Brosowski v Commissioner of Police, New South Wales Police Service
[2003] NSWADT 182
•08/08/2003
CITATION: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 DIVISION: General Division PARTIES: APPLICANT
Paul Brosowski
RESPONDENT
Commissioner of Police, New South Wales Police ServiceFILE NUMBER: 023251 HEARING DATES: 17/04/2003 SUBMISSIONS CLOSED: 04/17/2003 DATE OF DECISION:
08/08/2003BEFORE: 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 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Firearms (General) Regulation 1997
Firearms Act 1996CASES CITED: Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127.
Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114.REPRESENTATION: APPLICANT
Mr Robinson, solicitor
RESPONDENT
Mr C Capper, advocateORDERS: The Commissioner's decision to revoke Mr. Brosowski'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. Paul Brosowski. Mr. Brosowski was issued the licence in question on 21 September 1998, and it would have been due to expire on 5 September 2003. The licence was revoked on 26 August 2002.
Background
2 The decision to revoke Mr. Brosowski's licence followed an event on 13 June 2001 in which police attended at Mr. Brosowski's property following reports to police which gave them cause for concern for Mr. Brosowski's safety. A semi-siege situation ensued following which Mr. Brosowski was eventually arrested.
3 Police located two firearms being unsafely kept at Mr. Brosowski's premises. He was charged in relation to not keeping the firearms safely and he appeared before the Inverell Local Court on 8 July 2002. The matter in relation to the first firearm was dismissed. The second firearm offence was found proved but dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction. The firearm was forfeited to police.
4 On 6 September 2002, Mr. Brosowski sought an internal review of the Commissioner's decision to revoke his licence. The internal review was finalised on 1 October 2002 and the decision was taken that the original decision to revoke Mr. Brosowski's licence was to stand. Mr. Brosowski applied to the Tribunal for review of that decision.
Reviewable decision
5 The reviewable decision is that of the Commissioner to revoke Mr. Brosowski's firearms licence. On 6 November 2003 Mr. Brosowski applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's President on 9 December 2002 at which time he made directions for the filing of documents and the matter was listed for hearing. The matter came before me on 14 April 2003 but did not proceed on that day. It was adjourned for hearing at Moree on 17 April 2003 and was heard at that time.
Applicable Legislation
6 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:
7 The legislation of most relevance to these proceedings is 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."
8 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".
9 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,
..."
10 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:
Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.
(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.
(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."
11 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."
12 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:
(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:
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(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
(d) for any other reason prescribed by the regulations.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect."
Mr. Brosowski'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."
13 Mr. Brosowski appeared and presented oral evidence on his own behalf and was subjected to cross-examination. Mr. Brosowski disputes the Commissioner's interpretation of events. His case is essentially that the events of June 2001 have been blown out of proportion and do not justify the revocation of his licence. Mr. Brosowski provided a written statement that provides a reasonable outline of his case. Statements provided in support of Mr. Brosowski's case by his son Michael and his daughter Kathryn were also put in evidence. Mr. Brosowski’s stated:
14 A statement provided by Mr. Brosowski’s youngest son Michael states:
“My property is located in a particularly rugged area of country between Bundarra and Bingara in northern New South Wales.
Due to the rugged nature of the land on which my property is located, I encounter difficulty controlling animals such as pigs, foxes and rabbits.
For this reason, I have found it essential to own firearms and have held a firearms licence since moving to the property in 1985.
Without the use of firearms, I find that my property is over-run by feral animals.
In the time that I have resided at [my property], there have been a number of unusual incidents, all of which have been referred to in the Internal Review - Statement of Reasons issued by the Firearms Registry.
On 5 September, 1999, I was at my home when a person known to me as Jamie … came to my house. In front of me Jamie mutilated himself by cutting his arm from his shoulder to his wrist. Shortly after mutilating himself he threatened to kill me. Given his mental state at the time, I believed that he meant what he said.
Upon hearing the threat made to me by Jamie, I moved quickly to get my rifle, as I believed it to be the only way in which I could defend myself from a man who was clearly suffering some form of psychotic episode.
As soon as I had the gun, I pointed it at Jamie and told him to leave me alone. Jamie quickly retreated and ceased threatening me. …
In March 2000, Police attended my property for the purpose of having papers signed relating to the actions of Jamie .. in September, 1999. At no time whilst the Police were on my property on that occasion did I make any representations relating to my mental state.
On 12 June, 2001, I learnt that my sister living in Germany had died. I had also recently had a loan application rejected and had that day hit a kangaroo in my vehicle. These combinations of events, I found extremely depressing. As a result of my depression I consumed a number of alcoholic drinks.
Whilst intoxicated I spoke to my son, Michael, on the telephone. I do not believe that at any time during that conversation I made any comment relating to my wanting to commit suicide.
As a result of my conversation with my son, Michael, Police were contacted. When the Police came to my property, I complied with their directions.
I acknowledge that there were 2 loaded firearms unsafely kept in my premises, but state that these weapons were not in their usual place of keeping as I had intended to use them prior to commencing drinking.
Subsequent to being detained by Police, I was taken to Coffs Harbour Base Hospital for assessment. Annexed … is a copy of my Clinical Notes pertaining to my admission on 14 June, 2001.
I was discharged from Hospital on 15 June, 2001. I was not provided with any recommendations for future medication or counselling.
Whilst in Hospital I contracted a golden staph infection.
As a result of what I believe to have been my unnecessary detention and my subsequent contracting of golden staph, I have become frustrated at the actions of the Police on 13 June, 2001.
I have indicated this frustration to a number of people since.
I intend to lodge a complaint with the Office of the Commissioner of Police.”
15 Mr. Brosowski’s daughter Kathryn provided a statement in support of her father’s case. Her statement provides:
“I wish to explain, from my perspective the events that occurred in July 2001 on the night my father was arrested by the police. As I am now working in Vietnam, I unfortunately do not have the exact date of the incident.
At 9.00pm, I was working in my office at the University of New South Wales in Sydney. I received a telephone call from a friend of my father, to the effect that my father was drunk and very upset about something. I rang my father immediately as he is a reformed alcoholic and I was extremely worried to hear that had been drinking. This is most unusual for him; he neither drinks nor smokes.
From our conversation, it was clear that my father was drunk. His voice was altered and he sounded like he was crying. He was not at all aggressive or hostile; I could even tell that he was falling asleep on the phone.
Not sure what to do, but knowing that he needed to get to a hospital to recover from the alcohol, I wanted to call his local police to see if they could help him. However, I didn't want to hang up on my father, so I asked another person in my office to go to another phone and contact the Bundarra police. This I communicated by writing messages on paper. My friend went into the next office, made the call, and came back.
Meantime, my father had evidently fallen asleep and so I rang his neighbour, … to ask him to go down to my father's house, check that he was OK, and wait for the police to arrive so he could let them in.
The rest of the night was taken up with me on the telephone to the police from time to time. When I realised that they had called in an apparently large force, I asked them to call it off and just leave my father alone. I was told they had surrounded his house with armed officers, which I thought was completely unnecessary as my father was asleep and in need of help.
I am surprised that such a large operation was put into action, and that my father was surrounded and arrested rather than assisted. I am sorry that I called the police and will be sure to never do so again should any member of my family need help. My father was treated like a criminal and taken far from his home without adequate clothing and with no money. The following day, he found himself in a completely unfamiliar town with absolutely no means of getting home ... I know this incident has caused a lot of grief to my father, and it certainly has to the rest of the family.”
16 Mr. Robinson submitted that Mr. Brosowski’s firearms licence should not be revoked. He has a great need for his firearms to destroy sick stock and feral animals on his property. He asserts that he is no threat to the public and therefore there is no reason why he should not have his licence reinstated.
“On the night of 13 June, 2001 I received a telephone call from the Inverell Police advising that my father had been involved in a disturbance and that they were taking him away from the property.
I received assurances from the Police that my father was in no trouble with the law whatsoever and that he was being removed from his home simply for his own protection.
On 14 June, 2001 I received a telephone call from the Police advising that they had sent my father to Coffs Harbour Hospital for observation. I was further advised that it was necessary for me to attend Coffs Harbour Hospital in order to pick my father up, as he was to be discharged.
On meeting Coffs Harbour Hospital staff at Bellingen, on 15 June, 2001 the arranged point of pick up for my father, I was advised that whilst my father had endured a depressive episode, he was not considered dangerous to himself or to others.
I also on that day, had a telephone conversation with the psychiatrist who had treated my father at the hospital. During the course of that conversation I was informed that he was mentally fit.
At no time did I indicate to Police that my father had threatened to commit suicide or perform any acts of self harm.”
17 Mr. Brosowski is aware of the storage requirements under the applicable legislation and has storage facilities which comply with the legislation. He uses the firearms on his property and he asserts that they are usually stored in the cellar when not in use.
18 He formerly worked as a prison guard and was trained in the use of firearms. Mr. Brosowski concedes that in 1999 he resorted to the use of a firearm for self-protection purposes. He also acknowledges that on 13 June 2001 he left two firearms unsecured in his house but stated that he had them there to shoot foxes.
19 Mr. Robinson submitted that Mr. Brosowski lives in an extremely remote area, the breach of the storage requirements was for only a very short period and it was understandable in the circumstances. Mr. Brosowski had recently learned of his sister’s death and that a loan had been refused. He was anxious about his debts and had that day hit a kangaroo in his vehicle. He found the combinations of events extremely depressing. As a result he consumed a number of alcoholic drinks. It was during this episode of drinking that he spoke to his son Michael who became concerned for his wellbeing. Mr. Brosowski agreed that he was intoxicated when he spoke to his son that evening however he denied making threats of self-harm. Mr. Brosowski’s son’s statement provides an explanation of the circumstances that lead to the police involvement and expresses the opinion that the operation undertaken by the police was completely unnecessary. The statement from Mr. Brosowski’s daughter Kathryn disputes information that the police assert in that she denies that she ever indicated to the police that her father had threatened to commit suicide or perform any acts of self harm.
20 Mr. Robinson submitted that little weight should be given to the clinical notes in evidence. In any event there is nothing contained in those notes to suggest that Mr. Brosowski presents any risk to himself or to the public. He argued that the community could have confidence that the type of events under consideration is unlikely to re-occur. The risk to the community is negligible and therefore the Commissioner’s decision should be set aside.
The Commissioner's case
21 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. 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. Brosowski might have in possessing his firearm. The Commissioner has concerns about Mr. Brosowski being the holder of a firearms licence due to his conduct in the events of September 1999 and June 2001 outlined above.
22 The Police Service's file included statements by several police officers who had attended Mr. Brosowski property on the night of 13 June 2001.
23 Senior Constable Gavin Berry of Bundarra Police Station stated that at about 7.52 p.m. on that date he contacted a friend of Mr. Brosowski. The friend informed him that she and Mr. Brosowski had had a dispute the previous day, that she had been unable to contact Mr. Brosowski since, and that she was concerned for his welfare.
24 Senior Constable Berry stated that at about 9.10 p.m. on that date he heard a message on police radio that Mr. Brosowski’s son Michael had told police that Mr. Brosowski was depressed and suicidal and, further, that he was likely to shoot at police.
25 Senior Constable Berry attended Mr. Brosowski property and spoke with Mr. Brosowski. He recounted that Mr. Brosowski said: "I am sick of everybody, I would be better off dead anyway." Senior Constable Berry said that Mr. Brosowski also told him: "The twenty two is in the kitchen were it always is. You have seen it there everytime you have come down here."
26 When police searched Mr. Brosowski’s property they found two unattended firearms and ammunition. The .22 calibre rifle was located in the kitchen. There were three magazines for the rifle, with a number of rounds in two of the magazines. A double-barrelled shotgun was located hanging on the back of the bedroom door. Police also located two loaded shotgun shells.
27 Inspector David Harrington of Inverell Police Station states that as the Duty Officer on 13 June, 2001 he organised and managed a response to the incident at Mr. Brosowski’s property. He gave Sergeant Magann and Senior Constable Berry instructions and coordinated further police resources, included police negotiators and members of the State Protection Support Unit, and commanded a negotiated surrender by Mr. Brosowski.
28 Statement were also provided with respect to their roles in the incident by: Senior Constable John Smith and Constable Todd Pascoe of Inverell Police station; Sergeant Scott Magann of Tingha Police Station; Senior Constable Simon Ross of Tamworth Police Station and Senior Constable Scott Tanner, a member of the State Protection Support Unit.
29 The Internal Review Reasons on which the Commissioner relies provided in part:
30 Mr. Capper, for the Commissioner, referred to the clinical notes from Coffs Harbour Hospital in evidence. He argued that those notes indicate that Mr. Brosowski was rated as high risk of suicide. That assessment appears to have been based on conversations with Mr. Brosowski and information that he provided. Mr. Capper said that there is clear evidence that Mr. Brosowski was expressing suicidal ideation. It is also apparent from the clinical notes that at the times he was interviewed at the hospital Mr. Brosowski had no clear recollection of the events of the previous night.
" 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 your solicitor 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 firearms licence reinstated I have given consideration to the submissions of your solicitor and I have weighed them against the facts surrounding the incident that occurred on 13 June 2001, the proven firearm offence against you and the principles of the Act. 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.
The facts surrounding the incident on 13 June 2001 involve police being called to attend your property due to concerns for your welfare. Your son informed police that during a telephone conversation with him you had been suicidal and had made threats to shoot police. Accordingly, a SPSU operation was commenced and you were successfully removed from your house through negotiation. At the time of the incident you were moderately intoxicated and you were later scheduled as a mental health patient at the Coffs Harbour Hospital. After you were arrested police searched your premises and located a .22 calibre rifle in the kitchen of your house not secured that had two loaded magazines sitting next to it on a shelf. Police also located a double barrel shotgun in your bedroom hanging on the back of the door not secured in anyway that was loaded with two loaded shotgun shells.
In addition to this incident I note some prior recorded events, which indicate that you have previously resorted to using a firearm for self-protection, having pointed a rifle at the defendant involved in the incident. Other recorded events also indicate that you have previously made threats to kill yourself and your estranged wife.
Of most concern is advice received from Bundarra Police is that you have a hatred of police and that, if given the opportunity, you would shoot on sight a Senior Constable attached to that station.
In relation to the incident on 13 June 2001 your solicitor submits that there was no suggestion that you possessed a firearm at the time of this incident and that you deny ever threatening self-harm with a firearm. He further submits that you do not have intemperate habits but does acknowledge that you were intoxicated on one occasion however, that this was due to you suffering emotional stress following the sudden death of your sister. Also, he states that the psychiatric unit at Coffs Harbour Hospital made an assessment of you and immediately determined that you were not suffering from unsoundness of mind and that you were released as soon as the assessment had been completed.
Your solicitor submits that the offence of 'Not keep firearm safely-not prohibited firearm' was considered of such a minor nature by the Inverell Local Court as reflected by its decision to dismiss you (pursuant to Section 10) without proceeding to a conviction.
With respect to the submissions made by your solicitor regarding the incident on 13 June 2001 I accept that you were not found in the physical possession of a firearm. I also concede that whilst you were moderately affected by alcohol on this occasion it does not warrant or suggest that you have 'intemperate habits'. Likewise, notwithstanding the absence of any supporting documentation from mental health authorities, I accept that you are not of unsound mind.
However, I do not accept the submission that you did not threaten self-harm. I am satisfied that police were alerted by two separate individuals (one of whom was your son) who held serious concerns for your welfare following telephone conversations with you during which, they say, you threatened suicide and threatened to shoot police. It is obvious that the concerns expressed to police were sufficiently serious as police commenced a SPSU operation and it was through negotiation that you eventually surrendered and were arrested. Further, in his statement of 21 June 2001, Senior Constable Berry states that at the time of your arrest he explained to you that he needed to place you in handcuffs as you had made threats to shoot yourself and police. You agreed that you had made such threats but said that it was because you were drunk.
When considering an individual's right to hold a licence under the Act I have formed the view that any decision should be made on the basis that the act calls for strict controls to be exercised in the fitness of individuals who seek to be licensed.
In light of the circumstances surrounding the incident on 13 June 2001, combined with other previous recorded events where you have resorted to self protection by use of a firearm and advice that you have on previous occasions threatened self-harm, I am not satisfied that you are a fit and proper person who can be trusted to have access to firearms. Further, in my opinion, your behaviour suggests that you do not have the rectitude of character required of persons wishing to have the privilege of being issued with a firearms licence.
The concept of 'fit and proper' includes a person' s moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence.
Moreover, when considering the issue of 'fit and proper' the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. This list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
I am satisfied that improper conduct has occurred and after noting the advice of your daughter and local police authorities regarding previous threats of self-harm I am not satisfied that the general community could have confidence that it will not re-occur. This view is further evidenced by the advice of police that you have expressed your desire to shoot a local police officer, should the opportunity arise.
With respect to your solicitors submission that the offence of 'Not keep firearm safely-not prohibited firearm' was considered by the court of such a minor nature, that you were dealt with under the provisions of Section 10, 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.
Moreover, 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.
At the time the firearms were located in an unsecured state, you made full admissions to Senior Constable Berry regarding where and how they were being kept and I note that you told him that you always kept your .22 rifle in the kitchen.
I note that you have offered no explanation or provided any extenuating circumstances as to why two of your firearms were being unsafely kept. I also note that you have acknowledged no wrongdoing and shown no contrition for your actions.
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.
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. It can be clearly seen that you have acted irresponsibly in keeping your firearms together with their ammunition in an unsecured state at a time when you were intoxicated and in a distressed state of mind.
The principles and objectives of the Act are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. Section 19(2)(a) and 40 of the Act provide express requirements as to how that objective is to be met in regard to safe storage. That is, a condition of the licence is that the firearms are to be stored safely in the manner prescribed. The ADT has expressly stated that these are fundamental requirements to be upheld by licensees.
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 be used as a weapon.
I believe it is significant that you have shown no contrition for any of your actions or behaviour and acknowledged no wrongdoing and that you were aggressive in the way in which you dealt with police. I believe that such actions raise a question of doubt about your honesty and were not those of a responsible law abiding firearms user as required by the Act.
Further, your general behaviour demonstrates a lack of responsibility in relation to upholding the law and in my view raises a serious doubt about your ability to discharge what are onerous responsibilities of holding a licence under the Act. It should be acknowledged that the act clearly states that the issue of a firearms licence is a privilege not a right.
In Coates v COP (2001) NSW ADT pp 33-34, the Tribunal held that the decision maker would be justified in revoking a licence if there is evidence sufficient to give rise to a finding that a licence holder may not personally exercise continuous and responsible control over firearms in the absence of convictions of a criminal offence or evidence that a firearm has been used irresponsibly or unsafely.
You were granted the privilege of being issued with a firearms licence for the genuine reason of 'recreational hunting/vermin control'. In my opinion you have shown no regard for the conditions upon which your licence was issued or for the principles and objectives of the Act, which is to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms.
Finally, I am satisfied that even though this appears to be your only breach of the Act its subjective features were of sufficient seriousness to warrant revocation notwithstanding the decision of the Inverell Local Court.
31 Mr. Capper argued that the police went to Mr. Brosowski’s property with good reason. The decision to attend was based on a phone call with Mr. Brosowski’s son Michael’s employer. Michael had clearly been sufficiently concerned to warrant the police attending.
32 Mr. Capper also referred to the events of September 1999 in which Mr. Brosowski was the victim of threats and he resorted to protecting himself with a shotgun that he pointed at the person making the threats. Mr. Capper argued that this is an inappropriate use of the weapon and that Mr. Brosowski is not licensed to use a weapon in that manner.
33 Mr. Capper also referred to the fact that police located a shotgun behind Mr. Brosowski’s bedroom door. He argued that if Mr. Brosowski was using that weapon to shoot foxes it would have been in the kitchen. He submitted that section 40 of the Act requires that when a firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner. The evidence shows that Mr. Brosowski had stored the shotgun behind the bedroom door on at least two occasions. Mr. Capper urged the Tribunal to find that this is not a co-incidence. This storage is contrary to the legislative requirements and is inconsistent with the object of the Act to ensure that firearms are stored and conveyed in a safe and secure manner as set out in section 3 of the Act.
34 Mr. Capper referred to the decisions of the Tribunal's Deputy President in the matter of Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127. 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.
35 Mr. Capper submitted that the firearms legislation puts the public's right to safety before the privilege of gun ownership. The legislation establishes a strict regime to be followed. Mr. Brosowski had appropriate available storage and he could have complied with the legislative regime. He could have and should have ensured that the firearm was safety stored.
36 Mr. Capper argued that the Commissioner has the power to revoke the licence if a licensee does not comply with the safe storage requirements. He submitted that Mr. Brosowski, as a licensee, has obligations. He was aware of these obligations but failed to meet them. Mr. Capper argued that there is nothing in the circumstances of this matter to take it outside the ordinary case.
Nature of proceedings
37 I note Mr. Capper's 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. Brosowski carries an onus of proof.
38 Mr. Brosowski 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. Brosowski 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.
39 I must consider all relevant circumstances and the subject matter of Mr. Brosowski'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
40 In this application, 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:
· Mr. Brosowski was issued a category AB firearms licence on 21 September 1998 for the genuine reason of 'recreational hunting/vermin control;
· Mr. Brosowski's usual practice is to store most of his firearms in a cellar which is bolted shut with multiple locks. It is probable that he usually stored his shotgun behind the door of his bedroom;
· During an incident that occurred on 5 September 1999 Mr. Brosowski was the victim of verbal threats and he resorted to protecting himself with a shotgun having pointed the firearm at the person who issued the threats;
· on 13 June 2001 Mr. Brosowski's son, Michael, contacted police expressing grave concerns for Mr. Brosowski's safety. It is probably that Mr. Brosowski's son made contact with police because Mr. Brosowski had threatened suicide during a phone conversation with his son;
· Police acted on the advice received from Mr. Brosowski's son, and Mr. Brosowski was eventually arrested without incident. Following on from this incident police located two firearms and ammunition which were unsafely kept at Mr. Brosowski's premises;
· Mr. Brosowski appeared before the Inverell Local Court on 8 July 2002 where the offence of 'Not keep firearm safely' was found proved but dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction.
· Mr. Brosowski has no prior criminal history or adverse firearms history; and
· in June 2001 Mr. Brosowski was going through a difficult period in his personal life. The clinical notes from Coffs Harbour Hospital make no suggestion that Mr. Brosowski has any ongoing psychological problems which present a threat to himself or the community;
41 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Brosowski'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. The likelihood of risk must be assessed by reference to the applicant's prior conduct. Mr. Brosowski has breached certain provisions of the Act in relation to storage of firearms even though he was not convicted of those offences. Against this must be weighed his long history of firearms use that is incident free but which is overshadowed by these incidences of failure to comply with the legislative requirements regarding storage and use of firearms.
42 Regrettably, the outcome of Mr. Brosowski's conduct was extremely serious. It is fortunate that the consequences were not even more severe.
43 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. Brosowski's offences must be viewed with reference to them.
44 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. On the evidence presented I accept it is probable that Mr. Brosowski was aware of the statutory obligations but I am not convinced that he fully appreciates the importance of strict observance of those obligations or that he is always diligent in ensuring that his firearms are stored in the prescribed manner.
45 In this case it could not be said that Mr. Brosowski 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.
46 However the fact remains that Mr. Brosowski was found guilty of an offence relating to his failure to keep his firearm safely. He has also admitted to conduct where he used a firearm for self-protection. Section 12(2)(a) of the Act specifically excludes personal protection as a genuine reason for possessing or using a firearm. It is conceivable that far more severe consequences could have resulted from that incident. The fact that Mr. Brosowski usually uses his firearms responsibly does not diminish the gravity of that fact. I have found as a fact that it is probable that Mr. Brosowski usually stored his shotgun behind the door of his bedroom. This conduct reflects a casual attitude towards firearms that is out of step with the principles and objects of the Act.
47 I also have concerns that depression, alcohol and ready access to firearms could easily prove to be a lethal combination. While this did not prove to be the case in the June 2001 incident, it is conceivable that in different circumstances there could have been more tragic consequences. Contrary to what Mr. Brosowski asserts, it seems to me that the intervention of Mr. Brosowski’s son may have prevented such consequences.
48 Having weighed the evidence, it is my view that that the gravity of the events of September 1999 and June 2001 and the casual approach that Mr. Brosowski had adopted outweighs the other relevant factors. I note that a significant amount of time has passed since these incidents but I still have serious concerns about Mr. Brosowski’s appreciation of the importance of strict observance of his obligations as a firearms licensee. I agree generally with the reasoning provided by the Commissioner’s delegate in the reasons for the internal review decision with respect to the issue of whether Mr. Brosowski is a fit and proper person who can be trusted to have access to firearms. Without further evidence to dispel those concerns I cannot be satisfied that there would be virtually no risk to the public or that the public would be comfortable with Mr. Brosowski holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke Mr. Brosowski's firearms licence. Accordingly I affirm the Commissioner's decision.
49 I am unable to provide any specific guidance as to what I would consider to be sufficient to dispel my concerns. However, I would suggest that if Mr. Brosowski were to take positive steps to re-educate himself in regard to the legislative regime governing the use of firearms in this State and the importance attached to the storage requirement, and if Mr. Brosowski could obtain a psychiatric or psychological report giving clear evidence of his psychological stability and that there is no psychological reason why he should not hold a firearms licence, and should he choose to reapply for a firearms licence, the Commissioner may well reach a different conclusion.
Orders
50 The Commissioner's decision to revoke Mr. Brosowski's Category AB firearms licence is affirmed.
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