Hill v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 218

CITATION:	Hill -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
DIVISION:	General Division
PARTIES:	APPLICANT Alan Hill RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023111
HEARING DATES:	02/09/2002
SUBMISSIONS CLOSED:	09/02/2002
DATE OF DECISION:	11/01/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
REPRESENTATION:	APPLICANT G Lunney, barrister RESPONDENT J Tunks, solicitor
ORDERS:	1. The Commissioner's decision to revoke Mr Hill's category A, B and C firearms licence is affirmed.

1 Alan Hill applies under s 75 of the Firearms Act 1996 ("the Firearms Act") to the Administrative Decisions Tribunal ("the Tribunal") for a review of the decision made by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to revoke his Category A, B and C firearm licences. On 21 March 2001 Mr Hill was served with a notice to revoke his firearm licences. An internal review, conducted at his request, affirmed the original decision by the Commissioner’s delegate.

2 The issue for determination is whether the Commissioner’s delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act (NSW) 1997 ("the Tribunal Act").

Background

3 Mr Hill is 51 years of age and has been in the possession of firearms since he was 18. He has held a firearms licence since 1993. For the past 27 years he has operated a small farm outside Canberra. From time to time it has been necessary for him to use firearms to control noxious and feral animals found on his or adjacent properties. It is not in issue that Mr Hill has a real and legitimate need for his licence.

4 It is common ground that the trigger for the decision by the Commissioner’s delegate to revoke Mr Hill’s licences was a shooting incident, which occurred on 19 August 2001. On that day Mr Hill drove his 15-year-old son and a friend to an adjacent property to shoot feral pigs. The party sighted a pig. Mr Hill’s son and his friend pursued it on foot. Mr Hill’s son accidentally shot his unarmed friend in the leg.

5 At the relevant time the boys were about 50 yards from Mr Hill and visibility was poor because of the dense vegetation. The injured boy was airlifted to Hospital. His injuries were not serious.

6 Mr Hill was charged with the offence of "Not Keep Firearms Safely - Not Prohibited Firearm". On 29 October 2001 the presiding magistrate at Queanbeyan Local Court found the offence proven but dismissed it under Section 10 of the Crimes (Sentencing Procedure) Act 1999.

7 No adverse notification had been made at any time before the shooting incident about Mr Hill’s firearms licence.

8 It is common ground that Mr Hill’s son was required at law to hold a valid firearms licence but did not. He and another son have been shooting with their father since they were young and at no time have they held a valid licence.

Relevant Legislation

9 The Firearms Act sets up a comprehensive scheme for licensing persons in New South Wales to possess and use firearms. The principles and objects of that Act are set out in s 3.

10 Where a person has been granted a firearms licence s 24 of the Firearms Act provides that the Commissioner may revoke it on one or more specified grounds. A licence may be revoked for any reason for which the licence would be required to be refused: s24(2)(a).

11 In this matter the Commissioner relies principally on s 24(2)(b)(ii) and s 24(2)(b)(iii) which provide that a licence may be revoked if the licensee:

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence.

12 Section 19(2)(b) provides that that the licensee must not permit any person to possess or use any fireman in the licensee’s possession if that other person is not authorised to possess or use the firearm.

13 Section 11(3)(a) 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 possess firearms without danger to public safety or to the peace.

14 Clause 17 of the Firearms (General) Regulation 1997 (the Regulations) provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for a person to whom it is issued to continue to hold it.

Submissions

15 The primary submission advanced for the Commissioner is that it is no longer in the public interest for Mr Hill to continue to hold a firearms licence. Mr Tunks, for the Commissioner, argues that in considering the public interest the Tribunal must have regard to the principles and objects of the Act. The underlying principles of the Act are to confirm firearm possession and use as a privilege, conditional upon the overriding need to ensure public safety.

16 Mr Tunks submits that the evidence establishes that the shooting incident demonstrated that he failed to exercise appropriate care and responsibility in the use and possession of his firearms. Not only did he hand over his firearm to an unlicensed minor (and not for the first occasion) but he failed to take reasonable steps to supervise his son in its use. Mr Tunks argues that Mr Hill acted in a reckless manner by allowing two boys (one unarmed) to run into the bush, unsupervised (albeit briefly) in an area where visibility was poor. This, according to Mr Tunks, raises serious concerns about Mr Hill’s use and attitude towards firearms.

17 Mr Lunney for Mr Hill, cautioned the Tribunal against confusing the two discrete and independent arms of the Firearms Act. The first, relates to the conviction and punishment of offences. The second arm relates to licensing. Mr Lunney submits that where discretion exists under the licensing regime, it should be exercised independently of the punishment regime.

18 According to Mr Lunney Mr Hill has established that he is a fit and proper person to hold a licence, as borne out by character references tendered in these proceedings. These references together with Mr Hill’s own evidence, asserts Mr Lunney, establish that there is no chance of any repeat offence or other offence relating to firearms. In these circumstances, argues Mr Lunney, the Tribunal should exercise its discretion in favour of the continuation of the licence.

Findings and Conclusions

19 It is not in issue that Mr Hill is a man of good character and high standing within the community. Apart from two convictions for driving under the influence of alcohol, his criminal record is unblemished. Nor is it is issue that he has a real and legitimate need for his licence.

20 The legislative scheme underpinning the regulation of firearms in New South Wales places a number of restrictions on the use and possession of firearms. As a starting point, the legislation requires that a licensee be a fit and proper person. Section 11(3)(a) makes it clear that it is not enough that an applicant (or licensee) establishes that they are a fit and proper person. They must also satisfy the Commissioner that they can be trusted to possess firearms without danger to public safety or to the peace.

21 The sole ground relied upon by the Respondent in these proceedings was cl 17 of the Regulations which provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue hold that licence.

22 I accept Mr Lunney’s submission that the fact Mr Hill committed an offence under the Firearms Act of itself does not mean that his licence must be revoked. The relevant offence is not an offence, which leads to automatic revocation. (See for example s 24(1) of the Firearms Act). While the consequence of licence revocation may be that the licensee is in effect "punished" the discretion granted under s 24 should not be exercised for that purpose alone. Conversely, of course, a decision maker should not shy from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience. While not determinative, an offence under the Firearms Act and/or a breach of a condition of licence will, in my view, be highly relevant to a decision to revoke a licence. All of the circumstances surrounding the offence must be taken into account.

23 The evidence shows that the victim of the shooting incident mercifully suffered only minor injuries. This does not detract in any way from the serious nature of the incident and Mr Hill’s conduct. As he properly acknowledges, the incident could have ended tragically. The evidence shows that Mr Hill who had significant experience with firearms allowed two young boys, one unarmed and unlicensed, to run off into dense shrub, away from his view, in pursuit of a wild pig. The only conclusion that can be drawn is that Mr Hill was reckless in the supervision of his firearm. It is relevant that he had consumed alcohol before the incident. While the evidence does not indicate that Mr Hill was intoxicated or affected by alcohol at the time of the incident (nor is that the Commissioner’s contention), in my view the consumption of any alcohol prior to the firearm use shows a serious lack of judgment and must be seen as reckless conduct.

24 The critical issue for determination is whether it is in the public interest for Mr Hill to continue to hold a firearms licence. As mandated by the legislation, public safety is to be given paramount consideration in any licensing decision. I concur with the view of Deputy President Hennessy in Cusumano vCommissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms. The legislation does not prescribe the factors to be taken into account in the exercise of this discretion. However in a case such as this it is apparent that a critical issue to be determined is whether the behaviour that gave rise to the offence will be repeated.

25 Mr Hill’s sons now hold appropriate firearm licences. In my view there is little if any risk that Mr Hill will once again allow his firearm to be used by an unlicensed person . It is more difficult to determine whether he will in the future fail to maintain the high standards of care and concern for public safety as mandated by the legislation.

26 Mr Hill says, and I accept, that he is contrite and deeply regrets the incident. He claims that there is no chance of a repeat offence or of any offence relating to firearms. There is character evidence before the Tribunal that attests that Mr Hill is unlikely to re-offend and/or act in an inappropriate way in the use and possession of firearms.

27 This is the only offence (or adverse notification) in Mr Hill’s otherwise unblemished history in dealing with firearms. However, I note that this is not the first time that he allowed an unlicensed minor to use his firearms, nor could I be comfortably satisfied on the material before me that this was the sole occasion he failed to exercise a reasonable level of care and supervision in respect of the use of his firearm.

28 It is course impossible to say with absolute certainty how any individual will behave in the future. The Commissioner is properly concerned that Mr Hill’s serious lack of judgment and failure to properly supervise his firearms may be repeated. As I understand Mr Tunks to argue, notwithstanding the applicant’s good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated.

29 Despite the fact that Mr Hill has shown genuine contrition and acknowledges the seriousness of the matters that gave rise to his licence revocation I am not satisfied on balance that that conduct and or similar conduct will not be repeated. Accordingly taking into account all relevant considerations, in my view it is not in the public interest for him to continue to hold a firearms licence.

30 Accordingly the decision of the Commissioner’s delegate is affirmed.