Garland v Commissioner of Police, NSW Police

[2005] NSWADT 95

CITATION:	Garland v Commissioner of Police, NSW Police [2005] NSWADT 95
DIVISION:	General Division
PARTIES:	APPLICANT David Anthony Garland RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	043316
HEARING DATES:	20/12/2004
SUBMISSIONS CLOSED:	12/20/2004
DATE OF DECISION:	05/03/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52
REPRESENTATION:	APPLICANT S Torrington, barrister RESPONDENT P McLaughlin, solicitor
ORDERS:	The decision under review is affirmed

1 Mr Garland is a Firearms Dealer and theatrical Armourer. He operates a business called ‘The Stockade’ and he applied for the issue of a permit for the use of a pistol in connection with his business.

2 The Stockade is involved in the supply and sale of firearms. Stock includes over 40 longarms and shotguns, and 30 pistols and revolvers. Theatrical Armoury stock includes rifles and shotguns, semi automatic rifles and shotguns, fully automatic machine guns and machine pistols and sawn off shotguns. Other prohibited weapons kept include crossbows, flick knives, gas guns, blowguns and Sweeney guns. Mr Garland also secures firearms on behalf of clients and NSW Police and for the St Ives Pistol Club. He transports these firearms to and from the club every weekend.

3 The Commissioner’s power to issue a permit is in section 28 of the Firearms Act 1996 (“the Act”). Section 28(g) of the Act provides that the Commissioner may issue permits to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate. Mr Garland holds a Firearms Dealer licence, a Theatrical Weapons Armourer Permit and a Prohibited Weapons Dealer Permit.

4 He previously held a Commissioner's Permit for use of a pistol in connection with his business. The decision under review relates to his reapplication for that permit. The application for a re-issue of a permit must be considered afresh. An application is not granted merely on the basis that it has been issued in the past. The Commissioner's delegate refused Mr Garland’s application and Mr Garland’s internal review application was unsuccessful. He seeks review of the Commissioner's decision. Mr Garland’s ability to safely use firearms is not in question nor is his good character.

5 Mr Garland contends that carrying a pistol whilst operating The Stockade has acted as a deterrent to possible robbers. He says that it is impractical to carry a loaded longarm or a baseball bat whilst performing normal business activities and video cameras do not seem to be an effective deterrent. He needs the Permit for the proper protection of pistols and firearms in his custody at either his shop or at different locations throughout NSW.

6 He says that if this permit is not issued he cannot comply with the obligations imposed by section 39 of the Act to take all reasonable precautions to ensure the safe keeping of his firearms and to ensure that they are not stolen or lost under threatening conditions. He says that the hiring of a security guard would be superfluous and financially crippling as the need is 24 hours a day. He also says that it is impossible to get insurance because of the wide range of his activities, the use of prohibited weapons and the liability factor they represent should they be stolen.

7 Mr Garland has arranged for armed and regular patrols of the premises after hours as well as monitoring by a security company, SNP. Should there be any alarms Mr Garland is called and he attends The Stockade’s premises. He says that he needs a pistol for such incidents.

8 Subject to the general restrictions on issuing permits found in section 29 of the Act, the Commissioner has a general discretion to issue a permit. The Commissioner may refuse to issue a permit if he considers that the issue of the permit would be contrary to the public interest. Further, Clause 9 of the Firearms (General) Regulation 1997 (“the Regulation”) states that the Commissioner of Police may refuse to issue a permit if the applicant intends to possess and use the firearm for personal protection or for the protection of any other person or the protection of property. There is nothing in the Act and Regulation that requires the Commissioner to refuse to grant Mr Garland a permit.

9 In determining the application the Commissioner’s delegate concluded that Mr Garland’s application related to the use of a pistol for the protection of property, and for personal protection and the protection of other persons. Accordingly the provisions of Clause 9 of the Regulation were considered relevant to the application. I do not agree that the application is this broad. Mr Garland’s application relates to the use of a pistol for the protection of property. This is not an application for the issue of a pistol licence for personal protection.

10 While the constraints found in the Act in connection with licences may inform the Commissioner’s discretion they do not govern it. In Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52 the Appeal Panel regarded the following considerations as relevant to the exercise of the power to issue a permit:

(a) whether the ‘need’ for a pistol rather than a long-arm is established. A pistol must be necessary, rather than merely desirable or convenient. The need must be real and not hypothetical based on an assumed future event;

(b) the restrictive approach found in the licensing provisions to the grant of pistols as against shot-guns and rifles;

(c) the extent to which the applicant has attempted to use alternative methods, even if less convenient;

(d) the risk to personal safety associated with alternative methods; and

11 These considerations must be balanced against the considerations of public safety and the public interest that are paramount in the Act.

Whether Mr Garland has a need for a pistol

12 It is important to analyse what is necessary in the conduct of Mr Garland’s business. The focus is on the type of business activity undertaken, rather than the specific way that Mr Garland undertakes that business. Two questions are relevant - firstly, what are the core features of businesses of the type that are the subject of Mr Garland’s application? and secondly, is possession of a pistol directly required of that business?: Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15.

13 The core features of Mr Garland’s business include the trade in firearms and prohibited weapons, and the hiring of firearms, prohibited firearms and prohibited weapons for the purposes of film, television or theatrical productions. An equal and important part of the core of the business is the transportation of firearms for members of the community who shoot at clubs and members of the community who use firearms in film productions. These aspects of the business give rise to the need to transport firearms from secure location to secure location. It is based upon this need that Mr Garland seeks the issue of a permit.

14 Mr Garland says that his need for the permit arises from his concern for the security of his stock of firearms and weapons of varying types and calibres. He believes that he is exposed to the possibility of break and enter or robbery. There is therefore a need for security for the proper protection of these firearms in the public interest.

15 While I accept that Mr Garland has cause for concern for the security and safe transport of his firearms, I do not agree that the possession of a pistol is directly required of his business. Notwithstanding the fact that Mr Garland considers it desirable to protect his stock, it is possible to conduct his business without the use of a pistol. I therefore do not believe the use of a pistol is essential to any of the core features of his business. Accordingly it is my view that Mr Garland does not satisfy the first of the considerations relevant to the exercise of the power to issue a permit limb of the requirements.

16 I accept Mr Garland’s evidence that the hiring of a security guard whilst on movie sets far from the metropolitan area would be financially crippling. However, possession of a pistol would not eliminate the possibility of his stock being stolen. I agree with the Commissioner’s view that no individual who carries an authority to possess firearms can ever guarantee that firearms in their possession will not be stolen. Mr Garland can only ensure that he implements the highest level of measures to reduce the likelihood of his firearms coming into the hands of criminals and he has done this. He has security measures in place for the safe protection of the firearms. Nevertheless, I am of the opinion that for Mr Garland to possess a pistol for this purpose could only escalate the possibility of dangerous consequences if armed criminals confronted him.

17 Having formed this view I need not consider the other factors that I have referred to above. However, I note that the Act has adopted an approach to the possession and use of pistols that makes them harder to obtain than longarm rifles. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The circumstances in which a permit for a pistol will be issued should be viewed with considerable caution and in light of the paramount considerations of public safety and the public interest.

18 It is my view that when the core business of Mr Garland and his desire for a pistol in relation to that business is weighed up against considerations of public safety and the public interest, the balance falls against Mr Garland. The correct and preferable decision in the circumstances is that Mr Garland’s application should be refused. Accordingly, the Commissioner’s decision should be affirmed.

Order

The decision under review is affirmed.