Ball v Commissioner of Police, New South Wales Police Service
[2003] NSWADT 153
•06/30/2003
CITATION: Ball v Commissioner of Police, New South Wales Police Service [2003] NSWADT 153 DIVISION: General Division PARTIES: APPLICANT
Christopher Ball
RESPONDENT
Commissioner of Police, Newe South Wales Police ServiceFILE NUMBER: 023297 HEARING DATES: 28/03/2003 SUBMISSIONS CLOSED: 03/28/2003 DATE OF DECISION:
06/30/2003BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Firearms (General) Regulation 1997
Firearms Act 1996
Security Industry Act 1997CASES CITED: Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127
Tolefoa v COP (2000) NSWADT 9
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657
Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114REPRESENTATION: APPLICANT
P McGirr, solicitor
RESPONDENT
C Capper, advocateORDERS: The Commissioner’s decision to revoke Mr. Ball’s Category AB firearms licence is affirmed.
The Application
1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to revoke the category AB firearms licence held by Mr Christopher Ball. Mr. Ball has held firearms licences since 13 November 1992. He was issued the licence in question on 30 May 1998, and it would have been due to expire on 17 July 2003. The licence was suspended on 4 June 2002 and revoked on 2 October 2002.
2 The decision to revoke Mr. Ball’s licence followed a break and enter incident on 4 June 2002 in which a Remington .22 calibre rifle was stolen.
3 Mr. Ball was subsequently charged with the offence of 'Not keep firearm safely' and he appeared before the Local Court at Cessnock on 5 June 2002 where this offence was found proved but dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction.
4 On 24 September 2002 Mr. Ball sought an internal review of the Commissioner’s decision to revoke his licence. The internal review was finalised on 17 October 2002 and the decision was taken that the original decision to revoke Mr. Ball’s licence was to stand. On 15 November 2002 an Amended Statement of Reasons for the internal review decision was forwarded to Mr. Ball. Mr. Ball applied to the Tribunal for review of that decision.
Background
5 The facts of this matter are not in dispute. With the exception of the incidents associated with this particular matter, there is no issue in relation to Mr. Ball’s conduct or character. Mr Ball is a responsible, honest and well-respected citizen who contributes freely of his time and effort to many community and charitable organisations. Testimonials provided on his behalf support this view. He does not resile from the serious nature of his transgression and gives an assurance that such an offence will never be repeated.
6 Mr. Ball lives on a rural property and from time to time uses firearms for the destruction of feral animals and the humane destruction of ill domestic and native animals. In addition, he enjoys recreational hunting and activities associated with attending the Mendooran gun club. He has handed in his firearms to the club armourer.
7 Mr. Ball has had a long and thorough association with firearms and their licensing and registration. In recent times, he has been associated with the Mendooran gun club in various capacities. He has held the position of Secretary/Treasurer of the club and was also the club’s Firearms Safety Awareness Officer. In that capacity he has spent a considerable amount of time in the area doing testing and advising on changes to the law with respect to firearms and in particular with respect to the safekeeping of firearms. He is fully aware of his responsibilities with respect to the safekeeping of firearms.
8 Mr. Ball is a builder. On 4 June 2002, following a break and enter incident, police attended premises where Mr. Ball had been working. The building work was almost completed and Mr. Ball had been staying overnight on the premises. On the night prior to the break and enter Mr. Ball had placed the firearm in an unlocked walk-in wardrobe in the master bedroom. He had left the premises on Sunday 2 June 2002 intending to return the next day but was delayed until the morning of Tuesday 4 June 2002. On his return he discovered that an intruder had broken into the premises via the back window and the firearm had been removed. The firearm was the only item taken even though there was a large quantity of electrical tools in the room.
Reviewable decision
9 The reviewable decision is that of the Commissioner to revoke Mr. Ball’s firearms licence. On 18 December 2002 Mr. Ball applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s Deputy President on 21 January 2003 at which time she made directions for the filing of documents and the matter was listed for hearing. The matter subsequently came before me for hearing on 28 March 2003 and proceeded on that day.
Applicable Legislation
10 Section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:
11 The legislation of most relevance to these proceedings is the Firearms Act 1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the Regulation”). The objects of the Act are set out in section 3 which, insofar as is relevant to these proceedings, provides:
“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
12 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows:
“3 Principles and objects of Act
…
(2) The objects of this Act are as follows:
…
(e) to ensure that firearms are stored and conveyed in a safe and secure manner”.
13 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows:
“19 Conditions of licence
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
(2) Without limiting subsection (1), each licence is subject to the following conditions:
(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,
…”
14 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides:
“Part 4 - Safe keeping of firearms
39 General requirement
(1) A person who possesses a firearm must take all reasonable precautions to ensure:
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.
(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) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
40 Category A and category B licence requirements
(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:
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.”
(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. Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.
15 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows:
“7 Licence applicant's understanding of requirements concerning firearm safety and storage
Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:
(a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and
(b) that the applicant will, if issued with a licence, be able to comply with those requirements.”
16 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows:
“24 Revocation of licence
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if the licensee has failed to undertake any firearm safety training required under this Act or the regulations.
(2) A licence may be revoked:
(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.
(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
(d) for any other reason prescribed by the regulations.
(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.”
Mr. Ball's case
“17 Revocation of licence - additional reasons
In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.”
17 Mr. Ball appeared and presented oral evidence on his own behalf and was subjected to cross-examination. Several testimonials in support of Mr. Ball’s good character were also put in evidence. Mr. Ball does not dispute the Commissioner’s chronology of events. His case is essentially that the circumstances of his case do not justify the revocation of his licence.
18 Mr. Ball submitted that his firearms licence should not be revoked due to his good character and good record. When asked to describe his attitude in regard to the handling and storage of firearms he described himself as pedantic. His usual habit is to store his firearms in a gun cabinet with separate compartment for the bolt and ammunition. While working on the premises prior to the break in, his firearm was in his personal possession and was used periodically throughout the day. When he left the premises he took the bolt and ammunition with him. He left the remainder of the firearm on the premises through a momentary lapse. He asserted that it would never happen again because of the amount of grief that had resulted from the single incident. He had to explain his mistake and while he owned up to his mistake immediately he has had to devote a lot of time and expense to the matter.
19 He asserts that he is no threat to the public and therefore there is no reason why he should not have his licence reinstated.
20 Mr. Ball stated that he has a detailed knowledge of the legislative requirements and that in fact he has provided instructions to others in relation to those requirements. He has storage facilities that comply with the legislation.
21 Mr. McGirr, Solicitor for Mr. Ball, referred to the decision of the Tribunal’s Deputy President in the matter of Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 in which the Deputy President reviewed several decisions of this Tribunal relating to either revocation or refusal of licences because of breaches of firearm storage requirements. He argued that none of the matters that the Deputy President reviewed involved a situation where the bolt and ammunition were stored separately in accordance with the legislative requirements. He submitted that there are extenuating circumstances in this matter which take it outside the ordinary case and which would justify the setting aside of the Commissioner’s decision.
22 Mr. Ball acknowledges that he left the rifle unsecured but stated that it was an oversight and was totally out of character. He left the firearm in locked premises where no children resided. The owner had been present at all times when Mr. Ball was not there except when the break in occurred.
23 Mr. McGirr referred to the fact that Mr. Ball has expressed regret that the incident had occurred and that his failure to comply with the firearms’ legislation was a one-off event. The fact that he has appropriate storage for his firearms and that he took the bolt and the ammunition indicates his understanding of the safety issues relating to the keeping of firearms. Mr. McGirr said that Mr. Ball would strictly observe the legislation in the future. He also urged the Tribunal to find that Mr. Ball presents virtually no risk to community and that he should be entitled to the return of his licence.
The Commissioner's case
24 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Ball is not a person of good character. However, the Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Ball might have in possessing his firearm. The Commissioner has concerns about Mr. Ball being the holder of a firearms licence due to his conduct which allowed a firearm to come into the hands of the criminal element and the fact that there is now another firearm on the streets that was obtained with considerable ease.
25 Mr. Capper, for the Commissioner, conceded that Mr. Ball is a person of good character and that his storage facilities comply with the legislative requirements. He also conceded that Mr. Ball has held firearms for many years and during that period there has been no incident relating to safe storage but rather the events of June 2002 were an aberration. The Commissioner also concedes that no conviction was recorded against Mr. Ball in relation to those events.
26 The Internal Review Reasons on which the Commissioner relies provided in part:
“ D. REASONING PROCESS:
The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to revoke a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application.
After fully and independently considering all relevant matters I make the following fresh determination.
In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
In considering your request to have your licence reinstated I have taken into account the submissions of your solicitor and the facts surrounding the firearms offence. I have then weighed these issues against the underlying principles of the Act and I have formed the view that your actions were contrary to the principles of the Act and believe that you have forfeited the privilege of having access to firearms.
Firstly, the facts relied upon involve a break and enter into a residence situated in Ellalong, NSW where the only property stolen was one of your registered firearms, which was being stored within a walk-in wardrobe. I note that this firearm was being kept at a property not being the nominated address for storage of your firearms.
You were subsequently charged with the offence of 'Not keep firearm safely' and you appeared before the Local Court at Cessnock where this offence was found proved but you were dismissed without proceeding to a conviction.
Your solicitor has submitted that you live on a rural property and find it necessary, from time to time, to use firearms for the destruction of feral animals and the humane destruction of ill domestic and native animals. In addition, it is advised that you like to enjoy recreational hunting and activities associated with attending the Mendooran gun club.
He has also submitted that you are a person of excellent conduct, fame and character and that he has known you for approximately 25 years. He further outlines your involvement in the Mendooran Gun Club and advises that you were a Firearms Safety Awareness Officer. He submits on your behalf that you do not resile from your transgression and that you can give an assurance that such an offence will never be repeated.
In making this determination I have noted the decision of the Cessnock Local Court, however, I argue that notwithstanding the fact that you were not convicted, it remains a finding of guilt for a fundamental breach of the Act. Such a breach is considered serious by firearm licensing authorities. More importantly, I note that, as your solicitor states, you have had a long and thorough association with firearms and their licensing and registration.
27 The Commissioner’s delegate referred to the fact that Mr. Ball has been found guilty of a fundamental breach of the Act as a basis for decided against varying the decision to revoke his firearms licence. Had the finding of guilt against Mr. Ball led to a conviction for the firearms offences he would have been precluded from obtaining a firearms licence for ten years.
Moreover, I note the submission that you recently held the position of a Firearms Safety Awareness Officer. Accordingly, it is not unreasonable to assume that you possess an in-depth knowledge of firearm licensing issues including the stringent requirements to be met and maintained by licensees with respect to the storage of firearms.
I note that you have offered no explanation or provided any extenuating circumstances as to firstly, why your firearm was being unsafely kept and secondly, why it was stored at an address other than the address nominated to the Firearms Registry for the storage of your firearms. This fact, in my opinion, suggests your disregard for the conditions upon which you were granted a licence. Accordingly, I am satisfied that you have contravened important provisions of the Act relating to the safekeeping of firearms and thus your licence may be revoked for this contravention.
It is clear that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Further, as is made clear from Part 4 of the Act, Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.
Moreover, the ADT have held that for a revocation decision based on failure to store firearms safely, to be set aside, an applicant must show that there are persuasive and relevant considerations, which take their matter outside the ordinary case.
I note the submission of your solicitor that you own rural property that requires the use of firearms to destroy feral animals and, that you enjoy recreational hunting. However, I am mindful of the fact that there are other options available to you in order for you to control vermin on your property (for example utilising the services of other recreational hunters and/or professional contract shooters, baiting etc).
It should also be acknowledged that the Act clearly states that the issue of a firearms licence is a privilege not a right.
With respect to the remaining ground that I consider it not in the public interest for you to retain your licence I do acknowledge the advice of your solicitor that you are of good character. However, the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides:
I hold the view that it is appropriate to consider and weigh up your interests with those of the wider community. I submit that public safety is the paramount consideration and that the system of firearms controls is intended to be very strict. I also believe that the community expects that a firearm will not easily come into the hands of the criminal element, especially as a result of the negligence of a licensee in failing to ensure its safekeeping.
"(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 the public interest discretion to 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 objection."
As quoted in the Firearm Bill Second Reading speech the underlying principles and aims of the Firearms Act 1996 are to confirm firearm possession and use is a privilege conditional on the over riding need to ensure public safety by imposing strict controls on same.
Again, I have considered the submissions that you require the use of firearms to control vermin on your property and that you enjoy recreational hunting. However, the need for you to retain your firearms licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681, provides:
Your actions were negligent to a degree that there is now another firearm on the streets that was obtained with considerable ease. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them they also must act in accordance to the same.
"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."
In determining whether or not the Registrar (acting as the Commissioner' s delegate) made the correct and preferable decision in exercising his discretion to revoke your licence I refer to the decision of Cusumano v COP where the Administrative Decisions Tribunal held at Para 23:
Finally, as there was a finding of guilt relating to a fundamental breach of the Firearms Act , I have decided against varying the decision of the Commissioner to revoke your firearms licence. ”
"There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
28 Mr. Capper argued that the fact that only the firearm was stolen indicates the value of a firearm in the community. Mr. Ball’s failure to store the firearm safely placed the public at risk, both potentially and actually. In these circumstances there is a legitimate concern in relation to public safety. Mr. Capper submitted that that concern is not reduced because the bolt and ammunition was not taken with the firearm because a victim threatened with a firearm without a bolt or ammunition would not make the distinction.
29 Mr. Capper referred to the decisions of the Tribunal’s Deputy President in Phegan and he argued that Phegan provides that, prima facie, if there is a breach of the storage requirements of the legislation, a licensee will lose their licence unless they can show some good reason why that should not be the case. He submitted that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case.
30 He submitted that Mr. Ball’s circumstances were not out of the ordinary. Mr. Ball could have and should have ensured that the firearm was safety stored. The legislation establishes a strict regime to be followed. Mr. Ball had appropriate available storage and he could have complied with the legislative regime. Mr. Capper argued that the Commissioner has the power to revoke the licence if a licensee does not comply with the safe storage requirements.
31 With respect to the fact that this was a one-off incident, Mr. Capper said that there are numerous Tribunal decisions where a one-off act has given rise to the revocation of licence. The fact that it is a one-off incident is of minor significance. The one-off incident could be the occasion that leads to serious consequences. In this case, it resulted in a lethal weapon coming into the hands of an unauthorised person.
32 He submitted that Mr. Ball, as a licensee, has obligations. He was aware of those obligations but failed to meet them and in doing so has put the public at risk. Mr. Capper argued that there is nothing in the circumstances of this matter to take it outside the ordinary case.
Nature of proceedings
33 I note that both Mr. McGirr and Mr. Capper made reference to the decision of the Deputy President in the matter of Phegan as authority for the principle that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. I considered this argument in some detail in my recent reasons for decision in the matter of Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114. I do not propose to repeat that analysis here, however in Hart I expressed the view that these are not adversarial proceedings in which Mr. Ball carries an onus of proof.
34 Mr. Ball does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Ball and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct.
35 I must consider all relevant circumstances and the subject matter of Mr. Ball’s contravention is a highly relevant consideration. However, since breaches of the storage requirements erode the protection of public safety, there would need to be other persuasive considerations before I would be prepared to set aside the Commissioner's decision.
Findings Generally
36 I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have reached the following findings of fact:
37 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Ball’s licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. In these matters the Tribunal stand in the shoes of the Commissioner and must assess that risk. The likelihood of risk must be assessed by reference to the applicant’s prior conduct. Mr. Ball has breached certain provisions of the Act in relation to safe keeping of firearms even though he was not convicted of those offences. Against this must be weighed his undisputed good character; his long history of firearms use that is incident free but which is overshadowed by a single incident of failure to comply with the legislative requirements regarding storage of firearms; and his undertaking as to future conduct.
· Mr Ball is a responsible, honest and well-respected citizen who contributes freely of his time and effort to many community and charitable organisations;
· Mr. Ball has had a long and thorough association with firearms and their licensing and registration. In recent times he has held the position of Firearms Safety Awareness Officer,
· Mr. Ball is aware of his responsibilities with respect to the safekeeping of firearms. His usual habit is to store his firearms in a gun cabinet with separate compartments for the bolt and ammunition;
· Mr. Ball owns a rural property. On 30 May 1998 he was issued with a Category AB firearms licence for the genuine reason of 'Recreational Hunting/Vermin Control';
· on 4 June 2002 police attended a property situated at Lot 9, Truro Road, Ellalong in relation to a break and enter and were advised that a Remington .22 calibre rifle was the only item stolen;
· the bolt and ammunition relating to the firearm were not stolen but were stored in accordance with the legislative requirements;
· on 26 June 2002 Mr. Ball appeared before the Local Court at Cessnock for the offence of 'Not keep firearm safely '. The presiding Magistrate found the offence proved but chose to dismiss Mr. Ball without proceeding to conviction, pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999;
· on 2 October 2002 Mr. Ball’s Category AB firearms licence was revoked;
· Mr. Ball has no prior criminal history or adverse firearms history. He has held firearms without incident for over thirty years;
· Mr. Ball regrets the events of 4 June 2002;
· if his licence is restored and firearms returned Mr. Ball intends to comply with the legislative requirements in regard to the storage of the firearm.
38 Regrettably, the outcome of Mr. Ball’s breach was extremely serious. One of the underlying principles of the Act is the improvement of public safety by promoting the safe and responsible storage of firearms. Ensuring that firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Ball’s offences must be viewed with reference to them. Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.
39 In this case it could not be said that Mr. Ball has acted in complete disregard of the statutory requirements to safely store his firearms. He has clearly taken steps to obtain a licence and to have his firearm registered. He has also obtained appropriate storage for the firearm. On the day he left the firearm unsecured he in fact took the bolt and ammunition with him and secured them safely.
40 However the fact remains that Mr. Ball was found guilty of offences relating to not keeping his firearm safely. A direct result of his failure was the theft of the firearm. It is conceivable that far more severe consequences could still result from that theft. The fact that Mr. Ball usually stored his firearm safely does not diminish the gravity of that fact.
41 Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. I have no reason to doubt that these proceedings are the end result of a one-off incident. I also accept that Mr. Ball has good intentions as to his future conduct. On the evidence presented I accept that the events of June 2002 were an aberration and I accept that Mr. Ball was aware of the statutory obligations. Nevertheless, his actions suggest that he did not fully appreciate the importance of strict observance of those obligations.
42 I have noted the factors to which Mr. Ball has referred. Having weighed the evidence, it is my view that that the gravity of the events of June 2002 outweighs the other relevant factors. While over a year has passed since the one-off incident occurred, I cannot as yet be satisfied that sufficient time has passed since that incident for the public to be comfortable with Mr. Ball holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke Mr. Ball’s firearms licence. Accordingly I affirm the Commissioner's decision.
43 I am unable to provide any guidance as to what I would consider to be sufficient time that would need to pass for the public to be comfortable with Mr. Ball holding a firearms licence. With the passage of further time and the absence of further incidents, that situation can change. If Mr. Ball were to reapply for a firearms licence after further time has passed, the Commissioner may well reach a different conclusion.
Orders
The Commissioner’s decision to revoke Mr. Ball’s Category AB firearms licence is affirmed.
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