Bottomley v Commissioner of Police

[2005] NSWADT 211

CITATION:	Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211
DIVISION:	General Division
PARTIES:	APPLICANT Andrew Lindsay Bottomley RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043407
HEARING DATES:	13 May 2005
SUBMISSIONS CLOSED:	05/13/2005
DATE OF DECISION:	09/15/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:
REPRESENTATION:	R Nicol, barrister P McLaughlin, solicitor
ORDERS:	The decision under review is affirmed.

1 Mr Bottomley held a Category ABGH Firearms licence and a permit to collect Ammunition under the Firearms Act 1996 (“the Act”). He has held licences since 1975. Mr Bottomley's licence was suspended on 25 October 2002 as a result of the police applying for an Interim Apprehended Violence Order on behalf of his then partner. The Interim Apprehended Violence Order was ultimately revoked on 7 February 2003.

2 The licence and permit were revoked in August 2004 because the Commissioner was of the view that it "would not be in the public interest for Mr Bottomley to continue to hold a firearms licence and have access to firearms. It is alleged that Mr Bottomley failed to comply with the safe storage requirements of the Act and that a firearm in Mr Bottomley’s possession was altered to convert it into a prohibited firearm for which he intended to gain financially by deceit.

3 A general firearms amnesty applied from 1 October 2003 until 31 March 2004. It is not in dispute that Mr Bottomley took a number of pistols to the Gosford Showground mobile buyback site on 21 December 2003. He surrendered some of those pistols, which were prohibited pistols under the amended legislation and was compensated. He also took with him a Baikal Margolin semi automatic pistol that he did not surrender. On 31 March 2004 Mr Bottomley then attended the buyback site situated at Parramatta with a number of pistols and a barrel, one of those pistols was the Baikal Margolin semi- automatic pistol that had been shortened. Mr Bottomley stated that Hans Heim, a gunsmith, who traded under the name HHH Gunsmith at Hornsby had shortened the pistol. Mr Heim denied having done so.

4 Mr Bottomley was arrested and charged in relation to the alleged shortening of the firearm. Police executed a search warrant on his mother's premises and seized his licensed firearms and pistols. While conducting the search police located a 50-calibre bullet and three 45-calibre bullets and a barrel of a rifle. The barrel was found on the floor of Mr Bottomley's bedroom. These items were not secured in a locked security cabinet.

5 Mr Bottomley was not charged with respect to the allegation that he attempted to obtain money by deception or with any offences in respect of the barrel and ammunition found in his bedroom. Mr Bottomley attended the Chatswood Police Station shortly after the items were seized and provided explanations to the police. The charge against in respect of the shortened pistol was subsequently withdrawn.

6 Mr Bottomley’s application for an internal review of the Commissioner's decisions was unsuccessful. The Commissioner's delegate, the Internal Review Officer, found that Mr Bottomley was not a fit and proper person and that to reinstate Mr Bottomley's licence could place the public interest at risk. The Internal Review Officer considered that Mr Bottomley’s conduct raised questions regarding his honesty and ability to possess firearms without breaching the law.

7 Mr Bottomley lodged an Application for Review of a Decision under section 75 of the Act and section 55 of the Administration Decisions Tribunal Act 1997.

8 The Commissioner alleges that there have been a number of allegations that would preclude Mr Bottomley from continuing to hold Firearms licences and/or permits. The Commissioner relies on the reasoning contained in the Internal Review statement of reasons. These are supported by a number of statements and a video relating to the execution of a search warrant on Mr Bottomley’s mother's premises.

9 In essence, the Commissioner’s position is that the objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. He asserts that due to Mr Bottomley’s irresponsible actions he has forfeited the privileges associated with the possession and use of firearms. Significant weight was placed on his actions regarding the alteration of his pistol.

10 Mr Bottomley contends that one of the items confiscated by Police, a 50 calibre round, was a display round. The primer had been struck and that there was no powder in the case. It was therefore not "live', and was not able to be used. It is submitted on his behalf that this does not fall within the definition of ammunition contained in section 4 of the Act.

11 Mr Bottomley contends that three 45-calibre rounds confiscated by Police were oversized because they had bulged at the mouth and therefore would not fit into the chamber of a pistol or firearm. He submits that while these rounds would come within the definition of ammunition, they cannot be used and they are useless. Mr Bottomley stated that he had removed these rounds from the security locker so that he could repair them but he had received a phone call from his ex-partner who had informed him that their child was ill. He proceeded to his ex-partner's home and neglected to place the rounds back in the security locker. He stayed at his ex-partner's home overnight because of the child's illness.

12 Mr Bottomley stated that a barrel and trigger confiscated by Police could not be used as a firearm. His explanation for the barrel and trigger not being secured was that he was intending to take the barrel to a gunsmith on 16 April 2004 to have it re-blued and he had taken the rifle from the security cabinet and stripped it on 15 April 2004. Mr Bottomley further stated that although the firearm was not secured it was within the house which was secured by deadlocks on all the doors and security latches on the windows.

13 It was only when he received the news from his ex-partner of the child's illness that he left the house with the intention of returning later and then attending to the firearm. However, he stayed overnight with his ex-partner to assist with the child.

14 With respect to the shortening of the pistol, Mr Bottomley has maintained that Hans Heim shortened the pistol. He maintained that he had the pistol shortened by Mr Heim and then he took it to the Parramatta buyback site because he believed the pistol was unsafe in that the slide would not remain open after the last bullet had been fired. He denied that he attempted to obtain a benefit by deception. There is no evidence that when he attended the buyback that he asked for or obtained any money for the Baikal Margolin .22 pistol that was later seized. Mr Bottomley has denied that this was his objective.

Findings

15 I accept Mr Bottomley’s evidence in relation to his reasons for having the firearm shortened. In the absence of evidence to the contrary I am satisfied that he wanted to hand in an unsafe gun to Police for destruction and that he did so in good faith under a general amnesty. I have no basis on which I can conclude that he had the intention to obtain money by deceit.

16 I also accept Mr Bottomley’s evidence in relation to the reasons why he left his ammunition and barrel stored in a manner that is contrary to the requirements of the legislation.

17 I do not agree with the Commissioner that Mr Bottomley’s conduct is such that he should be considered not a fit and proper person to hold a firearms licence.

18 Nevertheless, I am satisfied that his conduct indicates a lack of attention to the storage requirements of the Act. In my view, the Commissioner is rightly concerned that all licensees have an appropriate level of understanding and appreciation of these requirements. While I am satisfied that Mr Bottomley’s failures are on the lower end of the scale of firearm offences, they evidence an attitude that is still significant.

19 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those 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 these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Bottomley’s conduct must be viewed with reference to them. Parliament did not leave the matter of 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.

20 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. In the circumstances I am not satisfied that Mr Bottomley has sufficient appreciation of the importance of safe storage. That being the case I could not be confident that his firearms will be stored safely in the future.

21 Mr Bottomley could take steps to overcome his present lack of understanding of the statutory obligations. At the bare minimum this would require that Mr Bottomley completed, to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence and permit that he seeks to have restored. At this time however, it is my view that more would be required before the public could be comfortable with Mr Bottomley again holding a firearms licence.

22 It follows in my view that the correct and preferable decision is to revoke Mr. Bottomley’s firearms licence and permit. Accordingly I affirm the Commissioner's decision.

Order

The decision under review is affirmed.