is mild to moderate Depression. She does not have any Psychotic Disorder. She had been compliant with her medication and is motivated to continue her treatment. During this period she has been fully functional and continued her stressful job requirement during this period. There were no acute concerns regarding her safety. She had never been identified as a threat to the safety of others in past.

She is currently on Lexapro 20mg daily which an antidepressant (SSRI) which may cause somnolence but is not known to cause sedation. At this stage, [the applicant] displays good insight and decision making capabilities.

The nature of the illness is such that a definite comment about future capacity is not feasible as multiple factors play a part for any relapse of her Depressive Illness which could affect her thinking pattern. She is under the regular care of her General Practitioner who would be monitoring her for any relapse or deterioration of her mental state.

...

1. A few weeks later, the applicant commenced regular sessions with a private psychologist ("Ms K"). The clinical progress notes include the following:

• Session 2 - 19 February 2011 - "[AMJ] stated still feeling sad, depressed, lethargic & has daily negative cognitions about what it means to be a female/woman in this society. ... Her depressed mood gets worst when she is thinking about her pet dog [who died] ... When questioning [AMJ] further about her thought processes she denied any current TOSH [thoughts of self harm]/suicidal thinking, ideation. ... CLINICAL IMPRESSION: [AMJ] presented with flat affect, depressed mood & this is congruent to her current negative cognitions".
• Session 3 - 19 March 2011 - the applicant was unable to attend.
• Session 4 - 16 April 2011 - "She described her mood as still sad & depressed but a bit better at times. ... CLINICAL IMPRESSION: [AMJ] continues to display flat affect, but there is no evidence of TOSH/suicidal thinking in this session. [AMJ]'s relationship with her mum appears to be a maintaining factor for her current depressive state".
• Session 5 - 7 May 2011 - "She reported her mood as 'good' & more 'positive' in the past few weeks due to taking time out to enjoy pleasurable activities ... [Q]uestioned whether [AMJ] had ... any thoughts of self harm or suicidal thinking, currently. She reported no thoughts of this kind presently as [AMJ] stated feeling good at present. CLINICAL IMPRESSION: [AMJ] presented in a happy & positive mood & her affect was consistent with her mood, in today's session".
• Session 6 - 4 June 2011 - "She reported experiencing less frequency in negative thinking, especially about her core belief about herself, and that her mood continues to be 'good', & not feeling depressed at all. [AMJ] is more accepting of herself ... CLINICAL IMPRESSION: [AMJ] attended session today looking happy in affect, her tone of voice was normal & nil evidence of a depressive state".
• Session 7 - 18 June 2011 - "She admitted in feeling good in mood & state of mind ... When questioning her about her negative cognitions/frequency/etc, she denied having any since last session, as well as nil thoughts of self harm or suicidal ideations. ... CLINICAL IMPRESSION: [AMJ] presented with a positive outlook in this session. Nil evidence of a depressive state. Noticed some emotional distress when she talked about her marriage issues prior to their separation".
• Session 8 - 9 July 2011 - "She expressed that she feels physically tired at present due to work & studies commitments, but still reported her mood as 'good'. ... [AMJ] also disclosed that r/ship with [husband] is still OK & improving gradually & that they are moving forward to buying a house as they want to be developing a closer bond as a couple & sharing their lives together. Upon questioning about her negative cognitions/core beliefs, [AMJ] responded that she still has negative message occurring, yet less frequently & she is now able to counteract it with a more realistic, positive message about herself. She denied any thoughts of self-harm or suicidal ideation @ present. CLINICAL IMPRESSION: [AMJ] continues to display a positive & happy affect, & her mood is consistent with this. There was no observable signs of a flat affect, depressed state or flat, low tone of voice from [AMJ] in today's session".
• Session 9 - 13 August 2011 - "She described her mood as 'very good' since last session. ... CLINICAL IMPRESSION: [AMJ] presented with appropriate affect, & thought form was logical. No evidence of depressive state & self harm or suicidal concerns. Her thought content was focused on improving her r/ship with mum, as well as she has started to believe positive statements about herself, to a degree".
• Session 10 - 24 September 2011 - "She described experiencing nil depressive symptoms & that her mood has returned to a good state & since last session she has been busy with work/study commitments. ... CLINICAL IMPRESSION: [AMJ] was teary-eyed when talking about [a particular issue], but no evidence of TOSH/suicidal thinking @ this session. Her affect was appropriate w/in the context of the discussion".
• Session 11 - 8 October 2011 - "She reported remaining in good mood & frame of mind ... [AMJ] does not feel depressed at all, presently. She denied any TOSH or suicidal thinking. ... She expressed feeling of increased confidence in self, particularly in the work environment and [AMJ] stated using more open & assertive communication skills when communicating with others. CLINICAL IMPRESSION: [AMJ] displayed appropriate positive affect. No indication of depressive symptoms or risk of harm to self or others. Thought form was logical. ... Over the last 4 months or so, [AMJ] has continued to present consistently with no evidence of acute symptoms of a depressive illness, as well as Nil indication of TOSH/suicidal thinking, plans. She stated goals that she wanted to achieve in her life, despite her past".
• Session 12 (last session) - 26 November 2011 - "She stated her mood is 'very good' & her life is good but busy as busy with work, university & building a house. [She] reported many positive things have occurred in her life since last session. Firstly, her r/ship with [husband] has improved, she stated that '[he] treats me as an equal, now'. Equally important, her r/ship with her mum has also improved whereby [AMJ] reported that mum is more responsive in a positive manner towards [AMJ] & more accepting of [AMJ] as herself. [AMJ] happily stated this has improved her self esteem & beliefs about herself. [She] mentioned that there is going to be a family reunion soon, happening in Adelaide, & she is looking forward to this. She denied experiencing any depressive symptoms as life is good @ present. At times, she still experience[s] negative thinking but [she] reports more capable of tackling her cognitions. She stated that she is more accepting of herself as a person & has not experienced any thoughts of self harm or suicidal ideation. She does not feel that she is a risk to herself or others as she has meaning & purpose in her life again. ... CLINICAL IMPRESSION: [AMJ] presented in an extremely happy & positive state/affect & this is due to the many positive changes that occurred in her life since previous session. Her tone of voice was normal and appropriate & her thought processes was logical. Nil depressive thoughts/thinking was noticed".

1. On 16 June 2011, about two weeks after Session 6, Ms K wrote a letter that was addressed to the "Chairman of Adminstrative Tribunal" (sic) but was evidently intended for the Firearms Registry. It was in the following terms:

I was requested by [the applicant] to provide a report on the assessment of her mental health status to aid her application to obtain her fire arm weapon and shooter's licence.

[The applicant] was referred by her General Practitioner to me, for psychological treatment for her depressive illness. [She] was first seen by me on 22nd January 2011 and she has continued to attend all subsequent appointments since then.

To date, [the applicant] has responded positively to treatment and has shown gradual improvements in her mood, thinking and behaviours in recent sessions. [She] has shown good insight and better judgment in her decision-making and thought processes.

Despite experiencing depression at that time, [the applicant] contacted the police and advised them of her access to firearms and surrendering the weapons to the police without hesitation. Clearly, this demonstrated that [the applicant] acted in a responsible manner with sound decision making skills. She has never been a risk or threat to the safety of others. Her determination to obtain her licence and firearms back as stated by [her] is purely due to her wanting to participate in air rifle shooting as a hobby again, in which she has enjoyed for many years with her partner.

It is in my opinion that it would be inappropriate for her to obtain her firearms and licence at this point in time, due to the nature of her depressive illness. However, if she continues to respond positively to ongoing treatment, that is both medication and psychological therapy, it may be feasible in the future that [the applicant's] firearms and licence could be return[ed] to her to allow her to re-engage in this sport as a pleasurable activity.

1. Five and a half months later, on 22 November 2011, a few days before Session 12, Ms K updated her opinion in a letter to the Firearms Registry, as follows:

Since my initial report in June this year, [the applicant] has continued to attend and engage fully in all her scheduled appointments with me. She has consistently reported "good" in mood state and this is evident in her calm and stable presentation in sessions.

[The applicant] is coping better with her depressive illness and presently there is no evidence that she is an acute risk to self or others. She is now able to recognise and manage her negative cognitions, emotions and behaviours more effectively.

Since commencing psychological treatment for her depression, [the applicant] has continued to work in a demanding job and undertake university studies at a fully functional level. She has clearly articulated future goals that she wants to achieve after the completion of her studies.

Prior to her onset of depression, [the applicant] enjoyed participating in air rifle shooting as a pleasurable activity/hobby with her partner for many years. She would like the opportunity once again to reengage in this sport which gives her immense pleasure and enjoyment.

[The applicant]'s mental state has shown to be consistently stable overtime since June, 2011 and currently she is not exhibiting or suffering from any acute depressive symptoms. She will continue to be under medical care from her general practitioner [...], when her final session ends with me on 26th November 2011.

In light of this, I recommend that [the applicant] be given consideration to obtain her Shooter's Licence once again.

1. That letter apparently encouraged the applicant to apply once again for her firearms licence in December 2011, but as mentioned in [4] above, the application was unsuccessful. That led to her application to this Tribunal for review of the decision.

The attempt to obtain an updated report from Ms K

1. As the hearing date approached, the applicant's solicitor suggested to his client that she obtain an updated report from Ms K. However, Ms K indicated in a letter dated 12 June 2012 that she was "not prepared to provide a current statement of risk stating minimal risk for [the applicant]. I have not seen [her] for the last 6 months." She continued in her letter:

As you would be aware, any risk assessment needs to be current and based on the patient's current situation and circumstances and thereby I am not in a position to comment on these aspects for [the applicant], currently.

I am not in a position to assist you with your request and therefore I cannot make any comment about the current level of risk that [the applicant] poses to herself or the community.

1. Ms K gave oral evidence to the Tribunal in which she stated that she could not have given a worthwhile updated assessment of the applicant's condition without undertaking a number of further consultation sessions with her. There needed to be a consistency of clinical presentation which could not be derived from one single session.

1. When asked how many sessions would be required, she said there is no set answer; it depends on the history of the condition, the reasons for it, any protective factors that had been put in place, and perhaps other factors. She suggested as a general rule that there would need to be more than four sessions, and possibly six or even more. She also indicated that she could give an assessment after only one consultation, but thought that she could probably not give a strong opinion in that circumstance.

The approach to Mr J for an up-to-date report

1. Because of Ms K's understandable reluctance to provide an updated assessment (see [31] above), the applicant approached Mr J.

1. Mr J's assessment was based on a single, two-and-a-half hour consultation which, as he described it in his report, comprised:

• The administration, scoring, and interpretation of objective psychological tests covering areas of emotional and personality functioning (which according to his oral evidence took about an hour); and
• A clinical interview which provided details concerning personal history as well as details relating to the applicant's Tribunal application (which he said lasted about 90 minutes).

1. He also cited as "Sources of Information" the following documents:

• The "Discharge Referral" completed when the applicant was released from hospital after the suicide attempt;
• The psychiatrist's letter dated 6 January 2011, quoted in [26] above;
• Various documents from the respondent;
• Reports of Ms K dated 16 June 2011 and 22 November 2011 (respectively [28] and [29] above).

1. Mr J provided a very thorough report of the results of the tests he undertook. His report also explained that the applicant's scores on the Paulhus Deception Scales indicated that "she was quite frank when responding to items of the tests administered to her and did not attempt to present herself in a positive light or in a negative light. It is therefore likely that her test results provide a reliable representation of her emotional and personality adjustment."

1. The most significant elements of the objective testing, as expressed by Mr J, are:

Diagnosis and Personality Organisation

The results of tests administered to [the applicant] indicate that she does not have a personality disorder or an emotional disturbance. There were also no indications of her having any instability in her adjustment.

Emotional Symptoms

Her results indicate that she is not clinically depressed or anxious. She has an adequate self-concept and self-image. There were no indications of her having any thought process or thought content disorder and she does not have a perceptual disturbance.

Her score of 10 on the Suicide Probability Scale was within the subclinical category which is the lowest category of Assessed Risk. Scores within this category range from 0 to 24. The scale which was most highly elevated was that of Suicide Ideation but this was within the normal range.

...

Impulse Control

The results of the UPPS-P Impulsivity Scale indicated that she has adequate control over drive and impulse and is not prone to engaging short-sighted or risk-taking behaviour. She would usually consider the consequences of her behaviour in advance and she is also able to persevere with tasks.

Aggression

The results of the Anger Disorders Scale indicate that she does not have any anger pathology. Feelings of anger are not a problem for her and would not intrude into her daily functioning.

When feelings of anger arise she has a strong inclination to control or suppress her feelings rather than to express them. She is not prone to impulsive aggressive acting out behaviour and has an average tolerance for aggressive behaviour.

Antisocial Tendencies

Her results indicate that she is pro-social in her attitude. She identifies with societal norms and conventional values.

1. Mr J ultimately expressed his opinion in his report as follows:

...

The results of psychometric tests administered to [the applicant] indicate that she is not presently suffering from depression. She is assessed as having a very low risk of attempting to commit suicide in the future. She is pro-social in her attitudes and she does not have any anger pathology. She has also been shown to have adequate control over drive and impulse and is not prone to engaging in impulsive acting out behaviour. She is assessed as having stable personality functioning.

There were no indications from the psychometric tests administered to her which might suggest that there is a risk of her attempting to harm herself or others if she were to be granted a shooters licence.

Based on information available I have formed the opinion that [the applicant] has a low risk of attempting to harm herself or other people in the future. I have also formed the opinion that there is a low risk that she would not be able to exercise continuous and responsible control over firearms. It is not possible to state that there is "virtually no risk to public safety" in relation to [the applicant] just as it is not possible to make this statement in relation to any other person. In my opinion [the applicant] does not represent any greater risk than other people in the community.

...

1. Mr J's use of the expression "virtually no risk to public safety" is plainly a reference to DP Hennessy's use of that expression in Ward (see [9] above).

Consideration

1. There are five factors that weigh very heavily in the applicant's favour.

1. The first is that, even though in May 2010 she was so desperate that she attempted to take her own life, she chose to do so by taking an overdose of medication rather than by turning her firearms upon herself. That is significant because that was the time during which the applicant herself, and the general public, will have been at most risk as a result of the applicant's possession of firearms and ammunition.

1. The second factor is that the confluence of events that led to her suicide attempt in May 2010 is unlikely to repeat itself. And even if it did, the coping strategies she has learnt during her therapy sessions equip her with an increased ability to deal with such a situation.

1. The third factor is that, from May 2010 until February 2011 (the period during which her mental state will have remained at its most delicate), she did not in any way misuse her firearms although she had uninterrupted access to them. Even after her own firearms were seized, she still had access to her husband's firearms and she did not misuse these either.

1. The fourth factor is that consistently, and over a significant period of time, Ms K's assessment of the applicant's mental state was overwhelmingly positive. At least from June 2011 onwards, Ms K was happy with the applicant's progress, to such an extent that by November 2011 she was recommending a favourable response to the applicant's application for a firearms licence.

1. The fifth factor is that Mr J was similarly able, seven months later, and based on objective testing, to form a favourable view of the applicant's mental state and fitness to hold a firearms licence. His reluctance to accept that there is "virtually no risk to public safety" must be viewed in the context of the explanation he gave for that reluctance, and his clarification of his view that "it is not possible to make this statement in relation to any other person. In my opinion [the applicant] does not represent any greater risk than other people in the community."

1. In all the circumstances, I am comfortably satisfied that there is no reason, based on public interest grounds, to refuse the applicant's application for a firearms licence. The licence should be granted.

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Decision last updated: 07 November 2012