Cruickshank v Commissioner of Police

[2022] NSWCATAD 115

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cruickshank v Commissioner of Police [2022] NSWCATAD 115

Hearing dates:

11 October 2021

Date of orders:

07 April 2022

Decision date:

07 April 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The respondent’s reviewable decision is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Licensing – Firearms – revocation - discretion - Conditional Release Order – safe storage – public safety

Legislation Cited:

Administrative Decisions Review Act 1999

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

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

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

Grant v Commissioner of Police [2020] NSWCATAD 158

Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227

Kopko v Commissioner of Police, NSW Police Force [2018] NSWCATAD 124

Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

McGrath v Commissioner of Police NSW Police Force [2019] NSWCATAD 98

Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101

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

Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155

Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Nathan Donald Cruickshank (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Silkman Austen Brown Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/163278

REASONS FOR DECISION

1. The Applicant was the holder of an AB Firearms License issued on 1 June 2017 for the genuine reason of recreational hunting/vermin control. The License was due to expire on 20 July 2022. On 16 November 2019, the Applicant reported a break and enter at his home to Police. The Applicant informed Police that a number of items were stolen from his residence including gun safe keys and four boxes containing ammunition. Later that day, Police attended the Applicant’s residential address to conduct a firearms and safe storage inspection. Following that inspection the Police informed the Applicant that he had failed the safe storage inspection and accordingly, issued him a Notice of Suspension and seized his firearms. The ground stated in the notice was for “unsatisfactory safe storage of firearms”.

2. On 8 January 2020 the Applicant was charged with the offence of “holder of category A or B licence not have approved storage” under s 40(1) of the Firearms Act 1996 (the Act), for failing to comply with the safe storage requirements under the Act.

3. On 8 October 2020, the Commissioner made a decision to revoke the Applicant’s firearms license. The notice of revocation stated that serious doubts were raised about the applicant’s ability to abide by the rules and regulations necessary to possess a firearms license, and that due to the Applicant being charged with a prescribed offence, a decision was made to revoke the license.

4. On 21 October 2020, at Wellington Local Court, the Applicant was sentenced to a 2-year Conditional Release Order (CRO) without conviction in accordance with s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, commencing 21 October 2020 and concluding on 20 October 2022. On 1 March 2021, on appeal in the Dubbo District Court, the decision of the Local Court was affirmed and the CRO imposed by the Local Court was affirmed.

5. On 26 April 2021, the Applicant’s legal representative requested the Commissioner to conduct an internal review of the revocation decision of 8 October 2020. On 18 May 2021 the Commissioner refused the Applicant’s request for an internal review as it was made out of time.

6. On 7 June 2021, the Applicant filed administrative review proceedings with the Tribunal. On 6 July 2021 at a directions hearing before the Tribunal the parties agreed that the matter was to proceed to review by the Tribunal pursuant to s 55(4) of the Administrative Decisions Review Act 1999. The hearing took place by AVL on 11 October 2021.

Legal Principles

7. Section 3 of the Act sets out the Act’s underlying principles and objects:

3 PRINCIPLES AND OBJECTS OF 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) 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) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

8. Section 24 of the Act provides for the revocation of a firearms licence in various circumstances

24 REVOCATION OF LICENCE

…

(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

…

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

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

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

(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.

(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.

(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.

(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.

9. Section 11 of the Act sets out a range of circumstances where a licence must not be issued. Under s 11(5)(d) of the Act, a licence must not be issued to a person who–

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

(i) a good behaviour bond, whether entered into in New South Wales or elsewhere,

(ii) a community correction order imposed in New South Wales,

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

10. Clause 5 of the Firearms Regulation 2017 (the Regulations) relevantly provides:

(1) For the purposes of sections 11(5)(b) and 29(3)(b) of the Act, the following offences are prescribed—

(a)  Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, 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).

…

(3) Persons subject to community correction orders or conditional release orders 

For the purposes of sections 11(5)(d) and 29(3)(d) of the Act, the following offences are prescribed in respect of a person subject to a community correction order or a conditional release order—

(a)  an offence referred to in subclause (1)(a), (c), (e) or (g)–(k),

Safe Storage Requirements

11. Section 39 of the Act provides:

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.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

Note : Reference to a pistol includes a prohibited pistol.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

12. Section 40(1) of the Act relevantly provides that all category A and B license holders must comply with the following requirements in respect of any firearm to which the license applies:

40 CATEGORY A AND CATEGORY B LICENCE REQUIREMENTS

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) 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,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.

Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

The ‘Public Interest’

13. Clause 20 of the Regulations provides:

‘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.’

14. The concept of the ‘public interest’ is designed to give the broader interests of the community priority over private interests. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the 'public interest' is:

‘… an inherently broad concept giving the appellant 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.’

15. A discretion to make a decision ‘in the public interest’ is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The Appeal Panel stated in Constantin v Commissioner of Police [2013] NSWADTAP 16, at [33], that:

‘The “public interest” allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.’

16. Further, as stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

‘The Applicant’s individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.‘

17. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said, at paragraphs [27] - [28]:

27.   One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28.   The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.’

18. In Kopko v Commissioner of Police, NSW Police Force [2018] NSWCATAD 124 at [56] it was submitted that there is a propensity to treat the concept of “virtually no risk” as an absolute obstacle that is nearly impossible to overcome. The applicant relied on the case of Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, more specifically Senior Member Walker’s comments at [63] to [65]. Ultimately, Hennessy DP “cautioned against applying that language [in Ward] in a mechanistic way.”

19. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] in considering the question of public safety the Tribunal stated that:

In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration.

20. In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [66] the Tribunal pointed out that:

The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.

Evidence

21. The Applicant has been employed by the Department of Corrective Services since 2007, working at Macquarie Correctional Centre at Wellington. Prior to the criminal charge he was a senior correctional officer with responsibilities involving the armoury, security and daily emergency procedures. He was currently a correctional officer who retained access to the armoury but was no longer “in charge”.

22. The Applicant gave evidence that he had been renovating at the time of the offence, and that carpet was being laid. The carpet had been lifted in the room in which he usually stored his firearms. Under cross examination he stated that he had installed the safe and had not bolted it to the wall, only to the floor, because he didn’t want to damage the wall. He had moved the safe from the walk in wardrobe to the area where it was photographed by Police because the wardrobe was being carpeted. He said he had moved the safe on the Thursday and the break in was discovered on the Saturday, after he and his partner came home from a work function. His children were staying with a grandparent at the time. He stated that he was not aware the safe had to be bolted to both the floor and the wall. He didn’t agree that the safe had been incorrectly secured because “someone had tried to take it and it didn’t get moved”. The locked ammunition boxes were stolen from a shelf in the wardrobe.

23. The Applicant stated that he had two keys to the firearms safe, one of which he kept with his car keys and another which he kept in a drawer. He was cross-examined about his wife’s access to the safe key and explained that they had three cars and she usually did not drive his car, so usually did not have access to the safe key “if I’m home”. On the occasion in question she had grabbed the car keys to the car which was the easiest to leave in, which were the car key set including the safe key. He agreed that at his work the keys to the firearms storage were not given to people who did not have the authority to access the firearms.

24. The Applicant was questioned why he had asked the Police who had attended to conduct the inspection to “come back a couple of hours later”. He said words to the effect that he understood it was his responsibility to secure the firearms safe and he hadn’t had a chance to secure it properly following the break in. He didn’t want the police to inspect things before he had a chance to fix up his belongings. The door was off its hinges and he wanted to make sure his house was secure. When asked why he hadn’t done so between midnight when he discovered the break in and the inspection at 10am the next day, he said that his concern wasn’t great because he had done his best to anchor the safe to the floor and the thieves had not managed to take it. He made sure the safe was still there, it hadn’t been taken, and it couldn’t be moved.

Consideration

25. Section 11(5)(d)(iii) of the Act provides that a licence must not be issued to a person who is ‘subject to’ a CRO imposed in New South Wales in relation to an offence prescribed by the Regulation. A conviction is not required. For the purposes of s11(5)(d), cl 5(3)(a) of the Regulation provides that an offence referred to in cl 5(1)(a) is a prescribed offence in respect to persons subject to a CRO. The offence the Applicant was charged and found guilty of is a prescribed offence and therefore triggers the mandatory prohibition under s11(5)(d)(iii).

26. As such, there is no discretion available to the Tribunal to award the Applicant a new firearms licence. However, a discretion remains where, as in these circumstances, a licence was revoked rather than refused, because s 24(2)(a) states that ‘a licence may be revoked for any reason which the licensee would be required to be refused a licence of the same kind’. As stated in McGrath v Commissioner of Police NSW Police Force [2019] NSWCATAD 98 at [36]:

In the case of a person who already holds a licence, the Commissioner can consider the person’s licencing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme.

27. However in Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [23], the Tribunal commented that:

[i]t would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.

28. This comment has been referred to with approval by the Tribunal in Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [10] and Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at [28]. In Grant v Commissioner of Police [2020] NSWCATAD 158 at [28] and [31] the Tribunal found that:

[28] I accept that, in certain respects, it may seem “anomalous” for a conviction or a finding of guilt to be treated differently before and after the grant of a licence. However, as Senior Member Walker said in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [59], this situation “is not necessarily anomalous.” The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way.

[31] Bearing in mind these comments, I prefer to approach the question of whether the Commissioner’s decision to revoke Mr Grant’s licence is the correct and preferable decision, by having regard to the terms of s 24(2)(a) of the Firearms Act in its statutory context. That context includes the Act’s principles and objects. As Deputy President Hennessy (as she then was) remarked, the “discretion should be exercised in a way which promotes the principles and objects of the Firearms Act” (Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23]).

29. I agree with the Respondent’s submission that question for the Tribunal is whether or not the decision to revoke the Applicant’s license is the correct and preferable decision having regard to s24(2)(a) in its statutory context, which includes exercising the discretion in a way that promotes the principles and objectives of the Act.

30. The Applicant’s evidence was that he had no prior breaches of his firearms licence and was described by Magistrate Olishlager on sentence as someone “who actually does understand your responsibilities” in reference to the Applicant’s responsibilities under the Act. His representatives drew attention to inaccurate statements in the Police Facts which were not accepted during the criminal proceedings, specifically that “the safe was able to be pushed over on the ground”, where the Magistrate acknowledged that there was limited evidence relating to the weight of the storage receptacle however found that it did not weigh more than the 150 kilograms as per the legislation and was required to be fixed, which it wasn’t.

31. The Respondent submitted that the body worn footage demonstrated that the safe was almost pulled out of the floor by the people who had broken in; the bolts were moveable and were barely holding to the floor. While the Local Court Magistrate had accepted the Applicant’s evidence about the flooring being done, this was evidence which was only provided at sentencing and there was little evidence before the Tribunal to suggest works were actually being undertaken. I agree with the Respondent’s submission that even if the Tribunal was to accept the Applicant was having re-flooring done, his failure to arrange for appropriate safe storage in the interim demonstrates his failure to understand the importance of strict compliance with the requirements of the Act and Regulations to public safety. The video footage shows the firearms safe able to be rocked back and forth from its base, supporting the Respondent’s submissions about its precarious attachment and the real risk that it could have been stolen with its contents at the time of the break in.

32. The Applicant submitted that the Local Court Magistrate’s observations that he was usually a person of good character and understood his responsibilities under the Act should be accepted by the Tribunal. However these comments were made by the Court in the context of the Applicant’s sentencing for the criminal charge and are separate to this Tribunal’s consideration of whether the Applicant should retain his firearms licence. There was no evidence before the Tribunal, other than the observations of the Local Court Magistrate, of the Applicant’s “good character” in the form of character references or the like. The Applicant pointed out that the thieves were unable to take the firearms safe, despite trying, and submitted that the Applicant’s employment as a corrections officer with previous responsibilities for the armoury gave him an understanding of his obligations under the Act.

33. The Respondent submitted that the Applicant’s request to Police at the time of inspection that they return two hours later “is clearly evident the Applicant was at best, not sure whether he was compliant with the safe, and at worst, knew he was not”, and was “a tactic to delay the safe storage inspection and perhaps allow him to correct the contravention before it was detected by the Police”. On the basis of the Applicant’s evidence about that request, I accept that submission. I also agree that the Applicant did not take “all reasonable precautions to ensure the safe keeping of firearms” in circumstances where the gun safe was not secured appropriately and the gun safe keys were kept in easily accessible places in his home which he shared with his wife and three children – with his car keys and in a wardrobe drawer. They were admittedly accessible to his wife and would have likely been accessible to any other person on the premises. These matters raise serious concerns about the Applicant’s attitude and lack of understanding or appreciation of the requirements for safe storage of his firearm. They also demonstrate a lack of understanding or concern for the risk to public safety caused or potentially caused by his actions or inactions in relation to his safe storage of firearms.

34. The Applicant’s employment as a corrections officer with past responsibility for the armoury would, in my view, count against him in these circumstances and would seem to indicate a poor attitude towards his safety obligations, rather than ignorance or lack of understanding.

35. In favour of him retaining his firearms licence is the fact that he has held the licence without prior incident since 2017, that the timing of the break-in when he was in the middle of re-flooring his home was inadvertent and not his fault, and that he reported the break-in immediately to Police and informed them as soon as he was aware that ammunition and his keys were stolen and the thieves had attempted to access the gun safe.

36. On balance, having regards to the terms of s 24(2)(a) of the Act in its statutory context, particularly the underlying principles of this Act at ss 3(1)(a) and 3(1)(b)(ii) and its objects at ss 3(2)(d) and 3(2)(e), the correct and preferable decision is for the Tribunal to affirm the Respondent’s decision.

Orders

1. The respondent’s reviewable decision 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: 07 April 2022