Cupples v Commissioner of Police, NSW Police Force
[2014] NSWCATAD 212
•04 December 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Cupples v Commissioner of Police, NSW Police Force [2014] NSWCATAD 212 Hearing dates: 18 September 2014 Decision date: 04 December 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: The decision under review is affirmed
Catchwords: Firearms licence revocation - Public interest - Obligations of licence holders. Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act (NSW)
Firearms Act 1996 (NSW)
Firearms Regulation 2006 (NSW)
Security Industry Act 1997 (NSW)Cases Cited: Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
Lynch v Commissioner of Police (GD) [2006] NSWADTAP 80
Ward v Commissioner of Police [2000] NSWADT 28Category: Principal judgment Parties: Aaron Cupples (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Nicholas Angelos & Co (Applicant)
Minter Ellison Lawyers (Respondent)
File Number(s): 1410098
reasons for decision
Background
This is an application by Mr Aaron Cupples seeking a review of the decision by the Commissioner of Police to revoke his firearms licence. In revoking his licence, the delegate of the Commissioner found that it would not be in the public interest for Mr Cupples to retain his licence. Following an internal review, the delegate's decision was affirmed. In reaching this decision, the internal reviewer accepted that Mr Cupples was a person of good character but found that in light of Mr Cupples's conviction for not having approved storage for his ammunition together with his history of alcohol abuse and taking anti-depressants, he could not eliminate the possibility of public risk were Mr Cupples to be granted a firearms licence.
The Tribunal's jurisdiction
The NSW Civil and Administrative Tribunal (the Tribunal) has jurisdiction to review this decision pursuant to section 75(1) (c) of the Firearms Act1996 (the Firearms Act) and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). In accordance with section 63 of the Administrative Decisions Review Act 1996, the role of the Tribunal is to make the correct and preferable decision on the material before it.
The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
Mr Cupples's application for review was lodged out of time. This, Mr Cupples stated, was due to his solicitor's ill health. In the circumstances, the Tribunal is prepared to accept the application for review despite its late lodgement.
Issues for the Tribunal
In this case, the Tribunal must determine whether, on the evidence before it, Mr Cupples's firearms licence should be revoked. In making its decision, the Tribunal can consider whether it is in the public interest for Mr Cupples to continue to hold a licence.
Relevant law
The underlying principles of the Firearms Act are, relevantly,
- to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and
- to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.
Section 24 of the Firearms Act provides for the revocation of licences in a range of circumstances, including where the licensee contravenes
- any provision of the Firearms Act or the Firearms Regulation 2006, whether or not the licensee has been convicted of an offence for the contravention;
- any condition of the licence.
Section 19(2)(a) of the Firearms Act provides that a firearms licence is subject to the condition that the licensee must comply with the relevant safe keeping and storage requirements. Section 40 (1)(d) of the Firearms Act provides that ammunition must be stored in a locked container of a type approved by the Commissioner and kept separate from the receptacle containing a firearm.
This means that a firearms licence may be revoked where the licensee has contravened safekeeping and storage requirements.
Section 24(2) (d) of the Firearms Act prescribes that a licence may be revoked for any other reason prescribed by the Firearms Regulation. This includes where the Commissioner (or on review, the Tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence. (clause 19 of the Firearms Regulation)
Relevant facts
Background
Mr Cupples was issued a minors permit which expired in 1994. In 2011, he was issued with a category AB firearms licence which was suspended when an interim Apprehended Violence Order was made against him on 24 April 2013. On 20 June 2013, following the withdrawal of the Apprehended Violence Order, the suspension of his firearms licence was lifted. The following week, Mr Cupples's firearms licence was again suspended when he was charged with failing to keep ammunition for a firearm separate from the receptacle containing the firearm. The revocation of Mr Cupples's licence followed on 19 September 2013 and was affirmed on internal review.
24 April 2013 incident
Following a domestic dispute, police officers attended the home Mr Cupples was sharing with his then partner, Ms Ward. Whilst there, police officers seized Mr Cupples's firearms and ammunitions. As a result of this incident, Mr Cupples was found guilty (without a conviction being recorded) of an offence under s40(1) of the Firearms Act for failing to keep ammunition for a firearm separate from the receptacle containing the firearm. Below is a discussion of the event as set out in the COPS event record for the incident, in the report by Dr Abeya prepared for this hearing and in evidence before the Tribunal by Mr Cupples.
COPS event narrative
According to the COPS event record for the incident, Mr Cupples's then partner, Ms Ward, contacted police because of fears she held for the couple's children, who were in the family home with Mr Cupples. According to the event record, Mr Cupples and Ms Ward had been arguing by telephone. The argument continued upon Mr Cupples's return to the family home. Because of the arguing, Ms Ward decided to leave, stating that she would take the couple's young children with her. According to Ms Ward, Mr Cupples's tried to stop her from leaving by taking the car keys from her. Ms Ward then stayed in the family home. She stated that Mr Cupples's had been shouting at their young son. To remove the children from the situation, she took them upstairs and started to put them to bed, while Mr Cupples stayed downstairs, consuming alcohol. Ms Ward then asked Mr Cupples to leave the house. When he didn't leave, Ms Ward walked out the back of the house. According to the COPS event record, Mr Cupples then locked Ms Ward out of the house. While seeking assistance from the neighbours, Ms Ward contacted police. Once advised that the police had been called, Mr Cupples let Ms Ward back into the house. Later that evening, Mr Cupples and Ms Ward went to bed in separate rooms.
When the police arrived at the family home some hours later, Ms Ward told the police that 'as a result of the incident she did not want [Mr Cupples] at the location and that she held fears for her children and that she was fearful of [Mr Cupples's] verbal abuse towards her.'
According to the COPS event record:
Police observed that [Mr Cupples] was well affected by alcohol as he was unsteady on his feet, his breath smelt heavily of intoxicating liquor and there were several empty bottles of beer at the location. When questioned by police about his consumption of alcohol,[Mr Cupples] stated that he had consumed approximately 8 beers.
During the search for the firearms...police discovered that the firearms were stored in an approved safe however within the same safe, police located 11 boxes of ammunition (225 12 Gauge shells, approx. 100 .22 cartridges) being stored contrary to safe storage requirements. The ammunition was not kept in a separate lockable container.
Police located further boxes of ammunition within 2 other lockable containers as well. These met safe storage requirements.
Mr Cupples' narrative as set out by Dr Himalee Abeya
In a report prepared for Mr Cupples, Dr Abeya sets out the following narrative, presumably as told to him by Mr Cupples in relation to the events of 24 April 2013:
He described that Anzac Day was a very important day for him owing to family members who had been involved in the war. He said he regularly attended the dawn service. On this particular day in 2013 he said he had finished work and was trying to relax with a couple of beers. He stated all he had in the house was a six pack of beer and he had consumed probably two or a maximum of three. He described that his ex partner had come downstairs to the area of the house he lived in, and had taken one of his beers out of the house and thrown it in the bin. He said when she did there for the second time, he had told her that he would lock her out if she attempted a third occasion. Mr Cupples said when she did indeed throw out a beer for the third time, he went ahead and locked the door on her leaving her in the backyard. He said he had then opened the door to let her in but she was not there as she had jumped the fence and gone to the neighbours place. When she returned a little later...she had informed him of this and he stated he believed she had then called the police back to state that she did not have any concerns. Despite this he said the police had arrived later in the night as was customary when they had received a call. They had also taken out an interim AVO. I note your letter indicates that the police had found Mr Cupples had stored some ammunition in a safe on top of a cupboard and a notice of suspension in relation to his firearms licence was served on that day...Mr Cupples stated he had no intention of hurting or harming his ex-partner in any way previously or at present...He said his ex-partner had written a letter to the fact that there had been no violence and that he was a good father and said he AVO had therefore only lasted one or two weeks....He reported that he had left home and had stayed with a cousin during this time prior to moving into his own house.
Mr Cupples's evidence to the Tribunal
Mr Cupples gave evidence before the Tribunal. When cross-examined by Mr Tran, for the Commissioner, in relation to the events of 24 April 2013, Mr Cupples initially stated that he 'would have had four beers' but later agreed that it was possible he had drunk four beers and that, rather than buying a six pack of beer, he might instead have brought home a carton. He agreed that, in this case, what he had told Dr Abeya - namely that he had only drunk two to three beers - might have been wrong. He told the Tribunal that, at the time, there had been a lot going on in his life, and that it had not been his intention to mislead anyone.
In relation to the evening's event, he couldn't remember Ms Ward telling him she was going to leave the house, nor could he remember grabbing Ms Ward's car keys, or screaming at their young son. He remembered Ms Ward asking him to leave the house but couldn't recall agreeing to leave.
In re-examination, Mr Cupples agreed that he had not stored his ammunition in accordance with storage requirements. He explained that he had intended to get a lockbox for the ammunition and in future that he would store any ammunition 'to the letter of the law.'
In explaining why he did not have a lockbox adequate to store his ammunition, Mr Cupples told the Tribunal that he had planned to go away on a hunting trip planned for March and had stocked up on extra ammunition for this purpose. The trip was later cancelled, leaving Mr Cupples with the ammunition he no longer needed and without a lockbox to contain it.
Offensive behaviour
In January 2013, a criminal infringement notice was issued to Mr Cupples for urinating in a public place.
Mr Cupples told the Tribunal that he had been celebrating his cousin's birthday and conceded that he had been consuming alcohol in the course of the evening.
Dr Monchy report
Contained on file is a report by Dr Rene de Monchy prepared for Mr Cupples 'in order to assist in his attempt to be re-registered to own a firearm licence.'
According to Dr Monchy, Mr Cupples was originally referred to him in early 2012 'with a problem of anger and previous substance use. The diagnosis was made of an underlying depression and the recommendation was made for him to start on an anti-depressant medication, as well as seeing a psychologist.'
Dr Monchy reviewed Mr Cupples in June 2012 noting positive changes as a result of his medication. When Dr Monchy next saw Mr Cupples on 17 October 2013 for the preparation of a report in relation to Mr Cupples's firearms licence, he noted that Mr Cupples had been taking anti-depressant medication until recently. He noted that Mr Cupples's depression had settled on anti-depressant medication, with [him] not showing further symptoms as far as disclosed to me.
In answer to the question as to whether there was a current risk that Mr Cupples's condition or impairment may impact on their ability to exercise continuous or responsible control over firearms, Dr Monchy wrote:
When I assessed Mr Cupples on 17 October 2013, he did not appear to suffer from depression as such, and therefore would not be any indication of his mood impacting on his ability to exercise control. However I cannot comment on his anger or alcohol use, which he had disclosed 16 months again. I understand from the police report, that the current situation with revocation of the firearm licence had arisen after an incident seen as possible domestic violence.
He also advised that Mr Cupples's impairment, as diagnosed as depression, appears to have alleviated and so, of itself, does not pose an acute risk to public safety.
In evidence before the Tribunal, Mr Cupples confirmed that on his treating doctor's recommendation, he had stopped taking anti-depressant medication in October 2013.
Dr Abeya report
A report for Mr Cupples prepared by the psychiatrist Dr Himalee Abeya on 30 August 2014 was provided to the Tribunal. As set out by Dr Abeya, the report provides a risk assessment in relation to Mr Cupples and considers whether it would be in the public interest for Mr Cupples to continue to hold a firearms licence.
According to Dr Abeya, Mr Cupples told him that upon returning home from work on 24 April 2013, he 'was trying to relax with a couple of beers.' He stated all he had in the house was a six pack of beer and had consumed probably two or a maximum of three. He described that 'his ex partner had come downstairs to the area of the house he lived in, and had taken one of his beers out of the house and thrown it in the bin. He said he tried to ignore this as it was as if she wanted to get into an argument. He stated when she did this for the second time he had told her that he would 'lock her out if she attempted a third occasion....[W]hen she did indeed throw out a beer for the third time he went ahead and locked the door on her leaving her in the backyard.'
In terms of his current status, Mr Cupples told Dr Abeya that he was in a good relationship with his current girlfriend. He denied using any illicit substances and stated that his alcohol use was limited to 2 to 4 stubbies once or twice a week. Mr Cupples conceded to Dr Abeya that his use of alcohol and drugs had been excessive when he was much younger.
Mr Cupples described using firearms as something he had grown up with in the country. He stopped using firearms when he left his hometown. Only in 2010 did he attend a gun club with a friend to shoot clay pigeons and targets. This was a hobby he enjoyed.
According to Dr Abeya, when he asked Mr Cupples why he wanted to have his licence back, 'he said it was in order to restart his hobby as he had found this quite enjoyable and said that it had been an important part of his childhood given the good memories he had in the past going hunting with his father and grandfather.'
Dr Abeya made the following assessment of Mr Cupples' mental state:
Mr Cupples presented as a tall male of stated age with good grooming. He was pleasant and polite in interaction. Whilst he generally appeared at ease, there were times when he appeared slightly anxious. Overall mood was euthymic - pertaining to normal. He had good reactivity in affect. His thought content did not reveal any pervasively negative thought patterns. Whilst he appeared to have some worries related to the current process I did not find any overriding anxieties. There were no thought patterns compatible with delusions or obsessions. There was no expression of self harm, suicide or thoughts of harm to others. He was cognitively intact maintaining good attention and concentration throughout the interview.
Whilst making reference to Mr Cupples's past history of substance abuse, Dr Abeya found that, at the time of writing the report, Mr Cupples's alcohol intake appeared to be within normal limits.
According to Dr Abeya,
[Mr Cupples's] history from the cross-sectional assessment I completed did not suggest any antisocial personality traits. Importantly he does not have a past history of violence. There is no past history of trouble with the law other than the recent situation when his wife made a complaint, which she later withdrew, and being charged with possession of ammunition...Of further importance is the fact that he has coped well with recent stress in the face of separating from his ex partner without resorting to any undue behaviour...During the cross-sectional assessment Mr Cupples presented as genuine and had generally good internal consistency in his history. I note he was quite open with information about his previous psychiatrist and freely allowed access to previous documents. He presented as stable in his current mood state.
In terms of risk, Dr Abeya gave the opinion that Mr Cupples 'is likely to be at very low risk of posing a danger to others and society in general. The only situation from a psychiatric point of view which could change this in the future is if he reverts to using substances or heavy alcohol consumption. Yet it must again be admitted that during the period that he has had excessive substance use in his youth, there is no indication of violent behaviour and [he] appears to have used weapons responsibly.'
Dr Abeya noted that whilst Mr Cupples's previous psychiatrist had noted a problem of anger, in Dr Abeya's view this 'did not present as a current issue.'
In relation to Mr Cupples's previous diagnosis of depression, Dr Abeya was not of the view that his depressive condition would have a significant bearing on his fitness in relation to firearms use. He stated that a predisposition to anger could make Mr Cupples more risky in terms of firearms use but stated that 'there is nothing to suggest that he has acted violently as a result of any difficult emotional state as per the available evidence. Whilst he stated that substance use has to be considered as a possible risk factor, he noted that 'it appears to have been in the past and is not an ongoing condition.'
In relation to possible relapse, Dr Abeya wrote that:
Relapse remains the future possibility given the natural history of depressive illnesses but I note that his previous episodes have been quite brief, of low grade and responded well to treatment. I feel chances of relapsing into substance use is low, given his lengthy period of abstinence and the responsible nature he has shown both at work and as a father.
In cross-examination before the Tribunal, Mr Cupples denied intentionally downplaying the amount of alcohol he had consumed on 24 April 2013 but conceded that rather than having bought only a six pack of beer that evening he may have instead purchased a carton. He denied downplaying to Dr Abeya the amount of alcohol he had consumed. Mr Cupples was unable to remember other events alleged by his former partner to have happened that night, including raising his voice at his son or agreeing to leave the house. He gave evidence that the application for an Apprehended Violence Order made by the police following the incident was later withdrawn following a request to do so from Mr Cupples's former partner.
He agreed that he had been issued with an infringement notice for offensive behaviour (namely urinating in a public place on 18 January 2103). In cross-examination, he stated that he had been out for his cousin's birthday and may have been drinking excessively on that night.
Mr Cupples told the Tribunal that he hopes to have the property settlement with his former partner completed within a year. He has weekly overnight contact with his children.
When asked in cross-examination how he had managed to reduce his alcohol consumption, Mr Cupples explained the improvements to his personal circumstances, citing the fact that he has his own place, enjoys time with his children and has been in a positive relationship with his girlfriend for the past year.
References for Mr Cupples
Before the Tribunal are references for Mr Cupples apparently handed up to the presiding magistrate to consider in relation to Mr Cupples's offence of failing to keep ammunition for a firearm separate from the receptacle containing the firearm. (s40(1) of the Firearms Act)
In his reference, Mr Joshua Hathway stated that he has known Mr Cupples for 36 years and described him as a 'very upbeat, friendly, kind and generous mate, and a best mate at that.' Early in 2013, Mr Hathway invited Mr Cupples to join him on a hunting trip. He explained that extra ammunition had been required for this trip for the purpose of pest eradication. Due to weather consideration, however the hunting trip was cancelled and instead became a fishing expedition. According to Mr Hathway:
This however had left Aaron [Mr Cupples] with an excessive amount of unused ammunition. Due to myself having also a large amount as I make my own ammunition, I was unable to take some off his hands. We verbally discussed another trip to plan within the following couple of months though due to general life commitments we have yet been unable to do so.
In my opinion, Aaron took appropriate precautions on our trip. We had one night in Coolah on our way to Warren at my mother and father-in-law's property where we were able to fire off a few shots. Prior to, during and after shooting Aaron took all necessary and appropriate storage and safety measures. I feel in myself as a licensed gun holder a certain respect must be shown and carried out without complacency and I feel that Aaron did this without the need for reinforcement by myself or anybody else that accompanied us.
In his reference, Mr Matthew Lodge states that he is a work colleague of Mr Cupples and that they would go clay target shooting and rifle shooting together. According to Mr Lodge:
On the numerous occasions that I have gone shooting with [Mr Cupples], he has always approached each shoot with safety foremost in his mind, handling his firearms in a thoroughly responsible manner at all times. He is always conscious of the need to be focused on the range and respectful of the equipment that he is using, as well as following instructions of the Range Officers on site.
On Sunday April 2013 I had a conversation with [Mr Cupples] regarding him purchasing an additional strongbox for extra ammunition storage. He asked me where I had purchased my strong box at Masters Hardware at Chullora. He told me that he planned to purchase one the same as mine as he expected to be working in the area of Masters Chullora in the coming weeks and he had extra ammunition from a hunting trip that required additional storage.
It is my understanding that [he] had good intentions and that his storing the ammunition with his firearms, within an approved, locked safe, was a temporary measure. Until he could purchase an additional strongbox, he was trying to ensure that his children did not have access to the ammunition. He was actively pursuing an additional strongbox, prior to the charge being laid, as shown in the conversation related above.
Findings and reasons
Public interest
As set out above, a firearms licence may be revoked for any reason prescribed by the Firearms Regulations. In accordance with clause 19 of the Regulations, this includes where the Commissioner (or on review, the Tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The concept of "public interest" was considered by the Administrative Decisions Tribunal (which was the relevant review body prior to the creation of this tribunal) in Commissioner of Police v Toleafoa (1999) NSWADTAP 9:
The "public interest" is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.
The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the Administrative Decisions Tribunal confirmed that these comments apply equally to the Firearms Act, and that
where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.
According to Lynch v Commissioner of Police (GD) [2006] NSWADTAP 80, relevant factors to be considered include matters of general public policy, which are informed by the principles and objectives of the Firearms Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
In this context, licence holders must not only understand the laws and regulations by which they are bound, but must also comply. O'Donnell v Commissioner of Police [2009] NSWADT 82.
In Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23], Deputy President Hennessy stated that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms.
In DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27, the Administrative Decisions Tribunal said:
I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the Firearms Act. Those concerns are sufficient to justify the revocation of [a] firearms licence on public interest grounds.
Is it in the public interest for Mr Cupples to continue to hold a firearms licence?
In considering whether it is in the public interest for Mr Cupples to continue to hold a firearms licence, the Tribunal has considered the following:
- The incident of 24 April 2013 which resulted in police attending Mr Cupples's house and issuing an interim apprehended violence order against him;
- The fact that on 8 August 2013, Mr Cupples was found guilty (without a conviction being recorded) of an offence under section 40(1) of the Firearms Act for failing to keep ammunition for a firearm separate from the receptacle containing the firearm;
- Evidence in relation to Mr Cupples's alcohol consumption;
- Evidence in relation to depression suffered by Mr Cupples.
It is not disputed that on 24 April 2013, police attended Mr Cupples's house following a complaint made by Mr Cupples' then partner, Ms Ward. In the narrative set out in Dr Abeya's report, Mr Cupples agreed that he had locked Ms Ward out of the family home after she had persisted in taking his beer away from him and throwing it in the bin. When he had then unlocked the door, Ms Ward was no longer outside their house but had gone to the neighbour's house. When the police later attended the couple's house, they located eleven boxes of ammunition being stored contrary to safe storage requirements.
Mr Cupples agreed that he and Ms Ward had argued that night. Although Mr Cupples agreed that he had been drinking that night, there is some dispute as to how much alcohol he had drunk. Whilst he told Dr Abeya that he had only drunk two to three beers, according to the COPS event record, he told police he had drunk approximately eight beers and was observed by police to be 'well affected by alcohol as he was unsteady on his feet, his breath smelt heavily of intoxicating liquor and there were several empty bottles of beer at the location.'
On the evidence before it, the Tribunal finds that Mr Cupples has previously suffered from depression for which he was prescribed anti-depressants. The Tribunal accepts that this coincided with a stressful time in his life culminating in the breakdown in his relationship with Ms Ward, who is the mother of his children. The Tribunal accepts that he stopped taking anti-depressants over a year ago and has not suffered a return of his depression. The Tribunal accepts Dr Abeya's findings that Mr Cupples's depressive issue was of a brief and mild nature, which is in remission. The Tribunal accepts Dr Abeya's finding that Mr Cupples has no ongoing mental illness issue.
Of some concern to the Tribunal, however, is Mr Cupples' history of anger management coupled with his consumption of alcohol. There is also some reference to drug abuse when Mr Cupples was in his early twenties. As there is no evidence of any drug abuse by Mr Cupples in the intervening decade, the Tribunal has attached little weight to Mr Cupples's history in this regard.
The Tribunal accepts that Dr Monchy identified anger as an issue for Mr Cupples as recently as 2012. Despite the recommendation of Dr Monchy that Mr Cupples see a psychologist to address this, there is no evidence that he has done so. The Tribunal does accept, however, that Mr Cupples's life circumstances have improved over the past year and that he has found himself a new house and is in a new relationship.
On the evidence before it, the Tribunal is satisfied that Mr Cupples was affected by alcohol on 24 April 2013 and that it is probable that he had drunk more than the two to three beers he told Dr Abeya he had consumed. In oral evidence before the Tribunal, Mr Cupples himself conceded this might be correct. Mr Cupples told Dr Abeya that he had now reduced his alcohol intake, however, in light of his probable minimisation of his consumption on 24 April 2013, the Tribunal cannot be satisfied, on the evidence before it, that Mr Cupples has completely addressed his issues with excessive alcohol consumption.
There is no argument that, on 8 August 2013, Mr Cupples was found guilty (without a conviction being recorded) of an offence under section 40(1) of the Firearms Act for failing to keep ammunition for a firearm separate from the receptacle containing the firearm.
The Tribunal accepts Mr Cupples's evidence in relation to the circumstances leading to the offence: namely that he had bought extra ammunition to use on a hunting trip which had been planned for March 2013 and which was cancelled during weather conditions. The Tribunal accepts that, at this time, Mr Cupples did not have a lockbox large enough to store the extra ammunition and so instead stored the ammunition in the safe together with his firearms. The Tribunal accepts the material contained in the reference by Mr Lodge that Mr Cupples had made enquiries of him as to where he could buy an additional lockbox and had planned to buy one in the next weeks.
Nevertheless, the fact remains that Mr Cupples was in breach of storage requirements and this is of concern to the Tribunal. A firearms licence is a privilege and it shows some complacency on Mr Cupples's behalf that he failed to follow the obligations that come with it. This complacency, coupled with Mr Cupples's previous excessive alcohol consumption, has led the Tribunal to find that, at this stage, it can not be satisfied that Mr Cupples has a necessary understanding of the obligations that come with holding a firearms licence and the maturity to follow these obligations.
The Tribunal accepts that Mr Cupples is now in a much better personal situation than he was twelve months ago and that his domestic circumstances have now stabilised. It is, nevertheless, too soon for the Tribunal to be satisfied that it would be in the public interest for Mr Cupples to have a firearms licence. On this basis, the Tribunal affirms the decision of the Commissioner to revoke Mr Cupples's firearms licence.
The Tribunal notes that the internal reviewer's comments that
an alternative decision may be reached at some point in the future if you do not come to the adverse notice of police and you are able to provide a positive report from a psychologist or psychiatrist. It is strongly recommended that the report demonstrates your full disclosure of the issues raised concerning your access to firearms, and that you have adequately addressed anger and alcohol issues.
Mr Tran, for the Commissioner, told the Tribunal that, in any further application for a firearms licence, the Commissioner would be assisted by a positive report for Mr Cupples which explains the steps he had taken to reduce his alcohol consumption and which considers Mr Cupples's full history, including the infringement notice issued against him on 18 January 2013 for offensive behaviour in a public place, and the other documents contained in the s58 material in relation to this application.
Order
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: 04 December 2014
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