Fyt v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 108

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FYT v Commissioner of Police, NSW Police Force [2024] NSWCATAD 108

Hearing dates:

4 September 2023

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

(1) The decision of the Commissioner of Police to refuse FYT’s application for a Category AB firearms licence is set aside.

(2) A Category AB firearms licence is to be issued to FYT.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – Application for a Category AB firearms licence – criminal offending - traffic offences – drug use and rehabilitation - mental health – fit and proper person – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103

Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127

Kemball v Commissioner of Police, NSW Police Force [2023] NSWCATAD 104

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

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

McDonald v Guardianship and Administration Board [1993] 1 VR 521

O’Brien v Commissioner of Police [2022] NSWCATAD 259

Tannous v Commissioner of Police [2011] NSWADT 116

Webb v Commissioner of Police. New South Wales Police Force [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FYT (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00068602

Publication restriction:

(1) Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the Applicant is prohibited. It is noted that a reference to the disclosure of the name of the Applicant includes any information, picture or other material that identifies or is likely to lead to the identification of the Applicant: refer to section 64(4) of the Civil and Administrative Tribunal Act 2013.

(2) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material as amended and Confidential Statement or matters contained in the Confidential Material as amended or Confidential Statement is prohibited.

(3) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material as amended and Confidential Statement or matters contained in the Confidential Material as amended or Confidential Statement is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal.

(4) Pursuant to sections 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication or reporting of the Confidential Hearing, including any evidence given in the Confidential Hearing, is prohibited.

(5) Publication of the material in those paragraphs marked ‘[NOT FOR PUBLICATION]’ is prohibited.

REASONS FOR DECISION

1. The Commissioner of Police refused FYT’s application for a Category AB firearms licence. These proceedings are about whether that decision was the correct and preferable decision.

Background and procedural history

2. FYT applied for a Category AB firearms licence on 27 September 2021.

3. On 8 October 2021 the Commissioner of Police (“Commissioner”) asked FYT to obtain a mental health risk assessment report from a psychiatrist or psychologist in order to assess the firearms licence application. The Commissioner requested FYT obtain the report because of disclosures FYT made in police custody in 2007 and 2008 about treatment he was receiving for mental illness. FYT duly obtained the report of a consultant psychiatrist and provided it to the Firearms Registry.

4. The Commissioner considered the licence application on 18 January 2023 and decided to refuse it on the basis that the Commissioner considered that the issue of the licence would be contrary to the public interest. The adjudicator wrote to FYT giving reasons for decision. The adjudicator found the psychiatrist’s report contained a number of positive factors, but that these positive factors were outweighed by the fact that:

“…you continue to seek support for prior heroin addiction and if you were to relapse it would be dependent on your wife noticing the signs.”

5. I note that the original decision to refuse the firearm licence refers a Category A firearm licence application. However, it is the case that the licence application made by FYT was for a Category AB licence.

6. Following the internal review decision, FYT lodged an application for review with this Tribunal. The application was filed on 23 February 2023, eight days out of time. I note that the Tribunal made an order, by consent, on 4 April 2023 to extend the time for the lodgement of the application for review.

7. On 21 June 2023 the Tribunal made an order under section 59 of the Administrative Decisions Review Act 1997 that the Commissioner was not required to lodge copies of certain Confidential Material as amended at the hearing with the Tribunal as part of the section 58 documents. The Tribunal also made or continued a number of orders including orders that:

1. Prohibited the publication of the Confidential Material as amended and Confidential Statement or matters contained in the Confidential Material as amended or Confidential Statement under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. Restricted disclosure of the Confidential Material as amended and Confidential Statement or matters contained in the Confidential Material as amended and Confidential Statement to the respondent, the respondent’s legal representatives and the Tribunal under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

8. The practical effect of these orders is that only the Respondent, the respondent’s legal representatives and the Tribunal have access to the Confidential Material as amended and the Confidential Statement.

9. The matter came before me on 4 September 2023. I conducted part of the hearing in private under section 49(2) of the Civil and Administrative Tribunal Act 2013. This is further discussed under the subheading ‘Confidential Hearing’ below. I made an order which prohibited the publication or reporting of the Confidential Hearing, including any evidence given in the Confidential Hearing under section 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

10. I also made an order pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the disclosure of the name of the Applicant is prohibited. A reference to the disclosure of the name of the Applicant includes any information, picture or other material that identifies or is likely to lead to the identification of the Applicant: section 64(4) of the Civil and Administrative Tribunal Act 2013. FYT sought a pseudonym on the basis that his convictions would now be spent convictions. Ms Chenhall, for the Respondent, did not oppose the making of the non-disclosure order. I decided to make the order because of the mental health concerns raised in the evidence, in particular, evidence about a possible self-harm attempt in custody. I consider that such evidence was of a sensitive nature and that it would be desirable to make the order on that basis.

Relevant legislation

11. The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW.

12. The underlying principles set out in section 3(1) the Firearms Act 1996 include:

…(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,…

13. The objects of the Firearms Act 1996 in section 3(2) include

…(b)  to establish an integrated licensing and registration scheme for all firearms,

(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d)  to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)  to ensure that firearms are stored and conveyed in a safe and secure manner…

14. A licence must not be issued unless the Commissioner is satisfied that the applicant is “a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”: section 11(3)(a) of the Firearms Act 1996.

15. Section 11(4) of the Firearms Act 1996 states that a licence must not be issued if the Commissioner has reasonable cause to believe the applicant may not personally exercise continuous and responsible control over firearms because of:

(a)  the applicant’s way of living or domestic circumstances, or

(b)  any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c)  the applicant’s intemperate habits or being of unsound mind.

16. A licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is “a risk to public safety” and issuing a firearms licence would be “contrary to the public interest”: section 11(5A) of the Firearms Act 1996.

17. The Commissioner may refuse to issue a licence if the Commissioner considers that to do so would be “contrary to the public interest”: section 11(7) of the Firearms Act 1996.

Administrative review jurisdiction

18. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms licence is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

19. When determining an application for an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.

20. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

21. The Tribunal is to approach the issue of whether the firearms licence should be granted to FYT afresh, without any presumption as to the correctness of the decision under review: for example, see McDonald v Guardianship and Administration Board [1993] 1 VR 521 at [530].

Open hearing

Criminal offending

22. It is common ground that FYT engaged in criminal offending in the period July 2007 to May 2008.

23. His criminal history includes the following (by date charged, nature of the charge and sentence imposed):

1. 19 July 2007

1. shoplifting (x 2): $150 fine (x 2)

2. possess prohibited drug – $100 fine

2. 21 September 2007

1. possess prohibited drug – s10 dismissal

2. self administer/attempt self administer prohibited drug – section 10 dismissal

3. deal with property suspected proceeds of crime – section 9 bond for two years to be supervised by NSW Probation Service

4. goods in personal custody suspected of being stolen (not m/v) – suspended sentence of 6 months and release on a bond to be supervised by NSW Probation Service

5. possess unauthorised firearm – 6 month suspended sentence and release on a bond to be supervised by NSW Probation Service

3. 27 September 2007

1. destroy or damage property – section 9 bond for 12 months supervised by NSW Probation Service

4. 22 October 2007

1. larceny – 6 months suspended sentence and release on a bond to be supervised by NSW Probation Service and pay $590 compensation

5. 6 May 2008

1. break and enter house etc steal – section 9 bond for 18 months supervised by NSW Probation Service

2. possess prohibited drug - $200 fine

3. possess/attempt to, prescribed restricted substance - $200 fine

6. 8 May 2008

1. breach of bail – bail redetermined

24. The supervision by NSW Probation Service (in respect of the 21 September 2007 and 22 October 2007 charges) included that FYT “obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation”. The court orders made on 6 April 2009 in respect of the 6 May 2008 charges included “obey all reasonable directions of probation and parole particularly in relation to drug rehabilitation, completion of [name of rehabilitation service] outreach programme, relapse prevention”.

19 July 2007 charges

25. NSW Police Force Computerised Operational Policing System (‘COPS’) record that on 17 July 2007 FYT was involved in shoplifting a $9.95 fishing rod holder from Big W and two $25 battery charger packs from Woolworths. He was later picked up by Police and subjected to a search at the police station. Police found 0.8g of cannabis in his pocket as well as an empty bag which Police believed is designed to carry speed. FYT admitted to Police smoking cannabis regularly. Police also recorded in COPS records that FYT told Police he is a “heavy speed user” and that he uses it daily.

26. In his written statement, FYT said he had nothing to add about these offences and that he regrets the incident.

Interactions with Police in July and August 2007

27. COPS records show that Police had interactions with FYT in July and August 2007 when FYT was with others in circumstances where police suspected criminal activity within the group. This included an interaction on 9 August 2007 when COPS records state Police searched a vehicle and found amongst other things “drug deal bags”, needles, a bong, housebreaking implements and 4g of cannabis on a nearby path.

28. FYT approached the vehicle some time after Police had arrived and he told Police he and two others left the group to go for a walk. Police could not establish a link between the cannabis and any person and so no charges appear to have been laid.

29. In his written statement FYT denies owning the vehicle or any of the items in the vehicle.

30. Police interacted with FYT on 16 August 2007 when FYT was observed to be “well intoxicated and his clothes smelt of cannabis”. Police searched FYT but nothing was found. Police record FYT as making “some derogatory comments”.

31. FYT said he did not know what those derogatory comments were, but told the Tribunal that he did not doubt or contest the fact those comments were made by him.

32. Police stopped the same vehicle on 8 September 2007. FYT was driving and two of the people from the 9 August 2007 incident were in the car.

27 September 2007 charge

33. On 10 September 2007 FYT was involved in an incident (‘car smashing incident’) where he and a man who was with FYT on 8 September 2007 are recorded in COPS records as smashing a person’s car (the driver), including the right headlight and windscreen. The man with FYT is alleged to have used a piece of timber to smash the car while the driver and passenger were in it and when the passenger attempted to exit the car, the other man with FYT is alleged to have hit the passenger of the car with the timber.

34. FYT’s alleged role in the incident was that he stood at the rear of the vehicle and smashed the car’s taillights. He was charged with “destroy or damage property <=$2,000”.

35. At hearing FYT admitted he was present at the incident and that he smashed the rear taillight of the car. He corrected the information in the COPS record of the incident, stating that the victim was in a separate vehicle that pulled up later not in the car as it was being smashed. In his written evidence FYT said that the incident resulted in an apprehended violence order (AVO).

36. Police record in the relevant Fact Sheet that FYT was alleged to have involvement in dealing with the proceeds of crime, that is, a stolen boat worth $2,000 some time after 1 June 2007. Police allege FYT was involved in the transportation of the boat and that FYT attempted to sell the fuel tank for the outboard motor in mid-September 2007. In a later interview with Police FYT admitted that the boat had been stolen and then sold by the man who was later the victim of the 10 September 2007 incident.

37. COPS records allege that between 10 and 12 September 2007 FYT was involved in an incident at the home of the male passenger from car smashing incident. Police formed the view that FYT and the other man involved in the smashing up of the car had ransacked the passenger’s home including ripping the fly screen door from its lock, and destroying the television, fridge and breaking some furniture. Police formed the view that FYT was involved as he had lived with the male passenger for a short period at that address some two months ago and neglected to return the house keys.

22 October 2007 charge

38. FYT is alleged by Police to have stolen copper pipe on 20 September 2007 selling stolen copper pipe that was used to refill water troughs. The pipe had a trough valve attached. In a subsequent police interview FYT admitted to stealing the copper pipe and selling it.

39. At hearing FYT fully admitted his actions.

21 September 2007 charges

40. On 21 September 2007 Police were searching a property at which some of the people involved in the 9 August 2007 incident lived. FYT was discovered by Police in an external laundry with fresh black paint on his hands and arms. Police found a pump action shotgun “partly secreted behind a washing machine” and it had still wet black paint on it. He was searched and Police found 0.6g of cannabis. Police later observed FYT to be drug affected and Police record in the COPS record that FYT declined a police interview but made an admission at the police station that he had recently used amphetamine and that he was an amphetamine user.

41. A search of the house revealed a further amount of cannabis, equipment for growing hydroponic cannabis, used syringes, and a number of firearms concealed in an upright wall cabinet and one under a mattress. Police also seized a number of items that they believed to be stolen, such as “a cut off section of copper stop valve from a stock watering trough”. The copper stop valve was alleged to have been stolen.

42. A co-accused told Police in a police interview on 27 September 2007 that FYT and one of the suspected residents of the house was seen with all the “firearms, ammunition and the bayonet” in the house about two weeks beforehand.

43. The suspected resident later admitted to Police that he had handled the two cans of black spray paint which Police believed were used to paint the shotgun found in the laundry.

44. Police also allege FYT admitted being a user of amphetamines or speed when stopped by Police on 29 September 2007.

45. At hearing FYT agreed he was in the laundry with the firearm. He said that someone had painted the firearm and it was hanging up in the room. He admitted to trying to hide from Police. He saw the firearm and handled it because he thought if Police came in and the firearm remained hanging there he would “get into trouble”. He put it behind the washing machine. FYT denied painting the firearm. He admitted knowing there were firearms at the property.

46. At court FYT did not contest that the fact the firearm was in his possession and entered a plea of guilty. In his written statement FYT also states that he moved the firearm when he entered the room because he “was scared that if Police did see [him] in there it would put [his] safety at risk”.

40. FYT agreed with Ms Chenhall that the possess unauthorised firearm offence was a serious offence. He also agreed with Ms Chenhall that as a result of the orders made in respect of the 21 September 2007 and 22 October 2007 charges if he committed further offences or did not comply with rehabilitation he would have gone to jail.

25 October 2007 incident

48. According to COPS records Police attended an address on 25 October 2007 and observed FYT stripping copper wire of its plastic to sell as scrap metal. There were 13 plastic containers of metal chain which the Police believed might be stolen. Another man present said the chain was given to him by another individual.

6 May 2008 charges

49. COPS records show that on 6 May 2008 FYT and another man were followed by Police into a lane and then through a gate into a rear yard of a property. FYT and the man were discovered by Police with drug use equipment. They made admissions that the man had purchased heroin for both of them and that the substance that was found with them was heroin. The heroin was contained in two green balloons. A further green balloon was found on the other man by Police as well as a small plastic bag containing “white powder”. FYT also made admissions that four tablets of Demazepan Police found on him were provided to him by the man. It is clear from the charge laid that the medication was a prescribed restricted substance.

50. In a subsequent police interview, FYT made admissions that he intended to use the heroin. FYT told Police that he had purchased the laptop Police found in his possession for $50 and that he believed it was stolen. FYT initially insisted that the digital camera also found was his, but later admitted it was sold to him with the laptop.

51. These items were in fact reported to Police as stolen in a break and enter and passports and other forms of ID belonging to the alleged victims were found in the possession of the other man. Police formed the view that FYT and the man had carried out the break and enter offence, because it occurred four to six hours beforehand and a short distance away from where they were approached by Police. FYT was charged with the 6 May 2008 charges listed above.

52. At hearing FYT said that it was a long time ago and he could not recall who said what or whether some of the stolen property was sold to purchase drugs. He told the Tribunal that he did not know everything that occurred, for example that the man had the passports, but he did not resile from admitting that he was definitely involved in the offending. He said that he had not taken illicit drugs since the day of his arrest.

Rehabilitation

53. FYT said that the court gave him an opportunity to seek treatment of his drug addiction. Towards the end of 2007 and start of 2008 he attended a three month residential drug rehabilitation program.

54. FYT said that after a “slight stumble” he took the opportunity for rehabilitation with both hands. He agreed with Ms Chenhall that the “stumble” into further offending in May 2008 was not trivial or slight.

55. Ms Chenhall put to FYT that he had done the 90 day MERIT rehabilitation program and yet still committed further offences and was using drugs. FYT agreed and admitted that this was a poor decision.

56. Ms Chenhall pointed out that FYT had been given bail for the 6 May 2008 charges and yet breached that bail on 7 May 2008 as he failed to report to Police, later saying he had “slept all day”, according to COPS records.

57. FYT said that on 7 May 2008 he was in bed all day and sick from heroin withdrawal. He said he reported to Police the next day when he was physically well enough. He said he spent the first day in bed and the second in a holding cell prior to being re-released on bail that afternoon. By then the worst of the withdrawal was over and FYT decided he did not “want to do this anymore” and started trying to get back into the rehabilitation service.

58. FYT said he returned to rehabilitation for eight months.

59. The court made an order on 6 April 2009 that FYT obey all reasonable directions of probation and parole particularly in relation to drug rehabilitation and completion of an outreach program and relapse prevention. FYT said that when this order was made he was already in the rehabilitation program but the order motivated him to stay on ambivalent days.

60. FYT said he went to church, met his wife and had children. He worked for the church and the rehab service for 12 years. FYT said that he took up paid work at the rehabilitation service as a casual support worker on weekends and during the week he worked as a youth worker at church.

61. Part of what he did as a youth worker was attend as a support person for young people in police interviews. He estimated that he did this ten to twenty times.

62. FYT also explained that the Drug Court of NSW sent participants to the rehabilitation service. Part of his responsibilities was to pick participants up from the courthouse and to supervise them. He would make reports to assist the court. He eventually worked as the Acting Manager of the rehabilitation service when it transitioned from a 15 bed to a 40 bed government facility.

63. FYT said at the rehabilitation service he supported people who had been in a life that he had lived. This work has shown him what his life was like from the outside and he could see how negative his lifestyle was for the public and also for his own wellbeing.

64. FYT said he attends Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) and stays in touch with people in recovery who do not drink and are not using drugs. He explained that in these settings people support each other and understand each other, and said there is no-one “offering [him] a beer”. He said that he had not had an alcoholic drink or used illicit drugs since 6 May 2008.

65. FYT explained that relapse into drug use is “always a possibility” and that he would “never say that it is not”.

66. In a written statement FYT said: “I am not proud of this time in my life and regret that it is a part of my personal history. Whilst I can not [sic] change the facts I have worked hard in the past 15 years to improve the lives of other addicts and young offenders and I am proud of the work that I have done to rehabilitation myself and others”.

Traffic record

67. FYT has a lengthy traffic record with offences in 2009, 2010, 2011, 2012, 2014, 2015, 2019, 2020, 2021 and 2023. There are at least 15 driving offences over that period, about nine of which were for speeding either less than 10 km/h or more than 10 km/h but less than 20 km/h over the speed limit. There was one speeding offence for over 20 km/h over the limit, two infringements for not wearing a seatbelt, one for using a mobile phone and two for disobeying traffic signs.

68. His traffic record includes what FYT acknowledges to be “numerous fine default suspensions” which he explains in his statement as due to “an administrative and financial error”. Going through the traffic record there appear to have been seven such suspensions. FYT says he has improved his abilities to manage his finances. He said he successfully completed two periods of driving good behaviour to avoid suspension of his driver’s licence. He had not been given mandatory disqualifications.

69. FYT agreed that he had committed a lot of traffic offences from 2009 to 2023. I identified four demerit points warning letters sent to FYT from the traffic record (June 2012, April 2015, February 2021 and May 2023). He has recently been sent a demerit point warning letter. He had been caught speeding more than 10kms over the speed limit while his application for administrative review was on foot.

Mental health

70. FYT made certain disclosures as part of the custody management process when he was in police custody in 2007 and 2008. FYT cannot recall making these statements.

71. Police made the following notes in the Custody Management Record in response to the questions “Are you taking any tablets, drugs, insulin or medication?” and “Are you receiving treatment?” and similar questions:

• 21 September 2007: “zyprexa for scitzofenia [sic]” “taking speed” and carrying a “small amound [sic] of canibus [sic]”.

• 27 September 2007: “Stated “Ziolox [sic] and Serapexa [sic]” used for mental health issues.” “Mental health issues – depression and other.”

• 22 October 2007: “Taking Zyprexer [sic] and zoloft for depression.” “Treatment for depression and mental illness.”

• 6 May 2008: “On heroin. Last administered 10:30am.”

72. I understand the medications referred to in the Custody Management Records to be Zyprexa and Zoloft and the mental health conditions referred to are depression and schizophrenia. I also take official notice that speed is methamphetamine and understand cannabis to be the other drug referred to.

73. The Custody Management Record for 21 September 2007 is labelled “possible risk of self harm” and it makes reference to was Police viewed as a possible attempt at self-harm while in custody. FYT is identified as being “agitated, from speed” and that he “has tied shirt around neck” and “has tawn [sic] up shirt and made half attempt to tie is around his neck”.

74. When asked at the hearing about this incident, FYT stated that he did not try to end his life. He agreed he removed his shirt but left it on his shoulders and denies tying it around his neck. He described being left to himself in a lit up plastic box in custody in the police station and this was the only interaction he had in hours.

75. FYT told the Tribunal he ceased taking medications for mental health in 2008 under his doctor’s supervision. He explained that at no stage did he need to see a psychiatrist or go to hospital for mental health treatment. He said he did see a psychologist some years ago. He was prescribed medication by a doctor and had disclosed that to Police. He said he was surprised that his firearms licence application was refused initially on mental health grounds.

Psychiatrist report

76. FYT lives in a regional area of NSW. He said he had some difficulty getting a psychiatric report after the Firearms Registry a psychologist of psychiatrist mental health risk assessment report. After obtaining a referral from his GP it took three attempts at booking into various psychiatrists to secure an appointment and report.

77. Dr Rattehalli, a consultant psychiatrist, who wrote the report, dated 24 February 2022. FYT agreed he did not provide a copy of his criminal history to Dr Rattehalli. FYT said this was because he did not have access to his criminal history at that point in time, having only received it in the section 58 bundle filed in these proceedings. FYT did provide the letter from the Firearms Registry which mentions his being in police custody on certain dates for firearms offences, malicious damage, stealing and drugs. FYT said he was “quite open and honest” with Dr Rattehalli, including about his past.

78. Dr Rattehalli’s states that he took a “detailed history” from FYT. He also spoke with FYT’s wife separately in order to obtain collateral information. Dr Rattehalli also performed a complete mental state examination during the assessment.

79. The report sets out that FYT said he was diagnosed with schizophrenia in 2007, but Dr Rattehalli then expresses the view that in fact this episode “appears” to have been drug induced psychosis. Dr Rattehalli records that FYT was treated with an antipsychotic medication, olanzapine, and an antidepressant, sertraline.

80. Dr Rattehalli states that it does not “appear” that FYT has had any psychotic symptoms since 2008 and has not been on any mental health medications since that date. He states that FYT has no impairment or suicidal ideations.

81. Dr Rattehalli gives the opinion that there does not appear to be any condition or impairment that may impact FYT’s ability to exercise continuous or responsible control over firearms or which would pose a safety risk to the public if FYT were to possess a firearm. He assesses the chances of relapse of any mental health condition as minimal.

The reference relied on by FYT

82. FYT relied on a one page reference from the Manager of the regional office of Community Corrections, NSW Department of Communities and Justice. The Manager attests to the fact that FYT was supervised clients on community service orders over the 2021-2022 period. FYT was responsible for allocating tasks and supervising workers on those orders. He was required to keep records and notify Community Corrections about non-compliance or misbehaviour at the work site.

Submissions made by the parties in the open session

FYT

83. FYT said he had spent the last fifteen years improving and bettering himself and he was a different person to the one he was in 2007. He stated that his criminal history spanned a 10 month period with no further criminal offending in the fifteen years since. He accepted that he engaged in some serious offending but that he has had no involvement with the police for 15 years.

84. In his written statement, FYT stated he does not “wish to try and justify or excuse” his poor driving record but adds that many of the offences occurred in a period when he was doing lots of driving for work in vehicles that were not his.

The Commissioner

85. Ms Chenhall argued that FYT was not a fit and proper person who can be trusted to have possession of firearms without danger to public safety. She also argued that it would be contrary to the public interest to issue FYT a firearms licence.

86. Ms Chenhall drew particular attention to FYT’s conviction for possession of an unauthorised firearm which she submitted was “an extremely serious offence”. She said that no other person had paint on their hands, it was only FYT when he was found in the laundry with the firearm. She submitted he had been working on the firearm not merely moving it and that FYT knew there were firearms at the property and yet had done nothing to report it.

87. In written submissions, Ms Chenhall described the risk of relapse into drug use as a “real and constant risk” that would have “potentially severe consequences” should FYT be in possession of a firearm.

88. Ms Chenhall submitted that FYT’s poor traffic record also showed a disregard for public safety. FYT had even been caught breaching traffic laws during the time that the administrative review application was on foot before the Tribunal. She said that FYT has difficulty complying with traffic laws and this indicates that he would also have difficulty complying with firearms laws.

89. Ms Chenhall submitted that FYT’s criminal history, mental health history, previous drug use and traffic offending would be matters that would lead the Tribunal to affirm the decision. Ms Chenhall submitted that there is a serious risk if FYT was to be issued with a licence and that the mere passage of time does not reduce that risk.

90. Ms Chenhall submitted little to no weight could be placed on the psychiatric report. She said it contained insufficient details and reasoning to support the opinion of the psychiatrist that there is no condition or impairment that may impact on FYT’s ability to exercise continuous and responsible control over firearms or that would pose a safety risk to the public if he were to possess a firearm.

Confidential hearing

91. The Commissioner lodged various material, referred to as the Confidential Material as amended and Confidential Statement in the various orders made by the Tribunal: refer paragraph [12].

92. I conducted part of the hearing on 4 September 2023 as a hearing in private (the “Confidential Hearing”) under section 49(2) of the Civil and Administrative Tribunal Act 2013 in order to deal with the Confidential Material as amended and Confidential Statement. This part of the hearing was conducted in the absence of FYT and the public.

93. Given the orders made about restricted disclosure and non-publication of the Confidential Material and Confidential Submissions I was satisfied that it was desirable to conduct part of the hearing in private given the confidential nature of the evidence. The purpose of the Confidential Hearing was to hear the Commissioner’s legal representative on the nature of the Confidential Material and its relevance and probative value to the issues before the Tribunal.

94. [NOT FOR PUBLICATION]

Consideration

Findings of fact

Criminal offending

95. I find that FYT engaged in criminal offending over the period July 2007 to May 2008. I make the following findings:

1. On 17 July 2007 FYT was involved in shoplifting and he also was in possession of 0.8g of cannabis.

2. On 10 September 2007 FYT was involved in damaging a man’s car by deliberately smashing the taillight/s.

3. Some time after 1 June 2007 FYT was involved in the transportation of a stolen boat. In mid- September 2007 FYT attempted to sell the fuel tank for the outboard motor.

4. On 20 September 2007 FYT stole some copper pipe and then sold it.

5. On 21 September 2007 FYT was found in a laundry with a pump action shotgun. FYT placed the gun behind a washing machine in order to conceal it from Police. He was also in possession of 0.6g of cannabis.

6. On 6 May 2008 FYT was found in possession of an amount of heroin and four tablets of Demazepan as well as a stolen laptop and digital camera. I could not make a factual finding about the exact amount of heroin as there did not appear to be evidence about that.

7. On 7 May 2008 FYT breached bail as he failed to report to Police.

96. I make no finding about the 10 to 12 September 2007 alleged ransacking of the home of the victim of the smashing of the car incident. I also make no finding about the 25 October 2007 observations made by Police about FYT stripping copper wire of its plastic to sell as scrap metal and the 13 plastic containers of what Police suspected might be stolen metal chain. I make no factual finding about these matters and consider the COPS records in the section 58 documents about these incidents to be of low probative value.

97. I find that at times during the period July 2007 to May 2008 FYT was associating with others who were involved in criminal activity, including illicit drug use and stealing. However, I reject the Respondent’s argument in written submissions that FYT’s prior domestic circumstances and relationships with individuals who are known drug users and criminals “remains a cause for concern”. I reject that contention as there is simply no evidence to support it.

Firearms offence

98. I accept the evidence of FYT that on 21 September 2007 he moved the shotgun in the laundry when he was hiding from Police. I am not satisfied that he intended to paint the firearm or make changes to it in any way.

99. I accept what I consider credible and forthcoming evidence from FYT that the reason he moved and concealed the firearm behind the washing machine was because he was concerned about it being found with him in a room in which he was hiding, and in particular because he was concerned that if Police found him in the room with the firearm he would “get into trouble” and he “was scared that if Police did see [him] in there it would put [his] safety at risk”.

100. I reject the untested hearsay evidence of a co-accused who alleged to Police on 27 September 2007 in connection with the 21 September 2007 incident that he and another person was seen with all the “firearms, ammunition and the bayonet” in the house about two weeks beforehand. I find this evidence lacking in probative value and reject it.

Drug use and rehabilitation

101. I find that over the period July 2007 to May 2008 FYT used illicit drugs regularly. During this period he used cannabis, amphetamine (speed) and heroin. I am satisfied on the evidence that FYT had a drug addiction, particularly to amphetamines.

102. I find that FYT attended residential rehabilitation for three months in late 2007 to early 2008 and for eight months shortly following that.

103. I am satisfied on the evidence before me that FYT has been successfully rehabilitated and has not used drugs since May 2008. I am also satisfied that FYT’s rehabilitation has been successfully maintained since then.

101. I accept that FYT’s continued attendance at Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) is supportive towards the maintenance of his rehabilitation and a lifestyle away from drugs and alcohol abuse. I reject the assessment of the original decision-maker that continuing to seek support weighs against FYT, if this is a reference to attendance at NA and AA. Attendance at these groups is not a factor that would weigh against the grant of a licence, but rather support it.

102. I find that FYT worked in a rehabilitation service for approximately 12 years. His role ultimately included supervision of participants on community service orders and those referred to the rehab service by the Drug Court of NSW. He was also the Acting Manager of that service for a time.

Traffic record

106. I consider FYT to have a poor traffic record. There are numerous traffic offences, some 15 over the period 2009 to 2023.

107. However, I consider FYT’s traffic offending to be low-level offending. The majority of the offences are speeding offences involving speeding less than 10km or 20km per hour over the speed limit. There was one occasion he was caught driving over 20 km/h over the speed limit. FYT was also caught on two occasions not wearing a seatbelt, once using a mobile phone and two times for disobeying traffic signs. FYT incurred a speeding fine during the period the administrative review application was on foot.

108. FYT was able to retain his licence and also complete two one year good behaviour periods. There were some breaks in the offending for about two and four years following the issue of warning letters, but it is telling that FYT continued to incur fines after the warning letter in February 2021 and again while this administrative review application was on foot.

109. I reject FYT’s suggestion in his written statement that the fact that many of the driving offences occurred when he was driving for work, which required a lot of driving in vehicles that were not his own, as somehow providing an explanation for the driving offences.

110. The Commissioner submits that the facts of this matter are similar to those in O’Brien v Commissioner of Police [2022] NSWCATAD 259. I disagree. The driving offences in O’Brien were much more numerous and more serious in nature (at [6]-[8]), including:

• A six month disqualification for mid-range PCA.

• A one month disqualification for low range PCA and speeding more than 20km over the limit. Mr O’Brien was also directed to participate in the alcohol interlock program.

• Twelve month disqualification for the offence of “drive recklessly/furiously or speed/manner dangerous”.

111. Rather, I consider FYT’s traffic offending to be analogous to that of the applicant in the matter of Kemball v Commissioner of Police, NSW Police Force [2023] NSWCATAD 104 (refer to [68]-[71]). In that case over about 18 years Mr Kemball had been subject to:

• One driver's licence suspension period.

• One driver's licence suspension period which was withdrawn by Police due to a professional driver declaration lodged by Mr Kemball and where Mr Kemball was then authorised to drive for work purposes.

• One suspension period being dealt with by good behaviour restrictions rather than a suspension.

112. According to the Tribunal Mr Kemball’s traffic history was described by the Commissioner as “of low-level offending, including driving with an expired licence and several offences where Mr Kemball was found to be exceeding the speed limit by more than 10 km/hr but less than 20 km/hr. The most serious offence was in April 2018 when Mr Kemball was fined for exceeding the speed limit by more than 20 km/hr but not more than 30 km/hr while driving a heavy vehicle”.

113. In that case the Senior Member rejected any finding that Mr Kemball’s driving record showed a lack of proper regard for public safety, considering it to be low-level offending and not as frequent or serious as other cited examples.

114. I am of the same view in the present case.

Mental health and the weight to be given to the psychiatric report

115. I reject the argument that Dr Rattehalli’s report was entirely based on the self-report of FYT. Dr Rattehalli made observations of FYT and spoke to FYT’s wife to obtain collateral information. He also had the letters provided by the Firearms Registry which included references to some of the offences and contained specific questions to be answered in a mental health risk assessment report. He also had with a referral letter from FYT’s GP.

116. I make the following factual finding based on the psychiatric report and also the evidence before me from FYT and the documents relied on by the Respondent. FYT experienced a psychiatric episode in 2007 and was prescribed medication for that condition. I find that since 2008 he has not experienced symptoms of a mental illness or required treatment for such symptoms.

117. I agree that the report of Dr Rattehalli and the conclusions reached in that report cannot be accepted in their entirety. It would have assisted the Tribunal if Dr Rattehalli had given greater detail about:

1. what documents he had before him including by attaching the GP referral letter to his report

2. what information he obtained in taking a history from FYT

3. any information he about the sessions FYT had with a psychologist

4. the detail of any collateral information he obtained from FYT’s wife

5. what tests he performed, if any, when he undertook the mental state examination of FYT or what he observed or found out as a result of that examination and his observations of FYT

6. any assumptions he made

7. any limitations he had in writing the report

8. any relevant research or professional literature he considered

9. the reasoning process he undertook to reach a conclusion that FYT does not have any condition or impairment that would impact on his ability to exercise continuous and responsible control over firearms or that may pose a safety risk to the public if he were to possess a firearm

10. the reasoning process and all of the facts and assumptions he relied on to reach an opinion that FYT experienced drug induced psychosis rather than an episode of schizophrenia in 2007

118. However, I note a couple of things in this regard. The Tribunal has issued a Procedural Direction 3 ‘Expert Evidence’. That Procedural Direction states that expert evidence will not be rendered inadmissible by failures to adhere to the Experts’ Code of Conduct contained therein in proceedings such as this where the Tribunal is not bound by the rules of evidence. However, such failures could affect the weight given to the evidence.

119. It is also the case that
     FYT followed the instructions provided by the Respondent, including sending the questions formulated by the Respondent for the report. If FYT was legally represented a more fulsome report may have been obtained, although it is very possible this might have also added to the cost. The Respondent also did not seek to cross-examine Dr Rattehalli.

120. I considered what weight should be given to Dr Rattehalli’s report. I was unable to accept the evidence of Dr Rattehalli on the question of whether or not FYT, given his mental health history, poses a risk if he were to be granted a firearms licence. The reason is that I have not been provided with sufficient detail in the report to assess the basis and therefore the validity of such a conclusion. As stated in Court of Appeal case Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 [59] a “prime duty” of experts in giving opinion evidence is to “furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions”. There is insufficient detail in the report, as discussed above, for me to merely accept the conclusions made by Dr Rattehalli as to there being no risk arising from mental health considerations if FYT were to possess and use firearms, which is a crucial issue in this application for review.

121. I also do not accept the conclusions drawn by Dr Rattehalli that FYT’s mental health condition or impairment did not affect FYT’s ability to exercise continuous and responsible control over firearms in the past and that FYT did not pose any past risk to the safety of the public by reason of his mental health condition. The reason for this is the same, these are opinions given without the necessary basis on which to assess the validity of those opinions, including the facts on which the opinions are based and the reasoning process for reaching those opinions. They ought be rejected.

122. However, I do accept and give some limited weight to Dr Rattehalli’s assessment of FYT that he does not currently display any symptoms of a mental illness and does not presently have a mental illness. I also give some weight to Dr Rattehalli’s assessment that FYT did not appear to have experienced any psychotic symptoms from 2008. I am satisfied that the taking of a “detailed history” from FYT, obtaining collateral information from his wife and a “complete mental state examination” would enable a consultant psychiatrist to reach this opinion and I attach some limited weight to the opinion.

123. This evidence is bolstered by the credible evidence given by FYT before me that he was prescribed psychiatric medication but ceased taking the medication in 2008 under medical supervision. No evidence to the contrary has been provided by the Respondent.

124. I therefore find that FYT does not and has not experienced a mental illness or symptoms of mental illness since 2008.

125. I am not satisfied that I should accept Dr Rattehalli’s assessment that what FYT experienced in 2007 was an episode of drug induced psychosis rather than schizophrenia. Again, there is insufficient detail in the report about the facts or assumptions on which this opinion was based and the underlying reasoning for the opinion.

126. I do not make anything of what the Commissioner submits is an inconsistency in the report in that Dr Rattehalli stated FYT has not used heroin “since 2009 onwards” whereas it is FYT’s evidence that he has not used heroin since May 2008. I do not necessarily view this as an inconsistency or error on the part of Dr Rattehalli, as both statements can be true and without further detail being provided about that in the report it is difficult to draw any conclusion.

127. I reject the Respondent’s argument that if Dr Rattehalli’s conclusion is that FYT experienced a drug induced psychosis then FYT being able to exercise continuous and responsible control over firearms is “entirely dependent on his not relapsing and using drugs again”. I cannot determine with sufficient certainty whether the mental health episode was triggered by drug use and there is no evidence before me as to the likelihood, if FYT was to start using again, of the likelihood of drug induced psychosis occurring.

128. I reject the assertion made by the Commissioner that the risk of relapse into drug use and drug-induced psychosis is “a real and constant risk”. I reject that submission as there is nothing in the evidence that supports it. I consider it to be a mere “theoretical” risk and not a real and appreciable risk: refer to Webb v Commissioner of Police. New South Wales Police Force [2004] NSWADT 110 at [32]. I make this finding based on the evidence that FYT has successfully rehabilitated and maintained this rehabilitation.

129. I am also bound to consider the impact, if any, of what Police recorded as an attempt at self-harm, as recorded that is the Custody Management Record for 21 September 2007. The Firearms Act 1996 refers to any previous attempt by the applicant to commit suicide or cause a self-inflicted injury as a basis for the Commissioner to have reasonable cause to believe an applicant for a licence may not personally exercise continuous and responsible control over firearms. The Custody Management Record described this behaviour as a “half attempt” by FYT to tie the shirt around his neck. FYT’s evidence is that he did not try to end his life, and that he left his shirt on his shoulders and did not tie it around his neck.

130. There is no evidence before me about what was said by FYT at the time about his actions. FYT told the hearing he was held in a plastic box in the police station and had been left for hours without any interaction. I also note from the Custody Management Records that FYT said he was “coming down from speed”. All this leads me to the conclusion that whilst this incident is concerning, there is no evidence before me that FYT intended to in fact carry his actions further so as to end his life or cause a self-inflicted injury. As observed by Police, there was a “half attempt”.

Application of the law

131. The Commissioner argues that FYT is not a fit and proper person to hold a firearms licence and also that the Tribunal should consider that the issue of a licence to FYT would be contrary to the public interest: refer to section 11(3)(a) and 11(7) of the Firearms Act 1996. The argument that FYT has no genuine reason for using and possessing firearms was dropped by the Respondent at hearing.

Fit and proper person

132. The meaning of fit and proper person is not defined in the Firearms Act 1996. The expression “takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities”: Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at [36].

133. According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression ‘fit and proper person’ gives a decision-maker a very wide discretion and it involves three things: “honesty, knowledge and ability” to execute the office or vocation (at [9]).

134. Whether or not an applicant for a licence is a ‘fit and proper’ person is to be considered in the statutory context of whether the person can be trusted to possess firearms without danger to public safety or the peace (section 11(3(a) of the Firearms Act 1996). The question of fitness and propriety must be considered in the context of the principles and objects of the Firearms Act 1996, which squarely rests on the need to ensure public safety (refer to section 3(1)(a) of the Firearms Act 1996 and Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).

135. In determining this question, I am required to consider the factual circumstances of this case as a whole. These circumstances include the following:

1. FYT has engaged in serious criminal offending in the period July 2007 to May 2008, but this ceased in 2008. His offences were largely property offences or stealing and drug possession offences.

2. FYT hid a firearm behind a washing machine when he hid from Police on 21 September 2007 because he was scared if Police saw him there he would “get into trouble” and “it would put [his] safety at risk”

3. FYT was using illicit drugs in the period July 2007 to May 2008 but this ceased in 2008. He has been successfully rehabilitated and this rehabilitation has been maintained since 2008.

4. FYT does not have any mental health condition or symptoms of a mental illness and has not had any symptoms since 2008.

5. FYT has a poor driving record which consists of low-level driving offences and which continued despite four warning letters and two good behaviour periods.

6. FYT worked for 12 years in rehabilitation at times in positions with significant responsibilities, including in respect of clients serving community service orders or referred by the Drug Court of NSW.

136. The evidence about FYT’s rehabilitation was compelling. I am satisfied that what was a period of significant offending and drug use is now behind FYT. FYT has worked in the field of rehabilitation for many years, including in a senior position. He has continued to attend AA and NA meetings with a view to supporting others in their recovery. He has successfully maintained his own recovery.

137. FYT gave his evidence in a forthcoming manner and I found him to be truthful. FYT did not resile from the facts of his offending, including instances where Police recorded certain conduct be he did not recall those events.

138. In assessing risk to public safety, I am to consider all the circumstances, including “attitudes, character and prior conduct, with an overriding focus on public safety” (refer to Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [66]).

139. I do not think that FYT poses a risk to public safety if he were to be issued with a firearms licence. I am satisfied that his drug use and offending behaviour ceased in 2008 and there is no real prospect of FYT returning to this behaviour. I am also satisfied that FYT’s mental health is good and there have been no symptoms of mental ill-health since 2008. I do not have concerns arising from the incident that occurred in custody on 21 September 2007. I accept this was a “half attempt” in a specific context, that is, police custody in a “plastic box” in the police station and following FYT having no contact with anyone for “hours”. It also occurred when FYT was “coming down from speed” and “agitated, from speed”. It was also during a period when mental health issues were present for FYT.

140. I am not satisfied that the incident gives rise to any reasonable cause to believe if FYT was given a licence now in 2024, when he is living in the community in circumstances where those factors are no longer present in his life that he may not personally exercise continuous and responsible control over firearms.

141. Having decided that FYT’s past criminal offending, drug use and mental health issues pose no real or appreciable risk to public safety, I now turn to FYT’s traffic record.

142. An applicant’s traffic record is a relevant consideration as disregard for or repeated breach of traffic laws, which are themselves designed to protect the safety of the public, can reflect a general disregard for public safety and laws designed to achieve public safety: refer to El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103 at [42], citing Tannous v Commissioner of Police [2011] NSWADT 116. It is a matter that can be considered on the question of fit and proper person and also falls squarely under the question of whether it would be contrary to the public interest for an applicant to be issued with a licence.

143. It is clear that FYT is prone to speeding while driving and he has committed numerous driving offences. However, I think the nature and extent of the traffic offending is not so serious or frequent as, when considered with all the circumstances, to warrant a finding that he is not a fit and proper person to be issued with a firearms licence.

144. My ultimate conclusion, having considered the evidence as set out above, is that I am satisfied that FYT is a fit and proper person and can be trusted to have possession of firearms without danger to the public or to the peace (refer to section 11(3)(a) of the Firearms Act 1996).

Public interest

145. The meaning of ‘public interest’ is a broad concept which can involve a wide variety of considerations: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. The concept allows for consideration of issues beyond character of the applicant, such as the protection of the public, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 at [33].

146. Applying the Tribunal’s approach in Tannous v Commissioner of Police [2011] NSWADT 116 at [33], I am to view the Applicant’s conduct as a whole, including his breaches of the criminal and traffic law, and decide whether this conduct indicates a lack of a lack of regard for law and public safety and if I am so satisfied I would conclude it would then not be in the public interest for the Applicant to be issued with a firearms licence.

147. I have dealt with FYT’s criminal offending and drug use above. I do not consider those aspects of the facts to give rise to a disregard for public safety, given FYT’s successful rehabilitation.

145. For reasons similar to those enunciated by the Tribunal in Kemball v Commissioner of Police, NSW Police Force [2023] NSWCATAD 104 at [69]-[71], I do not consider the nature and extent of FYT’s traffic offending to give rise to such a disregard for public safety.

146. My conclusion on this question is that I do not consider the issue of a firearms licence to FYT would be contrary to the public interest.

OrDERS

1. The decision of the Commissioner of Police to refuse FYT’s application for a Category AB firearms licence is set aside.

2. A Category AB firearms licence is to be issued to FYT.

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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: 23 April 2024