Gorgieski v Commissioner of Police, NSW Police

[2006] NSWADT 214

CITATION:	Gorgieski v Commissioner of Police, NSW Police [2006] NSWADT 214
DIVISION:	General Division
PARTIES:	APPLICANT Lupco Gorgieski RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063044
HEARING DATES:	5/05/2006
SUBMISSIONS CLOSED:	05/05/2006
DATE OF DECISION:	07/28/2006
BEFORE:	Fitzgerald K - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Prinicpal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Drug Misuse and Trafficking Act 1985 Firearms (General) Regulation 1997 Firearms Act 1996 Inclosed Lands Protection Act 1901 Security Industry Act 1997
CASES CITED:	Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 Beech v Commissioner of Police, New South Wales Police Service [2000] NSWADT 54 Bevan v The Commissioner of Police, NSW Police [2004] NSWADT 1 Botros v Commissioner of Police, New South Wales Police Service [2000] NSWADT 6 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52 Hopper v Commissioner of Police, New South Wales Police Service [2000] NSWADT 111 Hutchings v Commissioner of Police, New South Wales Police Service [2001] NSWADT 62 Maloney v The Commissioner of Police, New South Wales Police, 22 November 2004 McDonald v Director-General of Social Security (1984) 1 FCR 354 Nasar v Commissioner of Police, New South Wales Police Service [2000] NSWADT 139 Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55 Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Vella v Commissioner of Police, NSW Police [2003] NSWADT 91 Yaghi v Commissioner of Police, New South Wales Polices Service [2001] NSWADT 91
REPRESENTATION:	APPLICANT D Lagopodis, solicitor RESPONDENT W Pisani, agent
ORDERS:	The decision of the Commissioner of Police, New South Wales Police Service to revoke Mr Gorgieski’s Category AB Firearm licence number 407858813 pursuant to Section 24(2)(a) of the Firearms Act 1996 be set aside

Background

1 On 8 October 2005 the Firearms Registry notified Mr Gorgieski that his Category AB Firearm Licence No.407858113 (issued 11 November 2004) had been revoked pursuant to section 24(2)(a) of the Firearms Act1996. This decision was affirmed on 1 February 2006 following internal review and on 9 February 2006 an application was lodged with this Tribunal.

2 The police brief, including a Criminal History – Bail Report, as well as related Facts Sheet were in evidence for the Commissioner. Mr Gorgieski relied on correspondence dated 24 October 2005 from his solicitor to the Internal Review Officer, including a reference from Senior Constable Ian Angeloski dated 10 October 2005.

3 The core facts are not in dispute. Mr Gorgieski was charged and sentenced with possessing and cultivating a prohibited plant, namely cannabis. On 21 April 2005 he was convicted and fined $200 for the possession charge and $400 for the cultivation charge. He has no other criminal record.

4 The police Fact Sheet notes that when police attended Mr Gorgieski’s residence, he “immediately made admissions relating to the presence of cannabis and cultivating cannabis upon his residence” and during the later police interview he made full admissions regarding the cultivating of cannabis plants for his personal use. The Fact Sheet also notes that during the investigation the applicant was cooperative with police and assisted their enquiries. The Fact Sheet lists various equipment that was being used to cultivate the cannabis.

5 Mr Gorgieski uses his licence for recreational hunting. He had previously held a Category AB firearm licence from September 1999 to November 2004.

6 The only matter in dispute between the parties is whether Mr Gorgieski’s convictions warranted the Commissioner’s decision to exercise his discretion to revoke the licence under section 24(2)(a) of the Firearms Act 1996.

Applicant’s Case

7 In summary, Mr Gorgieski acknowledged the seriousness of his offences but agreed that the possession and cultivation was solely and purely for his own personal use, that he pleaded guilty to the offences and cooperated with police and authorities. He also noted that he is contrite for his actions, kept his family and friends away from his illegal activity, and has a stable home life and employment, owns his own home with a mortgage and has no prior criminal record.

8 In relation to the Commissioner’s claim that the amount in question was not insubstantial and that the Tribunal should therefore draw an inference that the drug was not only for personal use, Mr Gorgieski’s representative drew the Tribunal’s attention to the Drugs Misuse and Trafficking Act 1985 which deems certain provisions to be supply offences and noted that Mr Gorgieski was not charged with a supply offence. He also put that none of the equipment found was consistent with a supply offence.

9 Mr Gorgieski further contended that nothing by the way of his offences pointed to a propensity to violence or to a danger to public safety or the keeping of the peace. He acknowledged that his licence is for recreational use and that firearms use is a privilege, subject to the overriding need to ensure public safety, but submitted that there was nothing in his character or reputation which would be sufficient to ground a finding that he is not a fit and proper person. I note this is not a ground relied on by the Commissioner.

10 The Tribunal’s attention was drawn to the reference provided by Senior Constable Angeloski. Mr Ian Angeloski, Senior Constable, stated that he had known Mr Gorgieski for a period of about 8 years. It is clear from the reference that Senior Constable Angeloski was aware of the Applicant’s convictions and he suggests that the cannabis was only administered as relief for back pain. The reference also states that Senior Constable Angeloski believes that Mr Gorgieski has learnt a lesson from his convictions and that it will not happen in the future. He also comments favourably about Mr Gorgieski’s firearms safety record. Mr Gorgieksi’s representative put that the Applicant had held a firearms licence for 5 years prior to the offence and had not breached his licence in any way. The Commissioner’s agent did not disagree.

11 The Applicant primarily relies on Yaghi v Commissioner of Police, New South Wales Polices Service [2001] NSWADT 91 at paragraphs 31 and 32 for the proposition that the decision for the Commissioner and then the Tribunal is a discretionary rather than a mandatory one.

12 Relevantly those paragraphs provide:

“The power to revoke under section 24(2)(d) and cl 17 relating to public interest is not a mandatory power requiring revocation upon certain criteria being met, for example “if X offence is committed by the licensee, it is not in the public interest for the licensee to continue to hold the licence”. Rather, it is a discretionary power and one for which the Act provides no express guidance as to its exercise.

As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi’s, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account. It is suggested in another Tribunal decision concerning the Act that there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may (see Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph 25).

13 Mr Yaghi had been charged with two counts of “not keeping firearms safely” and the Tribunal ultimately determined that his licence should not have been revoked.

14 Specifically, Mr Gorgieski relied on several decisions where previous applicants were successful before the Tribunal in having decisions to revoke a licence set aside.

15 The first case relied upon, Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55, involved a revocation notice under the Security Industry Act1997 because the applicant had committed a prescribed offence, namely fraud, dishonesty or stealing.

16 In Saliba the focus of the Tribunal’s decision was the public interest ground for revocation. Though not directly relevant to its ultimate decision the Tribunal noted the lenient penalty imposed on the applicant despite the serious offence (at paragraph 55) and that evidence had been tendered to demonstrate that the Applicant was of good repute. Several written testimonials were provided after the offences were committed and with knowledge of the charges (see paragraph 64).

17 Beech v Commissioner of Police, New South Wales Police Service [2000] NSWADT 54 was a decision under the Firearms Act1996 that appeared to be based primarily on a claim by the Commissioner that the applicant was no longer a fit and proper person to hold a licence. In rejecting this position, the Tribunal relied on the fact that the applicant had a long history of community involvement and that the incident giving rise to the matter related to a dispute between several parties in which there was no violence or serious damage and further that the applicant had good relations with all of the people involved in the initial incident. The relevant conviction was for the offence of remaining on prescribed premises without lawful excuse under the Inclosed Land Protection Act 1901.

18 Neither the background facts nor the precise reasoning in Hopper v Commissioner of Police, New South Wales Police Service [2000] NSWADT 111 are entirely clear. It does appear though to be different to the position before me in that a key fact was the sobriety of the applicant and its effect on the licence. Personal references for the applicant were written with knowledge of the applicant’s convictions. These attested to his character and the isolated nature of the incident that led to his arrest and convictions and were not challenged (see paragraph 5).

19 Mr Gorgieski also sought to distinguish Nasar v Commissioner of Police, New South Wales Police Service [2000] NSWADT 139 and Hutchings v Commissioner of Police, New South Wales Police Service [2001] NSWADT 62 as involving factors absent from his circumstances. I note that Hutchings involved section 24(2)(d) of the Firearms Act1996 rather than section 24(2)(a) as is currently relied on by the Commissioner. Within that context the Tribunal did state (at paragraph 20) that conviction of a criminal offence is not sufficient reason to conclude that an Applicant is not a fit and proper person to have a firearms licence but that “there must be some nexus between the improper conduct and the possession or use of the firearm”. That case involved various threats to Police.

20 Nasar v The Commissioner of Police, New South Wales Police Services [2000] NSWADT 138 did involve section 24(2)(a) of the Firearms Act 1996 and the offences there considered were common assault, malicious damage and possessing an offensive weapon. Section 24(2)(a) was not the only ground relied on by the Commissioner but in relation to that ground the Tribunal found that the Commissioner was justified in revoking Mr Nasar’s licence in the absence of any evidence persuading him that he should retain his licence. In so doing the Tribunal confirmed that the decision pursuant to section 24(2)(a) is a discretionary one in use of the word “may” (see paragraph 39 of that decision and paragraph 31 below). The Tribunal observed that Mr Nasar was otherwise of good character but that the relevant incident “revealed a streak of violent behaviour” which satisfied the Tribunal that the Commissioner’s decision to revoke the licence as not being in the public interest was the correct and preferable one (at paragraph 32).

Respondent’s case

21 The respondent Commissioner relies primarily on the conviction of Mr Gorgieski for the offences outlined earlier, the fact that both offences, possession and cultivation of cannabis, are prescribed for the purposes of the Firearms Act1996 and that section 11(5)(b) of that Act provides for the mandatory refusal of a firearms licence application if the applicant was convicted of any offence relating to prohibited drugs or prohibited plants.

22 Further, the Respondent stated that the Tribunal has previously held that the inference drawn from the Firearms Act 1996 is that a conviction for a prescribed offence operates to remove the privilege to have a firearms licence as public safety is placed at risk and further that it is only in special or exceptional circumstances that the discretion should be exercised so as not to revoke the licence. An unreported decision of the Tribunal, Maloney v The Commissioner of Police, New South Wales Police, 22 November 2004 was relied on in relation to the latter proposition.

23 The Commissioner acknowledged that section 24(2)(a) of the Firearms Act1996 provides a discretion to revoke a firearms licence but states that the discretion must be exercised keeping in mind the nature and conduct and principles and objectives of the Act (Bevan v The Commissioner of Police, NSW Police [2004] NSWADT 1 at paragraph 21). In this regard, the Commissioner highlighted the fundamental principles of the Act which confirm that firearms use is a privilege that is conditional upon public safety.

24 The Commissioner pointed to the seriousness of drug offences, stated that the amount in question was not an insignificant amount and relied on Botros v The Commissioner of Police [2000] NSWADT 6 at paragraph 22 for the proposition that any propensity towards offending against the law must be regarded as of crucial importance. The Commissioner also relied on Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at paragraph 20 for this proposition.

25 Aubrey involved a course of conduct involving threats of self harm and harm to others (see paragraph 23) which gave the Commissioner and then the Tribunal cause for concern. Confidential evidence was also accepted from an individual fearing for their safety as a result of interaction with Mr Aubrey. The pattern of conduct was sufficient for the Tribunal to conclude that there would be a risk to the public if Mr Aubrey were in possession of a firearm at a time when he was confronted with equally frustrating circumstances.

26 Further, the Commissioner relied on Botros to support the proposition that if the Applicant had committed the offence before applying for his licence it would not have been granted and that it would be anomalous if despite that fact the Applicant could maintain the licence.

27 The Commissioner noted that the Applicant’s current firearms licence was issued on 17 November 2004, 5 months prior to his drug conviction and compared this to Botros. I note that in Botros the offence was an offence of dishonesty, larceny as a servant. The offence was committed 5 weeks after the grant of the licence. Further, in making the decision the Tribunal noted that (at paragraphs 28 and 29):

“I cannot conceive an offence more directly going to establish a breach of standard that the legislature, and through it the community, expects licence holders to meet in this regulated industry.

One of the fundamental reasons for the regulation of the security guard industry is to ensure some screening of security guards for standards of honesty where they will be entrusted with the safekeeping of large amounts of cash. The applicant acted dishonestly while in a position of trust in carrying out the very duties for which he was licenced.”

28 The Commissioner also asked the Tribunal to draw an inference about the use to which the cannabis was to be put given the equipment found at the Applicant’s house and a number of cuttings found in a cupboard there. The Commissioner asked the Tribunal to draw an inference that the probability was that the Applicant was growing a quantity of cannabis beyond personal use or alternatively that the amount of drugs the Applicant was smoking would necessarily have an impact on his firearms use.

Relevant law

29 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferable one, see section 63 Administrative Decisions Tribunal Act 1997. The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

30 The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct (section 63(1) of the Administrative Decisions Tribunal Act; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357).

31 Section 24(2)(a) of the Firearms Act 1996 provides that the Commissioner of Police “may” revoke a firearms licence “for any reason for which the licensee would be required to be refused a licence of the same kind”.

32 Section 11(5)(b) of that Act states that a licence must not be issued to a person who has, within the period of 10 years before the application for the licence was made, being convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.

33 Clause 5(b) of the Firearms (General) Regulation 1997, relevantly prescribes an offence in respect of a prohibited plant or drug committed under: (i) the law of any Australian jurisdiction.

34 It is clear from the use of the word “may” in section 24(2)(a) of the Firearms Act 1996 that the Commissioner is given a discretion to revoke a licence and that that section does not provide for compulsory revocation (as is provided by other sections in the Act). For example, in Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52, the Tribunal confirmed the distinction in Botrosv Commissioner of Police, New South Wales Police Service [2000] NSWADT 6 between the exercise of mandatory refusal of an application and the discretionary power that relates to the revocation of a licence, in that revocation involves the exercise of judgment.

35 However, the legislation provides no express guidance as to how the Commissioner’s discretion in respect of section 24(2) should be exercised.

36 It is not contentious that in exercising the discretion the Commissioner must keep in mind the nature of the conduct as well as the principles and objectives of the Act, namely to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure and improve public safety (see for example Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at 37, Bevan and Commissioner of Police, NSW Commissioner of Police Service [2004] NSWADT 1 at 17 and Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at 23).

37 Public safety has often been confirmed as the principal issue, that is whether there is a risk to the safety of the public if the applicant retains the licence (see for example Vella v Commissioner of Police, NSW Police [2003] NSWADT 91 at 35).

38 In relation to public safety; the Tribunal’s Deputy President has stated (see Ward v Commissioner of Police, New South Wales Police [2002] NSWADT 28 at 28):

“The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk”.

39 Specific considerations relevant to breach of the Firearms Act 1996 storage provisions (which go to the core of the legislative requirements) are well established, see Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at 19ff.

40 As well as the general matters above, these include the reason the applicant has a firearms licence (Moody v Commissioner of Police, New South Wales Police [2002] NSWADT 146 at 25); whether the breach of the Firearms Act 1996 was merely technical or fundamental, (see Bevan and Commissioner of Police, New South Wales Police Service [2004] NSWADT 1 at paragraph 26 and Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph 25 where the Tribunal found the breach before it to be fundamental in manner rather than trivial or excusable) and that the applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114 at 51 to 54).

41 In relation to offences under other legislation, the Tribunal commented more generally in relation to section 24(2) in Maloney and Commissioner of Police, New South Wales Police, 22 November 2004 that:

“In my opinion, the inference to be drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege of a firearms licence as public safety is placed at risk. Furthermore, that privilege is lost for a period of 10 years following the conviction.”

Although the Commissioner has a discretion in this regard where the conviction occurred after the licence has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence. (at page 11) …..

“…in my opinion, Parliament has made it quite clear that conviction for such an offence has resulted in the loss of the privilege of having such a licence unless there is some special circumstances that justify a contrary decision.” (at page 12)

42 The Tribunal found that there were no special circumstances. In Maloney the applicant had been convicted of two drug offences and had also had a finding of guilt with no conviction being entered on two charges under the Firearms Act 1996. The applicant co-operated with police and stated that he had been growing the cannabis for his wife who had chronic pains rather than for personal use. During the search the police found numerous cannabis plants in pots in the applicant’s back garden as well as cannabis pots in two unregistered vehicles. Mr Maloney said that he was unaware of the existence of some of the cannabis plants which his cousin subsequently admitted to police to owning. Even so the Tribunal upheld the Commissioner’s decision to revoke Mr Maloney’s licence.

43 The parties before me are in disagreement as to the extent to which the “special and exceptional circumstances” requirement in Maloney applies to the current exercise of discretion under section 24(2)(a). While identified factors may give guidance as to the exercise of discretion neither generic tests nor identified factors can alone determine its exercise. The Maloney requirement of ‘special or exceptional circumstances’ needs to be read in the context of that decision rather than as determinative of a specific standard to be met in exercising the discretion more generally and should not replace consideration of the relevant facts in any particular case.

44 As stated in Haynes (at paragraph 25):

“Discretion, in essence, is judgement and should be carried out on the basis of commonsense and having available all the particular information that it applies in the context of the particular matter under consideration”.

45 At paragraph 26, the Tribunal continued:

“In a case such as this where there is one isolated incident, the Tribunal believes that the proper exercise of discretion is to consider all the relevant factors in the particular case before coming to a decision”.

46 In that case the Tribunal did not believe that the original decision maker and reviewing officer took into account a sufficiently wide number of matters before exercising the discretion. Matters that should have been considered included the applicant’s track record in the industry as well as the circumstances surrounding his offence.

Decision

47 The correct and preferable decision is that Mr Gorgieski’s Firearms Licence no. 40785113 not be revoked.

48 As the power to revoke a firearms licence has not been made mandatory and there is no express guidance as to how the Commissioner’s discretion should be exercised it is reasonable to conclude that not all contraventions or breaches of the Act warrant revocation.

49 Some meaning must be given to the discretion in clause 24(2)(a). To do so, it is necessary to consider the objects and purposes of the Act, primarily public safety, as well as the facts surrounding the offence or other circumstances underpinning the revocation.

50 Relevant factors have been previously established in relation to safe storage of firearms. In the case of offences under other legislation, these would include the number and severity of any offences, the nexus between the conduct constituting the offence and the holding of a firearms licence, the applicant’s previous firearms history and the applicant’s reason for a firearms licence. This list is not exhaustive and there may well be other matters relevant to the applicant that would impact on the exercise of the discretion.

51 While there is no doubt that drug offences are serious, Mr Gorgieski’s offence was an isolated incident and there is no evidence before me that it has impacted or is likely to impact on public safety. Mr Gorgieski cooperated with police and made admissions as to his conduct. There is nothing before the Tribunal to suggest that he is likely to offend again. Mr Gorgieski’s offence was not related to his firearms licence nor did it involve violence or other threat, damage to property or dishonesty and on this basis it can be contrasted to previous cases.

52 A reference supporting Mr Gorgieski was provided in the knowledge of the offences committed. Mr Gorgieski has a stable home and employment history. Further Mr Gorgieski had not previously breached the requirements of the Firearms Act 1996 and has held a licence since 1999.

53 There was no evidence provided that Mr Gorgieski was using such quantity of cannabis as would effect his later usage of firearms when not using the cannabis nor that he was involved in the supply of prohibited drugs. On this basis the inferences to the contrary are not accepted. Although as a matter of logic the use of cannabis may impact on an individual’s ability to use a firearm safely, there was no evidence and indeed no suggestion that Mr Gorgieski was using a firearm while under the influence.

54 Similarly, there was no evidence as to Mr Angeleski’s personal reference or as to whether or not it was authorised and on that basis I am not prepared to draw the inference that it was not authorised. That being said I have given little weight to the matters contained in that reference and not otherwise proved or agreed between the parties, for example, the fact that the cannabis use was for back pain.

55 Mr Gorgieski does not need his licence and firearms use is a privilege yet this alone, is insufficient to change the current balance in the exercise of the discretion. The matter would likely be different if Mr Gorgieski was to re-offend.

56 Accordingly the decision of the Commissioner of Police, New South Wales Police Service to revoke Mr Gorgieski’s Category AB Firearm licence number 407858813 pursuant to Section 24(2)(a) of the Firearms Act1996 is set aside.