Hijazi v Commissioner of Police, NSW Police

[2014] NSWCATAD 148

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Hijazi v Commissioner of Police, NSW Police [2014] NSWCATAD 148
Hearing dates:	10 July 2014
Decision date:	19 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Frost, Senior Member
Decision:	Revocation of category G firearms licence affirmed; revocation of category A, B and H firearms licences set aside.
Catchwords:	ADMINISTRATIVE LAW - Civil and Administrative Tribunal - firearms licensing
Legislation Cited:	Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Tannous v Commissioner of Police [2011] NSWADT 116
Category:	Principal judgment
Parties:	Ahmad Hijazi (Applicant) Commissioner of Police (Respondent)
Representation:	Counsel A Poljak (Applicant) Barakat Lawyers (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	1410010

reasons for decision

Introduction and background

1. This is an application to review a decision of the Commissioner of Police to revoke Mr Hijazi's firearms licences. The licences were first suspended in January 2013, and then revoked in September 2013. Mr Hijazi asked for an internal review of the Commissioner's decision but the decision was confirmed.

1. Mr Hijazi has held firearms licences since 2002. Originally the licences Mr Hijazi held were in categories A and B, which deal with shotguns and rifles. In 2007 he was issued with a Probationary Pistol Permit. That permit expired in July 2008. Mr Hijazi did not intend for the permit to expire but he failed to have it renewed within time. As a result of the expiry Mr Hijazi was unlawfully in possession of firearms despite not having a valid permit or licence for them. In December 2008 members of the Police Force attended his home and seized his firearms. Two months later, in February 2009, Mr Hijazi was successful in having category H (target shooting) added to his firearms licence and the firearms previously seized were returned to him.

1. In July 2011 Mr Hijazi obtained a collector's licence, which is commonly referred to as a category G licence (although the legislation does not designate it in that way). A licence of that kind has very stringent storage requirements attached to it; these are dealt with in s 20(e) of the Firearms Act 1996 (NSW) and clause 34(7) of the Firearms Regulation 2006, which are quoted in [8] and [9] below. Police visited Mr Hijazi's home in May 2012 to carry out an inspection of his firearms storage arrangements and were satisfied with them. However, on a further inspection carried out in January 2013, the storage arrangements were considered to be unsatisfactory and Mr Hijazi's licences were suspended.

Legislation

1. The "underlying principles" of the Firearms Act are set out in s 3, and include:

(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.

1. Section 11 of the Act provides that the Commissioner may issue a licence to a person who applies for one, but must not do so unless, as far as relevant to Mr Hijazi's circumstances:

• 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 (s 11(3)(a)); and

• the Commissioner is satisfied that the storage and safety requirements set out in Part 4 of the Act are capable of being met by the applicant (s 11(3)(c)).

1. A licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind (s 24(2)(a)), or if the licensee contravenes any provision of the Act or the regulations, or contravenes any condition of the licence (s 24(2)(b)(ii) or (iii)).

1. The general "safe keeping" requirements for a category A and B licence are set out in s 40 of the Act. They require firearms to be stored in a "locked receptacle" of a type approved by the Commissioner. The receptacle, generally a safe, must be constructed of hard wood or steel and not easily penetrable. Ammunition must be stored securely, separately from any firearms.

1. Over and above the general requirements, there are special conditions that apply to collector licences. Section 20(e) of the Act provides:

[A]ny firearm that is part of the collection can only be kept on premises approved by the Commissioner, and must be stored in accordance with the standards prescribed by the regulations for the purposes of this section.

1. Clause 34(7) of the Firearms Regulation is in the following terms:

For the purposes of section 20 (e) of the Act, the following standards are prescribed for the storage of firearms in a firearms collection:

(a) any ammunition for any firearm (whether or not forming part of the collection) must not be kept in the area or room in which the firearms are stored, unless the ammunition is stored in a separate locked container,

(b) the area or room in which the firearms are stored must be part of a permanent building with secure locks on all entrances,

(c) the area or room must have solid walls that provide a substantial barrier to forced entry,

(d) any window in the area or room must be covered by a security screen,

(e) doors leading into the area or room must be made of solid material or be reinforced by steel,

(f) each such door must be fitted with a "dead latch" type lock, or be fitted with a hasp/barrel bolt and padlock,

(g) door hinges must be concealed or the hinge pins must be welded to prevent them from being punched out,

(h) if the firearms are to be displayed outside of their locked containers at any time, the licence holder must be physically present in the area or room at that time.

The reasons for the revocation of the licences

1. There are three broad areas of concern which led to the Commissioner's revocation of Mr Hijazi's licences and which, according to the Commissioner, should lead the Tribunal to affirm the decision. They are:

(a)   Mr Hijazi's failure to comply with the Act and Regulation;

(b)   Mr Hijazi's association with members of Outlaw Motorcycle Gangs (OMCGs);

(c)   Mr Hijazi's generally lax attitude to public safety, as evidenced not only by Mr Hijazi's non-compliance with the firearms legislation but also by his poor driving record.

Failure to comply with the Act and Regulation, and particularly the safe storage requirements

1. Police Constable Robert Luikens conducted the inspection of Mr Hijazi's firearms storage arrangements on 22 January 2013, in the company of two other police officers. Constable Luikens' affidavit explains that Mr Hijazi's firearms safes are in the laundry of his house, and continues:

[23] The laundry had two doors. We entered the laundry through a door leading into the laundry from inside the house. This was an ordinary, thin wooden internal door. I did not see a lock fitted to it.

[24] In the laundry I observed that Mr Hijazi had two commercial safes installed, one which was for pistol storage, and the other was a larger safe for long arm firearms. Both of these safes appeared to me to comply with the requirements for a firearms safe.

[25] Whilst in the laundry, I observed that the window to the laundry did not have a security screen installed. There was an insect screen covering the window and there were no bars across the window.

[26] There was also a door exiting the laundry to the backyard. I also observed that the door exiting from the laundry to the backyard appeared to be an ordinary residential, wooden door. The door was a thin wood door and was not a solid core door. The lock on the door did not appear to me to be a deadlock, it appeared to be a simple key lock.

[27] I believe that because of the thin doors without deadlocks and the lack of a security screen over the windows, the room failed to comply with the requirements under Section 34, subsections d, e, f of the Firearms Regulation 2006.

1. Constable Luikens confirmed in cross-examination that no firearms were missing from the safes, and that no unlicensed weapons were in the safes.

1. In addition to the failure to comply with the safe storage requirements, Mr Hijazi had failed, contrary to s 20(b) of the Firearms Act, to render the collectors' pieces inoperable. Furthermore, they contained magazines capable of holding 15 rounds of ammunition. Magazines with a capacity of more than 10 rounds require a separate permit under the Weapons Prohibition Act 1998 and Mr Hijazi did not hold such a permit.

1. The Commissioner also notes that Mr Hijazi has in the past failed to comply with fundamental provisions of the firearms legislation. This goes back to 2008 when Mr Hijazi allowed his pistol permit to expire but he continued to possess, unlawfully, the pistols that were covered by the probationary permit.

Links with OMCGs

1. The Commissioner claims that Mr Hijazi has links with the Comancheros OMCG - a group which, according to the Commissioner, is heavily involved in drug supply and violence. There are two elements to the claimed links: the first is that Mr Hijazi is the brother of Mick Hijazi, who is, according to the Commissioner, known to be a high ranking member of the Comancheros; and the second is that he has "associated" with members of the Comancheros, including Herbert Laupepa (a "confirmed member" of the Comancheros). The Commissioner also claims that Mr Hijazi has links with members of other crime gangs, including Ahmed Assam and Pasquale Barbaro.

1. According to Constable Luikens' evidence, Mr Hijazi's brother Mick Hijazi has been linked to the Comancheros since 2006. He has been the president of a "chapter" of the Comancheros. That fact supports the Police Force's assessment of him as a high ranking member of the gang. He was hospitalised in October 2008 with a gunshot wound. According to the Police, he fled Australia in 2013 when he was threatened by members of other Comancheros chapters. He now lives in Dubai.

1. Herbert Laupepa has an extensive criminal history. He has been charged with soliciting to commit murder, although the charges were subsequently withdrawn. He is known to have been present at Mr Hijazi's home in January 2013, shortly before Constable Luikens' firearms inspection.

1. Mr Assam is known to have family connections with a number of OMCGs, including the Hells Angels. He has various convictions for goods in custody suspected of being stolen; resist officer in execution of duty; drive while disqualified; and not keep firearm safely.

1. Constable Luikens said in his statement:

[57] Mr Assam and Mr Hijazi are both members of the same pistol club. Mr Assam is also known to have obtained a firearm that was previously registered to Mr Hijazi. Police are of the view it is highly likely that Mr Assam and Mr Hijazi are known to each other.

1. Mr Barbaro is, according to Constable Luikens, "known to be part of the Italian mafia in Griffith, NSW. He is known by police to be heavily involved in organised crime including major drug supply and firearm offences." Mr Hijazi is "known to have associated with Mr Barbaro in 2002".

Lax attitude to public safety

1. Finally, the Commissioner considers that Mr Hijazi's driving history, which contains a number of speeding and traffic light offences, demonstrates a poor attitude to public safety, which should be taken into account in any consideration of whether Mr Hijazi should be entitled to the retention or the return of his firearms licences.

Consideration

1. Mr Hijazi's failure to comply with the safe storage requirements for a so-called category G licence renders him undeserving of the reinstatement of that category of licence at this time. He sought to minimise the seriousness of the shortcomings by relying on the fact that police officers had been satisfied with the arrangements when they carried out an inspection in May 2012. That fact cannot assist him. While it is unfortunate that local officers (most likely not expert in the requirements of the firearms legislation) had given Mr Hijazi the green light when they should not have, Mr Hijazi cannot rely on inadequate enforcement on their part as if it equates to full compliance on his.

1. Mr Hijazi had a personal responsibility to ensure that he was compliant. He had declared to the Commissioner, in writing, that he "fully under[stood] and [could] comply with the firearms safekeeping requirements of the Firearms Act 1996 and associated Regulation". And yet his own evidence is that he became fully aware of the safe storage requirements for a category G licence, and the requirement to have the collector's pieces rendered inoperable, only after his licences were revoked: 3 July 2014 affidavit at [13], confirmed in cross-examination.

1. As far as the magazines are concerned, his evidence was that they were in the pistols when he bought them from a licensed dealer. He had never taken them out to inspect them. He assumed the dealer who sold them to him would have known the law and would not have sold him prohibited magazines. That approach is not good enough. It confirms Mr Hijazi's inadequate understanding of his own obligations.

1. The shortcomings with respect to category G compliance bespeak a failure on Mr Hijazi's part to inform himself fully on what his responsibilities were. It was, for him, a new category of licence which required more focus and more effort on his part. The Commissioner was right to revoke that category of licence; the decision to that extent is affirmed.

1. However, the category G non-compliance stands in stark contrast to Mr Hijazi's years of satisfactory, and safe, compliance in respect of the other licence categories. Constable Luikens himself accepted that the safe storage shortcomings related only to category G. Except in relation to that category, there have been no adverse events; there is nothing to suggest that public safety has been at risk. At least as far as the remaining licence categories are concerned, Mr Hijazi understood the requirements and he complied with them. Failure to comply with one discrete set of requirements can and should be quarantined from Mr Hijazi's other compliant behaviour.

1. But that is not the end of the matter. There is still the question of the alleged links with OMCGs.

1. In this respect the Commissioner's position is somewhat thin.

1. I accept that Mick Hijazi is, or has been, a high-ranking member of the Comancheros but there is no evidence that Mr Hijazi's relationship with his brother has tainted Mr Hijazi's character or his behaviour. Indeed, the Commissioner alleges nothing specific against Mr Hijazi except that his brother is a member of the Comancheros. For example, it is not asserted that Mr Hijazi has engaged in any criminal or even questionable conduct. Mr Hijazi currently has little contact with his brother and he expresses no particular desire for that position to change. He is content to allow his brother to get on with his life, just as he wishes to get on with his.

1. Mr Hijazi's relationship with Mr Laupepa is similarly benign. Mr Hijazi said, and I accept, that Mr Laupepa attended Mr Hijazi's home for the purpose of dropping off his nephew's car to have its windows tinted. (Mr Hijazi operates a window-tinting business and sometimes undertakes the work at home.) Mr Hijazi did not previously know Mr Laupepa; the job seems to have originated from a word-of-mouth referral. Mr Laupepa did not enter Mr Hijazi's house. He came back later to pick up the car. That is the extent of their interactions.

1. Mr Assam (also known as Hassan Jaafar) is a former employee of Mr Hijazi. Mr Hijazi used to see him during working hours and some years after the employment relationship ended, they both used to attend the same shooting range together. That appears to be the extent of their association.

1. As for Mr Hijazi's connection with Mr Barbaro, Mr Hijazi explained (7 April 2014 affidavit):

[40]... To the best of my knowledge in 2002 I was working at a carwash in Campbelltown for my brother in law Mr Sam Clark. Around that time I had made an application to the NSW Police Force. Whilst working at the carwash Mr Pasquale Barbaro was a customer of the carwash and I only ever spoke to him on one isolated occasion at a car dealership where I was dropping off a customer vehicle after it had been washed. I have not had any other contact with a (sic) Mr Pasquale Barbaro.

1. I accept Mr Hijazi's explanation of his brief association with Mr Barbaro.

1. Mr Hijazi provided several references to the Tribunal, none of which were challenged by the Commissioner, although the Commissioner did submit that, to the extent that they attest to Mr Hijazi's character, they are of little relevance. On the contrary, when they refer to Mr Hijazi's being a "good leader, trainer and role model", his "honesty", "integrity", "maturity", "professionalism" and his devotion to his wife and three children, they paint a picture of a person well capable of, and committed to, protection of his family's safety and that of the public. He is circumspect about his ownership of firearms. Any fear that he may come under pressure from, or under the influence of, OMCGs or other criminal elements is in my view unwarranted.

1. There are two further issues to deal with. The first is Mr Hijazi's allowing his probationary pistol permit to expire in 2008. The second is his driving record.

1. As for the expiry of the permit, Mr Hijazi said, and I accept, that his life was very busy at the time - he had just got married and was purchasing a home to live in - and things simply got the better of him. There have been no similar slip-ups since and there is no reason to suppose that there will be any in the future.

1. In relation to Mr Hijazi's driving record, the Commissioner relies on the decision in Tannous v Commissioner of Police [2011] NSWADT 116 to submit that Mr Hijazi has shown "a repeated disregard for a regulatory scheme aimed at ensuring public safety, and ... a lack of compliance with the law generally".

1. In some circumstances it is appropriate to give a poor driving record significant weight when considering a person's general attitude to compliance with the law but it must surely be regarded as of less significance when an applicant has a fully compliant history in the particular regulated activity under consideration. This is such a case. With the exception of the non-compliance in relation to the category G licence, Mr Hijazi has been fully compliant with the requirements of the legislation. Mr Hijazi has done nothing to suggest that he has a generally lax attitude to compliance; indeed, his history suggests otherwise.

1. Accepting, as I do, that public safety is a paramount consideration, and acknowledging that holding a firearms licence is a privilege, not a right, I am nevertheless satisfied that Mr Hijazi should have his category A, B and H licences restored. The best indicator of future behaviour is past behaviour and in that regard I am satisfied that Mr Hijazi's continued holding of a firearms licence in those categories does not place public safety at risk.

Conclusion

1. The decision to revoke Mr Hijazi's category G licence is affirmed.

1. The decision to revoke Mr Hijazi's licences in categories A, B and H is set aside. Instead those categories of licences should be reinstated.

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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: 19 September 2014