Greenhalgh v Commissioner of Police

[2022] NSWCATAD 153

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Greenhalgh v Commissioner of Police [2022] NSWCATAD 153

Hearing dates:

7 April 2022

Date of orders:

16 May 2022

Decision date:

16 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW –revocation of firearms licence – intimidation safe storage of firearm - risk to the public - public interest.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

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

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Grant v Commissioner of Police [2020] NSWCATAD 158

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

Hook v Commissioner of Police [2020] NSWCATAD 250

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

Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283

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

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

Moss v Commissioner of Police [2020] NSWCATAD 262

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Uzelac v Commissioner of Police [2003] NSWADT 226

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

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

Category:

Principal judgment

Parties:

Walter Greenhalgh (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/00349567

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application for review of a decision by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”) under the Firearms Act 1996 (“the Act”). The Applicant, Mr Walter Greenhalgh, has held a Category AB firearms licence for the genuine reasons of ‘animal welfare – animal handler’ and ‘recreational hunting/vermin control’. He previously held firearms training permits as a minor. His firearms licence was issued in May 2019 and was due to expire in June 2024. However, a delegate of the Commissioner determined to revoke the licence in July 2021.

2. The delegate formed the view that it was no longer in the public interest for him to hold a licence. This followed an incident that occurred in February 2021.

Background

3. The Respondent has identified two instances in which the Applicant has come to the attention of Police in relation to the use of firearms. The chronology of events is not in dispute in any material sense.

The July 2020 incident

4. In July 2020 the Applicant suffered a gunshot wound to his thigh after a shotgun slipped from his grasp and discharged as he tried to catch it. The firearm reportedly discharged into the Applicant’s inner thigh before exiting through his outer thigh. The Applicant applied a tourniquet to stem the bleeding, returned the firearm to his firearms’ safe and drove himself to hospital where he underwent surgery. Police were not notified of the event for several days and they treated the incident as a case of misadventure.

The courier driver incident

5. In February 2021, a courier driver drove down a muddy track towards the Applicant’s homestead. The Applicant reportedly threatened the driver. The Facts Sheet prepared for the Local Court proceedings provides the following account of the incident:

The accused holds an active Firearms licence and owns three registered firearms which are stored on the property.

Entrance to the property is via an un-gated dirt track that begins at the effective end of Gotts road. Police inquiries indicate that map systems indicate that Gotts road actually continues further up a valley however there is no physical track and the natural continuance of the road enters unobstructed onto the private road within the accused's property.

The victim … is employed as a courier driver for FedEx Australia, a courier company.

Offence 1: Intimidation

About 11:45AM on Friday 19 February 2021, [the courier driver] has driven down [the] road with the intention of travelling to … Lower Portland in order to deliver a parcel. [The courier driver] was dressed in a FedEx uniform. This particular address is in fact accessed via the nearby … road. [The courier driver] has continued down [the] road and unwittingly driven onto the accused's property.

[The courier driver] has continued up a muddy track for a distance of about four hundred metres before reaching the base of a hill that the accused's homestead is built upon. The accused has then walked down to [the courier driver] who has remain seated in his courier van.

The accused is alleged to have said, "You're on private property. Did you not see the signs?"

[The courier driver] said, "I saw the signs but the address pointed to here."

The accused said, "This is private property. You can see all the livestock."

[The courier driver] said, "Sorry mate I was just doing a delivery. I have never been out here, was this 88?"

The accused has angrily said, "This is private property. You're lucky I don't shoot you."

[The courier driver] said, "I'm sorry. I was just trying do a delivery. I will leave."

The accused said, "Leave or I will shoot you." At this point the accused is alleged to have put his right hand behind his lower back. [The courier driver] has become extremely fearful of suffering physical harm and be shot.

[The courier driver] has quickly replied, "Okay I'm leaving, how can I get out?" [The courier driver] has started to drive forward.

The accused has remained angry and said, "No. Go up there or you'll get bogged."

[The courier driver] has become panicked and started to try and turn around.

The accused has said, "Go or I'll shoot you. The Police won’t come out this way. This isn't Sydney."

[The courier driver] has managed to turn his vehicle around and leave the property. During this time he has activated the duress alarm within his courier vehicle. The management at the courier company have advised Police at before getting in contact with [the courier driver].

Police travelled to Lower Portland and met him some distance away from the property where he provided a statement to Police.

About 1:20 PM Police arrived at the property and met with the accused near the homestead.

Police introduced themselves to the accused and cautioned him. The accused agreed that he had been speaking with the courier. Police had a conversation with the accused who stated that he had told the accused (sic) to be "careful driving into these properties as you might get shot." At this point in time the accused was placed under arrest.

Offence 2: Not Comply with Safe Storage Requirements

Police requested the accused to provide access to his safe which he agreed to do. The accused opened the safe whereupon Police located two of his registered firearms. At this time the accused declared that he had another rifle within his bedroom. Police have accompanied the accused into the room upon which a .22 lever action rifle was located with rounds loaded in the firearm behind a pile of clothes.

All three weapons were seized and the accused conveyed to Windsor Police Station.

Upon arrival at the Police station the accused was introduced to the custody manager and informed of his rights under Part 9 LE(PR)A. The accused then participated in an electronically recorded interview where he stated to Police freely that he was angry that people keep coming on to his property. He denied directly threatening to shoot [the courier driver] but conceded he had made two comments where he told [the courier driver] he should 'be careful' as he 'might get shot around here.' The accused conceded that he was attempting to try and convince [the courier driver] not to return to the property. In relation to the firearms offence, [the courier driver] (sic) stated that he had been using the gun earlier for farming purposes and wanted to leave it out to clean it.

6. The Applicant’s firearms licence was suspended and he was subsequently charged with the following offences:

1. stalk/intimidate intend fear physical etc harm (personal) -T2; and

2. not keep firearm safely - not pistol/prohibited firearm.

7. In relation to the stalk/intimidation charge the Applicant was sentenced to a 12 month conditional release order (“CRO”) without conviction. The CRO is due to expire on 16 December 2022. In relation to the firearms charge he was sentenced to a 6 month CRO is due to expire on 16 June 2022.

8. In July 2021, the Applicant’s firearms licence was revoked as a consequence of the charges arising from the incident in February 2021 at his property. That decision was affirmed on internal review.

9. The Respondent contends that the Applicant is no longer a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so.

10. The Applicant has applied to the Tribunal for external review of the decision to revoke the licence.

Applicable legislation

11. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to revoke a firearms licence.

12. This application is made under section 75 of the Act and the ADR Act.

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

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

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

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

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

16. Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

17. Section 11 of the Act provides for the issuing of licences. Section 11(3) provides that 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.

18. Section 11(5) provides:

(5)    A licence must not be issued to a person who—

…

(d)   is subject to one of the following in relation to an offence prescribed by the regulations—

(i)   a good behaviour bond, whether entered into in New South Wales or elsewhere,

(ii)   a community correction order imposed in New South Wales,

(iii)   a conditional release order imposed in New South Wales, or

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

20. Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations. Clause 5 of the Firearms Regulation 2017 (“the Regulation”) provides:

5 Offences that disqualify applicants

(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed—

(a)   Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under—

(i)   the law of any Australian jurisdiction, or

…

(3) For the purposes of sections 11(5)(d) and 29(3)(d) of the Act, the following offences are prescribed in respect of a person subject to a community correction order or a conditional release order—

(a)   an offence referred to in subclause (1)(a), (c), (e) or (g)–(k),

…

(c)   an offence involving any of the following—

…

(iii)   stalking or intimidation,

…

21. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

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

1. Determination of administrative review by Tribunal

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

(a)    any relevant factual material,

(b)   any applicable written or unwritten law.

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

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

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

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

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

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

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

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

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

Fit and proper person

27. The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

28. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

29. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

30. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

31. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

32. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

33. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. `Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

The Public Interest

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

"25 The "public interest“ is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

35. The 'public interest' allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

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

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

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

39. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

40. The Respondent relies on material filed pursuant to section 58 of the ADR Act. This included a video of the Police visit to the Applicant’s property and a video recording of an interview of the Applicant conducted by police as well as material contained in the brief relating to the Local Court proceedings. Mr Winram, the Respondent’s solicitor provided written submissions and also made oral submissions at the hearing.

41. The Applicant relies on his own affidavit evidence. He provided a statement and he also attended the hearing and was cross-examined. Mr Kable, the Applicant’s solicitor provided submissions in support of the application.

The Respondent’s case

42. The Respondent’s concerns mostly relate to the February 2021 incident involving a courier driver drove. The alleged details of the incident are set out above. A copy of the statement provided by the courier driver as recorded in the police notebook and the statement that was included in the Local Court brief are in evidence in these proceedings. The Applicant indicated that the Facts Sheet was not handed up in the Local Court. However, the account provided in the Facts Sheet as set out above is consistent with the statement provided by the courier driver.

43. As noted, the Applicant was found guilty of the offences. The Local Court did not record convictions in relation to the charges but it imposed CROs. Those CROs have not yet expired. It is submitted that in the circumstances, where the Applicant will be subject to a CRO until 16 December 2022, the Tribunal should exercise its discretion and affirm the Respondent’s decision.

44. Section 11(5)(d)(iii) of the Act states that a licence must not be issued to a person who is subject to a CRO imposed in relation to an offence prescribed under the Regulation. Consequently, if the Applicant were to lodge an application before the expiration of the CRO the Respondent would be required to refuse it. However, section 24(2)(a) provides that a licence ‘may’ be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Therefore revocation is not mandatory and the Tribunal has discretion in this matter.

45. The Respondent submits that this discretion must be exercised to promote the objects of the Act and in clear preference to the public interest rather than an individual’s private interests.

46. The Respondent contends that the Applicant’s offences are not an isolated breach of the regulatory scheme. His conduct is serious, particularly given the two separate incidents for which he has come to the attention of Police in relation to firearms.

47. Firstly, the Applicant’s conduct on 19 February 2021 caused the courier driver to be so fearful that he activated the duress function on the courier system from his vehicle. When he subsequently spoke with Police, he stated that he was intimidated by the Applicant and thought the Applicant was going to shoot him. The Applicant’s behaviour towards the courier driver was wholly unnecessary and would likely cause any member of the public to be fearful.

48. Secondly, when Police subsequently attended the Applicant’s property they found a loaded firearm which was unsafely stored. This conduct, especially when considered in the context of the Applicant earlier intimidating a member of the public makes it clear that he has a dangerous and negligent attitude towards the use of firearms.

49. Additionally, the Applicant has put forward differing accounts as to why his firearm was not safely secured. In the original Police reports, he indicated that he’d left it out to clean, however in his internal review request he noted that he had been using it just before Police arrived and he did not wish to approach Police with a loaded firearm, and that he uses it every day.

50. The Respondent contends that both accounts demonstrate that the Applicant does not understand or abide by the strict requirements of the Act or the Regulation.

51. As noted above, the Applicant had previously come to Police attention for accidentally shooting himself in the leg. The Respondent contends that such an incident should have made the Applicant more aware of the strict requirements for safe handling of firearms, and his subsequent safe storage offence confirms that he Applicant may not have the requisite skills and knowledge with respect to safe firearms handling.

52. The Respondent submits that the Tribunal is required to look at the Applicant’s conduct as a whole. The Tribunal is to consider the Applicant’s:

1. misadventure, where he shot himself;

2. failure to ensure compliance with safe keeping requirements;

3. intimidating behaviour towards a member of the public, particularly with reference to firearms; and

4. current circumstances, in remaining subject to two CROs.

53. The Respondent contends that the Tribunal should not be satisfied that there is virtually no risk to the public if the Applicant were permitted to have access to firearms. Accordingly, the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant’s firearms licence.

The Applicant’s case

54. The Applicant provided a statement and gave oral evidence. His evidence is that he uses firearms in the course of his work as a pork, beef and venison producer. He uses a firearm to control wild dogs and foxes that attack those animals as well as his chickens. He stated that the husbandry of livestock depends on being able to euthanize sick or injured animals humanely and appropriate pest and feral animal control.

55. He stated that he uses his firearms every day. His habit is to clean the firearm before returning it to the safe. On the day of the incident involving the courier driver he had been using the firearm prior to police arriving at his property. He put it in the bedroom before going out to meet the police.

56. He did not oppose the decision of the Local Court. He does not dispute that the Court accepted the courier driver’s evidence. However, he maintains that the words that he said to the courier were misinterpreted. He conceded that he was upset with the courier driver’s attitude and that he used inappropriate words at the time. He denied that he was in possession of a firearm when speaking with the driver.

57. He does not dispute that police located an unsecured firearm when they arrived at his property. However, he stated that he had an appropriate safe for storage of his firearms. He accepts that there were other precautions that he should have taken.

58. Mr Kable submitted that prior to the incident involving the courier driver the Applicant was of good character. He is aware that the charges brought against him are very serious. He stated that he cooperated fully with police from the outset. He prides himself on being an upstanding, law-abiding citizen. He stated that he has learnt a valuable lesson from the experience, and that he will not re-offend.

59. Mr Kable referred to the decision in Uzelac v Commissioner of Police [2003] NSWADT 226 in which DP Hennessy provided a summary of the legal principles applying to the revocation of a firearms licence. She said that the principal issue is whether there is a risk to public safety if the applicant retains a licence and set out relevant considerations at paragraph [19]:

1. The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

   • while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an 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] NSW ADT 114 [51] to [54]);

   • the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:

   • the reason for failing to store the firearm safely;

   • the length of time the firearm was not stored safely;

   • the potential or real danger posed by failure to store the firearm safely;

   • the person's previous conduct in relation to storage of firearms and any related matter;

   • the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

   • the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])

   • in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

   • the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

   60. In relation to those considerations, Mr Kable submitted that the Applicant has explained that he required the firearms for use as a primary producer. He had been using the firearm on the morning of the incident, shortly before the police arrived at his property. It was in fact in his possession when the police arrived. Therefore, the firearm was not stored safely for only a short period and the potential risk was low.

   61. Mr Kable referred to the decision in Moss v Commissioner of Police [2020] NSWCATAD 262, in which Senior Member Naida Isenberg stated at paragraph [36]:

In Uzelac Hennessey DP added that in relation to the first three considerations, if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. The discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act: Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

62. He noted that in Moss v Commissioner of Police the decision to revoke the licence was set aside.

63. Mr Kable referred to the similarities between the Applicant’s circumstances and those of the applicant in Moss v Commissioner of Police. At paragraph [14] Senior Member Isenberg stated:

The Applicant’s licence is for the genuine reason of 'Recreational Hunting/Vermin Control', 'Security Guard' and 'Firearms Collection'. There was no evidence that he is engaged in the security industry nor in relation to firearms collection; his main interest is recreational. It can also have an economic benefit to his family in providing meat such as venison. This interest also assists others in the district with the eradication of feral animals which have contributed to stock loss, erosion and land degradation in regional NSW. Continual government efforts to control the feral dog, fox and pig populations have been unsuccessful, causing stock losses, environmental destruction and degradation to the local farming area. One of the Applicant's referees, Mr Bates, owns farming land which adjoins a National Park and wrote of the Applicant’s assistance in vermin control. I accept this is a public service.

64. Mr Kable also referred to the decision in Hook v Commissioner of Police [2020] NSWCATAD 250 in which Senior Member Walker stated at paragraphs [113] – [114]:

113 Also in relation to the issue in this case, there is a public interest in law-abiding farmers, graziers and their employees having access to long arms for the purpose of protecting the environment and primary industry from predators and other vermin and, where it is necessary, humanely putting down sick or injured livestock.

114 While not an actual requirement for the applicant’s position, the evidence is that it would be very helpful in his work, and possibly also if he is to progress in that field. The respondent submitted that the function of dispatching sick or injured stock can be performed by use of a captive bolt gun, which is no doubt correct, but such an implement would be of no use in countering ferals and other destructive vermin. At the same time, he does need to exercise more care in his compliance with statutory requirements if he is to meet the stringent standards imposed by firearms legislation.

65. He submitted that it is clear from the decision in Hook v Commissioner of Police that an applicant’s need for firearms as a tool of trade is a relevant consideration.

66. He submitted that in this matter the breach was trivial and the risk to public safety was low. The Applicant has learnt a valuable lesson from his experience and he is unlikely to re-offend. In the circumstances, there is virtually no risk to the public if he were to be permitted to retain the licence. Therefore the correct and preferable decision is to set aside the decision to revoke the Applicant’s firearms licence.

Discussion

67. It is not in dispute that the Tribunal has discretion in regard to whether the Applicant’s licence should be revoked. As has been noted, clause 20 of the Regulation states that the Commissioner ‘may’ revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.

68. In Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283 Senior Member Walker stated at paragraphs [73] – [74]:

As s 24(2) states that a licence “may” be revoked for those reasons, revocation on those grounds is not mandatory and the respondent (and on review this tribunal) has a discretion in the matter. It is sometimes said to be “anomalous” that a person who is convicted of a prescribed offence or made subject to a CRO is disqualified from applying for a licence, but if the same person is convicted of a prescribed offence or made subject to a CRO while holding a licence, the tribunal has a discretion with respect to whether the licence should be revoked: Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227, [23].

The situation is not necessarily anomalous, however. In the case of a person who already holds a licence, the Commissioner can consider the person’s licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in the applicant’s favour. Lucy SM considered this and related propositions in some detail in Grant v Commissioner of Police [2020] NSWCATAD 158, [27] – [29].

69. The passage from Grant v Commissioner of Police to which Senior Member Walker has referred states:

1. The respondent relied upon the Tribunal’s decision in Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [23], where Montgomery JM (as he then was) commented that “[i]t would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.” This comment has been referred to, with approval, by the Tribunal, differently-constituted, in Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [10] and Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at [28].

2. I accept that, in certain respects, it may seem “anomalous” for a conviction or a finding of guilt to be treated differently before and after the grant of a licence. However, as Senior Member Walker said in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [59], this situation “is not necessarily anomalous.” The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way.

3. The respondent also relied upon the proposition that it would only be in special or exceptional circumstances that the discretion would be exercised in a way not to revoke the licence, where a licence holder was convicted of an offence (Hamshere v Commissioner of Police, NSW Police Force [2012] NSWADT 244 at [14] and [43], citing the unreported decision of Higgins JM in Maloney v Commissioner of Police, NSW Police (22 November 2004, Administrative Decisions Tribunal); Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [25]; Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [22]).

   70. I note that the Applicant has only held a firearms licence since 2019. He had previously held firearms training permits as a minor but in the circumstances of the present matter, there is not a long record of conscientious compliance that can be taken into account.

   71. The decision to revoke the Applicant’s licence turned on the events that brought him to the attention of Police.

   72. I do not consider that the July 2020 incident in which the Applicant suffered a gunshot wound to his thigh warrants more than minimal weight in this matter. In my view, the February 2021 incident involving the courier driver is of greater significance. There are two aspects that need to be considered.

   73. Firstly, it is not in dispute that the Applicant failed to store a firearm safely or that he was sentenced to a 6 month CRO in relation to the charge. That CRO is due to expire on 16 June 2022.

   74. I found the Applicant’s evidence in relation to that incident to be plausible. I also accept that his habit is to use his firearms every day and to clean the firearms before returning them to the safe. I accept that he had been using the firearm on the morning of the incident involving the courier driver. I note that the police attended his property at about 1:20 pm on that day. That being the case, the firearm was only unsecured for a very short period of time.

   75. It is common ground that the Applicant’s property is in an extremely isolated area. The potential or real danger posed by the failure to store the firearm safely on that occasion was minimal. In my view, this failure would not warrant the revocation of the Applicant’s licence. If it were the only issue for consideration, and if he were not still subject to the CRO for that offence, it would not be contrary to the public interest for the Applicant to hold a firearms licence.

   76. However, the Applicant was also charged with the stalk/intimidation offence. While no conviction was recorded in relation to that offence the Applicant was sentenced to a 12 month CRO. The CRO is not due to expire until 16 December 2022.

   77. It is not in dispute that the Local Court accepted the courier driver’s evidence in preference to that of the Applicant. I do not consider that the material before me suggests that I should go behind that position.

   78. Notwithstanding the Applicant’s contention that the courier driver misinterpreted his words, I consider that his conduct is very serious. During his conversation with the courier driver he was angry and he referred to the risk that the courier driver might be shot. His words were intended to try and convince the courier driver not to return to the property. I agree with the Respondent that the Applicant’s behaviour towards the courier driver was unnecessary and would be likely to cause a member of the public to be fearful. In the circumstances this cannot be overlooked. Further, the fact that the Court imposed a 12 month CRO reflects the fact that it is not to be treated lightly.

   79. I accept that the Applicant cooperated fully with police from the outset. I also accept that, with the exception of this incident, he has an unblemished record in regard to his use of firearms. On the evidence before me I do not consider that this is a matter in which the Applicant’s character is in doubt. I accept that he has learnt a valuable lesson from the experience, and that it is unlikely that he will re-offend.

   80. However, I do consider that the public interest requires a longer period before the Applicant should be allowed to again possess firearms. In the circumstances I think that the 12 month CRO period is a reasonable guide to the amount of time that would be required before the public could be comfortable with the Applicant again having access to firearms. If, after the expiration of the term of his CRO, he has not come under any further adverse notice and reapplies for a licence, a different view might be taken.

   81. The possibility of a suspension for the remaining CRO period was not canvassed by either party and therefore I do not propose to consider that as a possible outcome of this matter.

   82. That being the case, it is my view that the Respondent has made the correct and preferable decision. Therefore the decision under review should be affirmed.

Order

1. The decision under review is affirmed.

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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: 16 May 2022