Carpenter v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 163

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Carpenter v Commissioner of Police, NSW Police Force [2023] NSWCATAD 163

Hearing dates:

5 December 2022

Date of orders:

22 June 2023

Decision date:

22 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The application for a category AB firearms licence is granted on condition that the Applicant provides the Respondent with evidence to substantiate that has a genuine reason for possessing or using firearms.

Catchwords:

Administrative Law – firearms licence – refusal of licence application – whether applicant fit and proper person – whether in the public interest to hold a licence.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60

Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Tannous v Commissioner of Police [2011] NSWADT 116

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Charles Laurence Carpenter (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Hartmann & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00230749

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Charles Carpenter (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”) under the Firearms Act 1996 (“the Act”). The delegate decided to refuse the Applicant’s application for a category AB firearms licence.

2. The Applicant's genuine reason for possessing or using a firearm is recreational hunting/vermin control. He has the written consent of the owner of a rural property at Lightning Ridge, to shoot pigs, foxes, and goats on that property.

3. The Commissioner submits that the correct and preferable decision is for the application to be refused because the Applicant is not a fit and proper person, and it is contrary to the public interest for the Applicant to hold a firearms licence.

4. The reasons for the refusal relate to charges of ‘Corruptly take reward recover property <=$2000 - T2’ from 2004, ‘Assault occasioning actual bodily harm - T2’, from 2011, and a traffic infringement notice for driving without a current licence from 2019.

Background

5. The reasons provided for the decision to refuse the Applicant’s licence application provided the following information in regard to the offences:

Information maintained by the NSW Police Force indicates you have come to police notice numerous times between 1995 and 2011 for incidents which involve violence, aggression, fraud and dishonesty.

You were charged 23/04/2004 for the offence 'Corruptly take reward recover property <=$2000 - T2’. At the Walgett Local Court on 26/08/2004 the offence was found Conviction Proved and you were sentenced to a s9 Bond for 12 months. The facts of this matter are considered serious as they involved stolen firearms.

You were charged on 09/07/2011 for the offence ‘Assault occasioning actual bodily harm - T2'.

At the Downing Centre Local Court on 19/01/2012 the offence was found Conviction Proved and you were sentenced to a s9 Bond for three years and fined $500.

Although the above mentioned offences occurred outside the prescribed 10 - year period, the Registry adopts that the mere passage of time is not sufficient to prove reformation of character. The Registry has placed significant weight on the serious nature of the above charges which are prescribed under the Firearms Regulation 2017.

It is further noted that on 16/01/2019 you received a traffic infringement notice for driving without a current licence which demonstrates an inability to follow basic rules and regulation set in place to ensure public safety. This recent failure to comply with regulations, combined with your lengthy record of interaction with police highlights the fact that you do not possess the moral rectitude to act in compliance with the legislative requirements instilled upon a firearms licence holder.

6. The Applicant applied for an internal review of the decision to refuse his application. The Internal review was not finalised and therefore there was a deemed refusal of the application. The Applicant has applied to the Tribunal for review of the decision.

The issue for determination

7. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

The Tribunal’s Approach

8. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 (“the ADR Act”).

9. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct.

10. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove her case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

11. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

12. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

13. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant.

Applicable legislation

14. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.

15. This application is made under section 75 of the Act and the ADR Act.

16. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act 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.

17. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(1) The underlying principles of this Act are:

(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.

18. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

19. Section 11(3)(a) of the Act prescribes that a firearms 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.

20. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest.

Fit and proper person

21. As noted, the Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence. The expression “fit and proper person” has been considered in numerous decisions of this Tribunal.

22. The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

23. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

24. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].

25. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, 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. The 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.

26. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

27. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

28. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

29. As noted, the Commissioner contends that it is not in the public interest for the Applicant to hold a firearms licence. Section 11(7) of the Act provides:

Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

30. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

31. The “public interest” allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

32. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

33. In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

34. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.

35. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...

36. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

37. 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Material before the Tribunal

38. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material includes a number of records relating to the Applicant that date from 1998 to 2020 that are held in the Respondent’s electronic database (“COPs”). The Respondent’s solicitors also provided written and oral submissions.

39. The Applicant relies on his own evidence and submission and references from long term acquaintances. The Applicant attended the hearing, gave evidence, and was cross-examined. The Applicant’s solicitor also provided written and oral submissions.

The Respondent’s Case

40. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. The Respondent bases her position on the grounds that the Applicant is a not a fit and proper person to have a firearms licence, and that it is contrary to the public interest for him to do so. The Respondent points to several issues in support of her position.

August 2004 offence

41. The Applicant was convicted of corruptly taking a reward to recover property. The offence related to the theft of firearms. It was alleged that the Applicant had the firearms and he offered to return the firearms to the victim for $1,000. The victim reported the matter to the Police and the Applicant was charged. He was subsequently convicted and sentenced to a 12-month bond with a $1,000 compensation payment.

42. The Commissioner submits that this offence reveals that the Applicant is of unfit and improper character and that there is nothing before the Tribunal beyond the mere passage of time from which the Tribunal might infer that the Applicant’s character has changed.

January 2012 offence

43. The Applicant was convicted of an assault occasioning actual bodily harm. It was alleged that the Applicant repeatedly punched the victim, apparently without provocation. As a result of the Applicant’s violence, the victim was left with a swollen left eye, possible broken nose, and cuts to the face. Police on the scene observed a large pool of blood on the kitchen floor and blood spatters on the wall and stove. The Applicant was convicted and sentenced to a three-year bond with a $500 fine.

44. The Commissioner submits that this was a serious assault and this conduct is particularly relevant in the firearms licensing context. There is nothing before the Tribunal beyond the mere passage of time from which the Tribunal might infer that the Applicant’s character has changed.

History of violence, nuisance, and intimidation

45. The Commissioner submits that the various COPS entries reveal a lengthy history of violence and nuisance.

1. It is alleged that in June 1998, the Applicant was one of eight persons who circled around a victim and two witnesses, glaring at them and intimidating them. It is alleged that the Applicant and the others yelled abuse, threw bottles and glasses, and engaged in melee.

2. It is alleged that in February 1999, the Applicant was named as one of a number of persons who were causing a public nuisance. He was described by Police as ‘a known hoodlum and troublemaker’.

3. It is alleged that in April 2000, the Applicant indecently assaulted a woman at a rodeo.

4. It is alleged that in October 2001, the Applicant was identified by police as yelling out support for his sister, who was involved in a heated argument with staff at a local business.

5. It is alleged that in February 2002, following an argument with the victim, the Applicant pursued the victim in his vehicle for two kilometres, swerved in front of the victim’s car causing them to stop, and got out of the vehicle to continue arguing.

6. Between 23 March 2008 and 30 July 2008, the Applicant was named as the defendant in three interim apprehended violence orders.

7. It is alleged that in December 2009, the Applicant was involved in a scuffle. The Police observed the Applicant trying to intervene in that scuffle.

8. It is alleged that in November 2011, the Applicant was involved in a disagreement with a victim whilst clenching his fists, intimidating the victim and making him concerned that the Applicant would assault him.

9. It is alleged that in March 2020, the Applicant made allegations against another person of stealing property and threatened the victim to not mess around with him or else he would punch him out.

46. The Commissioner submits that these events demonstrate a history of violence, intimidation, and nuisance. They reveal a lack of self-control on the part of the Applicant and reveal the risk to public safety were the Applicant to be authorised to use and possess firearms.

Traffic record

47. The Commissioner submits that the Applicant’s traffic record is directly relevant to the question of public interest under the firearms legislation. She referred to the comments in Tannous v Commissioner of Police [2011] NSWADT 116 where Judicial Member Huntsman stated at paragraphs [37] - [38]:

I am satisfied, when I view the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. I consider that the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed, which is aimed at ensuring that drivers of vehicles observe traffic safety laws and are safe and competent) indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety ...

... It is not in the public interest for a person to be licensed to possess a firearm, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety. ...

48. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Scahill stated at paragraph [81]:

The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. ...

‘The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.

49. The Respondent has referred to the Applicant’s driving record and noted that in January 2019, the Applicant was caught by Police driving with an expired drivers licence. In addition, the Applicant has infringed the road rules numerous times since he was first issued a licence in 1995. In particular, he was found driving without a seatbelt in 2007 and speeding in 2009, 2010, and 2013.

50. The Respondent submits that given the Applicant’s numerous instances of disregarding the traffic regulatory scheme over an extended period, the Tribunal cannot be satisfied that the Applicant may not disregard aspects of the firearms regulatory scheme. That is a real and appreciable risk to public safety. It is not consistent with either the evidence presented or the principles and the objects of the Act to 'assume' that the Applicant has matured and is less likely to re-offend, and now poses virtually no threat to the community if he were to be granted a firearms licence.

51. The Respondent notes that the Applicant relies on a number of references provided on his behalf. The references are from the Applicant’s partner and community members with professional and/or personal relationships with the Applicant. The Respondent submits that, whilst most seem to be aware that the Applicant has engaged in criminal conduct, they do not show an awareness of all of the Applicant's interactions with the Police. In particular, they do not refer to the recent matter that is recorded in March 2020. It is submitted that limited weight can be placed on references as to good character, when the referees are not fully apprised of the Applicant's threatening behaviour. The Respondent relies on the views expressed by the Appeal Panel of the Administrative Decisions Tribunal in Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at paragraph [41]:

41 Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of the negative history, they must be approached with caution.

52. The Respondent also submits that the Tribunal should place weight on the Applicant's lack of remorse for his assault and corrupt reward charges, including that he has not personally apologised to the victims involved in those matters, and when giving evidence minimised his actions in those matters, combined with the facts that were before the court in relation to what occurred in those offences.

53. It is submitted that the current matter is distinguishable from the circumstances referred to in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 in which Senior Member Walker observed at paragraphs [62] - [64]:

1. Those conclusions have a bearing on the respondent's next ground under s 11(3)(a), the applicant's apparent lack of remorse over his actions towards Fiona in 1994 and his maintained denial that certain events found by the courts to have occurred actually happened. That attitude becomes more comprehensible, however, given the doubts that attend some of the courts' findings.

2. Further, in such cases, attaching substantial weight to lack of remorse can be somewhat problematical. Unfortunately, it is not unknown for a person to be inappropriately sentenced or wrongly convicted. In some instances people have pleaded guilty to offences they did not commit, sometimes as a result of pressure. In a Migration Act case in the federal Administrative Appeals Tribunal, I made this observation:

   "My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender's record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim": Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, [101].

3. As far as I know that proposition has never been rejected or criticized by any court or tribunal. In this case, the applicant has had no criminal convictions, either before or after 1994, has not had any other AVO issued against him, and never breached the conditions of the AVO obtained in favour of Fiona. He has never behaved in an aggressive or rancorous manner towards Fiona or any of the witnesses against him at the AVO hearing, although he has had 20 years in which to do so.

   54. The Respondent submits that the Applicant in this matter pleaded guilty to charges of assault and corrupt reward and had the opportunity to challenge the facts of those charges but chose not to do so. A lack of remorse on the part of a person who pleads guilty to a crime is distinguishable from that of a person who maintains their innocence.

   55. The Respondent submits that the Tribunal would be satisfied the Applicant is not a fit and proper person to hold a firearms licence and it is not in the public interest for him to do so. Therefore, the correct and preferable decision is for the Application to be refused.

The Applicant’s case

56. The Applicant disputes the Respondent’s assertion that he has not expressed remorse. He relies on the following written statement that he provided to the Tribunal:

Firstly, I would like you to read this letter and deem it as my deep regret and remorse.

I am deeply ashamed of my criminal history and the effect it had on the victims, which in the case of the firearms they belonged to the mayor of Walgett Shire (my mother's boss of 20 years) at the time. This was very embarrassing not only to myself, but my whole family. I was young and very stupid at the time and this will never happen again. In the later years I've had many dealings with Ian Woodcock at a council level, he has helped me with setting up my quarries and I really wanted to ask him for a reference but I'm still too embarrassed to bring the matter up to him.

The fight with Allan Harrison was a regretful drunken moment. Allan is not someone I know but he is friends with many of my family members in the Griffith area. I have seen him at funerals of my family members and it's hard to look the man in the eyes and say hello with the guilt and embarrassment I feel.

All of the troubles I've had in my younger years had a lot to do with being young and or drunk. In the last 12 years I've given up drinking, smoking, and have changed crowds. I met my partner and now have 3 children who I spend lots of time taking them away to sports or school events or just taking them out hunting or fishing. I have also helped train the kids at the local football club and been heavily involved in the local swim club. I am also a committed member of the local school P&C.

I am a completely changed person and as a person I have grown in many ways, I'm sure I will not reoffend.

57. In his request for an internal review, the Applicant’s solicitor explained the circumstances of the convictions as follows:

While the first charge does relate to firearms, it does not relate to the use or possession thereof, mainly to receiving a reward for the return of stolen firearms and then not declaring the source of the recovery of those firearms. This is an unusual charge and gives the indication that the applicant was somehow involved in the crime of stealing those particular firearms. Ultimately, Mr Carpenter did not want to declare who the perpetrators of the offence were and sentenced accordingly.

In receiving a conviction, and a 12 month bond, does not place this matter at the upper end of objective seriousness. Given that no fine was imposed, simply a 12 month bond with conviction when the maximum penalty is imprisonment for 5 years, we submit places this offending at the middle to lower end of the scale. This offending is now some 18 years ago.

The second matter of Assault AOBH which attracted a conviction, a 3 year bond and a $500 fine, we submit, also places this offending at the bottom end of objective seriousness, in that the maximum penalty is also a 5 year prison term. It is clear that the Magistrate accepted provocation in mitigation as to the leniency of the sentence. This offending is now more than 10 years ago.

58. In regard to the traffic infringement, the request for an internal review submitted:

[W]hile there was a matter traffic infringement notice from 2019, this was driving on an expired licence, where the applicant was unaware of the expiry of his licence, for a period of only a day.

59. The Applicant attended the hearing and was cross-examined. He provided evidence in response to that various COPS entries to which the Respondent has referred. He does not dispute his criminal history and he has expressed remorse in relation to the incidents. His accepts his guilt and his evidence was that he entered guilty pleas on the advice of his lawyers. However, he said that he did not agree with all of the facts as presented by the prosecution. For example, he did not agree that the January 2012 assault was without provocation. He stated that it was two men fighting and that he did not instigate the fight. He also said that other charges were dropped before the matters went to court.

60. In relation to other issues raised by the Respondent, he disputes the accuracy of several of the COPS entries. He denied that he was involved in some of the 1998 to 2011 incidents that the Respondent has identified. He denied that he had breached an AVO and he said that the matter was dismissed because he had not done what he was alleged to have done. In regard to several other incidents, he said that he had not been aware of the allegations as they had never been raised with him.

61. He did not recall the incident that involved his sister and he denied that he had any involvement in the alleged indecent assault at a rodeo in April 2000. No action was taken against him in regard to that incident.

62. He denied that he was involved in the February 2002 incident where it was alleged that he had pursued someone in his vehicle for two kilometres. He said that he did not ever own a vehicle of the type described and he did not know the people involved in the incident.

63. In regard to the December 2009 scuffle, the Applicant agreed that he intervened in the scuffle because he was trying to break up the fight. He agreed that he should not have become involved in the incident.

64. In relation to the March 2020 incident - the most recent incident that the Respondent identified - the Applicant said that he had caught young kids breaking into cars and went to speak to the parents. The mother of one of the kids had complained to the police. No action was taken in regard to the complaint because he had caught the kid in his yard stealing his stuff and had a video as evidence of that incident.

65. He said that most of the parents who he spoke to had been grateful for him telling them about the children’s behaviour, but one of the parents had become abusive towards him. He said that he had been abused and threatened and that he had warned that he would defend himself if he was attacked. He said that the COPS entry had been poorly worded in that it did not tell the whole story. He said that he did not go to anyone’s house and threaten them. He was not at the house of the woman who had threatened him but was at the house next door. He accepted that he had warned that “he would punch him out” but said that it was in response to the threat made against him.

66. He was not given the opportunity to comment on what was recorded in the COPS entry.

The Applicant’s references

67. As noted, the Applicant relies on a number of personal references. He agreed that those giving references would not have been aware of the March 2020 incident because he did not know it was an issue until it was raised by the Respondent in these proceedings.

Jacklyn Buchanan

68. Ms Buchanan is the Applicant’s partner. She wrote:

My name is Jacklyn Buchanan, partner of Charles Carpenter, and I am writing this letter on behalf of Charles to request that you consider Charles' significant change in circumstances and how he has grown and matured since his last offences,

I have known Charles for over 20 years and in this time, I have seen him at his worst and throughout the last 10 years, at his best. Charles and I became parents in 2012, then again in 2014 and 2019. Charles is a supportive partner and a very involved father to all three of our children. Since becoming a father, Charles has given up smoking cigarettes, drinking alcohol and spends a lot of time with the children outside of his working day.

Throughout Charles' life I have seen him face many challenges and I have witnessed him mature in how he handles tough situations demonstrating, honesty, self-discipline and an ability to focus on the positive.

Charles is able to reflect on his past actions and has voiced great remorse for the choices he made as a young man. Charles has embraced the changes in his life, makes no excuses for his past and has learnt from them to become a better person.

Jasen Ramien

69. Mr Ramien is a long term acquaintance of the Applicant having known him for the past 35 years. He wrote:

I have an Earthmoving and Transport Business and 32 years experience as Captain of the Collarenebri RFS. I am also a Councillor in the Walgett Shire.

During the many years of knowing Charles, I found he was a little unsettled in his younger years but as the years have gone past he has matured and grown considerably and has become an honest and well respected member of the Lighting Ridge Community whom has displayed great remorse for any reckless behaviour in his past.

Charles is now a loving Family man whom is constantly working hard to provide for his wife and children.

I have know Charles in both a Professional and Personal capacity and would not hesitate in giving him my full support and recommendation in anything he should endeavour.

David Lane AOM

70. Mr Lane is also a long term acquaintance of the Applicant having known him for at least the past 25 years. He wrote:

I am writing in relation to Mr Charles Carpenter, of Lightning Ridge NSW. I am aware that Charles is attempting to apply for a firearms licence, and this application has been rejected by NSW Police.

I have known Mr Carpenter for at least 25 years, I am fully aware he has had issues in the past with the law, but also this was a decade or more ago.

As a past Mayor of Walgett Shire Council I can affirm that Charlie has become a very popular member of the Lightning Ridge community, and is well liked by everyone. He is I believe proof that an individual can reform his behaviour and become a leading member of his community despite his past. Serving on indigenous community groups, such as a Director of Barriekneal Ltd for several years, Charlie has done all he can to reform himself and modify his behaviour, becoming a leader of his community.

I believe he should be given the opportunity to become a normal member of society with all of the rights and responsibilities that entails. Given the opportunity to prove he has modified and reformed his behaviour and can be trusted to live by the laws applicable to members of that society.

Josephine Mack

71. Ms Mack is also a long term acquaintance of the Applicant having known him for more than 20 years. She wrote:

I write this character reference at the request of Mr Charles Carpenter who has had his application for a Category A,B firearm licence refused as he has been deemed not a fit and proper person due to previous NSW Police Force history.

I am aware that Charles was convicted in 2004 with "Corruptly take reward recover property" and this involved stolen firearms. I am also aware of the conviction in 2012 of "Assault occasioning actual bodily harm" from an incident in 2011 and the traffic infringement notice in 2019 for driving without a current licence.

I have known Charles and his family for more than 20 years. In this time, I have had many dealings with Charles on both a personal and professional level. In conversations with him over the years and recently he has openly discussed his past with me and expressed great remorse for his actions.

In my professional dealings with Charles, he has always presented in a clean and tidy manner, been patient, polite and cooperative with not only myself but fellow colleagues.

On a personal level I find Charles to be a responsible, honest and mature person. I have witnessed these attributes increase significantly over the years. He is very family orientated and has been active in the care for his Mother and Father during their ill health as well as other family members during times of need.

Charles is also a very "hands on" Dad to his 3 young children and is always at their school and sporting events. He actively volunteers his time to assist with these events and is always quick to show support and encouragement to all of the children involved, not only his own.

Charles is well known and respected within the Lightning Ridge community. He displays a positive demeanour and has shown on many occasions his reliability and willingness to assist fellow community members when needed.

Michael Cooke

72. Mr Cooke is also a long term acquaintance of the Applicant having known him for at least the past 35 years. He wrote:

I am aware Charles Carpenter is applying for a firearm licence and is having difficulties due to his criminal history.

I have known Charles for 35 years and have dealt with him in both a professional and personal manner throughout the duration of this time. In my personal interactions with Charles he has expressed his remorse for his past offences.

He is a motivated and hard-working young man who plays an active role in the community. Charles is a dedicated family man.

I Michael Cooke, Justice of the Peace 185111 and councillor of Walgett Shire, fully support Charles Carpenter in his quest to obtain his firearm licence, I would be happy to be contacted to discuss this matter further if required.

73. The Applicant’s solicitor, Mr Kable, noted that the COPS entries are unsubstantiated and that no evidence has been brought the authors of those entries or from any Police Officer to substantiate them. That being the case, they are merely a version of the events, and they may contain embellishment. He submitted that no inferences should be drawn against the Applicant where he has presented evidence about an incident which contradicts the COPS entry when he was never given the opportunity to state his point of view.

74. In regard to the convictions, Mr Kable relies on the views expressed in Green v Commissioner of Police, in support of his submission that the Applicant is entitled to express his opinion about incidents if he believes that the facts were different to those set out in the Statement of Facts included in the section 58 material.

75. He said that the Applicant has owned up to the offences and he has provided the background to the incidents. He entered guilty pleas on legal advice but disputes some of the information contained in the Statement of Facts in the section 58 material. Mr Kable noted that there is no evidence to support the Respondent’s contention that the facts sheets in the section 58 material was the copy that was handed up to the Court. The Tribunal should accept that the Statement of Facts may well have been altered before being handed up to the Court and the final version of might be different to that given to the Tribunal.

76. In regard to the weight to be given to the references, Mr Kable noted that the authors all speak highly of the Applicant, and they paint a different picture of the Applicant to that presented by the Respondent.

77. He submits that with the exception of the March 2020 incident, the Applicant has not been involved in any conduct that would cause concern to the Tribunal since 2011. In the circumstances, the Tribunal should be satisfied that there is no reason to refuse the application.

Discussion

78. This is a matter in which the Applicant’s background provides sufficient cause for concern if he is granted access to firearms. It is therefore necessary to consider whether there is evidence to suggest that notwithstanding that background, the Applicant is now a fit and proper person to hold a licence and that it would not be contrary to the public interest for him to do so.

79. The Applicant’s convictions are not in dispute, but a significant amount of time has passed since the offence occurred. I also not that the Applicant has disputed some of the facts in relation to the offences.

80. I note the Respondent’s submission that the Applicant pleaded guilty to charges of assault and corrupt reward and that he had the opportunity to challenge the facts of those charges but chose not to do so. There is no evidence before me that the Applicant did not challenge the Statement of Facts contained in the section 58 material or that the copy of the Statement of Facts handed to the Court was the same as that contained in the section 58 material. It was open to the Respondent to produce evidence in support of that assertion, and she did not do so. I give no weight to the assertion that the Applicant had the opportunity to challenge the facts but chose not to do so.

81. I agree with the Applicant that he is entitled to give evidence that provides background information in relation to the charges in circumstances where the Statement of Facts handed to the Court may be different to that contained in the Respondent’s material.

82. I note the references given on the Applicant’s behalf.

83. In my view, significant weight can be given to the Applicant’s assertion that he has changed his ways.

84. I have no reason to doubt his assessment that he is ashamed of his criminal history or that his expressed remorse is genuine. In light of the references that he has provided there is good reason to accept that he has given up drinking and smoking, changed crowds and become family oriented. The references also suggested that he is also community minded.

85. I note the Respondent’s concern that the referees were not fully aware of the Applicant’s past. However, given the small community in which he lives and works, this is highly unlikely. I accept that he is highly regarded in the community notwithstanding his past.

86. It is apparent that the March 2020 incident is at odds with the picture that the references paint of the Applicant. No evidence has been provided by the Respondent to contradict the Applicant’s version of the events or his assertion that the COPS entry is incomplete. The COPS entry amounts to no more than an allegation. In the circumstances I accept the Applicant’s version of the March 2020 incident. I therefore draw no inference that the incident suggests that the Applicant has reverted to his prior conduct.

87. Similarly, I do not consider that the Applicant’s traffic record suggests an inability to follow basic rules and regulation set in place to ensure public safety.

88. In matters where an applicant has had a lengthy record of negative interaction with police, there is always cause for concern that the person may not act in compliance with the legislative requirements in the future. This is commonly expressed in terms of prior behaviour being indicative of future conduct. In the present matter, I consider that the relevant prior conduct is that which the Applicant has demonstrated over the past ten years. In my view, he has demonstrated reformation of character.

89. I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I do not agree that it would be contrary to the public interest for him to do so. I am satisfied that there is virtually no risk to public safety if the Applicant is granted a firearms licence.

90. That being the case, it is my view that the correct and preferable decision is to set aside the Commissioner’s decision and to grant the Applicant’s application for a category AB firearms licence under the Act.

91. The Applicant's application nominated his genuine reason for a firearms licence as recreational hunting/vermin control. He stated that he had the written consent of the owner of a rural property at Lightning Ridge, to shoot pigs, foxes, and goats on that property. He would need to provide the Respondent with relevant documentation to show that this consent is current before the licence could be issued.

Orders

1. The decision under review is set aside.

2. The application for a category AB firearms licence is granted on condition that the Applicant provides the Respondent with evidence to substantiate that has a genuine reason for possessing or using firearms.

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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 2023