Chattwal v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 338

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chattwal v Commissioner of Police, NSW Police Force [2023] NSWCATAD 338

Hearing dates:

11 May 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING - firearms – safe storage contravention –licence revocation – whether or not in the public interest for applicant to hold a licence.

Legislation Cited:

Administrative Decisions Review Act 1997

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Firearms Regulation 2017

Weapons Prohibition Act 1998

Cases Cited:

Bevan v Commissioner of Police, New South Wales Police Service [2004] NSWADT 1

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

CXJ v Commissioner of Police [2017] NSWCATAD 39

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

Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25

Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43

Mallon v Commissioner of Police, New South Wales Police Force [2022] NSW CATAD 325

McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Polyzogopoulos v Commissioner of Police, New South Wales Police Service [2001] NSWADT 166

Shi v Migration Agents Registration Authority [2008] HCA 31

Uzelac v Commissioner of Police [2003] NSWADT 226

Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91

Texts Cited:

Not cited.

Category:

Principal judgment

Parties:

Paramvir Singh Chattwal (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates Solicitors (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2022/00378421

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Paramvir Singh Chattwal (the Applicant) was first issued with a category AB licence under the Firearms Act 1996 (the Act) on 22 October 2015 for a five year period and was issued with a category H licence on 15 December 2016. On 12 November 2020, the Applicant’s category ABH licence was re-issued with an expiry date of 12 November 2025.

2. On 3 October 2021, the Applicant submitted an application to the NSW Police Force Firearms Registry (Firearms Registry) regarding a change in the address at which some of his registered firearms were stored. On 27 October 2021, a safe storage inspection was carried out by NSW Police. The Applicant’s firearms licence was subsequently suspended by a delegate of the Commissioner of Police, NSW Police Force (the Respondent) and the Applicant was informed that all firearms and ammunition were seized. The Applicant was subsequently charged and sentenced in relation to a number of firearms related matters. On 19 October 2022, the Applicant’s category AB Licence was revoked. Due to an administrative error, his category H licence was not revoked at that time.

3. On 15 November 2022, the Applicant sought an internal review of the decision to revoke his firearms licence. The Applicant was not notified of the outcome within 21 days, and the review was taken to have been finalised under s 53(9)(b) of the Administrative Decisions Review Act 1997 (the ADR Act).

4. On 15 December 2022, the Applicant applied to this Tribunal seeking review of the Respondent’s decision on 19 October 2022 to revoke his category AB licence.

5. On 21 December 2022, the Applicant’s category H licence was revoked.

Revocation of Applicant’s category H licence

6. An internal review of the Respondent’s decision to revoke the Applicant’s category AB licence was taken to have been finalised under the ADR Act on 6 December 2022. It was not in dispute that the Respondent’s decision to revoke the Applicant’s category H licence on 21 December 2022 occurred after that review was said to have been finalised and after the Applicant applied to this Tribunal for review and that no internal review of that decision was sought.

7. When communicating the revocation of the Applicant’s category H licence to the Applicant’s representative on 21 December 2022, the Respondent noted that:

…it was an oversight your client was only issued a revocation notice for the category AB licence.

The attached letter formally revokes the category H licence and as such this will be included in the matter currently under administrative review with NCAT.

8. In his written submissions, Mr Roberts, the solicitor for the Respondent submitted that while the Applicant has not sought an internal review of the decision with respect to the category H licence, the Respondent did not object to the Tribunal reviewing the decision as if were a revocation of the Applicant’s firearms licence with respect to all categories in accordance with s 55(4) of the ADR Act. Mr Kable, the solicitor appearing for the Applicant confirmed that the Applicant agreed with the proposed approach,

9. Section 55 of the ADR Act provides as follows:

55   Making of applications

(1)  An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.

(2)  Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.

Note—

The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013.

(3)  If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

(4)  However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a)  the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b)  it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

(5)  In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:

(a)  the time when the applicant became aware of the making of the decision, and

(b)  in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c)  such other matters as it considers relevant.

(6)  The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

10. I have had regard to the time that has now elapsed since the Applicant was advised of the revocation of his category H licence as well as the letter from the Respondent dated 21 December 2022 that the matter would be included in this review application before the Tribunal. I accept that it was an administrative oversight by the Respondent that the revocation of the category H licence was not included in the decision relating to his category AB licence and that the parties have proceeded on the basis that the revocation of the category H licence would form part of these proceedings and that both parties agreed to this course. Accordingly, whilst the Applicant has not duly applied for an internal review in relation to the revocation of his category H firearms licence that he was entitled to, I am satisfied of the matters contained in s 55(4)(b) and s 55(5) of the ADR Act and that it is appropriate to deal with the decision to revoke the Applicant’s category AB licence and the decision to revoke his category H licence.

Applicable legislation

11. The general principles and objects of the Act are set out in s 3 as follows:

(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.

(2)  The objects of this Act are as follows—

(a)  to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b)  to establish an integrated licensing and registration scheme for all firearms,

(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d)  to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)  to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)  …

12. Section 11 of the Act relevantly provides:

11   General restrictions on issue of licences

(1)  The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3)  A licence must not be issued unless—

(a)  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, and

…

(c)  the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d)  is subject to one of the following in relation to an offence prescribed by the regulations—

…

(iii)  a conditional release order imposed in New South Wales, or

…

13. Section 19(2) of the Act provides that each licence is subject to the following condition:

(a)  the licensee must comply with the relevant safe keeping and storage requirements under this Act,

…

14. Section 24(2) of the Act provides as follows:

(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:

…

(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

(c)   if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

…

(d)   for any other reason prescribed by the regulations.

15. The general requirements for safe keeping are set out in s 39(1) of the Act:

39   General requirement

(1)   A person who possesses a firearm must take all reasonable precautions to ensure:

(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….

16. Clause 20 of the Firearms Regulation 2017 (the Regulation) provides that the “Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

The evidence

17. The matter was heard on 11 May 2023. The Respondent did not call any oral evidence and relied on the s 58 material (exhibit R1). The section 58 documents included a USB of the Body Worn Video footage relating to E83217620 that was viewed by me. The Applicant relied on his letter of remorse to the Court dated 19 January 2022 (exhibit A1); a certificate from the Firearm Safety and Training Council Limited dated 17 November 2022 together with a letter of apology from the Applicant to the Firearms Registry dated 18 November 2022 (exhibit A2); and a letter from Gary Bryant dated 17 November 2022 (exhibit A3). Reliance was also placed by the Applicant on documentary evidence in the s 58 material. The Applicant gave oral evidence and was cross examined.

Applicant’s submissions

18. Mr Kable made oral submissions to the Tribunal. He referred to the letter dated 14 November 2022, that he had submitted on behalf of the Applicant in the internal review proceedings (part exhibit R1) and the letter and attachments were relied upon in these proceedings. In that letter, Mr Kable noted that the Applicant had held a firearms licence since 2015 with the only blemish occurring in relation to the charges before the court stemming from the 2021 breach of the safe storage requirements. It was noted that there were no aggravating features in that the firearms were not lost or stolen, nor did they come into possession of anyone unauthorised. It was submitted that the breach occurred at a time when the Applicant was experiencing some turmoil due to a transfer in his job and frequent requests to undertake further duties when training shoots were scheduled.

19. In his oral submissions, Mr Kable submitted that the course taken by the Applicant and the number and quality of references provided by the Applicant highlighted his remorse and contrition and the steps that he had taken to ensure that there would be no reoffending. Accordingly, the Tribunal should be reassured that no public interest concerns would arise if the Applicant’s licence was restored. In relation to the question of risk, Mr Kable submitted that although there was quite serious offending before the court, the Applicant could be trusted to have firearms and that there would be no appreciable risk to the public if he had his licence restored. In relation to the breach of the safe storage requirements, it was submitted that the Applicant was prepared to mend his ways. Mr Kable referred to the Applicant having pleaded guilty, completed the term of his sentence with no breaches and that his bond had now expired.

20. In his oral submissions in reply, Mr Kable submitted that the Applicant had given an explanation for what he said to police on the day of the offending, in that he had been very nervous when speaking to them. It was submitted that the Applicant had been very involved in competitive shooting and that not having a licence and being deprived of competing in his favourite sport was extra-curial punishment for him. It was submitted that this had served to enhance his desire for such incidents to never happen again.

Respondent’s submissions

21. The Respondent relied on the written submissions filed and served in the proceedings, as well as oral submissions. The Respondent submitted that the decision to revoke the Applicant’s firearms licence is the correct and preferable decision because:

1. Until 27 March 2023, the Applicant was subject to a conditional release order imposed in NSW for prescribed offences and a firearms licence could not be issued to him whilst the conditional release order was current;

2. The Applicant contravened various provisions of the Act;

3. The Respondent is not satisfied, and the Tribunal should also not be satisfied, that the storage and safety requirements set out in Part 4 of the Act are capable of being met by the Applicant;

4. The Respondent is of the opinion, and the Tribunal should be of the same opinion, that the Applicant is no longer a fit and proper person to hold a licence; and

5. The Respondent is satisfied, and the Tribunal should also be satisfied, that it is not in the public interest for the Applicant to continue to hold a licence.

22. The Respondent submitted that the concerns referred to above arise from the events on 27 October 2021 when the Applicant was found to have been unsafely storing multiple firearms, including handguns, and ammunition, in his parked car while he was at work over a period of approximately four days.

23. In oral submissions, Mr Roberts noted that the Applicant’s conditional release order was no longer current and that the revocation of the Applicant’s licence was discretionary. It was submitted however, that the legislation prevented a licence being granted to a person subject to a conditional release order imposed in NSW for prescribed offence and this reflected the seriousness with which Parliament considers such matters. It was submitted that the Applicant’s evidence before the Tribunal indicated that it was not a matter of the Applicant misunderstanding the provisions of the Act but instead was knowing non-compliance. Mr Roberts submitted that whilst a person could always improve their knowledge by undertaking a firearms course, it did not assist the Applicant in the current circumstances as he knew at the time that what he was doing was unlawful.

24. Mr Roberts submitted that it was a particular concern that the Applicant had lied to police by telling them that the firearms were in the armoury when he knew that they were not and that this raised questions in relation to the Applicant’s integrity. It was also submitted that the Applicant had lied to police about where his firearms licence was. Mr Roberts submitted that the Applicant’s offences were relatively serious and that the Applicant could have stored his firearms in the armoury that was close by rather than leaving them in his car. It was submitted that of particular concern was that the Applicant’s breach had been a knowing breach and that there was a real and appreciable risk to the public if the Applicant was to have his firearms licence restored. Reference was also made to the handcuffs found in the car and for which the Applicant was also charged as he did not have a licence for them.

Role of the Tribunal

25. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Public interest

26. The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

27. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference 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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

28. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.

Events of 27 October 2021

29. As referred to above, the Respondent’s written submissions indicate that the Respondent’s concerns in relation to the Applicant arise from the events of 27 October 2021. It was not contested that on 3 October 2021, the Applicant submitted an application to the Firearms Registry regarding a change in the address at which some of his registered firearms were stored. The nominated new storage address was the correctional centre where the Applicant worked (correctional centre) and this application was granted. On 27 October 2021, police received information that the Applicant’s firearms were being stored in the armoury of the correctional centre. A check of the Applicant’s profile indicated that a safe storage inspection was required and that the Applicant had category H firearms.

30. Senior Constable Hyde and Senior Constable Gay then attended the correctional centre. The Facts Sheet relating to the Applicant’s firearms offences (part exhibit R1) confirm that the Applicant had been storing his firearms in the armoury. The police requested to see the armoury at which time it became apparent that it did not meet the conditions of the Applicant’s licence as other correctional officers had access to the firearms. When the armoury was opened, the police found that the Applicant’s firearms were not inside.

31. The police then travelled to the area where the Applicant was working and, on their way, saw the Applicant’s parked vehicle with a number of firearms cases in the rear. The Applicant was located, and Senior Constable Gay’s body worn video was activated. The Applicant was advised that all conversations and actions were being recorded and he acknowledged that he understood this. The Applicant was advised that an inspection of his firearms was required. The Applicant told the Officers that he had gone online and then “moved some firearms which are in the armoury in the correctional centre.”

32. The Applicant was then cautioned, and the following conversation took place:

Hyde:   So are you telling me that your firearms are in the armoury at um the corrections gaol?

Applicant:   Yes, Yes.

Hyde:   Ok, I’ll just let you know we were just there.

Applicant:    Yes.

Hyde:    And we entered the armoury…

Applicant :   Yes.

Hyde:   and your firearms are not there.

Applicant:   Well that is where I store…I have them with me but they, I store them down at the, um, at the armoury. That is where they are stored.

Hyde:    Ok. When you say…

Applicant:    I was talking about them. No, I was talking about them being stored.

…

Hyde:      But where they are currently?

Applicant:    They’re with me.

…

Hyde:       Where is with you?

Applicant:   In the vehicle right now.

33. Following further questioning, the Applicant agreed that he had removed his firearms from the armoury prior to Sunday 24 October 2021 and had stored them in the rear of his vehicle from that time. The Applicant and the police then walked to the Applicant’s vehicle, where the Applicant unlocked the rear passenger door to reveal three firearms cases, three ammunition boxes and a red soft carry case (which was not able to be locked) in which ammunition was stored.

34. The Applicant explained that the firearms cases were secured to the driver seat of the vehicle by way of a metal cord. The Officers observed that one of the firearms cases was not locked and the cord only went through the handle of the case, allowing a person to open the case and remove the firearm. After these items were removed from the vehicle, the Applicant opened a small safe in the foot well of the vehicle containing additional ammunition and a pair of handcuffs. The Applicant told the police that he had borrowed the handcuffs from a security company for the purpose of his Certificate 3 in Security. The Applicant was unable to locate his firearms licence in his vehicle and told the Officers that it was at his residence “for sure”. He admitted that he knew that he had to carry his licence.

35. The Applicant subsequently attended the police station and produced his firearms licence. The police then opened the firearms cases, revealing that the pistols did not have trigger or barrel locks on them. The Applicant was handed a firearms suspension notice and advised that all firearms, ammunition and his licence were now seized and that he would be charged with firearms offences.

Firearms offences

36. On 28 October 2021, the Applicant was issued with a Court Attendance Notice for the following offences:

1. Possessing or using a prohibited weapon without a permit (specifically possessing handcuffs) contrary to s 7(1) of the Weapons Prohibition Act 1998 (Sequence 1);

2. Failing to take all reasonable precautions to ensure the safe keeping of three pistols (specifically storing three pistols outside a dwelling without a trigger or barrel lock) contrary to s 39(1)(a) of the Act (Sequence 2);

3. Failing to comply with the safe keeping requirements for a category H firearm (by storing category H firearms in his vehicle over a period of four days) contrary to section 41(1) of the Act (Sequence 3);

4. Failing to take all reasonable precautions to ensure the safe keeping of rifles (by storing two rifles in his vehicle over a period of four days) contrary to s 39(1)(a) of the Act (Sequence 4);

5. Holder of category AB licence not having approved storage (specifically, storing the two rifles in his car over a period of four days) contrary to s 40(1) of the Act (Sequence 5);

6. Failing to comply with the ammunition storage requirements for a category H firearm (specifically, by storing handgun ammunition not in a locked container) contrary to s 41(1) of the Act (Sequence 6); and

7. Failing to produce a firearms licence/permit to police on demand, contrary to s 59(1)(b) of the Act (Sequence 7).

37. On 19 January 2022, in the Local Court, the charge in Sequence 7 was withdrawn and the Applicant pleaded guilty to all remaining offences. He was convicted and fined in relation to the charges in Sequence 2, Sequence 3, Sequence 4 and Sequence 5. The Applicant was also found guilty of the charges referred to in Sequence 1 and Sequence 6, but the charges were subsequently dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

38. On 28 March 2022, following the Applicant’s severity appeal to the District Court, the orders were varied in relation to the charges in Sequence 2, Sequence 3, Sequence 4 and Sequence 5, and the Applicant was made subject to a conditional release order without conviction for a period of 12 months from 28 March 2022 until 27 March 2023. It was not contested that the conditional release order had come to an end at the time of the hearing.

Consideration

39. The Respondent’s revocation power, and by derivation that of this Tribunal, is a discretionary one. In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43, [37] the Administrative Decisions Tribunal Appeal Panel noted that “No guidance is given in the provision [s 24(2)(b)(ii)] as to what factors might be relevant [to the exercise of the discretion]. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations”.

40. Safe storage contraventions do not automatically lead to licence revocation. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 there was a conviction in respect of a safe storage infringement, which was affirmed on appeal. The tribunal nevertheless allowed the applicant to retain his licence, saying “As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi’s, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account”: at [32].

41. In Uzelac v Commissioner of Police [2003] NSWADT 226 (Uzelac) at [19] , Hennessy DP set out the principles applying to licence revocations, particularly involving safe storage breaches, in a passage that has been widely approved and followed:

19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

· while there is no onus of proof on either party, 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. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);

· the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:

· the reason for failing to store the firearm safely;

· the length of time the firearm was not stored safely;

· the potential or 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. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])

· 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 (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

· the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

42. The first consideration in Uzelac is the reason for failing to store the firearm safely. The Applicant told the Officers on 27 October 2021 that he had put the firearms in his car in the shift prior to going to the gun club in Canberra on Sunday 24 October 2021. The Applicant agreed that the shift when the firearms were put into his car was Saturday 23 October 2021. No explanation was given by him as to why he put the firearms into his car the day before he intended to drive to the gun club. The Applicant indicated that he had received a call prior to arriving in Canberra on 24 October 2021 and had turned back. No reason was given by the Applicant for not securing the firearms in the armoury on his return to the correctional centre or why the firearms remained in his car until the inspection by police on 27 October 2021 other than him saying that he was putting in extra hours of work. The Applicant told police that he was living in quarters at the correctional centre and agreed that the armoury was also part of the correctional centre, a walk of a minute or two from his car.

43. The next consideration is the length of time the firearms were not stored safely and as referred to above, the firearms were in the car from 23 October to 27 October 2021, a period covering four days. In Jameson v Commissioner of Police, New South Wales Police Force [2019]NSWCATAD 25 (Jameson), the Tribunal found at [65] that a period of between 12 and 15 hours was a considerable time. A period covering four days is substantially longer than the time frame in Jameson.

44. The potential or real danger posed by the Applicant’s failure to store the firearms safely was the risk that the firearms could be stolen from the Applicant’s vehicle. In this instance, the firearms were not stolen, nor did they come into the possession of anyone unauthorised. However, I accept the Respondent’s submission that the potential or real danger posed by the failure to store the firearms was significant given:

1. There were five firearms unsafely stored;

2. The firearms included two rifles and three handguns;

3. At least one firearm case was unlocked;

4. The handguns did not have barrel or trigger locks; and

5. The vehicle was parked in an open air public car park of a corrections facility.

45. In addition, the cable going through the unlocked firearm case only went through the handle of the case, meaning that the case could be opened, and the firearm removed. The soft carry case containing ammunition was not able to be locked and was also located in the vehicle. Whilst reference was made by the Applicant in the body worn video footage from 27 October 2021 to the car park having security cameras, no positive evidence to support this contention was adduced. It is acknowledged that the car park was the car park of the correctional centre.

46. The next Uzelac factor is the person’s previous conduct in relation to the storage of firearms and any related matter. I accept that prior to the matters arising out of the inspection on 27 October 2021 referred to above, the Applicant had an unblemished record in relation to firearms and had no criminal history. The Applicant’s many character references (part exhibit R1) speak positively in relation to the Applicant.

47. The next consideration is the person’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future. The Applicant has expressed remorse and shame for his conduct and accepted full responsibility for his failure to comply with the safe storage of firearms. The Applicant has stated that “upon reflection” he understands the gravity of the situation, is “now fully aware of the possible ramifications” of his actions and that he is now more diligent in all aspects of his personal and professional life. He stated that whilst the experience has been unwanted and stressful, he has taken from it a “massive learning opportunity” and a “lesson for life”. His letter to the Magistrate indicated that he will not re-offend. The Applicant referred to the upgraded security at his home and also to his completion of the Advanced Safety Firearms Course and stated that he now has a “much better understanding of the law for safe storage that has been etched in [him] very well.” He stated that he will do everything within his power not to re-offend.

48. Whilst it is to the Applicant’s credit that he has upgraded security at his home, the firearms offences took place at the Applicant’s place of work and not at his home. It is also to his credit that he has undertaken further training in relation to safe storage requirements. At the time of these offences in October 2021, the Applicant had held a firearms licence since 2015 and had extensive experience with firearms, including competing in the World Police and Fire Games. When spoken to by Senior Constable Hyde on 27 October 2021, the Applicant agreed that storing his firearms in his car was not safe storage and that they should be stored “in the armoury” and “in the safe”.

49. The final consideration in Uzelac is the reason the person has a firearms licence. In his letter to the internal review, Mr Kable noted that whilst the Applicant worked for Corrective Services, it was not believed that the holding of a firearms licence is essential for his employment. The evidence was that the Applicant was a leader within the Corrective Services and Police Shooting team and participated in a number of international competitions. The Applicant referred to this being his “most favourite sport” and to having won gold and silver medals at various games. The Applicant’s primary reason for having a firearms licence is for the sport of shooting. As was the case in Jameson at [74] the Applicant’s reasons for having a licence are “respectable and constructive, although perhaps not on quite the same level as a farmer’s need for long arms or a cash-carrying security company’s requirement for handguns”.

50. Whilst I accept that the Applicant has won many prizes and that he very much misses competitive shooting, it is an underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. Accordingly, the considerations of the Applicant’s private interests in this matter are outweighed by the public interest.

51. Hennessy DP said in Uzelac that “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.”  In Polyzogopoulos v Commissioner of Police, New South Wales Police Service [2001] NSWADT 166, the Tribunal described the licencing conditions imposed by s 19(2) of the Act at [23] as “being fundamental conditions of any licence when having regard to the objectives of the Act (in particular, s 3(2)(e)) and its structure.”

52. In his letter in relation to the internal review, Mr Kable submitted that “[w]hile we could not say that the breaches were trivial or excusable, we can state that the wrongdoing was for a few days, the firearms were in a locked vehicle with cable locks to the vehicle fram (sic) and the car was parked within a secure compound under video surveillance.”

53. Having regards to my findings above, it is apparent that the firearms were stored in the Applicant’s car for a period spanning four days. Whilst the firearms cases were connected to the car by a metal cable, one of the firearms cases was unlocked and the cable only went through the handle allowing it to be opened and the firearm removed. The Applicant also had a soft case containing ammunition in his car that was not able to be locked and the handguns were found not to have barrel or trigger locks. Police were able to view the firearms cases through the windows of the Applicant’s car.

54. The only explanation provided by the Applicant for storing the firearms in his car was that he was putting in extra hours at work. As referred to above, this was in circumstances where the Applicant conceded that his car was parked no more than a minute or two away from the armoury in the correctional centre and that he both lived and worked at the correctional centre. In the absence of any detailed explanation for the firearms being stored in his car when the Applicant knew that the firearms should have been stored in the armoury, it is difficult to find an excuse for his conduct. I accept that the carpark in which the Applicant’s vehicle was parked was publicly accessible, albeit in a correctional centre. In the circumstances, I find that the Applicant’s failures to securely store the firearms were not technical breaches and were neither trivial nor excusable.

45. In Uzelac, Hennessy DP prefaced her remarks by saying that for the Tribunal to set aside a decision revoking a licence based on failure to store firearms safely, the applicant needed to show persuasive and relevant circumstances that take the matter outside the ordinary case. The Applicant primarily relied upon the number and quality of his references, his remorse and the lessons learned by the Applicant together with his completion of the firearms course.

46. Mr Kable relied on the case of Mallon v Commissioner of Police, New South Wales Police Force [2022] NSW CATAD 325 (Mallon) and submitted that the important aspects from that decision were that the applicant was still on a bond from the original offending, had no conviction recorded, pleaded guilty on the earliest opportunity, and had undertaken the advanced course on firearms with numerous supporting references. Each case must of course be considered on its merits. Whilst there are similarities between the two cases, the facts in Mallon can be distinguished from the current matter.

47. In Mallon, the applicant was the owner of a large property who required a firearm for primary production purposes and in his oral evidence, he explained that he thought that as the rifle in question did not belong to him, he should not keep it in his safe. He said in his evidence that he had learned at the firearms course how important safe storage was, and what his obligations were if he were to find a firearm and acknowledged that he had previously been ”lax” about such matters.

48. In the current matter, Mr Minns and Mr Peirce from the Australian Protective Service Gun Club provided references for the Applicant. Mr Minns, the President of the Club referred to the Applicant having competed internationally in the US, which required “extensive understanding of, and compliance with, the laws and regulations for both countries in order to travel internationally and compete with firearms.” Mr Peirce, the Club Treasurer, referred to the Applicant’s attendance at the range outside of normal range sessions as well as scheduled mid-week range times and that to “undertake these practices requires extensive understanding of, and compliance, with the laws and regulations for both storage and travel with firearms.”

49. The Applicant acknowledged to police on 27 October 2021 that he knew at that time that storing his firearms in his vehicle was not safe storage and that the firearms should have been stored in the armoury and in a safe. The Applicant did not provide a detailed explanation for his “error of judgment” in failing to safely store his firearms over a period of four days in October 2021 and nor has he specified what he had learned from the course that would prevent this conduct from occurring again. In these circumstances, the Applicant’s completion of the firearms course carries less weight than in Mallon.

50. Mr Kable also relied on the case of Jameson, which he submitted dealt with a far more serious breach of the legislation, where Mr Jameson had a number of pistols stolen from the boot of his car, and of which several remained within the community, and where the Tribunal allowed Mr Jameson to retain his firearms licence. Whilst both cases relate to firearms being stored in a vehicle, Mr Jameson’s firearms were in his vehicle for a period of between 12 and 15 hours whereas the Applicant’s firearms were stored in a vehicle over four days.

51. Mr Kable submitted that the Applicant has also expressed his acute remorse and contrition which is evidenced by his referees and has taken an extensive course on his obligations under the legislation and has been deprived of competing at his favourite sport for over a year. Whilst I accept this to be the case, in my view, the current matter is further distinguishable from that of Jameson. Reliance was placed by the Tribunal in that matter to Mr Jameson having contacted the police immediately on him becoming aware of the theft, accepting full responsibility and assisting police.

52. In the current matter, police only became aware of the Applicant’s offending when they attended the correctional centre on 27 October 2021 to carry out a safe storage inspection. In the recorded conversation between the Applicant and Senior Constable Hyde referred to above, when Senior Constable Hyde first spoke with the Applicant, the Applicant relevantly said “…I’ve moved some firearms which are in the armoury in the correctional centre.” Following the issue of a caution to the Applicant, the Officer then said, “So are you telling me that your firearms are in the armoury at um the corrections gaol” and the Applicant replied “Yes, Yes.” It was only after being told that the police had been to the armoury and that the Applicant’s firearms were not there, that the Applicant stated that the armoury is where he stores the firearms but that they were currently “with” him and that they were in his vehicle “right now.”

53. When first asked about this response in cross-examination by Mr Roberts, the Applicant said that at the time he was extremely nervous speaking with the uniformed officers and did not understand. He said that the first time he was directly asked, he told the police that the firearms were in the rear of his car. In cross-examination, Mr Roberts suggested to the Applicant that when he first told police that the firearms were in the armoury that this was a lie. When asked if the Applicant was agreeing to this, the Applicant responded that he was. Mr Roberts put to the Applicant that he lied to police because he knew that the firearms should be in the armoury and the Applicant replied “yes.” The Applicant agreed that he knew that the firearms were in his car but believed that they had only been in his car for two days. He agreed that he knew that this was breach of the safe storage conditions for firearms.

54. The Respondent submitted that the Applicant had lied to police about his firearms being stored in the armoury. Whilst the Applicant was very nervous when speaking to police on 27 October 2021, I find that he initially lied to police about the location of his firearms as he knew that they should have been stored in the armoury and not in his car.

55. Mr Roberts also submitted that the Applicant had lied about the location of his firearms licence. It was not contested that the Applicant did not produce his firearms licence when initially requested to do so by the Officers as he could not locate it. He told the Officers that his licence was “at the house, for sure.” He was asked by police to attend the local police station and to bring the keys to open the firearms cases as well as his licence. When he attended the police station, the Applicant had his firearms licence and had the following conversation with Senior Constable Gay:

SC Gay:   Where was your firearms licence, at home?

Applicant:    Sorry?

SC Gay:    Your firearms licence was at home?

Applicant:    Yes…Sorry, what was, sorry?

SC Gay:    Your firearms licence, you said it was at home.

Applicant:    It was in the car safe.

SC Gay:    Well you looked in the car safe when I was there.

Applicant:    I’ve got one more safe in the car, in the back, I can show that to you.

66. In cross-examination, the Applicant stated that he had been very nervous when being spoken to by police at the car, and that at the time he had said that he had needed a minute. He said that there had been multiple safes in the car and that he had “blanked out.” He indicated that he was also nervous giving his evidence. He said that he had thought that his firearms licence was at home but that when he had looked for it in the car again, he had found it and presented it to police. He said that he had found it in a pouch tucked under the front seat of his car below the safe. Mr Roberts put to him that he had told police at the time that he had found it in the safe at the back of the car and the Applicant said that he believed that it was in the front. He denied that he was making up his evidence and denied that his licence had been at his home.

67. Whilst it is clear that the Applicant was not able to locate his firearms licence when the police were at his vehicle, he subsequently produced it when he attended the police station. The charge in relation to his firearms licence was withdrawn at the Local Court. It is apparent that the Applicant has provided inconsistent versions as to where he located the firearms licence. I accept that the Applicant was very nervous when speaking to police on 27 October 2021, and I am not satisfied to the relevant standard that he was deliberately lying or being untruthful about the location of his firearms licence in his responses to police or in his evidence before the Tribunal.

68. I find that the Applicant’s lie to police when he initially told them that his firearms were in the armoury when he knew they were stored in his car, further distinguishes the current case from that of Jameson.

Conclusion

69. Other than his reference to putting in extra hours of work, the Applicant has not provided a detailed explanation as to why his firearms were stored in his vehicle the day before his planned trip on 24 October 2021 to the gun club in Canberra and why after the trip was aborted en route to Canberra, the firearms remained in his vehicle until the police carried out their inspection on 27 October 2021. In circumstances where the reasons for the Applicant’s failure to safely store his firearms are not evident, and the Applicant has not specifically addressed the means by which he will ensure that such breaches will not occur again, it is difficult to be satisfied at this time that the storage and safety requirements set out in Part 4 pf the Act are capable of being met by him.

70. This is reinforced by the Applicant’s knowledge of relevant firearms legislation at the time of the offending, and his acknowledgment to police at that time that storing the firearms in his car was not safe storage and that the firearms should have been stored in a safe. I accept that the Applicant is deeply remorseful in relation to the failures to safely store his firearms and has taken some steps, such as completing the firearms course. However, as previously stated, in my view this carries less weight in circumstances where the Applicant knew at the time of his offending that his firearms were not safely stored.

71. I accept the Respondent’s submission that the Applicant’s conduct in initially lying to police by telling them his firearms were in the armoury is inconsistent with the expectations of a firearms licensee as set out in the objects and provisions of the Act. The Tribunal held in CXJ v Commissioner of Police [2017] NSWCATAD 39 at [70] that:

“It is insufficient to be evasive in telling the truth. The Tribunal would expect a firearms licensee to demonstrate a greater degree of disclosure and cooperation when questioned by the police in relation to a serious matter. CXJ had an opportunity in his evidence before this Tribunal to indicate that he might now behave differently were he involved in police investigations of a serious matter. However, he did not.”

72. In the current matter, other than referring to his nervousness at the time, the Applicant did not specifically address his conduct with police or indicate how he might behave differently were he to be involved in police investigations of a serious matter in the future.

73. It is an underlying principle of the Act to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The objects of the Act include the provision of strict requirements that must be satisfied in relation to the licensing of firearms and to ensure that firearms are stored and conveyed in a safe and secure manner. In the circumstances of this case, I find that the Applicant has not shown persuasive and relevant factors that take his matter outside the ordinary case, Accordingly, I am satisfied that it is not in the public interest for the Applicant to continue to hold his firearms licence. Accordingly, the decision under review should be affirmed. I note that he Applicant is not precluded from applying for a licence in the future.

74. Having made this finding, it is not necessary for me to consider the further issue of whether the Applicant is a fit and proper person to hold a firearms licence.

Order

1. The decision under review is affirmed.

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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 December 2023