Bowie v Commissioner of Police

[2022] NSWCATAD 211

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bowie v Commissioner of Police [2022] NSWCATAD 211

Hearing dates:

2 February 2022

Date of orders:

22 June 2022

Decision date:

22 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

1. The decision of the Respondent to refuse the Applicant’s application for a category H firearms licence is set aside.

2. A category H firearms licence is to be issued to the Applicant.

Catchwords:

ADMINISTRATIVE REVIEW - Firearms Act 1996 – Application for category H firearms licence – public interest – period since offending – cessation of alcohol

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Firearms Act 1996(NSW)

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Hailes v Commissioner of Police [2022] NSWCATAD 37

Hook v Commissioner of Police 2020 NSWCATAD 250

Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24

Prevetera v Commissioner of Police [2021 NSWCATAD 133

Romanos v Commissioner of Police, NSW Police Force 2019 NSWCATAD 272

Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Shannon Bowie (Applicant)
Commissioner or Police (Respondent)

Representation:

Solicitors:
Hartmann and Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/00234547

Publication restriction:

Nil

REASONS FOR DECISION

1. This case is about whether or not the decision of the Commissioner of Police to refuse Mr Bowie a firearms licence is the correct and preferable decision.

2. The Commissioner of Police refused the firearms licence application because of various instances in which Mr Bowie had contact with police and some criminal convictions. The Commissioner of Police made the decision that in those circumstances it would be contrary to the public interest to issue Mr Bowie with the licence.

3. This Tribunal reviewed the decision and decided that, on the basis of the evidence, the correct and preferable decision was to set aside the decision and in substitution, to decide to grant the firearms licence.

Background

The Commissioner’s decision to refuse the licence

4. Mr Bowie applied for a probationary pistol licence (a category H licence) on 19 July 2020.

5. On 24 March 2021 the Commissioner of Police (the ‘Commissioner’) refused the licence application. The Commissioner stated in a letter to Mr Bowie, dated 24 March 2021, that the Commissioner regarded several interactions Mr Bowie had with police and others as “threatening / confrontational” and that this gave rise to concerns about his level of self-control and also his ability to abide by the law. The Commissioner described the incidents in the following terms:

1. NSW Police spoke to Mr Bowie on several occasions between 1998 and 2005 about “anti-social, aggressive and threatening behaviour towards Police and others”.

2. On 29 August 2005 Mr Bowie failed to obey a move on direction and then engaged in what the Commissioner described as being “verbally abusive in a threatening manner to intimidate Police” and once released from custody, Mr Bowie remained in the foyer of the police station and tried to gain access to the main area of the Police station by “continually pressing an electronic keyboard.”

3. On 31 August 2006, Mr Bowie was convicted of an offence of ‘obtain financial advantage’ and was sentenced to a 12 month community-based order, with a supervision requirement to attend psychological counselling. It should be noted that Mr Carlo Zoppo of Lindsay Taylor Lawyers, who appeared for the Commissioner, acknowledged at hearing that the reference to this offence occurring “in the state of ACT” in the Commissioner’s letter to Mr Bowie of 24 March 2021 was in fact an error. The parties agreed that the relevant offence was under Commonwealth law, that is, one relating to the receipt of Centrelink payments to which Mr Bowie was not entitled. It did not occur in the ACT.

4. Between 14 May 2009 and 22 November 2009 Mr Bowie was convicted of ten offences in Western Australia relating to “Disorderly behaviour, Breach of bail, Obtain financial advantage”.

6. The Commissioner also relied on a notation in the custody records in 2009 that stated that Mr Bowie “may inflict self harm” and that he had a “medical condition that requires regular monitoring”. The Commissioner was of the view that Mr Bowie might engage in self-harm and that because of the reference to the medical condition requiring monitoring, Mr Bowie was not managing his “conditions”.

7. The Commissioner then refused the licence application on the basis that it would not be in the public interest for Mr Bowie to be issued with the licence.

Mr Bowie’s application for review

8. On 22 April 2021, Mr Bowie’s solicitor, Mr Glenn Kable of Hartmann and Associates, wrote to the Firearms Registry and referred to the decision to refuse the licence and requested a “short adjournment” to provide documents. The Adjudication Officer at the Firearms Registry wrote back stating that the “request for an internal review” had been received and the officer granted an extension of time to Mr Bowie to provide further documents to 13 July 2021.

9. On 1 July 2021 Mr Bowie provided not only further documents but did so under cover of a letter written by Mr Kable entitled “Re: Internal Review Request for [Mr Bowie]…”. This letter contained the substance of the application for internal review.

10. No outcome was received on the internal review. Rather, on 17 August 2021 Mr Bowie made an application for review to this Tribunal.

Relevant legislation

11. The relevant legislation is the Firearms Act 1996 (NSW). The underlying principles are stated in section 3(1) to include:

“(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.”

12. Subsection 11(3)(a) of the Firearms Act 1996 states that a licence must not be issued unless the Commissioner is satisfied that the applicant is “a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”.

13. A licence must also not be issued where the Commissioner is of the opinion, after having regard to any criminal intelligence report or other criminal information about the person, that a person is “a risk to public safety” and issuing the licence would be “contrary to the public interest”: subsection 11(5A) of the Firearms Act 1996.

Administrative review jurisdiction

14. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse an application for a firearms licence is derived from subsection 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997 (NSW).

15. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation or common law: section 63 of the Administrative Decisions Review Act 1997. The Tribunal is not confined to only considering the material before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before the Tribunal at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The Hearing

Was the application for review lodged within time?

16. At hearing, the parties agreed that there was no issue about whether Mr Bowie lodged his application for administrative review to the Tribunal within time. In that context, and having had regard to the very brief email sent by Mr Kable on 22 April 2021 which merely asked for further time and made no reference to requesting a review of the decision, I find that that email did not itself constitute an application for internal review. I find that the application for review was in fact made on 1 July 2021.

17. On that basis and because Mr Bowie had not been notified of the outcome of that internal review within 21 days of 1 July 2021, the effect of subsection 53(9) of the Administrative Decisions Review Act 1997 is that the internal review is taken to be finalised and Mr Bowie was then entitled to apply to this Tribunal. The internal review was therefore taken to be finalised on 22 July 2021. Mr Bowie then had a period of 28 days to apply to this Tribunal (subsection 24(4)(a) Administrative Decisions Review Act 1997), that is, he had to lodge the application by 19 August 2021, which he did by making the application on 17 August 2021.

18. I therefore find that the application for administrative review to NCAT was made within time.

The Commissioner’s opening arguments

19. In his opening address Mr Zoppo described the section 58 material as containing:

20. 17 Events involving Mr Bowie in NSW from 1998-2006; and

21. Ten incidents involving Mr Bowie in Western Australia in 2009

22. Much of the material from NSW Police consists of records from the NSW Police Force Computerised Operational Policing System (COPS) database.

23. Mr Zoppo said that the incidents recorded in the section 58 material demonstrated that Mr Bowie had engaged in anti-social, aggressive and threating behaviour towards Police and others and demonstrated a refusal to comply with Police directions. Mr Zoppo placed some reliance on the fact that the relevant court, when sentencing Mr Bowie on 4 December 2009 for the offence of “obtain a financial advantage”, made an order that Mr Bowie was subject to a supervision requirement to attend psychological counselling. Mr Zoppo argued that this suggested that Mr Bowie had raised mental health concerns in those proceedings and that the Court made the order to address concerns that the Court may have held about Mr Bowie’s mental health.

24. Mr Zoppo also pointed out that Mr Bowie seeks the pistol licence for recreational purposes, not for his employment or for other purposes.

Evidence of Mr Shannon Bowie

25. Mr Bowie gave oral evidence and also tendered into evidence his brief written statement that was unsigned and undated and which was filed in the Tribunal on 20 January 2022.

26. Mr Bowie freely admitted that when he was younger he would go out on a weekend and drink excessively. He said that he had “no concept of when to call it an evening and go home”, saying that he would be one of a number of people that would “carry on like galahs”. He said that he “had a drinking problem” and at the end of each evening he could be asked by Police to move on and he would be “far too intoxicated” to register that and by that stage he would be “a sloth”. Mr Bowie said that this state of affairs affected his job and relationships.

27. Mr Bowie said that he ceased drinking just over ten years ago in the context of meeting his now wife, Ms Schuneman. He said that when he met Ms Schuneman he was drinking on weekends and had made progress cutting back on his drinking. At the same time he ceased smoking. They married just over ten years ago.

28. Mr Bowie addressed his criminal history, stating the main offence was his 31 August 2006 conviction on two counts of receiving Centrelink overpayments. He said that he had started a casual job and was reporting his hours but that he was “a bit all over the shop” and had not reported for a couple of weeks and this resulted in an overpayment. He started on Centrelink again some time later and this is why there were two separate charges. He said that he had repaid the entire sum and that the final amount was paid back in 2006.

29. Mr Bowie said that he was living interstate when he found out that there was a warrant for his arrest for two counts of breaching bail. He said he had no idea at all about the warrant and he believed that there had been proceedings in his absence at which bail conditions had been set.

30. Mr Bowie said that he sought the assistance of a psychologist to address his drinking and to have the tools to develop a more positive lifestyle. He said that he has not consumed any alcohol for eleven years.

31. Mr Bowie described these earlier years of his life as a period that was “hard to look back on” and that the decision of the Commissioner to refuse his licence application as a “hard pill to swallow” that caused him to delve deeper into his own history.

32. Mr Bowie told the Tribunal that he is employed as a National Warehouse and Logistics Manager and he is responsible for supervising up to 12 casual staff and one full-time assistant.

33. Mr Bowie said that his father was good at archery and had many trophies and he always wanted to get into a similar sport. He said that he had spent some time looking for gun clubs and that he found a suitable club with some “old fellas”.

34. Mr Zoppo then cross-examined Mr Bowie about the various documents in the section 58 material concerning Mr Bowie’s interaction with the Police and the criminal courts.

2002 charge

35. Mr Zoppo questioned Mr Bowie about criminal charges laid against him in 2002. Mr Bowie was charged with “in dwelling steal and break out” but this charge was withdrawn. Mr Zoppo took Mr Bowie to the various NSW Police records contained in the section 58 documents (at page 39 to 44). The NSW Police documents describe an incident involving two other men entering a unit through an open window and stealing some items. The Police records then suggest that Mr Bowie emerged from behind the stairwell and denied knowing the two accused and said he lived in the unit block.

36. Under cross-examination, Mr Bowie said that one of the two men was known to him and was a “friend of a girl I was seeing”. Mr Zoppo took Mr Bowie to another NSW Police document (at page 58 of the section 58 documents) which suggested that in 1999 the same man had used fake identification to buy alcohol. The fake identification was a driver’s licence in Mr Bowie’s name but with the other man’s photo on it. Mr Bowie said that at that stage he knew of the man and he was aware that he had taken his licence.

37. When asked about the 2002 incident, Mr Bowie said that he was seeing the woman who lived in the unit that the other two men were trying to break into. He said he was arrested but that the charges were dropped.

38. Mr Zoppo inferred from the NSW Police Event record that Mr Bowie was asked by Police about the name of his friend and the unit number but he could not provide that information. In responding to Mr Zoppo’s questions, Mr Bowie said he did not recall that happening. On review of the document itself (at page 40 of the section 58 documents) it in fact appears that this question was asked of one of the other two men.

39. In response to Mr Zoppo’s questions, Mr Bowie gave the first name of the woman he was seeing and said she was renting a room from another woman. He said that he was spending three or four nights per week staying at the unit.

40. Mr Bowie was asked about a “goods in personal custody suspected being stolen (m/v)” charge in 2002 that resulted in a $300 fine. He explained that he had purchased a t-shirt with cash and that it had still had a tag on it. He asked customer service to hold it for him and when he came back security and police became involved. He said he was ultimately charged and he did not attend court because he couldn’t get time off work. He said that at that time his affairs were not in order.

2005 charges

41. The NSW Police documents refer to an incident on 29 September 2005 when Mr Bowie was arrested by Police due to his failure to comply with a move on direction and also offensive language (page 20 – 23 of the section 58 documents). Mr Bowie is described in that Event as affected by alcohol. There is also reference to a heavy downpour and Mr Bowie not having any money to get a taxi after his release from police custody. The Police document states that Mr Bowie tried to gain entry to the custody area by pushing buttons and that he was asked to stop pushing the buttons. Police also record their suspicion that Mr Bowie was responsible for cutting a computer mouse cord, but acknowledge there was no one who observed how the cord came to be severed.

42. Mr Bowie was charged with offensive language and failing or refusing to comply with a direction and this resulted in two $100 fines.

2006 Complaint by Ms Coskerie

43. Mr Zoppo asked Mr Bowie about the police complaint made by a Ms Coskerie on 5 April 2006 alleging he had sent offensive and insulting messages to her. Under questioning, Mr Bowie said that contrary to Ms Coskerie’s description of the two of them being in a “relationship”, he did not consider himself to be in a relationship with Ms Coskerie. Instead, he described it as a short-term casual relationship that lasted several weeks.

44. Mr Bowie denied that he had sent offensive messages to Ms Coskerie and said he would be seeking advice about how to remove this entry from Police records.

45. Despite the notation in NSW Police records (at page 16 of the section 58 documents) that said NSW Police had contacted Mr Bowie to inform him that any further contact with Ms Coskerie would result in criminal charges, Mr Bowie was adamant he received no such contact from Police.

46. Mr Bowie said in his written statement that Ms Coskerie’s allegations were false and that in fact he had warned Ms Coskerie that he would seek an Apprehended Violence Order against her for stalking and interfering in his relationship at the time.

2009 charges

47. Mr Zoppo referred to ten charges in the records obtained from Western Australian Police. These charges concerned incidents that occurred in 2009. The records disclosed ten criminal charges involving “disorderly behaviour in public”, “unlawful damage”, “breach of bail (fail to appear soon after)” and Commonwealth offences of “obtain a financial advantage”. On review of the documents, it was not entirely clear to me whether the ‘Offence History’ involved 10 incidents because some of the entries appeared to have a “process status” noted as “Approved” and shortly thereafter there are entries with a “process status” of “Guilty and it is not clear whether the entries are related to each other and therefore related to the same charge. If that was the case, this repetition would mean that there would have been less than ten charges.

48. Mr Bowie recalled that in Northbridge in Perth there was a strip of pubs and bars. He said that at the end of the night it would become “wild” and there was a lot of violence. He said that Police would come in and make arrests. He said that he was issued with a move along notice and was a bit drunk and came back to go the other way to a cab rank and was arrested.

49. Mr Bowie maintained that it was then that he was informed by Police that there was a warrant for his arrest for breach of bail as he had moved interstate. He said that the bail was for the Commonwealth charges that followed him interstate.

50. Mr Bowie described his conduct around that period of time, saying he would do such things as urinate in a dark alleyway at 3:30am and that he would get picked up by Police for things such as that. He denied attending court for a charge of unlawful damage which resulted in a $300 fine. He said that the unlawful damage fine was for urinating on the door of a shop in an alleyway.

51. In relation to the community-based order made on 4 December 2009, Mr Bowie said that the requirement that he attend psychological counselling was for his “issues with alcohol”. He said that he thought he may have attended the counselling for six to nine months.

52. Mr Bowie agreed that he had been in receipt of Centrelink payments to which he was not entitled and that he paid back the sum indicated in the records, that is, $8,877.98. He further explained that over a period of two or three years “here and there” he did not declare enough hours and so received an overpayment. He said that it occurred in 2006 when he was “an alcoholic”. He said that he did not receive the money knowingly, but said that his life was “extremely messy”. He also said that because he was in a casual job his hours fluctuated and so it was hard to “keep a tab of everything”.

47. Under further questioning, Mr Bowie said that the Australian Federal Police came over to Western Australia from NSW to appear in the two Centrelink charge matters. He said that if he was aware of the charges he would not have moved to Western Australia. He said that he did not inform Centrelink about his change of address when he moved to Western Australia because at that point he was no longer in receipt of Centrelink payments.

48. Mr Zoppo challenged Mr Bowie about his knowledge of the bail conditions before he breached them, pointing out that Mr Bowie would have been charged before being placed on bail. Mr Bowie maintained under cross-examination that there was no earlier charge and that the entire process must have occurred in his absence and he denied knowingly breaching bail conditions. Mr Zoppo suggested that this did not make sense.

49. Mr Bowie said that it was after the incident in Northbridge in Perth that he was placed in a holding facility overnight and attended court the following morning. He said it was then that he was placed on bail.

50. Mr Bowie was asked about the references in the Western Australian Police documents entered by someone who appeared to be a custody officer at Perth Watch House (at page 9 of the section 58 documents). The entries are warnings on the record and read “May Inflict Self Injury” and also “Medical Condition – Requires Regular Monitoring”. Mr Bowie said that he had no idea why those entries would have been made. He said that he had been put in with a bunch of “extremely unruly” people and that Police had concerns for him and another person and that he and the other person were placed in other cells for their safety. He denied saying or doing anything that might cause Police to make an entry about him being at risk of self-harm. He said that he was “extremely fearful” for his life due to the threat he perceived from the others in the cell. In relation to the reference to a medical condition, Mr Bowie said he did tell the officers that he had asthma and they brought him his puffer. Mr Bowie also suggested that in both instances the wrong codes might have been entered in the system by the officer.

Oral evidence of Ms Schuneman

57. Ms Schuneman is Mr Bowie’s wife. She gave evidence by phone. She said that they married in 2011 and that she knew Mr Bowie for one year before that. She said that Mr Bowie had told her about the Centrelink offences and that he was embarrassed about his past conduct

Other material relied on by the parties

58. Mr Bowie relied on the report of Mr Michael Kruger-Davis, psychologist, dated 10 May 2021. Mr Zoppo sought to question Mr Bowie on the contents of this report because Mr Zoppo wanted to challenge the account Mr Bowie gave the psychologist. This line of questioning focussed on two paragraphs on page three of Mr Kruger-Davis’ report which appeared to refer to some aspects of the incident on 29 September 2005 when also describing a 2009 incident in Northbridge in Perth. Clearly, there appear to be errors in Mr Kruger-Davis’ report. Mr Bowie made the point that at the time of seeing Mr Kruger-Davis he had not had access to the section 58 documents to be able to refer to the Police records about the incidents.

59. In any event, I have not come to the conclusion that Mr Zoppo was asserting, that is, that the errors in Mr Kruger-Davis’ report are there because of errors made by Mr Bowie when explaining the events to Mr Kruger-Davis. Under questioning Mr Bowie acknowledged that some of the events occurred nearly two decades ago and when he was under the influence of alcohol and that it was hard to remember what was said and dates and times.

60. It is equally possible, in my view, that Mr Kruger-Davis made the errors when writing the report. The report contains other errors, such as a reference to providing Mr Bowie with questionnaires on “26 April 2027, which were returned on 23 April 2021” on page 2 of the report.

61. Mr Zoppo also sought to put to Mr Bowie a reference in Mr Kruger-Davis’s report that said:

“Regarding the 31 August 2006 offence in the Australian Capital Territory, Mr Bowie stated that this did not happen. He has never been arrested in the ACT and was not placed on a community service order or had to undergo psychological counselling.”

62. Mr Zoppo relied on this excerpt of the report to suggest that Mr Bowie had been inconsistent or incorrect in what he told Mr Kruger-Davis. Again, I was unable to come to that conclusion, given that it may have been that Mr Bowie was denying the fact that offences occurred in the ACT, which was correct.

63. What can be gleaned from Mr Kruger-Davis’ report is that he was of the opinion that there was no evidence that Mr Bowie had any mental disorder, mental illness or condition, personality disorder or substance use disorder or suicidal ideation requiring treatment (pages 11 and 12 of the report). Mr Kruger-Davis also assessed Mr Bowie as having a number of protective factors in his life (page 13 of the report).

64. Mr Bowie relied on three character references. The reference from his employer does not provide much assistance to the Tribunal as it concerns his work performance and makes no reference to the instances of previous involvement with Police.

65. The second character reference is from Ms Schuneman, Mr Bowie’s wife. She attests to his personal growth, faith and integrity. She describes his abstinence from alcohol and adherence to a fitness regimen. She says he has also volunteered in a program to drive intoxicated drivers home over the Christmas period. She says that she has not seen Mr Bowie display any behaviour that would be described as aggressive or threatening. She describes Mr Bowie as remorseful for his past behaviour and says he had recognised the negative impact alcohol had on him. These aspects of Ms Schuneman’s reference are based on her own experience and observations of Mr Bowie.

66. The third character reference is from Mr Anthony Tran, a friend of Mr Bowie. Mr Tran says he believes Mr Bowie to be of good character. He describes Mr Bowie as a teetotaller and that he finds it difficult to imagine him breaking the law. He describes Mr Bowie as embarrassed about his previous conduct.

Applicant’s submissions

67. Mr Kable submitted that Mr Bowie’s criminal history was now quite dated and there had been no criminal charges after 2009.

68. Mr Kable said that Mr Kruger-Davis’ report stated that Mr Bowie has no mental health issues. He described Mr Bowie as “honest and candid” and that he showed remorse for his past offending. He said that the character references provided by Mr Bowie referred to his remorse for his behaviour.

69. Mr Kable made the point that there was no document in the Respondent’s material which showed that Mr Bowie was charged and bailed prior to his departure for Western Australia in 2006 or 2007. He said his client was unaware about charges being laid or that bail conditions had been set.

70. Mr Kable said his client “wasn’t an angel” and had made “plenty of mistakes” up to 2009, but that he had given up alcohol which was the “root cause”. He has now “remodelled” himself and is working in a responsible job and married.

71. Mr Kable referred to the decision in Romanos v Commissioner of Police, NSW Police Force 2019 NSWCATAD 272. In that case the applicant, Mr Ramanos, was found to have committed an offence regarding keeping of a firearm safely he also had a number of older convictions relating to possession of fireworks, the carrying of a weapon, possibly a knife, affray and also an attempted theft. These convictions were more than 18 years old. Mr Kable took the Tribunal to [47] of that decision, which reads:

“Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that [Mr Ramanos] would present any risk to public safety or the peace if his licence were reissued.”

72. Mr Kable also referred to Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24. In that case the Applicant, Mr Petricevic was involved in a series of incidents with Police, largely in the context of what appears to be drug use. Those incidents involved being detained as an intoxicated person due to drugs, arguing and verbally abusing Police and refusing to move on, resisting arrest and some other incidents. However, there had not been any such conduct for a period of seven years, except an incident which was a threat to self-harm when Mr Petricevic was frustrated on the phone when speaking to an Apple technician. In that case, the Tribunal found that because of the passage of time and a change in lifestyle that there was no real and appreciable risk that the applicant would not comply with his obligations if granted a firearms licence.

73. The Applicant also relied on Hailes v Commissioner of Police [2022] NSWCATAD 37. In that case Mr Hailes had a significant history of disobeying traffic laws and was declared a habitual offender by Roads and Maritime Services. He also had a number of other convictions involving break, enter and steal, drug possession and goods in custody. He was also involved in a violent home invasion in 2001, although there was no evidence he had participated in any assaults or had threatened the victim. He was said to have historical links to an outlaw motorcycle gang. Despite observing that some of the criminal convictions, if more recent, would probably disqualify Mr Hailes from holding a licence, the Tribunal considered that given most of the relevant conduct was some 20 years prior that there would be no real and appreciable risk to public safety if the licence were to be issued and it would not be contrary to the public interest.

74. Additional cases were referred to by Mr Kable in the internal review application. The case of Prevetera v Commissioner of Police [2021 NSWCATAD 133 concerned a longstanding dispute between Mr Prevetera and multiple neighbours. In that decision, the Tribunal addressed when it might be that the person is a risk to public safety and the issuing of the licence would be contrary to the public interest. Citing Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110, the Tribunal said at [27]:

It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration.

75. The Tribunal concluded in that case that there was no real and appreciable risk as only one of the incidents in which Mr Prevetera was involved escalated to the point of violence and there was no suggestion any of the conduct was influenced by the Applicant’s access to firearms.

76. Mr Bowie also relied on the decision of Hook v Commissioner of Police 2020 NSWCATAD 250 in his application for internal review. In that case, Mr Hook had a significant driving record, including being involved in two high speed police pursuits, some 10 years prior when he was 18 years old. He was also involved in, amongst other things, an incident where he pushed his sister over, again more than 10 years prior to the hearing. In that case the Tribunal considered that Mr Hook was genuinely remorseful and had radically changed his attitude and sense of responsibility (at [111]). The Tribunal found at [112] that given the passage of time since the worst infringements, that Mr Hook was “now unlikely to present any significant, noticeable or realistic danger to public safety.”

77. In summary, Mr Kable submitted that despite his “chequered past”, Mr Bowie had put that behind him and there had not been any relevant incidents since 2009.

Respondent’s submissions

78. The Respondent relied on both oral and written submissions. Those submissions canvassed the instances in which Mr Bowie came to the attention of Police and the notation about risk of self harm in the custody records and the fact the Court made orders requiring psychological counselling in 2009.

79. Mr Zoppo questioned the degree to which Mr Bowie was remorseful for his conduct. He said that in some instances, Mr Bowie denied responsibility, such as the instance involving the T-shirt which led to the goods in custody charge.

80. Mr Zoppo submitted that the size of the Centrelink overpayment of over $8,000 meant that it was difficult to understand how Mr Bowie would not notice such a large overpayment.

81. Mr Zoppo said that despite Mr Bowie’s admission to having problems with alcohol there is not one mention of alcohol in Mr Kruger-Davis’ report. He also again highlighted the fact that there appeared to be a “mishmash” of incidents in the report and also a reference to never having to undergo psychological counselling (at page 3 of Mr Kruger-Davis’ report). He submitted that the Tribunal could place little weight on the factual account in Mr Kruger-Davis’ report due to these inaccuracies.

82. Mr Zoppo also argued that Ms Schuneman relied on what Mr Bowie had told her when forming a view about his conduct and so her evidence had limited value.

83. The written submissions of the Respondent concluded by saying (at [33]):

“While it is pleasing that the Applicant has not come to the attention of the Police since 2009, the history of the Applicant…casts doubt on whether it is in the public interest for the Applicant to hold a probationary pistol licence.”

Consideration

84. The underlying principles of the Firearms Act 1996 state that possessing and using firearms is a privilege and that this privilege is conditional on the overriding need to ensure public safety: section 3(1)(a).

85. It is notable that Mr Bowie seeks the firearms licence for the purposes of recreation and not for other purposes, such as for business or employment.

86. There were some inconsistencies and questions raised by Mr Bowie’s evidence. I found his evidence at times to be imprecise, such as when describing the periods of time during which he incorrectly reported his income to Centrelink. Mr Bowie also stated, contrary to what is recorded in the Police documents, that he was not issued with any warning by Police to cease contacting Ms Coskerie. He also said he was unaware of his bail requirements, which does seem unusual given that one would expect that bail conditions would be set when an accused appears in court. However, I find that these differences and the lack of clarity or reliability of the evidence to be consistent with Mr Bowie’s evidence of a relatively chaotic and disorganised period of this life.

87. I am satisfied that in 2002 Mr Bowie was not truthful with Police about the fact he knew one of the intruders. His account about the goods in custody charge in 2002 where he asked the customer service desk to hold a t-shirt for him that still had a price tag on it raises some questions. Mr Bowie’s explanation at the time, according to Police documents, was that he bought the t-shirt from an Asian man at a different shopping centre earlier the same day. He said at hearing that he bought the shirt with cash and presumably had no receipt to use to explain his possession of the shirt. Mr Bowie said that he did not defend the charge as he was unable to get the day off work. It is difficult to draw a conclusion about this incident.

88. I accept Mr Bowie’s evidence that the requirement imposed on him by the Court on 4 December 2009 to attend counselling was to address his problematic use of alcohol. There is no other available evidence on this point, other than Mr Bowie’s sworn evidence, and I accepted his evidence as credible.

89. I find that the interpretation given by the Respondent to the custody records and reasons for the supervision requirement are mere conjecture, with no evidentiary basis. I do not accept that Mr Bowie had mental health concerns in 2009 on the basis of those records.

90. It is of some significance that Mr Bowie has had no interaction with Police since 2009, some 13 years. I accept his evidence that since that time he has ceased drinking and that he has been in a stable relationship with Ms Schuneman, a marriage that has lasted for more than ten years. He is employed in a responsible job.

91. The context of much of Mr Bowie’s offending was his consumption of alcohol. He has made significant and commendable changes to his lifestyle since then and this coincided with the commencement of a relationship with Ms Schuneman. Whilst there are some factual errors and shortcomings in the description of the various interactions with Police Mr Kruger-Davis’ report, I do accept the opinion of Mr Kruger-Davis that Mr Bowie has a number protective factors in his life supporting his overall wellbeing and that there is no evidence of any mental health conditions or risks of self-harm. I conclude that there is no real or appreciable risk to public safety if Mr Bowie were to be granted a firearms licence and that it would therefore not be contrary to the public interest for Mr Bowie to be granted a firearms licence.

Conclusion and Orders

92. For the reasons set out above, the correct and preferable decision is to set aside the decision under review and to make a decision in substitution that Mr Bowie be granted a category H firearms licence.

93. The decision of the Commissioner to refuse the Applicant a firearms license is set aside and a category H firearms licence is to be issued to Mr Bowie.

Orders

1. The decision of the Respondent to refuse the Applicant’s application for a category H firearms licence is set aside.

2. A category H firearms licence is to be issued to the Applicant.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 June 2022