Cusumano v Commissioner of Police, NSW Police Service

[2001] NSWADT 50

CITATION:	Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
DIVISION:	General Division
PARTIES:	APPLICANT Vincent Cusumano RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003383
HEARING DATES:	14/03/2001
SUBMISSIONS CLOSED:	03/14/2001
DATE OF DECISION:	03/27/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:
REPRESENTATION:	T Morgan, solicitor C. Capper, solicitor
ORDERS:	1. The Commissioner's decision to revoke Mr Cusumano's firearms licence is affirmed

1 These proceedings relate to a decision made by the Commissioner of Police (the Commissioner) on 27 September 2000 to revoke Mr Cusamano’s firearms licence. The basis for the revocation was a finding by the Local Court on 24 July 2000 that Mr Cusamano was guilty (with no conviction being recorded) of the following 26 offences:
• 10 counts of “not keep firearm safely - not prohibited firearm/pistol”
• 1 count of “Holder of category A or B licence not have approved storage”
• 4 counts of “not keep firearm safely -prohibited firearm”
• 7 counts of “possess unauthorised firearm - not prohibited firearm/pistol” and
• 4 counts of “possess unauthorised firearm - not prohibited firearm”
2 The Commissioner relied on several grounds for revoking Mr Cusumano’s firearms licence. One ground was withdrawn at the hearing, namely the ground which relied on s 24(2)(b)(ii) of the Firearms Act 1996 (the Firearms Act). In summary, the Commissioner submitted that he had made the correct decision in revoking Mr Cusumano’s firearms licence because:
• Mr Cusumano contravened a provision of the Firearms Act or Firearms (General) Regulation 1997 (the Regulations) even though he was not convicted of an offence (s 24(2)(b)(ii);
• Mr Cusumano breached a condition of the licence, namely those conditions provided in s 40 relating to safe storage of firearms (s 24(2)(b)(iii);
• Mr Cusumano is no longer a fit and proper person to hold a licence; (s 24(2)(c); and
• It is not in the public interest for Mr Cusumano to continue to hold a licence (Cl 17 of Regulations).
Issues and Conclusion

3 The issue for the Tribunal is whether the Commissioner made the correct and preferable decision in revoking Mr Cusumano’s licence on any of the above grounds. My decision is that the Commissioner did make the correct decision. The evidence and findings of fact, my understanding of the applicable law and the reasoning process in coming to this conclusion are set out below.

Evidence

4 The documentary evidence in these proceedings consisted of the Commissioner’s file and five references lodged by Mr Cusumano. The references were from: Domenic Salvagio, President, Marconi Clay Target Club (dated 10 March 2001); Craig Knowles MP (dated 12 March 2001); Mark Pryke, Operations Manager Freedom Distribution Centre (dated 13 March 2001); Managing Director, Shepherds Garden Centre Pty Ltd (dated 13 March 2001); and Dr Liz Kernohan MP (dated 13 March 2001).

5 Mr Cusumano gave oral evidence. He said that following a fire which destroyed his home in Leppington, he and his family moved to the suburb of Prestons on 4 March 2000. Mr Cusumano owned several firearms and although there was a gun safe at Prestons belonging to his father and brother, he did not have a key and could not access the safe. He wrapped all the firearms in a blanket and stored them at the top of a wardrobe in his bedroom. Ammunition was stored in a separate bag in the wardrobe.

6 Mr Cusumano says that he intended to store the firearms safely but his priority was to organise his wife and five children after their move. They had no bedding in the house at Prestons.

7 On 17 March 2000 he was notified when he was at work that police and detectives had come to his house with a search warrant. Mr Cusumano said that he has since concluded that police knew about the firearms because one of his children told a neighbour’s child that there were guns in the house. Police took the firearms and asked him to come to the police station the following Monday. Mr Cusumano was charged with the offences set out above at paragraph 2 and pleaded guilty. He was found guilty of all offences but no convictions were recorded.

8 Apart from the storage offences, Mr Cusumano also pleaded guilty to having four prohibited weapons in his possession. He said that he purchased these weapons legally in the 1980s and that he had used them to hunt feral pigs. He said he has not used them since they became prohibited. Although he is aware that there has been an amnesty, he has not handed in the four prohibited firearms because he has ‘heard different stories’ about what he was supposed to do with them. He said he intended to hand them in at the next amnesty.

9 Mr Cusumano admitted that only three of the fourteen guns found in his possession were registered. He said he made phone calls to the Firearms Registry but couldn’t get a straight answer about what he was supposed to do with the unregistered firearms. He said he thought he could keep unregistered firearms as long as he didn’t use them. One firearm which he has had for eight years belonged to his grandfather before he died. Another two belonged to his father. He said they had sentimental value.

10 On cross examination Mr Cusumano said that his children were aware that there were firearms in the house but not of their location. He agreed that two weeks had past since moving into the house at Prestons before the police carried out the search. He agreed that he had not attempted to take the firearms to a police station or gun club for safekeeping while he organised appropriate storage. He said that he locked the bedroom door and windows.

11 Mr Cusumano acknowledged the severity of his offences. He has been a member of the Sydney Marconi Gun Club since 1988 and has been shooting at the club every fortnight or so.

Findings of fact

12 I find that Mr Cusumano has belonged to a gun club since 1988 and has considerable experience and knowledge of firearms. His grandfather, father and brother have all owned and used guns. He is a keen recreational hunter and gun club participant. Mr Cusumano was forced to moved house in March 2000 and the arrangements for his family needed attention. At the new residence, he failed to store his firearms in accordance with the requirements of the Firearms Act and the conditions for storage attached to his licence. In addition, several of his firearms were unregistered and four were prohibited. Mr Cusumano knew or should have known what his obligations were under the Firearms Act in relation to safe storage, registration of firearms and possession of prohibited firearms. Despite this, since at least 1996 when new legislation came into force, he has not registered several firearms and has failed to surrender prohibited firearms. He has also failed to store his firearms safely for a period of 2 weeks.

13 Eventually Mr Cusumano may have stored his firearms safely, but he was in no hurry to do so. He had been in the house for two weeks before the police search. While bedding for his children was a priority, Mr Cusumano should have realised that he would risk losing his licence if he failed to store his guns securely.

14 While he said that various people gave him conflicting information about his obligations, I am satisfied, given his long and close experience with firearms, that he knew of his obligation to surrender prohibited firearms, to safely store firearms at all times and to ensure that all firearms in his possession were registered. He simply chose not to comply with those requirements.

15 Mr Cusumano disregarded several of his obligations under the Firearms Act, but he is otherwise of good character and repute. He has no criminal convictions. He has glowing references from Members of Parliament, employers and former employers and, most significantly, from the President of the gun club where he has been a member since 1988. Mr Salvagio says that Mr Cusumano’s “conduct and responsibility in respect to the use and safety of firearms is beyond reproach. It is my belief that he is a fit and safe person and poses no threat now or in the future.”

Relevant law

16 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. The provisions in bold are relied on by the Commissioner.
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:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(d) for any other reason prescribed by the regulations.
17 In relation to s 24(2)(d), Clause 17 of the Regulation states that:
In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

18 Consequently there are four grounds for revocation relied on by the Commissioner.

19 The first ground is that Mr Cusumano has contravened provisions of the Firearms Act or Regulations even though he was not convicted of an offence (s 24(2)(b)(ii)). The details of the contraventions are as follows:

• not taking all reasonable precautions to ensure the safekeeping of firearms contrary to s 39 of the Firearms Act;
• possessing of a firearm that is not registered contrary to s 36 of the Firearms Act; and
• possessing a prohibited firearm contrary to s 7 of the Firearms Act.
20 The Commissioner also relied on a ground of providing false information under s 70 of the Act, but the police service offered no evidence or explanation for this ground.

21 The second ground is similar to the first, that is breaching a condition of the licence relating to safe storage. Those conditions are set out in s 40 of the Firearms Act. Section 19 provides that:
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act.
22 This ground relates only to storage requirements. There is no condition on Mr Cusumano’s licence in relation to unregistered or prohibited firearms.

23 The question for the Tribunal is whether, given the breaches of the legislation and the breach of the condition relating to safe storage, the Commissioner made the correct and preferable decision in exercising his discretion to revoke Mr Cusumano’s licence. There is no guidance in the legislation in relation to how these discretions should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. Those principles and objects are set out in section 3 in the following terms:
(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 sales 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.
24 This provision makes it clear that gun ownership and use is a privilege which is conditional on the overriding need to ensure public safety. Public safety is promoted by safe storage requirements, registration requirements and a ban on prohibited firearms. The Firearms Act places “strict controls” on the possession and use of firearms. An amnesty period to enable the surrender of prohibited firearms is given and owners are offered compensation when these firearms are surrendered.

25 A contravention of any provision of the Firearms Act or Regulations or a contravention of a condition of the licence may result in the licence being revoked. Mr Cusumano has breached these provisions, not in a trivial or excusable manner, but in a fundamental manner. Twenty six separate offences were found proved covering three different aspects of the legislation: safe storage; registration; and surrender of prohibited firearms. Although Mr Cusumano was under some stress having been forced to move house, he could have arranged safe storage for his firearms by taking them to a police station or a gun club. Given his long experience with firearms he knew they should be registered and that the prohibited firearms should have been surrendered at the first amnesty. Although Mr Cusumano is a well respected member of the community and has demonstrated care handling firearms at the gun club, he has forfeited the privilege of gun ownership by failing to comply with the Act and Regulations and with a condition on his licence.

26 In my view, given the strict controls on the possession and ownership of firearms which the Act and Regulations reflect, the Commissioner made the correct and preferable decision in revoking Mr Cusumano’s licence.

27 Having come to this conclusion, there is no need for me to consider the other grounds on which the Commissioner relied.

Order

The Commissioner’s decision to revoke Mr Cusumano’s firearms licence is affirmed.