Commissioner of Police, New South Wales Police v Gainey (GD)

[2007] NSWADTAP 23

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police v Gainey (GD) [2007] NSWADTAP 23
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police RESPONDENT Graham Edwin Gainey
FILE NUMBER:	069074
HEARING DATES:	19 March 2007
SUBMISSIONS CLOSED:	20 April 2007
DATE OF DECISION:	27 April 2007
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	Firearms licencing - discretion to revoke - relevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063069
DATE OF DECISION UNDER APPEAL:	09/28/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Firearms Regulation 1996 Firearms Regulation 2006
CASES CITED:	House v The King (1936) 55 CLR 499 Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Turner v Commissioner of Police, New South Wales Police Service [2001] NSWADT 169 Gibson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 212 Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245; [2005] NSWCA 456
REPRESENTATION:	APPELLANT W Pisani, agent RESPONDENT No appearance
ORDERS:	Appeal dismissed

1 Section 24(2) of the Firearms Act 1996 (the Act) provides that a licence issued under the Act:

‘… may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind.’

2 Section 11(5)(b) contains one of those reasons. It requires the Commissioner to refuse a licence to a person who, within the period of 10 years before the application for the licence was made, has been convicted of a prescribed offence.

3 This appeal is brought by the Commissioner of Police, as administrator of the Act. It is against a decision of the General Division of the Tribunal setting aside a decision of the Commissioner’s delegate made under s 24(2) revoking a firearms AB licence held by the respondent, principally for the reason that he had been convicted of two offences as prescribed by cl 5 of the Firearms Regulation 1996 made pursuant to s 11(5)(b).

4 Mr Pisani appeared for the Commissioner at the appeal hearing on 19 March 2007. The respondent did not attend, and was not able to be reached by telephone. The appeal hearing proceeded. The respondent was supplied with a copy of the transcript of the hearing; and asked to provide any comments in reply. In his reply, by letter dated 20 April 2007, he said that he had tried to get to Sydney for the appeal hearing but his car had broken down on the way. In his letter he noted that the Appeal Panel had all his references and statements, and that he had no more to say than that ‘my licence is my living’. He asked to be given another chance.

5 The respondent has held a firearms licence for many years. His licence was renewed in July 2003 for a further five years. In February 2005 the respondent was convicted at Moree Local Court of the offences of possession of a prohibited substance (cannabis) and unsafe storage of a firearm. He was fined $300 in respect of the first offence, and $150 in respect of the second. Both were, at that time, prescribed offences.

6 In January 2005 the police had undertaken a search for prohibited substances at the respondent’s sister’s home. In the course of the search of the premises they came upon a firearm located in a wardrobe but not in the secure manner required by the Act. The firearm was unloaded and the bolt had been removed. It belonged to the respondent and was licensed. The bolt and the ammunition suited to the firearm were securely locked in a way which complied with the Act. There was a box of ammunition found in the wardrobe but it was not suited to the firearm.

7 While the convictions had been secured in February 2005, the Commissioner did not issue a notice of revocation until July 2005. The Tribunal set aside the decision on 28 September 2006. However, the Commissioner did not return the licence to the respondent until 22 December 2006, after an application for a stay of the decision was refused by the Appeal Panel on 20 December 2006. The net result, therefore, is that the respondent did not have a licence from July 2005 to December 2006.

8 The right to appeal against a decision of the Tribunal in respect of a reviewable decision, as this case involves, is conferred by ss 112 and 113 of the Administrative Decisions Tribunal Act 1997. The Commissioner has a right to appeal in respect of any ‘question of law’ and the appeal may be extended, by leave of the Appeal Panel, to the merits. In this instance the notice of appeal does not clearly identify any question of law, but applies for leave to extend the appeal to the merits. In light of the submissions that accompany the notice of appeal, the question of law is perhaps best described as being that the Tribunal miscarried in the exercise of its discretion so as to err in one of the ways set out in House v The King (1936) 55 CLR 499 at 505-6:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

9 The Tribunal’s decision was delivered ex tempore.

10 The oral reasons for decision need to be read in conjunction with the transcript of the hearing. Read together, it is clear that the Tribunal was influenced to a different view by the following factors:

– The low level of seriousness of each of the offences as measured by the small fines imposed by the Local Court, and having regard to the information and evidence placed before the Tribunal relating to the circumstances of their occurrence.

– The nature of the respondent’s occupation. He is a professional trapper, who uses a rifle to kill pests, especially kangaroos. He has relevant authorities from the Departments allowing farmers and others to engage in pest control of this kind.

– Various testimonials from residents in his district (Gwydir).

11 While at the time of the original decision the cannabis possession offence was a prescribed offence which gave rise to mandatory refusal for application for a licence, that is no longer the case. The new Firearms Regulation 2006 commenced on 1 September 2006. The reach of this category has been narrowed. The new cl 5(b) provides:

‘(b) An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act1985 , or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2002, in respect of which the maximum penalty imposed is imprisonment for 6 months or more, or a penalty of $2,200 or more, or both, committed under:
(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).’

12 The respondent’s offence falls well short of the new standard. This change in the law does not appear to have been drawn to the attention of the Tribunal at its hearing, though it had taken effect 27 days previously.

13 We mention this point, as it serves to diminish, as we see it, the importance that might be attached to the cannabis possession offence and the surrounding circumstances, which were the subject of a good deal of evidence at the Tribunal’s hearing.

14 The law remains unchanged in respect of firearms offences. The Regulation, cl 5(a) covers:

‘(a) An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).’

15 The Tribunal referred in its reasons to the objects of the Act, especially its emphasis on the safe keeping of weapons.

16 The Commissioner’s principal point of appeal is that the Tribunal failed to apply the objects of the Act to such a degree that its decision should be set aside and reversed. The following provisions of s 3 bear directly on safe keeping of weapons:

‘(1) The underlying principles of this Act are: …
(b) to improve public safety: …

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

(2) The objects of this Act are as follows: …
(e) to ensure that firearms are stored and conveyed in a safe and secure manner, …’

17 While we accept that some members of the Tribunal might have struck a different balance, in our view the Tribunal did not misdirect itself in relation to this matter to such an extent that its decision should be reopened.

18 The Tribunal, we think, saw the respondent’s failure to comply strictly with the safe storage requirements as an isolated aberration. He had lost his home on 5 January 2004 in a fire. He now usually stayed at his brother’s place. The evidence was that there was a secure cabinet meeting the Commissioner’s standards at his brother’s place. His evidence was that he always stored his firearm and ammunition in the manner required. In this instance, he explained the situation that had led to him being at his sister’s place. The Tribunal accepted the explanation.

19 As to the security arrangements, the sister’s place did not have a secure cabinet. He had dismantled the firearm to the extent of removing the bolt. He had stored these items separately in a secure cabinet (located in his motor vehicle, as is permitted). We note that the relevant requirement relates to ammunition. Removal of the bolt was not essential but clearly its removal and secure storage makes a positive contribution to safety. On the other hand it is clear that leaving the remainder of the rifle in a wardrobe constituted a breach of the Act. The Tribunal rejected the respondent’s submission that he had met all security concerns by these measures. It pointed out that an unusable and unloaded weapon could still be used in a hostile way if it were to be taken by a miscreant, as for example, in an armed robbery. It noted that two unlicensed persons, the sister and her husband, lived there.

20 The Appeal Panel agrees with the frequent statements made in decisions at the Divisional level that the discretion as to revocation should be exercised with the objects of the Act in mind, in particular those of safety and security in the management of weapons: for an early statement to that effect, see Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23] per Hennessy DP.

21 As an example of a safe keeping failure that led the Tribunal to uphold a revocation decision, where there was a good deal of positive evidence about the usual practices of the licensee, see Turner v Commissioner of Police, New South Wales Police Service [2001] NSWADT 169 at [34] per Britton JM:

‘While I accept Mr Turner's evidence that the offending arrangements were temporary only, the evidence shows that for what can only be seen as a significant period of about six weeks the rifles were not stored in a receptacle but in the back of a unlocked wardrobe in an unlocked room.’

22 There, clearly, the Tribunal identified a much more serious lapse in safe keeping than was identified in the present case.

23 Also relevant, we consider, are the following observations of Higgins JM in Gibson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 212, where, after referring to Cusumano, she says:

‘22 As mentioned above those principles are that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety (s.3(1) of the Firearms Act . Included in the objects of the Act is the need to store and convey firearms in a safe and secure manner.

23 While I agree with the abovementioned statement by the Deputy President, in my opinion the following matters are also of relevance when determining how that discretion is to be exercised in each individual case:

(a) the nature and seriousness of the applicant's conduct, which gave rise to the Commissioner's decision to revoke the applicant's firearms licence ("the improper conduct");

(b) the applicant's explanation of the circumstances giving rise to the improper conduct;

(c) the consequences, if any, for the applicant if the licence is revoked; and

(d) the likelihood of the applicant repeating the improper conduct in the future.

24 I do not agree with the submissions of the Commissioner that the question of loss of income is an irrelevant factor in the exercise of his discretion as the licensing scheme under the Firearms Act specifically requires an applicant for a firearms licence to specify a genuine reason for which a licence is sought, and those reasons must be one of those which are specified in s 12 of the Act. In some circumstances these reasons include matters of employment or for businesses purposes (e.g. vermin control, primary production, vertebrate pest animal control, business or employment and occupational requirements relating to rural purposes). While this is a relevant consideration it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations.’

24 An important factor in this case was the nature of the respondent’s employment. The respondent gave evidence as to his work, and its significance within the rural community of the Gwydir/Moree region. The evidence would tend to suggest that trapping and shooting pest animals is something in which he has special skills, and without that work, he would only be able to get work as a general farmhand. We think it open for regard to be given to occupational impact in the exercise of a discretion to revoke. We also note that in this case the licensee had a long history as a licensed person, and this is the only instance of transgression of licensing standards, important as they are.

25 The respondent is well aware that he faces the certain prospect of non-renewal in July 2008, if the law stays as it is. By reason of the slow progress of his applications to the Commissioner and then to the Tribunal between July 2005 and September 2006, followed by the failure of the Commissioner either to implement the Tribunal’s decision or to apply promptly to the Appeal Panel for a stay, the respondent was without the licence from July 2005 to 22 December 2006. He has already suffered a not insignificant punishment.

26 Though the Tribunal’s reasons were short, when read in conjunction with the transcript, they had regard to the various factors mentioned above and gave due weight to safety considerations. There was no error in the House v The King sense.

27 The Appeal Panel should, we think, be cautious in reopening the making of discretionary decisions. The absence of any legal error in the exercise of the discretion, while not conclusive (see further Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245; [2005] NSWCA 456) is an important factor negative to reopening. In this instance the appeal was run on the basis that there was a manifest failure by the Tribunal to have proper regard to the safe keeping objectives of the Act. We do not agree. No other substantial reason was advanced for reopening the decision was tendered. In these circumstances we do not think it would be just to extend the appeal to the merits.

Order

Appeal dismissed.