Burrett v Commissioner of Police, NSW Police Force

[2010] NSWADT 210

CITATION:	Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Brian Burrett RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	093330
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	6 April 2010
DATE OF DECISION:	24 August 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Firearms Regulation 2006
CASES CITED:	Bevan v The Commissioner of Police [2004] NSWADT 1 Botros -v- Commissioner of Police, NSW Police Service [2000] NSWADT 6 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Kalinic v The Commissioner of Police [2006] NSWADT 227 Maloney v Commissioner of Police of Police, NSW Police, 22 November 2004, Unreported Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Vella v Commissioner of Police, NSW Police Service [2003] NSW ADT 91 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
REPRESENTATION:	APPLICANT S Mainstone, solicitor RESPONDENT J Mattson, solicitor
ORDERS:	The Commissioner's decision to revoke Mr Burrett's firearms licence is affirmed.

REASONS FOR DECISION

1 Mr Burrett was issued with a Category AB firearms licence on 31 August 2007 under the Firearms Act 1996 (“the Act”). The licence was due to expire on 18 October 2012, however it was suspended on 19 July 2009 and then revoked on 7 October 2009.

2 The revocation is the decision under review. By consent of the parties, the matter is to be determined on the basis of the material filed by the parties without the need for a hearing.

3 It is common ground that in June 2009 Police were called to a domestic disturbance at a tenanted cottage on a property that Mr Burrett owns at Wallabadah (“the property”). Police found ammunition and two firearms registered to Mr Burrett unsafely stored at the cottage. The approved storage location for the firearms was in a gun safe at Mr Burrett’s residence in Tamworth.

4 On 17 September 2009 Mr Burrett appeared before Quirindi Local Court on a charge of ‘Not keep firearm safely not prohibited firearm/pistol'. He was convicted of this offence in accordance with section 10A of the Crimes (Sentencing Procedure) Act 1999. Section 10A provides:

10A Conviction with no other penalty
(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.
(2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.
Note: The Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 provide for appeals against sentence, including (in some circumstances) by the prosecutor.

5 The Commissioner's decision to revoke Mr Burrett’s licence was affirmed on an Internal Review. Mr Burrett has applied to the Tribunal for an external review of that determination.

6 The Commissioner's delegate found as a fact:

“That the offence for which you were convicted is 'prescribed' for the purposes of section 11(5)(b) of the Firearms Act 1996 (i.e. mandatory refusal of a licence application for ten years from the date of the conviction);
That because you were found guilty of an offence under Part 4 of the Firearms Act 1996, and your two firearms serial No 638984 and 17431 were seized by Police in connection with that offence, in accordance with section 80(2) of that Act, Quirindi Local Court is taken to have ordered that the firearms be forfeited to the Crown. Therefore the firearms may be destroyed.
Section 24(2)(a) of the Firearms Act 1996 provides that the Commissioner of Police may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 11(5)(b) of the Firearms Act 1996 states that a licence must not be issued to a person who has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.
In this regard clause 5(a)(i) of the Firearms Regulation 2006 prescribes for an offence relating to the possession or use of a firearm, or any other weapons committed under the law of any Australian jurisdiction.
Section 24(2)(d) of the Firearms Act 1996 provides that the Commissioner of Police may revoke a firearms licence for any other reason provided by the regulations.
Clause 19 of the Firearms Regulation 2006 provides that 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.”

7 The Commissioner's delegate provided the following reasoning (citations omitted) in regard to the determination to affirm the revocation decision:

“D. REASONING PROCESS:
…
On 16 June 2009 Police were called to a property that you own at Wallabadah, due to a domestic incident. Two firearms registered to your licence were found unsafely stored on the premises, together with ammunition. I give weight to the fact that you regret your offence.
You were charged with a safekeeping offence under Part 4 of the Act. I concede that the Court imposed no fine in relation to your charge. However, what is relevant is that on 17 September 2009 Quirindi Local Court convicted you for the offence of 'Not keep Firearm safely not prohibited firearm/pistol'. A conviction for a firearms offence is considered more serious than other convictions. Similarly, misconduct relating to firearms is more serious than other sorts of misconduct. Of even more relevance is that your conviction relates to an offence that is 'prescribed by clause 5(a)(i) of the Firearms Regulation 2006, demonstrating the importance that Parliament places on firearms offences.
Legislation provides discretionary grounds to revoke a firearms licence for any reason for which a licence application would be refused. In this regard it is relevant that in accordance with section 11(5)(b) of the Act the Commissioner must refuse any application for a firearms licence lodged by a person who has, within a specified period, been convicted of an offence prescribed by the regulations. I am satisfied that due to your conviction, had your licence not been revoked, your next reapplication due prior to 18 October 2012, would have been refused without discretion on mandatory grounds.
The Administrative Decisions Tribunal (ADT) has held that the inference drawn from section 11(5)(b) of the Act is that a conviction for a prescribed offence operates to remove the privilege to have a firearms licence as public safety is placed at risk. Furthermore, that privilege is lost for a period of 10 years following the conviction. Although the Commissioner has a discretion in this regard where the conviction occurred after the licence was issued, the Tribunal held that it should only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.
I note your submission that you are required to destroy feral pests, humanely destroy sick or injured stock and to hunt recreationally on properties other than your own. However, there are other means by which you can achieve feral animal control and destruction of stock on your property, such as the use of contract shooters or other appropriately licensed recreational hunters, or by engaging the services of a veterinary surgeon. I accept that these alternatives may incur cost, but in my view the public interest should be given greater importance than financial considerations or your desire for recreational pursuits.
Any other firearms licence applicant in your circumstances would be refused a licence on the basis of their firearms conviction. I see no reason why you should be treated differently as that would be inequitable. In this regard I note the opinion expressed in Kalinic v The Commissioner of Police [2006] NSWADT 227 (at para 21 and 23), when the Tribunal agreed with the position taken in Botros v The Commissioner of Police [[2000] NSWADT 6] in that it would be anomalous that a conviction after a licence has been granted, is treated totally differently to a conviction before a licence application.”

8 The Commissioner's delegate also considered that it is not in the public interest for Mr Burrett’s access to firearms to continue. The Commissioner's delegate stated:

“The ADT has also found it important that anybody who has a firearms licence has adequate knowledge and understanding of the safety requirements. In this regard I give weight to your declaration, signed on 8 July 2007, stating 'I fully understand and can comply with the firearms safekeeping requirements of the Firearms Act 1996 and Regulations. I also note the same document advised that any firearms owned by you or in your possession would be stored at 68 Griffin Avenue, Tamworth.
I therefore conclude that your misconduct was not through lack of understanding, but rather it was a deliberate choice to ignore your obligations as a licence holder. “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." However, clearly you did not uphold your obligations as a licence holder, as on 16 June 2009 Police found two of your firearms located within a wardrobe of a bedroom within a residence that is currently leased to your tenants. Ammunition was also located on a shelf adjacent to the wardrobe. You later advised Police that the firearms had remained at that location for a period of two to three weeks.
I note your advice to Police that your tenants were not supposed to access the room containing the firearms. However, I do not find that a mitigating factor. I am satisfied that, due to your negligence, two firearms and ammunition were readily accessible to two persons who were unauthorised for their use. The seriousness of your offence is further highlighted by the fact that this occurred when these persons were involved in a heated domestic dispute. In my view this posed a grave risk to their safety and that of Police who were called on to attend the disturbance. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.
Failure to maintain the security of firearms can result in tragic consequences. As the ADT has held, there are numerous examples that could be provided to demonstrate the potential for misuse should firearms fall into the wrong hands. The storage requirements are strict as non-compliance can easily compromise safety.”

Applicable legislation

9 Section 24(2)(a) of the Act provides that the Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.

10 Section 11(5)(b) of the Act states that a licence must not be issued to a person who has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.

11 Clause 5(a)(i) of the Firearms Regulation 2006 (“the Regulations”) provides that, for the purposes of sections 11(5)(b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

An offence relating to the possession or use of a firearm, or any other weapon … committed under the law of any Australian jurisdiction ...

12 Section 24(2)(d) of the Act provides that the Commissioner may revoke a firearms licence for any other reason prescribed by the Regulations.

13 Clause 19 of the Regulations provides that a licence may be revoked if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Mr Burrett’s case

14 Mr Burrett relies on his own statement and a number of references that attest to his good character. Mr Mainstone, solicitor for Mr Burrett, provided written submissions in support of his application.

15 Mr Burrett is a chartered civil engineer and a chartered engineering and mining surveyor and he belongs to a number of professional organisations. He has owned and used firearms since he was a teenager. His father, a career policeman, skilled him in their safe handling and use.

16 Tenants occupy a cottage on the property. A term of the tenancy agreement is that one bedroom of the cottage was kept for Mr Burrett’s exclusive use. He locked that room and stored clothing and other personal property in it. He did not give the tenants a key to the room. It was his habit to visit the property at least once a week.

17 From time to time he would take firearms to the property for the purpose of vermin control, the humane destruction of injured or diseased stock or recreational hunting. After using the firearms at the property he would return them to his usual storage location – a gun safe at his residence in Tamworth.

18 During the first half of 2009 Mr Burrett incurred stock losses due to wild dog and pig attacks. In late May to early June the tenants advised him of further lamb losses and of an injured cow. He used his firearms to destroy the cow and then needed to dispose of the carcass. He used a tractor to move the carcass and he placed the firearms in a cupboard in the locked room at the cottage while he carried out that activity. He then attended to other farm tasks.

19 He returned to his residence in Tamworth, still upset about the loss of his cow, and inadvertently left the firearms at the cottage.

20 On 16 June 2009 police attended the cottage in regard to a domestic incident between the tenants. During that attendance, one of the tenants led the police to the firearms. Mr Burrett does not know how the tenants came to be aware that the firearms were in the locked room.

21 Mr Burrett was charged in relation to the firearms and appeared at Quirindi Local Court on 17 September 2009.

22 His need for owning and using firearms remains. When and if available the nearest veterinary surgeon is over an hour from the property. In the event that an animal needs to be destroyed he has to impose on a neighbour, who may not always be available, or the animal will suffer until the veterinary surgeon can get there.

23 Further, Mr Burrett and his neighbours are suffering sheep losses from wild dog and pig attacks. As a landholder, he also has a legal obligation to control the numbers of pest animals on the property. Animals that are currently declared pest species in NSW include wild dogs, rabbits and feral pigs. He says that it is not feasible to engage professional hunters or registered shooters to destroy pest animals on the property.

24 Mr Burrett acknowledges that he made an error in leaving the firearms as he did, but points out that this was one instance in almost fifty years of owning and using firearms. The tenants never had the possession of or used the firearms. He regards himself as a law abiding citizen and felt humiliated and disgusted with himself for allowing the situation to occur.

25 He believes that he is a fit and proper person to hold a firearms licence and to use firearm. He now has facilities for safe storage of firearms at the property and states that there is absolutely no possibility that any breach of the Act will occur in the future.

26 Mr Burrett provided a number of references that, while not addressing the issues for consideration in this matter, clearly indicate that he is well regarded in his community.

Submissions

27 Mr Mainstone submitted that whilst a conviction was recorded, the circumstances of the offence and Mr Burrett's good character were matters taken into account by the court. It is submitted that in not imposing any further penalty, the court was of the view that the offence was at the low end of the scale of seriousness. This is reflected in the Police facts sheet, which indicates that the firearms and ammunition in question were seized as a result of them attending Mr Burrett's property regarding a matter completely unrelated to him. The firearms and ammunition concerned never came into the possession of the tenants at the property. The room in which they were stored on the evening the Police attended the property was one that was, to Mr Burrett's knowledge, locked and was not part of the tenancy agreement between the parties.

28 The tenants did not have keys to that room and Mr Burrett asserts that any access by the tenants to that room would have been unlawfully made. The Police facts sheet also indicates that Mr Burrett fully cooperated with the Police and that he was truthful in regards to the circumstances of the matter. The Police also indicate Mr Burrett showed remorse for his actions.

29 Mr Mainstone submitted that Mr Burrett is a person of good character and has been associated with firearms for almost 50 years. He has no other offences on his record regarding firearms or any other criminal matters. He has now installed approved safe storage for firearms on the property. It is submitted that this was another factor taken into account by the presiding Magistrate in not imposing any further penalty on Mr Burrett when he pleaded guilty to the offence. He submits that this is a persuasive and relevant consideration, which takes this matter outside the ordinary case regarding safety issues as enunciated in Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 at [I9]. It is further submitted that the Tribunal could be satisfied that there is now absolutely no possibility that a further breach of the Act or Regulations would occur in the future.

30 Mr Mainstone submitted that the Tribunal can take the following matters into account and find that special or exceptional circumstances exist to exercise its discretion and not revoke Mr Burrett’s licence:

- Mr Burrett ’s age.
- Mr Burrett ’s otherwise good character.
- The circumstances of the offence.
- Mr Burrett ’s remorse for the commission of the offence.
- The impact of the loss of Mr Burrett ’s licence in being able to maintain his responsibilities as a land holder.
- That there is no likelihood of the commission of future offences.
- The court's sentence of not imposing any further penalty other than a conviction.

31 Mr Mainstone concedes that the offence for which Mr Burrett was convicted is a prescribed offence for the purposes of section 11(5)(b) of the Act, however he submitted that the Tribunal has discretion not to revoke the licence. He says that the Commissioner’s assertion that any future application for a renewal of Mr Burrett’s licence would be refused on mandatory grounds is not relevant in the Tribunal's determination, other than in regards to whether special or exceptional circumstances exist not to revoke the licence. He notes the Commissioner’s reliance on the decision of the Tribunal in Kalinic regarding convictions being a relevant consideration in the decision to exercise discretion even if the court treated the offence at the low end of the scale. However, he argues that Kalinic can be distinguished from this case in that not only was Mr Kalinic convicted of a relevant offence of cultivating prohibited plants, but he also had a prior drug related conviction and a conviction for Goods in Custody. Mr Burrett has no prior criminal history for any offences.

32 Mr Mainstone submitted that the Tribunal should give little weight to the Commissioner’s assertion that Mr Burrett had previously ignored his responsibilities with firearms by not advising of a change of address. He says that the Commissioner took no action against Mr Burrett in regard to that matter and it can be inferred that it was not consider to be of a serious nature. If the Commissioner had concerns about Mr Burrett’s conduct as a licence holder for previous non-compliance he was entitled to take such action at the time. No such action was taken.

33 Mr Mainstone submits the Tribunal would find that special or exceptional circumstances exist and should exercise its discretion to overturn the Commissioner’s decision.

The Commissioner’s case

34 The Commissioner relied on documents lodged in the Tribunal pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) and particularly on the reasoning contained in the reasons for the internal review determination. Mr Mattson also filed detailed written submissions in support of the Commissioner’s case.

35 The Commissioner relies on the fact that the offence for which Mr Burrett was convicted is prescribed by the Regulations. Persons convicted of a prescribed offence are precluded from holding a licence for a period of 10 years from the date of the conviction.

36 Although the Tribunal has discretion in regard to whether a licence is to be cancelled where the conviction occurred after the licence was issued, the Commissioner contends that it would be an anomaly to allow a licensee to retain a licence when someone else with the same conviction would be refused one. Mr Mattson submitted that the discretion to not revoke the licence should only be exercised in special or exceptional circumstances. He says that there are no such special or exceptional circumstances in this case.

37 Mr Mattson submitted that the potential gravity for dire consequences cannot be understated. He says that for a period of two to three weeks, Mr Burrett allowed two firearms to be kept unsecured in a wardrobe at the property, and ammunition to be kept unsecured on a shelf near the firearms.

38 The breach became apparent when police were called to deal with a domestic dispute at the property. Domestic disputes and incidents are highly charged with emotion and are often volatile situations that can easily escalate to serious levels of violence. A domestic incident has the potential to escalate into a more serious crime involving violence and even lead to murder or suicide. In the circumstances, the breach has placed public safety at risk. He says that by placing strict controls on licence holders the firearms legislation seeks to protect against the potential for catastrophic consequences in such situations.

39 He says that Mr Burrett was not authorised to keep the firearms and ammunition at the property. The firearms and ammunition were not stored in an approved locked receptacle. This was in breach of the strict safekeeping requirements of the Act. Mr Burrett pleaded guilty to the firearm charges laid against him and he was convicted.

40 The Commissioner contends that Mr Burrett disregarded his obligations and that the non-compliance continued for weeks, despite Mr Burrett's habit of visiting the property at least once a week. He argues that the Tribunal should conclude that Mr Burrett's conviction for a prescribed offence operates to remove the privilege to have a firearms licence as public safety is placed at risk.

41 The Commissioner contends that it would not be in the public interest for Mr Burrett to continue to hold his firearms licence and that the correct and preferable decision for this Tribunal to make is to affirm the Commissioner's decision to revoke the licence.

Discussion

42 It is not in dispute that Mr Burrett was convicted of a firearms offence prescribed for the purposes of section 11(5)(b) of the Act and clause 5(a)(i) of the Regulations and that if Mr Burrett were to apply for a new firearm licence in these circumstances, it must be a mandatory refusal.

43 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

44 A firearm licence is a privilege and not a right. 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: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

45 The Tribunal has considered numerous applications relating to the revocation of a firearms licence where the licence holder has failed to meet the requisite storage requirements contained in the Act. Deputy President Hennessy provided a summary of the legal principles that apply to the revocation of a firearms licence in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226. The Deputy President stated that the principle issue is whether there is a risk to the safety of the public if the applicant retains the licence and she quoted Vella v Commissioner of Police, NSW Police Service [2003] NSW ADT 91 at [35] as authority for this proposition. I agree with tat view.

46 The Deputy President went on to state that for the purpose of determining the principle issue, the relevant considerations included the following:

- the reason for failing to store the firearm safely;
- the length of time the firearm was not stored safely;
- the potential real danger posed by failure to store the firearm safely;
- the person’s previous conduct in relation to storage of firearms and any related matter;
- the person’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.

47 She then stated:

“In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety”.

48 Contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act: Bevan v The Commissioner of Police [2004] NSWADT 1 at paragraph [26]. In my view, the breaches in this matter are neither trivial nor excusable.

49 The potential risk to safety posed by the failure to store the firearm safely arose in regard to a domestic dispute. Mr Burrett allowed two firearms and ammunition to be kept unsecured at a residence used by others. This breach heightened the risk of dire consequences in a domestic situation. I consider that in the circumstances this was a significant risk.

50 I accept that Mr Burrett has a legitimate reason to hold a firearms licence and that he understands the importance of safe storage. I also accept that Mr Burrett inadvertently left the firearms at the property and that the likelihood that firearms will not be stored safely in the future is remote. However, I agree with the views expressed in Maloney v Commissioner of Police of Police, NSW Police, 22 November 2004, Unreported, where Higgins JM stated in relation to this legislation:

“In my opinion, the inference to be drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege to have a firearms license as public safety is placed at risk. Furthermore, that privilege is lost for a period of ten years following a conviction.
Although the Commissioner has a discretion in this regard where the conviction occurred after the license has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the license.

… these offences form a basis of a mandatory refusal of an application for a license. This means that even if Mr Maloney’s license were to be restored, after 2007 when he would be required to reapply for his firearms license, the Commissioner would have no alternative but to refuse a renewal of his license. As I have already said, in my opinion parliament has made it quite clear that conviction for such offences result in the loss of the privilege of having such a licence unless there is some special circumstances that justify a contrary decision. In my opinion, in this case there are no special circumstances.”

51 In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, were treated totally differently to a conviction before a licence application. It will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.

52 In my view, the factors to which Mr Mainstone has referred are not exceptional or special circumstances. The factors do not outweigh the public interest. I agree with the Commissioner that there are no exceptional or special circumstances that would warrant Mr Burrett retaining his firearm licence.

53 In the circumstances of this matter, it is my view that the correct and preferable decision for this Tribunal to make is to affirm the Commissioner's decision to revoke the licence.

Order

The Commissioner's decision to revoke Mr Burrett's firearms licence is affirmed.