Federici v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 183

CITATION:	Federici -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 183
DIVISION:	General Division
PARTIES:	APPLICANT Daniel Federici RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013129
HEARING DATES:	30/07/2001
SUBMISSIONS CLOSED:	07/30/2001
DATE OF DECISION:	11/05/2001
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:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The decision to revoke the applicant's firearms licence is affirmed.

Introduction
1 On 26 March 2001, the Commissioner of Police (the Commissioner) revoked Mr Federici’s Category A and B firearms licence. The licence had been granted on 1 November 1999 for recreational hunting. One of the reasons for revoking the licence was that on 12 February 2001 Mr Federici was convicted of ‘not keeping firearm safely’.

Relevant legislation

2 The Tribunal has jurisdiction to hear this case under s 75 of the Firearms Act 1996 (the Firearms Act ) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

3 The Commissioner relied on three grounds for revoking Mr Federici’s licence. The first ground is that he had been convicted of a prescribed offence. The Commissioner has a discretion to revoke a licence where a person is convicted of an offence which would mean that he would not have been granted a licence had he applied for one. The second ground is that Mr Federici is not a fit and proper person to hold a firearms licence. The third ground is that it is not in the public interest for Mr Federici to have a licence. The provisions of the Firearms Act on which these grounds are based are set out below.

Legislation

4 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 on which the Commissioner relies are highlighted in bold. Section 24(2) provides that:
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 .
5 Mr Federici’s situation falls within s 24(2)(a) because the Commissioner would be required to refuse Mr Federici a firearms licence had he been applying for one. Under s 11(5)(b) a licence must not be issued to a person who:
(b) has, within the period of 10 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.
6 Under Clause 5(a) of the Firearms (General) Regulation 1997 (the Firearms Regulation) the following offence is prescribed:
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).
7 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.

Evidence

8 Mr Federici is 28 years old. He has held a firearms licence since he was 18. On 12 February 2001, Mr Federici was convicted in the Local Court under s 39(1)(a) of the Firearms Act with not taking all reasonable precautions to keep firearms safely and fined $500.00. The circumstances of the offence were that on the morning of 30 November 2000 someone gained entry to Mr Federici’s home. Certain property was taken including a locked steel box containing three rifles and a shotgun. When called to the scene, police noticed that the steel box which had been removed from the premises was not attached to any permanent fixture as required by the firearms legislation.

9 Mr Federici said that four days before the break in he had moved his firearms from Lismore where he had previously lived, to Sydney. He kept his firearms in a specialist rifle box constructed of quarter inch steel with three anti-bolt cutter padlocks and concealed hinges.

10 Shortly after arriving in Sydney Mr Federici contacted his landlord to get permission to bolt the safe to the wall. The landlord had given him permission and he had bought the bolts on the same day as the burglary.

11 Mr Federici said he thought of taking the firearms to a gun club for safe keeping but he could not find a local club listed in the phone book. He said that he did not take the firearms to the police station because on the last occasion, it had taken a long time for them to be returned and no general maintenance was carried out.

12 Mr Federici has had firearms stolen from his home on two previous occasions. On 23 February 1998 someone broke into Mr Federici’s flat and jemmied open the steel cabinet containing firearms. When neighbours said that they had seen a particular vehicle in the area, Mr Federici told police that he suspected a certain person of committing the offence. That person had previously been Mr Federici’s landlord.

13 On 18 October 1996 a “friend” of Mr Federici’s used his keys to access the safe and remove two firearms when Mr Federici was not at home. Mr Federici said he left the keys to the firearm safe in a drawer in his home but never expected that his “friend” would steal the keys.

14 Mr Federici was not charged with failure to store firearms safely in relation to either the 1996 or the 1998 theft of firearms. He said that his firearms were stored in a manner which exceeded the legislative requirements on these occasions.

15 On 11 December 1991, when Mr Federici was 18 years old, he was found guilty of the offence of firing a firearm in a public place. Mr Federici said he was shooting feral cats at a garbage tip with two friends. He had a licence but did not realise that he could not shoot in a public place. He pleaded guilty to the offence and the matter was dismissed under what was then s 556A of the Crimes Act 1900. Mr Federici was ordered to undertake 20 hours of community service.

16 Mr Federici said that when he lived on the north coast he used his gun licence to hunt feral pigs and cats and to shoot targets at gun clubs. If he had a licence now he says he would join a gun club and participate in “Western Action” an activity which he described as “shooting in fancy dress.”

17 The Commissioner tendered documentary evidence as to what had happened to the firearms stolen from Mr Federici in 1998 and 2000. In relation to the 1998 incident, two firearms were recovered from the home of a person who told police that he had bought them from a friend for one gram of amphetamine valued at around $80.00.

18 In relation to the firearms stolen in 2000, police documents record that one of the firearms was used to threaten family members and police in a domestic violence incident. Nearby houses and a school were evacuated.

Respondent’s submissions

19 The respondent relied on the three grounds listed above in paragraph 2 as justifying the revocation of Mr Federici’s licence. In relation to the 1996 incident, Mr Federici should not have left his keys in a place where other people, even supposed friends, could use them. In relation to the 1998 and 2000 incidents firearms were stolen which were subsequently used by people with criminal records.

20 Keeping firearms safe is of the utmost importance to avoid them falling into the hands of criminals where they may be used in a manner which endangers public safety. While Ms Paterson on behalf of the Commissioner, accepted Mr Federici’s evidence about his good character, she maintained that he was nevertheless not a fit and proper person to have a firearms licence because of his failure to adequately secure those firearms. This is the third time that an incident has occurred resulting in the theft of firearms. The Commissioner is not satisfied that a similar incident would not occur in the future.

Applicant’s submissions

21 One of the applicant’s submissions was that no matter how careful he is in securing his firearms, people can steal them if they are determined to do so. He said that when firearms were stolen in 1996 and 1998 they were stored in circumstances which exceeded the legislative storage requirements. He also said that there is a strong incentive to keep his firearms safe because it costs him a great deal of money if they are stolen.

22 Mr Federici says that he has since moved premises which have a back to base monitored alarm system. He said he would install a rifle safe before requesting the return of his firearms.

Reasons and decision

23 The purpose and scope of the legislation is set out in s 3 of the Firearms Act in the following terms:
(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 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 Mr Federici was convicted under s 39(a) of the Firearms Act. That section states that:
(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.
25 If Mr Federici had applied for a licence after his conviction in 2001, it would have been refused on mandatory grounds. Mr Federici is aware that his conviction means that regardless of the Tribunal’s decision in relation to the revocation, he will not be issued with a new licence until 10 years from the date of his conviction, that is 12 February 2011. His current licence is a five year licence and expires on 4 November 2004.

26 The fact that revocation of a licence is not mandatory when a person is convicted of a prescribed offence, means that the Tribunal must take into account the scope and purpose of the legislation and all relevant considerations in determining whether revocation was the “correct and preferable” decision: s 63 ADT Act.

27 Given the nature and circumstances of the offence and his age at the time, Mr Federici’s previous conviction in 1991 is not serious enough to be taken into account in relation to the decision under review.

28 The two matters which are of most concern are the fact that in relation to the 1996 break in, Mr Federici left the keys to his gun safe in a drawer where anyone in the house could access them. He did not take all reasonable precautions to ensure that his firearms were not stolen.

29 The second matter is that when Mr Federici moved from Lismore to Sydney he failed to properly secure his firearms box or arrange for the firearms to be stored elsewhere. I am satisfied that Mr Federici was intending to fix the box to the wall within the next day or so. Mr Federici offered two reasons for not arranging to have his firearms stored elsewhere. These reasons were that he had experienced delays in having firearms returned from the police previously and not knowing the location of a local gun club. These explanations do not excuse Mr Federici from taking all reasonable precautions to ensure that his firearms are not stolen or that they do not fall into the wrong hands. In addition, given his previous experiences with break ins, he should have realised the importance of complying strictly with storage requirements.

30 Mr Federici complied with legislative storage requirements on the two previous occasions when firearms were stolen from his property in 1996 and 1998. Apart from the fact that he left his keys in a drawer, he cannot be held responsible for the use to which the firearms were put after being stolen from his property on those occasions. However, he must be held partially responsible for the misuse of his firearms in 2000. He did not comply with legislative storage requirements on that occasion and one of the firearms was used to threaten family members and police.

31 On the basis of all these considerations, I am satisfied that the Commissioner made the correct and preferable decision to revoke Mr Federici’s licence on the first ground.

32 Having come to this conclusion, there is no need to consider the other grounds of revocation.

Order

33 The decision to revoke the applicant’s firearms licence is affirmed.