Hamshere v Commissioner of Police, NSW Police Force

[2012] NSWADT 244

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Hamshere v Commissioner of Police, NSW Police Force [2012] NSWADT 244
Hearing dates:	On the papers
Decision date:	27 November 2012
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision to revoke the Applicant's firearms licence is affirmed.
Catchwords:	Firearms Act - firearms licence - revocation of licence or permit
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Botros -v- Commissioner of Police, NSW Police Service [2000] NSWADT 6 Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Hill v The Commissioner of Police [2002] NSW ADT 218 Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 Maloney v Commissioner of Police, NSW Police, 22 November 2004 unreported Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 WS v Commissioner of Police, NSW Police [2007] NSWADT 71
Category:	Principal judgment
Parties:	Neal John Hamshere (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	P J Carey Solicitors (Applicant) J Tillott, (Respondent, agent)
File Number(s):	123056

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant was issued with a Category AB firearms licence under the Firearms Act 1996 ("the Act") in September 2008. The licence was due to expire in September 2013. However, it was suspended on 25 March 2011 and then revoked on 15 December 2011.

1. The decision to revoke the licence was based on the fact that the Applicant was subject to a good behaviour bond in relation to an offence prescribed for the purposes of the Act and the view that it was not in the public interest for the Applicant to continue to hold his firearms licence.

1. The decision was reviewed internally and affirmed. The Applicant has applied to the Tribunal for external review of the decision.

Background

1. I do not understand the following background to the revocation to be in dispute:

On 25 March 2011 the Applicant's firearms licence was suspended as a result of his being made subject to an interim Apprehended Violence Order ("AVO"). The AVO was made in connection with assault allegations against the Applicant.

Police found no evidence to support the assault allegations and the investigation was subsequently terminated and the AVO was revoked on 20 May 2011.

On 25 March 2011 police attending the Applicant's home in connection with the assault allegation found and seized a quantity of what was believed to be cannabis leaf and 8 cannabis cigarettes.

On 31 March 2011, the Applicant was interviewed and admitted the leaf material and the content of the cigarettes was his and that it was cannabis. The Applicant stated that he grew the cannabis in his back yard and that he used it for pain relief.

The Applicant was served with a Court Attendance Notice to appear at Nowra Local Court on 16 May 2011.

The Applicant was referred to the Magistrates' Early Referral Into Treatment ("MERIT") programme, which he completed.

A final MERIT Programme report on the Applicant dated 13 November 2011 was taken into consideration by the Local Court Magistrate when sentencing the Applicant.

At that time the Applicant had ceased his use of cannabis.

The MERIT report:

• notes that the Applicant reported a 35-year history of cannabis use and that the Applicant smoked two joints each evening.
• states that the Applicant used cannabis to assist with relieving pain caused by gout/arthritis.
• does not say when the Applicant developed those conditions or when he started using cannabis to assist with pain relief.
• states that the Applicant was concerned his pain would escalate if he ceased using cannabis, was reluctant to see his GP or a pain management specialist for assistance and was using over the counter herbal remedies for pain relief with mixed results.
• states that the Applicant attended all his booked appointments. He used a guided reduction regime to reduce then cease his use of cannabis.

On 21 November 2011 Magistrate Fleming of the Nowra Local Court dealt with the charge against the Applicant by way of a good behaviour bond for two years pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 ("section 10 bond").

The Applicant has a prior conviction for possessing cannabis leaf and administering cannabis leaf from July 1988.

The Applicable Legislation

1. Section 24(2)(a) of the Act 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.

1. Section 11(5)(d) of the Act provides that the Commissioner must not issue a licence to a person who is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the Firearms Regulation 2006 ("the Regulations").

1. Clause 5(2)(b) of the Regulations provides

5 Offences that disqualify applicants

...

(2) Persons subject to good behaviour bonds

For the purposes of sections 11 (5) (d) and 29 (3) (d) of the Act, the following offences are prescribed regardless of whether they are committed in New South Wales:

(a) ...

(b) an offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2002, committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction),

...

1. Clause 17 of the Regulations provides

"(1) A licence or permit may be renewed by making an application, in accordance with the Act and this Regulation, for a new licence or permit (referred to in this Regulation as a subsequent licence or permit).

..."

1. Section 24(2)(d) of the Act 1996 provides that a licence may be revoked for any other reason prescribed by the Regulations.

1. Clause 19 of the Regulations 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.

The Commissioner's Case

1. It is not in dispute that the Applicant's licence is due to expire on 11 September 2013 i.e. prior to the end of that bond period on 21 November 2013. The Commissioner contends that if the Applicant were to apply for a new firearm licence in these circumstances, it must result in a mandatory refusal: section 11(5)(d) of the Act.

1. It is submitted that the Act and Regulations apply in the same way to all applications for firearms licences, whether it is a first application for a licence or otherwise.

1. The Commissioner further contends that the discretion to revoke the existing licence must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and in clear preference to the public interest rather than an individual's private interests: Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 at [43].

1. Ms Tillott relies on views expressed in Maloney v Commissioner of Police, NSW Police, 22 November 2004 unreported in support of the submission that there needs to be exceptional or special circumstances to give rise to the anomalous situation that the Applicant would be permitted to hold a firearm licence when any subsequent reapplication by him would result in a mandatory refusal. In Maloney v Commissioner of Police Higgins JM stated:

"In my opinion, the inference to be drawn from this provision 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. Furthermore, that privilege is lost for a period of ten years following a 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.

... However, Mr Maloney has also been convicted of offences in relation to possessing and cultivating cannabis, which are serious offences that Mr Maloney must have known were unlawful. As I have explained, these offences form a basis of a mandatory refusal of an application for a licence. This means that even if Mr Maloney's licence were to be restored, after 2007 when he would be required to reapply for his firearms licence, the Commissioner would have no alternative but to refuse a renewal of his licence. As I have already said, in my opinion parliament has made it quite clear that conviction for such offences result in the loss of the privilege of having such a licence unless there is some special circumstances that justify a contrary decision. In my opinion, in this case there are no special circumstances."

1. That approach has been followed in a number of decisions of this Tribunal. See for example WS v Commissioner of Police, NSW Police [2007] NSWADT 71 and Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227.

1. Ms Tillott submits that there are no exceptional or special circumstances in this matter that would warrant the Applicant retaining his firearm licence.

1. She further submits that given the Applicant's attitude to the law demonstrated by his self-confessed daily use of cannabis over a prolonged period and notwithstanding his previous conviction for drug offences, it is contrary to the public interest that the Applicant's holds a firearm licence.

1. The Respondent submits that the correct and preferable decision for this Tribunal to make is to affirm the Respondent's decision to revoke the Applicant's firearm licence on either basis.

The Applicant's Case

1. The Applicant concedes the facts of the offending behaviour and that he was placed on a good behaviour bond for 2 years from 21 November 2011.

1. He also concedes a 35-year history of cannabis use to assist with relieving pain caused by gout/arthritis. However a pathology report prepared in relation to a sample collected 24th October 2011, and provided to the Court, showed nil for any illicit substance.

1. The Final MERIT Report dated 13 November 2011 stated:

"Mr Hamshere attended all his booked appointments. He used a guided reduction regime to reduce then cease his use of cannabis.

1. He also concedes a 1988 conviction for a similar offence.

1. Mr Carey submits that the Act and Regulations treat licence or permit renewals differently to a licence application and that in determining a reapplication discretion is able to be exercised in an Applicant's favour.

1. Mr Carey submits that clause 5(1) of the Regulations provides as prescribed offences

"An offence in respect of a prohibited plant or prohibited drug ... in respect of which the penalty imposed was imprisonment for 6 months or more, or a penalty of $2,200 or more, or both ..."

1. However, he argues that that provision does not sit well with the provisions of clause 5(2). He submits that the anomaly is that an applicant may receive a section 10 bond, where no conviction is recorded, or at the upper end be imprisoned for a period of less than 6 months or fined an amount less than $2,200, and will not fall within the exclusion. A person might not fall within the prescribed offences if the court provides an outcome that is neither of those scenarios.

1. Mr Carey submits that the Act and Regulations are silent in relation to an application or re-application being granted or not where the applicant was at the time of the application not subject to a bond to be of good behaviour but may have been during the period of the licence. In his submission, that invokes a discretion for the registry where the applicant or the re-applicant was convicted of an offence that falls outside the provisions of the prescribed offences in the Regulations i.e. not imprisoned for 6 months or more and/or not fine $2,200 or more.

1. Mr Carey submits that in the present case the Applicant has had his licence revoked and the likelihood of a re-application being refused on the basis that he did not receive a sentence of a period of imprisonment more than 6 months and did not receive a fine less than $2,200 but instead was able to demonstrate to the Court that he had sought and obtained help that he had not sought prior to this matter and had as a result of that help had become free of his use of marijuana.

1. The Applicant pleaded guilty on the first available opportunity. He undertook a Court recognized and supported program to address the offending behaviour and as a result was placed on a section 10 bond for 2 years.

1. Mr Carey submits that this matter is one where there is a discretion that must be exercised in the Applicant's favour because he is not a new applicant. He is a re-applicant for a subsequent licence and the test for such differs from that which is to be applied to a new applicant. Mr Hamshere is otherwise of good character.

1. Mr Carey concedes that the public interest view is somewhat clouded in that while the Applicant has disclosed a 35 history of the use of Marijuana, at no time in that period, apart from one matter in 1988 and a further matter in 2011, has he came to the attention of Police. He has held a licence and possessed firearms in accordance the provisions of his licence. He has been an active member of the Nowra Rifle Club for the whole period and in the recent Court matter testimonials were provided to the court from club members attesting to his demeanour and good behaviour.

1. He submits that the Applicant should be allowed to retain his licence.

Discussion

1. The role of the Tribunal is to determine, having regard to the relevant facts and the applicable law, whether the Commissioner's decision is the correct and preferred one: section 63 Administrative Decisions Tribunal Act 1997.

1. It is not in dispute that the Applicant is the subject of a good behaviour bond for an offence prescribed for the purposes of section 11(5)(d) of the Act and clause 5(2)(b) of the Regulations. I agree with the Commissioner that if the Applicant were to apply for a new firearm licence in these circumstances, it must result in a mandatory refusal.

1. In this case each of the grounds relied on by the Commissioner to revoke the Applicant's licence is discretionary. That is, these grounds, if established, give the Commissioner discretion as to whether he should or should not revoke the licence. However, the provisions in sub section 24(2) of the Act do not give any guidance as to how that discretion should be exercised in each individual case.

1. As noted above, the Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation and the discretion is to be exercised in clear preference to the public interest rather than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

1. A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

1. I accept that the Applicant has used firearms for sporting activities and that he will be inconvenienced if he is unable to use firearms. However, a decision maker should not shy from exercising discretion adversely to an individual merely on the grounds that they may suffer hardship and/or inconvenience: Hill v The Commissioner of Police [2002] NSW ADT 218 at paragraph [22].

1. Parliament has identified certain offences that disqualify a person from being issued with a licence. That is, when considering an application for a firearms licence from an applicant who has been convicted of a prescribed offence the Commissioner is given no discretion. He must refuse the licence application.

1. In Botros -v- Commissioner of Police, NSW Police Service [2000] NSWADT 6 Skinner JM stated:

22 In this case if the applicant had committed the offence before applying for the licence granted on 4 March 1999, he would not have been granted that licence. The legislature has seen fit to ensure that that result would have been mandatory, and is mandatory for ten years from the date of the conviction.

23 It would be anomalous if despite the committing of a prescribed offence barely five weeks after the grant of the licence, the applicant were to retain his five year licence.

24 Conceivably some circumstances could justify such an anomaly. That is no doubt why the legislature in its wisdom has used the language of discretion in s 26(1) of the Act.

1. I agree with that view.

1. As noted above, in Maloney v Commissioner of Police Higgins JM considered that it would only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.

1. This is a difficult matter in that the Local Court has treated the Applicant's offence as on the lower end of the scale. However, the potential repercussions for the Applicant as they relate to his firearms licence are severe. Nevertheless, I am satisfied that this is what Parliament intended.

1. In my view, the view expressed by Judicial Member Higgins in Maloney v Commissioner of Police is correct. Therefore, I need to find some special or exceptional circumstances if the Applicant is to be permitted to retain his licence.

1. The special circumstances that the Applicant pointed to are some anomalies in the legislation; the fact that he has rarely come to the attention of Police despite a 35 year history of cannabis use; that he used cannabis to assist with relieving pain caused by gout/arthritis; and that he took advantage of the MERIT Programme to reduce then cease his use of cannabis.

1. In contrast, the Commissioner submits that these matters do not constitute exceptional or special circumstances that would warrant the Applicant retaining his firearm licence. The Commissioner submits that the Applicant seeks to gloss over what is essentially habitual law breaking conducted over a 35 years period and provides no reason why he needs a firearms licence other than that he has previously had one.

1. I agree with the Commissioner in this regard. Over a 35 years period the Applicant carried on with an activity that he must have known was unlawful. I cannot see any special circumstance in this matter to balance that fact and which would permit the Applicant to keep the licence.

1. It follows in my view that the Commissioner's decision is the correct and preferable one. I therefore affirm that decision.

1. I appreciate that this leaves the Applicant without a licence for a long time for what has been found to be a very minor offence.

Order:

The decision to revoke the Applicant's firearms licence is affirmed.

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Decision last updated: 27 November 2012