Gibson v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 212

CITATION:	Gibson -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 212
DIVISION:	General Division
PARTIES:	APPLICANT Russell William Gibson RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023165
HEARING DATES:	08/10/2002
SUBMISSIONS CLOSED:	10/08/2002
DATE OF DECISION:	10/28/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
REPRESENTATION:	APPLICANT D McKay, solicitor RESPONDENT J Tunks, solicitor
ORDERS:	1. Pursuant to s.57(1) of the Administrative Decisions Tribunal Act 1997 an extension of time be granted to Mr Gibson in which to make his application to 30 July 2002; 2. The Commissioner's decision to revoke Mr Gibson's category AB fireamrs licence be affirmed.

1 On 30 July 2002, Mr Gibson lodged an application with the Administrative Decisions Tribunal ("the Tribunal") for review of a decision, made by a delegate of the Commissioner of Police ("the Commissioner") to revoke his category AB firearms licence.

2 Mr Gibson’s application was made pursuant to s.75(1)(c) of the Firearms Act, 1996 ("the Firearms Act") and s.38 of the Administrative Decisions Tribunal Act, 1997.

3 The basis on which the Commissioner revoked Mr Gibson’s firearms licence was the fact that on 29 January 2002, at the Warren Local Court, Mr Gibson had been found guilty of an offence of failing to keep his firearm safely pursuant to s.39(1)(a) of the Firearms Act. While Mr Gibson was found guilty of the offence charged, no conviction was recorded pursuant to s.10 of the Crimes (Sentencing Procedure) Act, 1999. However, Mr Gibson was placed on a good behaviour bond for a period of twelve months.

4 The grounds on which the Commissioner relied in making his decision were as follows:

(a) that it was not in the public interest for Mr Gibson to continue to hold his firearms licence (s. 24(2)(d) FirearmsAct and cl 17 FirearmsRegulations);

(b) that Mr Gibson had contravened a provision of the Firearms Act (ss. 24(2)(b)(ii) and 39); and

(c) that Mr Gibson was subject to a good behaviour bond (ss11(5)(d) and 24(2)(a)).

5 Mr Gibson’s application to the Tribunal was not made within the period prescribed by the rules of the Tribunal pursuant to s.55(1)(d) of the Administrative Decisions Tribunal Act, 1997. That is, Mr Gibson’s application was filed outside the prescribed 28 days from which the internal review had been finalised. In this case the internal review was finalised on 8 May 2002 and Mr Gibson’s application was not lodged until 30 July 2002. Accordingly, Mr Gibson had made an application under s.57 of the Administrative Decisions Tribunal Act, 1997 for an order that the time for making his application to be extended.

Hearing

6 The matter was heard in Warren and at the commencement of the hearing Mr Tunks, for the Commissioner, indicated that the Commissioner had no objection to Mr Gibson being granted in extension of time in which the lodge his application. Mr Tunks also indicated that the Commissioner no longer sought to rely on the grounds that it was not in the public interest for Mr Gibson to continue to hold his firearms licence.

7 As a result of Mr Tunks’ indication the abovementioned matters were not considered at the hearing and the appropriate order for an extension of time was made.

8 At the hearing the parties relied on material, which had been previously filed with the Tribunal. Mr Gibson also gave oral evidence and he was extensively cross examined by Mr Tunks. During the course of giving oral evidence, Mr Gibson also tendered into evidence several photographs of his Toyota Hilux ute.

Evidence

9 Mr Gibson gave the following evidence:

• He is 46 years of age and has been shooting for twenty years. He has held a firearms licence since 1993. § He resides at his own home at Warren and looks after his two youngest children, a daughter aged 17 and a son aged 13. He is employed on a part time basis by a shearing contractor as a casual shed hand.
• He has invested about $14,400 in shooting equipment as he also earns an income as a part time professional shooter. This investment includes the purchase of his Toyota Hilux ute. He has earned about $8,000 of additional income per year from his shooting activity.
• He is not able to read and write, which make his ability to earn income limited.
• About a week before 24 July 2001, Mr Gibson decided that he would go shooting after work. At the time he was working at a nearby shearing shed and as he was going to work he took his two firearms, a 22 and a 222 from his locked gun safe in his home and placed them into his Toyota Hilux ute. He placed the 222 on the rack, which is located on the dashboard of the ute and he covered it with a towel. His 22 he placed under the seat. He also had ammunition for these firearms, which he had placed in a box and stored behind the seat.
• He went to work at about 7.30am that morning and parked his ute in a position so that he could see it while he was working. The ute was also locked.
• At about 5.30pm that afternoon he went shooting with his children to one of the remote properties in the area. That evening he used both firearms and shot pigs in traps and kangaroos.
• He stated that he got home about 8.40pm that evening. He took his 222 firearm that was on the dashboard inside and locked it in his gun safe. He subsequently went back out to the ute, which was not locked, to collect his other firearm but could not find it in the ute. At the time he thought he may have mistakenly left it behind at the property. He only used the 22 to shoot pigs in a trap and he thought he may have accidentally left it behind after he shot one of the pigs in a trap and placed it at the side of his ute while he loaded the pig out of the trap. He also thought that one of the children may have accidentally knocked the firearm out of the front of the ute.
• The following afternoon his employer gave him time off so that he could go to the property to see if he could locate the missing firearm.
• He was not able to find the firearm and did not report it to the police because he thought it would turn up. § He stated that he was aware of the importance of guns not floating around in the community, but felt confident that he would find it somewhere in the paddocks. He stated that he was going to report it to the police, but felt reassured that he would find it in the paddocks. These paddocks he stated were isolated and not readily accessible to members of the public.
• It was not until 24 July 2001, when the police came to visit him that he realised that his firearm had been stolen. The police informed him that the firearm was found the previous day and it was also found to have had both the barrel and stock cut and shortened. The police had charged a male person with the possession of the shortened rifle.
• Mr Gibson was charged with an offence of failing to ensure the safe keeping of his firearm and on 29 January 2002 he pleaded not guilty to this charge. However, he was found guilty of the charge, without a conviction being recorded and placed on a good behaviour bond for twelve months.

10 According to the material filed by the Commissioner the police believed that the rifle was removed from Mr Gibson’s ute after he returned home from his shooting trip and during the time he took his first firearm inside and the time he returned to collect his 22. On the material before the Tribunal this would have been a fairly short period of time. Mr Gibson also stated that nothing else was stolen, in particular his daughter’s wallet which was sitting on the seat of her car at the same time.

Relevant Legislation

11 The Firearms Act sets out a scheme for licencing people to possess and use firearms. Section 24(2) of the Act sets out grounds on which the Commissioner may revoke a licence which has been issued. These grounds include the following:

"s.24(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) ... , or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) ...".

12 Section 11 of the Firearms Act sets out the general restrictions on the issue of a licence. Section 11(5)(d) provides that "a licence must not be issued to a person who is subject to a good behaviour bond, granted in NSW or elsewhere".

13 The principles and the objects of the Firearms Act are set out in s.3. The underlying principles of the Firearms Act are set out in s.3(1). These include the principle that the possession and use of a firearm is a "privilege that is conditional on the overriding need to ensure public safety" (s.3(1)(a)) and to improve public safety which involves the promotion of safe and responsible use and storage of firearms (s.3(1)(b)(ii)).

14 The objects of the Firearms Act are contained in s.3(2) and includes the object "to ensure that firearms are stored and conveyed in a safe and secure manner" (s.3(2)(e)).

15 Part 4 of the Firearms Act contains a specific provision relating to the safe keeping of firearms. Section 39 is a general requirement and provides as follows:

"s.39(1) A person who possesses a firearm must take
all reasonable precautions to ensure:
(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is nor authorised to possess a firearm".

16 A failure to comply with s.39(1) of the Firearms Act constitutes an offence. Section 39(2) also provides that the regulations may specify the precautions that are taken to be reasonable precautions for the purpose of this section. No regulations have been made pursuant to this particular provision.

Submissions

17 Mr Tunks for the Commissioner submitted that the relevant test to be applied by the Tribunal is that which was stated by the Deputy President in Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127 at para 19. That is, the onus was on Mr Gibson to show that there were persuasive and relevant considerations, which took his matter outside the ordinary case of what constituted reasonable precautions to ensure the safe keeping of his firearm. He submitted that Mr Gibson’s explanation that he could not remember what happened to his firearm in that he stated that he could have lost it - was not consistent with Mr Gibson being a responsible and privileged licence holder. He further submitted that Mr Gibson’s failure to report to the police the fact that he had lost his firearm was also not consistent with the actions of a responsible holder of a firearm licence. He emphasised the objects of the Firearms Act which clearly express Parliament’s intention for there to be strict controls on the safe keeping of firearms as public safety was paramount. In this case, the actions of Mr Gibson whilst he was carrying his firearm were not in keeping with public safety. He also submitted that the fact that a revocation of his licence will cause Mr Gibson financial hardship was not a relevant consideration in the exercise of the Commissioner’s discretion.

18 Mr McKay on behalf of Mr Gibson submitted that the Commissioner’s decision was not the correct and preferred decision because the evidence demonstrated that Mr Gibson had acted responsibly when he realised that his firearm was missing. He went back the next day to look for the firearm and knocked off work early to do so. It was also reasonable, he submitted, for Mr Gibson to assume that there was minimal danger to the public because he had been shooting in an isolated area where members of the public have limited access. He conceded that Mr Gibson should have gone to the police immediately, however, on the basis of the recent decision in Phegan, he submitted the Tribunal should have regard to the length of time that the firearm was not stored safely. He submitted that there were two possible circumstances to be considered. The first set of circumstances were where the firearm was stolen from Mr Gibson’s ute while it was at his home. In these circumstance, Mr McKay submitted that the vehicle was in a secure area and was unattended for a relatively short period of time. The second set of circumstances were where the firearms were left in an isolated area. In these circumstances there was a very low potential for danger. He also submitted that in respect of his previous conduct Mr Gibson would get 10 out of 10. Finally, he submitted that Mr Gibson’s licence was not just for recreational purposes it also provided him with a means to provide for his children. He was a man of little education and who had worked hard to provide for them and that the penalty of revocation outweighed the maximum penalty that could have been imposed by the Court in respect of his contravention.

Reasons and Decision

19 I found Mr Gibson to be a frank and truthful witness. I accept that Mr Gibson has worked hard to provide for his family.

20 While the evidence is not disputed, there is a dispute as to how this evidence is to be regarded in the exercise of the Commissioner’s discretion under s.24(2) of the Firearms Act.

21 While s.24(2) of the Firearms Act sets out the circumstances in which the Commissioner may revoke a person’s firearms licence, the section does not given any guidance as to how that discretion should be exercised in each individual case. The Deputy President has stated in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at para 23 that "the discretion should be exercised in a way which promotes the principals and objects of the Firearms Act".

22 As mentioned above those principles are that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety (s.3(1) of the Firearms Act). Included in the objects of the Act is the need to store and convey firearms in a safe and secure manner.

23 While I agree with the abovementioned statement by the Deputy President, in my opinion the following matters are also of relevance when determining how that discretion is to be exercised in each individual case:

(a) the nature and seriousness of the applicant’s conduct, which gave rise to the Commissioner’s decision to revoke the applicant’s firearms licence ("the improper conduct");

(b) the applicant’s explanation of the circumstances giving rise to the improper conduct;

(c) the consequences, if any, for the applicant if the licence is revoked; and

(d) the likelihood of the applicant repeating the improper conduct in the future.

24 I do not agree with the submissions of the Commissioner that the question of loss of income is an irrelevant factor in the exercise of his discretion as the licensing scheme under the Firearms Act specifically requires an applicant for a firearms licence to specify a genuine reason for which a licence is sought, and those reasons must be one of those which are specified in s. 12 of the Act. In some circumstances these reasons include matters of employment or for businesses purposes (e.g. vermin control, primary production, vertebrate pest animal control, business or employment and occupational requirements relating to rural purposes). While this is a relevant consideration it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations.

25 In this case there was no evidence before the Tribunal on what reasons Mr Gibson set out in his application as being the genuine reasons for which he required a licence. However, on the evidence before the Tribunal it can be assumed that this was for vermin and vertebrate pest animal control and he clearly did this for financial reward. Accordingly a loss of his licence will have a detrimental effect on him financially. However, this is by no means the primary source of income for Mr Gibson. If anything it is a hobby, which has generated income during recent years as the demand for professional shooters has increased in the Warren area. In any event, as I have already stated this is only one factor, which needs to be taken into consideration and to be weighed against the overriding need for public safety.

26 I do not accept Mr McKay’s submission on behalf of Mr Gibson that a revocation of Mr Gibson’s licence must be determined having regard to the maximum penalty a court could impose for a conviction of an offence under s. 39 of the Firearms Act. By the express words of the Act, Parliament has clearly intended that licence holders under the Act, who breach a provision under the Act, are to be subject to criminal prosecution as well as being deprived of their licence. Ss. 39 and 84 provide for criminal prosecution of a failure to keep firearms safely and s. 24(2)(b)(ii) provides for the revocation of a licence if a licence holder contravenes a provision of the Act. There are no qualifying words in s. 24(2)(b)(ii) or elsewhere which qualify the Commissioner’s discretion of revocation, indeed the section expressly gives the Commissioner such a power regardless of whether the licence holder has been convicted of an offence.

27 While I accept that Mr Gibson has been shooting for the last twenty years without adverse incident occurring other than what occurred last July and in respect of which he was found guilty, in my opinion, this improper conduct must be considered in light of the obligations placed on him under the provisions of the Firearms Act. It is clear from the principles and objects of the Act that the safe keeping of firearms is a fundamental requirement under the Act. That is, the licence holder is required to ensure the safe keeping of his firearm at all times. Mr Gibson acknowledges that there is such a requirement and that it is of paramount importance.

28 In my opinion, the inference to be drawn from Mr Gibson’s evidence is that he failed to have in place a practice whereby at all times when he was carrying his firearm he knew where it was, where he had last used it, and where he had placed it after he had used it. Having regard to the structure of the Firearms Act, in my opinion this is a serious matter. Every holder of a licensed firearm should at all times when they are carrying their firearm be constantly aware of where that firearm is located and if used, to be returned to a safe place.

29 It is not disputed that Mr Gibson was placed on a good behaviour bond by the Local Court at Warren when he pleaded guilty to the charges. That bond is not due to expire until January next year. Had Mr Gibson been applying for a licence at the time this application was heard, the Commissioner would have been required to refuse his application by virtue of s. 11(5)(d) of the Firearms Act. Accordingly, Parliament considered such an order of the court to be a serious matter justifying the refusal of a licence. However, as I have already mentioned, under s. 24(2)(a) of the Act the Commissioner is given a discretion in this regard, but it must be exercised having regard to the serious nature in which Parliament regards such orders.

30 Having regard to all the evidence in this case, in my opinion the decision of the Commissioner is the correct and preferred decision. Mr Gibson’s breach of the Firearms Act was a serious breach of a fundamental requirement of that Act. I accept that a revocation of his licence may have a detrimental effect on Mr Gibson’s income but Parliament has made it clear that the possession of firearms is a privilege and that it is conditional on the over-riding need to ensure public safety. In this case Mr Gibson’s conduct of forgetting where he had left his firearm created a serious risk to public safety.

31 While there are several mitigating factors in favour of Mr Gibson in that I accept that this was a one off occasion, that it was not a deliberate act, and that the Commissioner accepted that in all other respects Mr Gibson was carrying his firearms safely, on balance it is my opinion that his contravention was of sufficient seriousness to warrant his licence to be revoked. However, these mitigating factors should be taken into account, if and when Mr Gibson makes a further application for a firearms licence.

32 Accordingly, I order that:

(1) Pursuant to s.57(1) of the Administrative Decisions Tribunal Act, 1997 an extension of time be granted to Mr Gibson in which to make his application to 30 July 2002.

(2) The Commissioner’s decision to revoke Mr Gibson’s category AB firearms licence be affirmed.