Fuggle v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 334

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fuggle v Commissioner of Police, NSW Police Force [2022] NSWCATAD 334

Hearing dates:

11 July 2022

Date of orders:

17 October 2022

Decision date:

17 October 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is set aside.

(2) In its place, the decision is made that the application by Mr James Fuggle for the grant of a licence under the Firearms Act 1996 is granted.

Catchwords:

Administrative Law – firearms licence - refusal of licence - public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

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

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28]

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

James Fuggle (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self Represented)
Bartier Perry (Respondent)

File Number(s):

2022/00090667

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr James Fuggle (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent”) to refuse his application for renewal of a Category AB firearms licence under the Firearms Act 1996 (“the Act”).

2. The refusal was on the basis that the Commissioner believed that it was not in the public interest for the Applicant to hold a firearms licence.

3. The delegate considered an incident in July 2007 (“the 2007 incident”) in which the Applicant demonstrated violent behaviour. He was charged with malicious damage, and this resulted in a good behaviour bond without conviction for a period of six months. The incident also resulted in an enforceable apprehended violence order.

4. The delegate also considered the Applicant’s driving record and noted that from 2006 to 2021 the Applicant had demonstrated a significant disregard for the law. He was subject to sixteen traffic infringements which included driving while his licence was suspended, driving an unregistered vehicle, not wearing a seatbelt and use of a mobile phone device while driving. In April 2015 he exceeded the speed limit by more than 45 km/h. This offence resulted in suspension of his licence. In August 2021 the Applicant was detected by camera exceeding the speed limit by more than 10 km/h in a school zone.

5. The delegate formed the view that this behaviour demonstrates a lack of concern for the safety of others and casts doubt on the Applicant’s ability to safely own and operate a firearm and comply with relevant legislation. Accordingly, the delegate was satisfied that it would not be in the public interest for the Applicant to hold a firearms licence and determined to refuse his firearms licence application.

Applicable legislation

6. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.

7. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to refuse a firearms licence application. This application is made under section 75 of the Act and the ADR Act.

8. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

9. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(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.

10. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance in how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

11. Section 11 of the Act provides for the issuing of licences. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

12. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

1. Determination of administrative review by Tribunal

2. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)    any relevant factual material,

   (b)   any applicable written or unwritten law.

3. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

4. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   13. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

   14. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. Accordingly, there is no burden or onus of proof on either party.

   15. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

   16. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

   17. The Tribunal can determine itself, on the balance of probabilities, the conduct of an applicant and whether it justifies refusal of a licence.

The Public Interest

18. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant 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 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."

19. The “public interest” allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

20. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

21. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

22. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

23. 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

24. The Applicant relies on his own evidence. He attended the hearing, gave evidence and was cross-examined. The Applicant also relies on his written and oral submissions and a number of references which support his application.

25. The Respondent relies on documents filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material provides details relating to the various incidents that I have referred to above. Ms Moses, solicitor for the Respondent, also provided written and oral submissions.

The 2007 incident

26. It is not in dispute that the Applicant was charged with intentionally or recklessly destroy/damage property of his then partner. It was reported that in July 2007 he became enraged during an argument with his ex-partner and that he punched walls and kicked a bed in her home. The Applicant was the subject of an Apprehended Violence Order that arose from the incident. The AVO was in force from September 2007 until September 2008.

27. There is no suggestion that the Applicant breached the conditions of the AVO or that he has engaged in similar conduct since 2007. He stated:

I was trying to leave the premise where the incident occurred on the 8th of July 2007, but the victim was willingly obstructing me from leaving the premise, even though it is well documented that I was upset.

At the time of this incident, my aggression was not directed towards a person. I was cooperative with law enforcement officers at the time of my arrest and admitted to damaging property when questioned.

Since this incident, I have not committed or been involved in any incidents of a similar nature. I have learned from my mistakes and since then have matured.

28. He further stated:

I was eighteen (18) years of age at the time of the incident, which is fourteen years ago. At that time, I did not have the maturity to handle the situation at hand.

This is the only offence I have committed that could be considered violent.

I have not acted in this same manner since the incident in 2007 occurred.

Traffic history

29. There is also no dispute in regard to the Applicant’s traffic history. A report of the Applicant’s traffic record is included in the section 58 material. The Respondent has summarised this history as follows:

The Applicant has been subject to sixteen (16) traffic infringements related to different reasons in the period from 2006 to 2021. Some of those matters have involved court attendances as seen in the criminal history. There are many matters involving speeding.

The traffic matters including the following:

(a)   On 25 August 2021, for exceeding the speed limit by more than 10 km/h in a school zone whilst driving a motor vehicle;

(b)   On 3 November 2017, for not wearing a seat belt;

(c)   On 22 September 2017, for using a mobile phone when not permitted;

(d)   On 4 May 2017, for exceeding speed limit by more than 10 kms but less than 20 kms whilst driving a motor vehicle;

(e)   On 6 April 2015, for exceeding speed limit by more than 45 kms whilst driving a motor vehicle resulting in suspension of his licence from 11 October 2015 to 10 February 2016;

(f)   On 6 April 2015, for not complying with conditions of learner licence (not display L sign) resulting in suspension of his licence from 6 April 2015 to 5 October 2015;

(g)   On 23 February 2012, for not complying with conditions of provisional licence (not display P sign);

(h)   On 23 February 2012, for exceeding speed limit by more than 20 kms no more than 30 kms whilst driving a vehicle;

(i)   On 12 December 2012, for exceeding speed limit by more than 10 kms but not no more than 20 kms whilst driving a motor vehicle;

(j)   Demerit points suspension from 17 November 2009 until 16 February 2010, having his licence suspended for the offences in I, m and n below;

(k)   On 22 October 2010, for not complying with conditions of provisional licence (not display P signs);

(l)   On 25 July 2009, for making an unlawful U turn;

(m)   On 19 November 2008, for not complying with conditions of provisional licence (not displaying P signs);

(n)   On 19 November 2008, for driving on path;

(o)   On 10 November 2007, for being an unlicensed driver;

(p)   On 10 November 2007, for exceeding the speed limit by more than15 kms whilst driving a motor vehicle;

(q)   Fine default suspension of provisional licence;

(r)   On 15 August 2006 by not complying with conditions of provisional licence (not display P signs).

On 3 February 2008 the Applicant was charged with driving whilst licence expired. The fine was confirmed. The Applicant was charged with driving while suspended on 19 November 2008/20 November 2008, not complying with licence conditions (not display P plates) and driving on path 19 November 2008/20 November 2008.

30. The Respondent contends that by this conduct, the Applicant has demonstrated a lack of regard for public safety by not adhering to road rules and placing others in the community, including children, at risk. Further, the Respondent contends that the Applicant has demonstrated an inability to learn and to change his behaviour.

31. In response to that submission, the Applicant stated:

Most of the traffic infringements occurred between 2006 and 2008 when I was seventeen - nineteen years of age.

Instances of loss of licence during this time were a result of fine defaults as I did not have a stable income during this period of my life.

Mistakes of my past should not be punishable for the rest of my life.

32. He also addressed particular incidents and stated:

I refer to my other criminal history brought to the attention of the Tribunal by the NSW Police Commissioner;

a) In February 2008, the Licence expired less than 2 years before the 1^st offence. Disqualification of the licence was quashed on the 16th of June 2008.

b) In November 2008, Drive on the road while licence suspended, not comply with P2 Licence condition, not display P Plates, and drive on the path.

In relation to the offence in February 2008, as stated earlier I did not have a stable income and at times did not have stable accommodation. I do not condone my actions in 2008 but I lacked the maturity to implement and adhere to the payment plans that State Debt Recovery offers.

In relation to the November 2008 offence, I was under the impression by making regular payments using a payment plan with State Debt Recovery that my licence would not be suspended, however, due to financial instability, I found it difficult to consistently make payments. Again, I mention during this period of my life I did not have a stable income and at times did not have stable accommodation. As for driving in the park considering this situation from an adult’s perspective, I cannot understand why I thought this would be ok, but I cannot change my actions in the past. Since this incident, I have not illegally driven off-road at any time.

History of Traffic Infringement Notices:

Thirdly, I would like to refer to my history of Traffic Infringement Notices in the last ten years, in particular, the following incidents:

a) In 2021, exceed the speed limit by no more than 10 km/h whilst driving a motor vehicle in a school zone (camera detected).

i.   As stated in my internal review letter dated 13/12/2021 in relation to my Category AB firearms licence, I did not purposefully commit this offence out of disregard for the law or the safety of the public.

ii.   The time that the Infringement Notice was issued was at 3:57 pm, which is 3 minutes until 4:00 pm (end of school zone speed limit). Usually, I do not finish work until 4:00 pm but on the 25/06/2021 I left work at 3:30 pm as I was required to have a COVID test so that I could continue to work for the remainder of that week as this was during the Blacktown LGA lockdown period due to COVID-19. Prior to this, I had been attending a testing clinic late at night at St. Mary’s. Before driving into the school zone, I checked the clock on my car which showed 4:00 pm. I ensured was driving under the regular speed limit, in the belief that the 40 km school zone speed limit had finished. Once I received the infringement notice, I was going to appeal it until I cross-checked the time displayed in my car with the time displayed on my phone and noticed there was a difference in time of approximately 3 minutes, and I adjusted the clock in my car accordingly to ensure it does not happen again.

iii.   I have accepted I was in the wrong and have paid the fine accordingly.

b) In November 2017, I received a Traffic Infringement Notice for not wearing a seatbelt.

i.   I was wearing a seatbelt, but I was wearing the seatbelt incorrectly. I just had a shoulder reconstruction due to a snowboarding accident, and I was wearing the seatbelt across the front of the body as normal but ensuring the seatbelt did not rest on the top of my left shoulder.

ii.   I did appeal this Traffic Infringement Notice with a supporting letting from my GP, but the appeal was rejected.

c) In September 2017, I received a Traffic Infringement Notice for driving and using a mobile phone while not permitted to do so.

i.    This was the first time I have been fined for this type of offence for the duration I have held a licence and it has not happened again.

d) In April 2015, I received a Traffic Infringement Notice for exceeding the speed limit by more than 45km/h whilst driving motor vehicle, not complying with conditions of learner licence (not display L plates).

i.    There is no excuse or reason for my actions in relation to this offence. It is one I truly regret. After this incident I immediately sold the motorbike, paid the fine and served the period of time without a licence, I am grateful that no one or myself was seriously injured. I have not ridden a motorbike since this incident.

33. The Applicant submitted that if there is any risk to the community associated with granting him a firearms licence, it is at the lowest end of the scale.

Discussion

34. This is a matter that primarily involves consideration of the public interest. I am not aware that there is any suggestion that the Applicant is not a fit and proper person to hold a firearms licence. Nevertheless, I note that he has provided several character references which speak positively about him as an individual. I am satisfied that the Applicant is a fit and proper person to hold a firearms licence.

35. The issue for determination is whether it would be contrary to the public interest to grant the licence. The law is largely settled in regard to applications of this kind. This question arises because of the Applicant’s traffic record and an offence committed in 2007. The traffic record is not in dispute and the Applicant has accepted responsibility for his conduct. He has explained the circumstances in which several of the infringements occurred. This explains but does not excuse the conduct. However, it is apparent that the Applicant has changed his behaviour in recent years.

36. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act. The underlying principles stated in section 3(1) of the Act emphasize that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.

37. The licensing regime is not about punishment. It is about protecting the public. Persons who have access to firearms must act responsibly. The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms.

38. It is not possible to predict with absolute certainty where the risk lies in any particular situation. As has been frequently noted, 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. The Tribunal must make decisions that are consistent with a need to reduce any risks to a minimum.

39. 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. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force.

40. 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. Any past and present conduct that may be relevant in deciding whether the Applicant is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance.

41. The Respondent relies on a number of COPS entries that indicate a history of interactions between the Applicant and police. These are primarily in relation to his traffic infringements.

42. Given the time that has passed since the 2007 incident and the fact that he has not come to the attention of the police for similar conduct, it is my view that limited weight should be given to the Applicant’s conduct on that occasion.

43. There can be no doubt that the Applicant has a long history of traffic infringements. In particular the incident in April 2015, in which he exceeded the speed limit by more than 45 km/h, demonstrated a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety. I accept that this conduct has not been repeated. I also note that there have been a limited number of infringements in recent years.

44. It is significant that his only traffic infringement in the past five years has been in August 2021 when he exceeded the speed limit in a school zone. He has provided a plausible explanation for that infringement, and he has accepted responsibility for his conduct.

45. In my view, the circumstances of this matter can be distinguished from those that I considered in Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144. In that matter I considered that Mr Lee's extensive history of traffic infringements was such that I could not be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme. In the present matter I do not have those same concerns.

46. In my view, the fact that the Applicant has not repeated the conduct for which he came to the attention of the Respondent over several years indicates his preparedness to learn from his experience and adapt his behaviour in an effort to comply with his legal obligations.

47. The references that have been provided in support of the Applicant’s application all suggest that he has in fact moved on from his prior behaviour and is now a responsible citizen. It appears that he has changed his lifestyle. This indicates a level of maturity that can be contrasted with that suggested by his previous conduct.

48. The material before me suggests that the Applicant has a stable family environment and that he has been a model employee for many years. In the circumstances, there are good reasons to be hopeful that he would adopt a responsible attitude to firearms if he were to be given the opportunity of holding a licence.

49. In my view, the risk that the past conduct would be repeated in the future has significantly reduced. I agree with the Applicant that any risk to the community associated with granting him a firearms licence is at the lowest end of the scale.

50. Because of the Applicant’s acceptance of responsibility for his conduct and his changed circumstances that have given stability to his life, I do not share the Commissioner’s concern that the Applicant’s lack of compliance with traffic laws in the past is an indication that he is likely to adopt a similar view towards compliance with firearm legislation.

51. I note that the Respondent raised issues in a confidential session. I am not satisfied that the issues raised are such that they affect the views that I have expressed.

Conclusion and Orders

52. In the circumstances I am not satisfied that there is any real and appreciable risk that the Applicant will not comply with the obligations imposed by the firearms legislation if the licence is granted.

53. I am satisfied that the Applicant is able to meet the standards required of a firearms licence holder and therefore I do not consider that it would be contrary to the public interest to grant the licence.

54. In my view, the correct and preferable decision is that the licence should be granted.

55. Accordingly, the Orders of the Tribunal are as follows:

1. The decision under review is set aside.

2. In its place, the decision is made that the application by Mr James Fuggle for the grant of a licence under the Firearms Act 1996 is granted.

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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: 17 October 2022