Cooper v Commissioner of Police, NSW Police

[2005] NSWADT 267

CITATION:	Cooper v Commissioner of Police, NSW Police [2005] NSWADT 267
DIVISION:	General Division
PARTIES:	APPLICANT John Trevor Cooper RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053117
HEARING DATES:	31/08/2005
SUBMISSIONS CLOSED:	08/31/2005
DATE OF DECISION:	11/24/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	The decision of the Commissioner to revoke Mr Cooper's firearms licence is affirmed

1 This is an application by Mr Cooper seeking review of a decision of a delegate of the Commissioner (“the Commissioner”) to revoke his category AB firearms licence. The factual basis on which the Commissioner made his decision was Mr Cooper’s conviction of offences of larceny (4 counts), obtaining money by deception (7 counts), using a false instrument (5 counts), making a false statement to obtain money (2 counts) and failure to have the approved storage for a category AB firearm on 20 September 2004.

2 Mr Cooper has been the holder of a firearms licence since March 1989.

3 The Commissioner’s power to revoke a firearms licence is set out in s.24 of the Firearms Act 1996 (“the Act”).

4 The Commission’s power to revoke a firearms licence is set out in s.24 of the Act. The relevant part of that Act for the purposes of this application are as follows:

“s.24(1) …

(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

…

(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 described by the regulations.”

5 S.11 of the Act sets out the general restrictions on the issue of a firearms licence. Sub-section 11(5) of the Act provides that a licence must not be issued in certain prescribed circumstances. These circumstances include the following:

“11(5)(b) [Where a person] has, within the period of ten years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

11(5)(d) [Where a person] is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace.”

6 The offences that are prescribed for the purposes of s.11(5)(b) are set out in clause 5 of the Firearms (General) Regulation 1997 (“the Regulation”). That clause includes an offence relating to the possession or use of a firearm or weapons committed under the law of any Australian jurisdiction (see cl.5(a)).

7 In this application it is not disputed that Mr Cooper was convicted of an offence which came within the terms of cl.5(a) of the Regulation nor was it disputed that he was the subject of a recognisance to keep the peace until 19 September 2007. What was in issue was whether the circumstances surrounding Mr Cooper’s convictions were of such a nature to warrant the Commissioner to decide to exercise his discretion under s.24(2) of the Act and revoke Mr Cooper’s firearms licence.

The convictions

8 Mr Cooper is 48 years of age and at the time he committed the offences for which he was convicted he was employed as a casual teacher. Police detained and arrested Mr Cooper on 11 May 2004. On that day, police had been patrolling the vicinity of a shopping centre when a passing motorist stopped them and informed them that he had seen a man acting suspiciously around an ATM at the shopping centre and the nearby Shell Petrol Station. The passing motorist also said that the male person was driving a small blue sedan which had the number plates of the vehicle covered with pieces of paper. The police went to investigate and came across Mr Cooper and his small blue sedan. They observed Mr Cooper for a short period of time. They then stopped Mr Cooper’s vehicle, he got out of the car and told police that he had been fishing. Additional police were called and while they were conferring, they saw Mr Cooper bend down near his vehicle and throw items under it. The police conducted a search of Mr Cooper and found $1,045 in cash in his pocket. They also found an ATM receipt recording a withdrawal of $1,000 at 9.04 pm the previous evening and a receipt from the Shell Service Station recording a withdrawal of $45.71 at 9.13 pm that evening. Under Mr Cooper’s car, the police found two Mastercards and a Diners Club card. Each card was in a different name. On the front seat of Mr Cooper’s car, police also located a plastic bag, which contained numerous documents, which the police believed to have been falsified. Some of these documents were in the same name as the three credit cards that had been found under Mr Cooper’s car. A number of the documents that were located in the plastic bag all contained the same post office box address. As mentioned above, that evening, the police arrested and charged Mr Cooper with various offences.

9 Following investigations, the police ascertained that the credit cards that were found under Mr Cooper’s vehicle were in the name of his fellow teachers. From the documents in the plastic bag in Mr Cooper’s car, the police were able to establish that Mr Cooper had stolen pay slips from his fellow teachers and then falsified bank statements, rate notices and telephone bills in their names. It would appear that Mr Cooper had used original documents that were in his own name to create these false documents. Mr Cooper then used these false documents together with the pay slips of the relevant person to obtain the various credit cards that had been found to be in Mr Cooper’s possession of. Mr Cooper then used these credit cards to obtain money for his own benefit. According to the Police Fact Sheet, Mr Cooper obtained about $17,391.53 by using these cards. Police also ascertained that Mr Cooper had used false documentation in order to obtain a post office box. This post office box was the address that he used for all the credit cards that he had obtained by using the false documentation.

10 Furthermore, on the night that Mr Cooper was arrested police found some clothing and receipts for fuel purchases.

11 On 26 May 2004, the police executed a search warrant on Mr Cooper’s home. Here they located a large number of items that they believed were purchased by Mr Cooper by using one of the credit cards he had obtained by using false documentation. During the search, police also located, in Mr Cooper’s bedroom, a large quantity of unsecured ammunition and two rifle bolts.

12 Mr Cooper pleaded guilty to the charges and as mentioned above, on 20 September 2004 he was convicted of various offences. He was sentenced to a bond under s.9 of the Crimes (Sentencing Procedure) Act 1999 for a period of three years. As part of that bond, Mr Cooper was required to complete all courses and programs as directed by Probation and Parole, to attend Gamblers Anonymous lectures at least weekly for 12 months, to attend Central Coast Problem Gambling Service each fortnight for 12 months and to attend Central Coast Health Service for psychological assessment and treatment as directed. In addition to the bond, the Court sentenced him to community services for 150 hours pursuant to s.8 of the Crimes (Sentencing Procedure) Act 1999 and he was ordered to repay an amount of $13,888.45.

Hearing

13 At the hearing of the matter, Mr Cooper gave evidence and reiterated that which had been contained in his letter dated 3 January 2005, to the Commissioner in respect of his internal review request. In summary, Mr Cooper gave evidence about his love of the outdoors and his close affiliation with rural Australia, in particular his love of hunting, fishing and bush craft activities which he has relished since he was 4 years old when he first visited his Uncle’s sheep station in Queensland. He has been a teacher for 25 years and during this time he has spent many years in the country where he was able to go shooting on a regular basis. He also travelled overseas to Africa on several occasions to go game hunting. Mr Cooper gave numerous examples of contributions that he had made to the local community prior to having committed the offences. He said that he believed that his criminal conduct was due to severe depression, which had manifested itself into a gambling problem. He said that he was previously unaware of his illness, but since being charged he has been undergoing treatment, which involved medication and psychoanalysis. He believed he now had his illness under control. He had completed his community service and had been commended for the work that he had done. It was Mr Cooper’s submission, that he was now the person that he used to be prior to committing these offences. In support of his evidence Mr Cooper also relied on the following psychological reports and references:

(a) A report by Jo-Anne Sammons, dated 23 June 2004 – this report confirmed Mr Cooper’s illness of depression and set out a management plan for the illness which included psychotherapy, and the continuation of gambling addiction therapy and attending Gamblers Anonymous.

(b) A certificate of expert evidence, dated 28 June 2005, from Dr Roger Molesworth – Dr Molesworth has been Mr Cooper’s general practitioner since January 1994. He described Mr Cooper as being conscientious and reliable. He then goes on to state the following:

“Unfortunately John Cooper suffered from pathological gambling, an illness which led to alleged illegal activity following a prodromal period of anxiety & depression. Following the confronting experience of interfacing with the justice system he to my observation took ownership & hence responsibility for his situation and the effect of those around, which progressed to proactive steps towards recovery which with his apparent diligence, to my observation is succeeding wonderfully.”
(c) Report of Jennifer Cohen, clinical psychologist, dated 8 June 2005 - In her report Ms Cohen states that Mr Cooper participated in a depression management program between February and April 2005 that had been offered by the Central Coast Mental Health Service. She states that Mr Cooper impressed her as an “insightful, intelligent man, who was keen and determined to address his longstanding history of problems with depression, intertwined with his inability to control his gambling excesses”. She also states that at the conclusion of the program Mr Cooper was experiencing levels of depression, anxiety and stress that lay well within the normal range. She said that he had successfully abstained from gambling activities for over a year and appeared resolute to main that pattern.

(d) Report of Chris Davidson, co-ordinator of the Central Coast Problem Gambling Service (“the Service”) dated 10 June 2005 – in this report Mr Davidson states that Mr Cooper had attended 13 sessions at the Service between June 2004 and May 2005. He states that although Mr Cooper had had a gambling problem for about 14 years, in his opinion a regression towards gambling by Mr Cooper was extremely unlikely. He states that he has come to know Mr Cooper as a man with a deepened respect for his personal integrity, along with a growing sense of compassion towards others.

(e) A reference from Paul, the Chairman of the East Gosford Gambling Association, dated 7 July 2005 – Paul states that Mr Cooper attends meetings of the Association and also provides support to other members of the group.

(f) Reference from Tim Keogh, Club Manager, Police and Community Youth Club (“PCYC”), dated 13 July 2005 – Mr Keogh states that Mr Cooper is a longstanding member of the PCYC and currently volunteers his time and effort to the Club by assisting in fundraising and by providing professional supervision during regular youth dance parties. He states that he considers Mr Cooper to be an excellent volunteer.

(g) Reference from Robert Hallows, undated – Mr Hallows has known Mr Cooper since they attended High School together. He has been closely associated with him since that time. They have participated in many sporting activities together, including the sport of shooting and hunting. During their hunting times together Mr Hallows has been extremely impressed with Mr Cooper’s care and responsibility with firearms. In this regard Mr Cooper has never demonstrated any signs of aggressive behaviour.

(h) Reference from Russell Martin, undated – Mr Martin is Mr Cooper’s brother-in-law and he has known him for 25 years. Mr Martin states that Mr Cooper has been using firearms for as long as he has known him. They have hunted together on Mr Martin’s property and other properties in New South Wales and in Zimbabwe. He states that Mr Cooper is passionate about his firearms but he is even more passionate about the need to use them safely. Mr Martin makes reference to Mr Cooper’s criminal conduct and states that it was to Mr Cooper’s credit that he had sought rehabilitation following his arrest and that he had seen a remarkable turn around in his behaviour and character. He states that Mr Cooper’s untreated condition led to his conviction, but his conviction had led to his rehabilitation.

(i) Reference from B.R. Jessop, dated 21 June 2005 – as a member of the Uniting Church Mr Jessop manages the Community Service Board program for which the Church is responsible. He states that Mr Cooper was engaged in such a program during October and November 2004. Mr Jessop says that he believes Mr Cooper has paid the price for his criminal conduct and has turned around. He also states that while Mr Cooper participated in the program he was punctual, reliable, worked hard and never let him down when they had agreed on a particular day being a working day.

(j) Reference from Jason Martin, dated 14 July 2005 – Mr Martin is Mr Cooper’s nephew and he states that Mr Cooper introduced him to shooting and hunting and that he has taught him almost everything that he knows. He states that Mr Cooper has always drummed into him the importance of safety when it comes to firearms and that he has always led by example.

(k) Reference from Denise Reibelt, dated 12 July 2005 – Mrs Reibelt has known Mr Cooper since he was a small boy. She states that in 2001 Mr Cooper came and lived on the property with her and her husband who was seriously ill. She states that her husband’s dying wish was for Mr Cooper to have his 303-25, which was his favourite firearm.

(l) Reference from Paul Salmon, dated 16 July 2005 – Mr Salmon has known Mr Cooper as a friend and colleague for the past 10 years. In his reference he submitted on behalf of Mr Cooper that his licence “be revoked for the duration of his good behaviour bond and that on the expiration of this he be reassessed for the granting of a firearms licence. This should be on the basis of a favourable report on the progress of his treatment for that psychological condition which has been the underlying and predisposing cause of his criminal activity. … No one would believe that a person suffering emotional or psychological problems should possess firearms but Mr Cooper’s problem has never exhibited any indication of any propensity to physically harm anyone or anything. In his rehabilitation he has shown a zealous desire to contribute to the community and he has absolutely no past record of any history of any sort of violence or anger whatsoever even during the darkest days of his illness …”

(m) Psychological report of Dr Christopher J. Lennings, dated 25 July 2004 – in his report Dr Lennings states that Mr Cooper has good prospects of community based rehabilitation. He states that Mr Cooper does not have significant illness and other than gambling has no substance abuse issues. He also states that Mr Cooper did not appear to be a person who was particularly violent but the most pressing difficulty for Mr Cooper was the absence from gambling.

14 In respect of the firearms offence Mr Cooper said he could not remember exactly how the ammunition came to be under his bed. He said that he always stored the ammunition in accordance with the Act and it was not disputed that his storage facility for his firearms provided for such. His only explanation was that he had either just been shooting or was about to go shooting.

Considerations

15 As mentioned above, the Commissioner revoked Mr Cooper’s firearms licence on several grounds. However, in my opinion, there are primarily two grounds, which are relevant to this particular application. These are whether:

(a) Mr Cooper’s conviction of a prescribed offence within the last year (i.e. a firearms offence s.11(5)(b) of the Act) and the fact that he is subject to a good behaviour bond, which is not due to expire until 19 September 2007 (s.11(5)(d) of the Act); and

(b) Mr Cooper’s conduct is such that the Commissioner is of the opinion that Mr Cooper is no longer a fit and proper person to hold a firearms licence (s.24(2)(c) of the Act).

16 It is well established that, although the abovementioned grounds, if established, would require the Commissioner to refuse an application for a firearms licence, the Commissioner has a discretion as to whether an existing licence should be revoked on these grounds (s.24(2) of the Act). That discretion is to be exercised having regard to the objects of the Act. These are set out in s.3 of the Act and so far as is relevant provides as follows:

3. Principles and objects of the Act

(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) …

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

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

(a) ….

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

17 I have examined all the material that has been place before the Tribunal and for the reasons set out below, in my opinion the Commissioner’s decision is the correct and preferred decision.

The Firearms Conviction and good behaviour bond

18 The fact that Mr Cooper has been convicted of a firearms offence and is the subject of a good behaviour bond is not disputed. Nor is it disputed that if he were applying for a firearms licence the Commissioner would be required to refuse that application. That refusal would first operate for the period of Mr Cooper’s bond (i.e. until September 2007) and then for a further 7 years as a result of Mr Cooper’s conviction of a firearms offence (i.e. until 19 September 2014). However, if Mr Cooper’s current licence were to be restored to him it would continue to be valid until January 2009, but the Commissioner would then be required to refuse any renewal of that licence thereafter.

19 The question is whether the circumstances surrounding Mr Cooper’s conviction for the firearms offence and the imposition of a bond are such that his licence should be revoked. As mentioned above, this must be decided having regard to the principles and objects of the Act. The starting point is that the possession and use of a firearm is expressly stated to be a privilege (s.3(1)(a) of the Act). That privilege is conditional on the overriding need to ensure public safety. That safety is protected by the specific storage requirements in Part 4 of the Act, s.40 of which sets out the requirement for the storage of category A and B firearms. That section deals with the storage of a firearm in this category as well as the ammunition that is to be used. The requirement is that “any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm”: see s.40(1)(d) of the Act. These are fundamental requirements to ensure public safety and Parliament has given a clear indication that where such requirements are breached, whether they be minor or significant, they are of such seriousness to warrant the refusal of an application for a licence, not for one year but 10 years.

20 In this application there is no question that Mr Cooper’s firearms were stored in accordance with the requirements of the Act. Had they not been stored correctly, his breach of the Act would have been very serious. This does not mean that a failure to store the ammunition for such firearms is not serious. However, in this case having regard to what his referees have said about the care Mr Cooper has taken when using his firearms I accept his account that this was an isolated incident and if this were the only factor there may have been an argument for his licence to be restored. However, there is the additional factor of Mr Cooper being subject to a good behaviour bond. Again the seriousness with which Parliament has regarded this is expressly reflected in the Act. In this case the bond is for a significant period of time and in my opinion when this is considered together with Mr Cooper’s conviction for a firearms offence the Commissioner’s decision to revoke Mr Copper’s licence was the correct and preferred decision.

Fitness and propriety

21 In light of the abovementioned findings it is unnecessary to consider whether the ground of Mr Cooper no longer being a fit and proper person is established. While I have not made any findings in this regard it should be noted that the Tribunal has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321in determining what is meant by the term “fit and proper”. In that decision at [63] the Chief Justice said:

“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 witness and propriety are under consideration”.

22 It is also well established that in determining the fitness and propriety of a person regard must be had to the activity for which the person is licensed to do (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond (supra)).

23 In this application, Mr Cooper’s convictions for larceny and obtaining money by deception did not involve the use of firearms or violence of any kind. They do, however, reflect on his honesty. It is difficult to see how this dishonesty has a significant bearing on his ability to hold a firearms licence. But in any event his criminal conduct must be considered in light of Mr Cooper’s previous history, in particular the fact that his previous possession and use of a firearm appears to have been in accordance with the Act and what he has done to rehabilitate himself since his convictions. In this regard Mr Cooper appears to have taken every step possible to address his illness and his gambling addiction. As I have mentioned, it is unnecessary for me to decide whether this particular ground applies.

Orders

24 The Tribunal orders that the decision of the Commissioner to revoke Mr Cooper’s firearms licence is affirmed.