Hocking v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 214

CITATION:	Hocking -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 214
DIVISION:	General Division
PARTIES:	APPLICANT David John Hocking RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023154
HEARING DATES:	08/10/2002
SUBMISSIONS CLOSED:	10/08/2002
DATE OF DECISION:	10/29/2002
BEFORE:	Higgins S - 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:	Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
REPRESENTATION:	APPLICANT P Latham, solicitor RESPONDENT J Tunks, solicitor
ORDERS:	1. The Commissioner's decision to revoke Mr Hocking's category AB firearms licence is affirmed.

1 On 18 July 2002, Mr Hocking lodged an application with the Administrative Decisions Tribunal ("the Tribunal") for review of a decision, made by a delegate of the Commissioner of Police ("the Commissioner") to revoke his category AB firearms licence.

2 Mr Hocking’s application was made pursuant to s.75(1)(c) of the Firearms Act, 1996 ("the Firearms Act") and s.38 of the Administrative Decisions Tribunal Act, 1997.

3 The basis on which the Commissioner revoked Mr Hocking’s firearms licence was the fact that on 14 March 2002, at the Warren Local Court, Mr Hocking had been found guilty of an offence of failing to keep his firearm safely pursuant to s.39(1)(a) of the Firearms Act. While Mr Hocking was found guilty of the offence charged, no conviction was recorded pursuant to s.10 of the Crimes (Sentencing Procedure) Act, 1999. However, Mr Hocking was placed on a good behaviour bond for a period of twelve months.

4 The grounds on which the Commissioner relied in making his decision were as follows:

(a) that it was not in the public interest for Mr Hocking to continue to hold his firearms licence (s. 24(2)(d) Firearms Act and cl 17 Firearms Regulations);

(b) that Mr Hocking had contravened a provision of the Firearms Act (ss. 24(2)(b)(ii) and 39); and

(c) that Mr Hocking was subject to a good behaviour bond (ss11(5)(d) and 24(2)(a)).

Hearing

5 The matter was heard in Warren and at the commencement of the hearing Mr Tunks, for the Commissioner, indicated that the Commissioner no longer sought to rely on the grounds that it was not in the public interest for Mr Hocking to continue to hold his firearms licence.

6 At the hearing the parties relied on material, which had been previously filed with the Tribunal. Mr Hocking also gave oral evidence and he was extensively cross examined by Mr Tunks.

7 The material filed by Mr Hocking included ten character references.

8 At the hearing oral evidence was also given by Sergeant Michael Allen Williams, who had been summonsed by Mr Hocking.

Evidence

9 Mr Hocking gave the following evidence:

• He is 34 years of age and has shooting for 17 years. He has held a firearms licence since 1994.
• For the last four years he has also been the holder of a kangaroo shooter’s licence, which is issued by the National Parks and Wildlife Service. This licence entitles him to participate in shooting kangaroos on specified properties for the purpose of culling the number of kangaroos on those properties.
• In addition to being authorised to shoot a specified number of kangaroos he is also a qualified meat handler entitling him to take the kangaroos that he has killed to the local chillers for processing as pet food or food for human consumption. As a result of this shooter’s licence Mr Hocking has been able to supplement his annual income by about $8,000.
• Mr Hocking is currently employed as a water attendant for the Warren Shire Council.
• He is the owner of four firearms - a Remington 223, a Savage 222, a Brownie pump action 22 and a Sterling 22.
• He has had his Savage 222 since the time he was first issued with a licence. This firearm he stated needs to be destroyed, because he can no longer get any parts for it, and its is currently with a gun dealer.
• The Remington 223 is the firearm he uses for shooting kangaroos and feral pigs.
• The Sterling 22 he used for shooting pigs that had been caught in traps.
• He was issued with his Category AB firearms licence on 24 August 1998. That licence was due to expire on 23 August 2003. His licence covers each of the abovementioned firearms.
• On 1 August 2001, after coming home from work, Mr Hocking went shotting for feral pigs and kangaroos on one of the properties, which are authorised by National Parks and Wildlife to cull the number that come onto their property. On this occasion he took his son and another person. He drove his Nissan Navara twin cab ute and took his Remington 223 and Sterling 22 rifles. Both firearms were taken from the locked steel cabinet, which Mr Hocking has in his house. He placed his Remington 223 into a sponge rubber casing and then placed it on the dashboard of his ute. He places it on his dashboard so that it is readily accessible as kangaroos are shot from the vehicle. The Sterling 22, he wrapped in a towel and placed behind the backseat of the ute. His normal practice was to have the Sterling 22 lying on the back seat but on this occasion he had an extra person with him and for abundant safety he placed it behind the back seat. The firearm was not visible to persons standing outside the ute. At the same time he placed the ammunition for the Sterling 22 in the glove box of his ute and placed the other ammunition beside him.
• That evening Mr Hocking finished shooting at about 12.30am. His recollection was that he had shot over 30 kangaroos that particular evening. After having shot the kangaroos he took them to the chillers and then returned to his home. His home is in the township of Warren and he parked his truck behind the family car.
• He got home at about 1.00am, took his Remington 223 inside and locked it in the cabinet. He then returned to his vehicle, woke up his son, and took him inside.
• As was his usual practice, after having woken his son, Mr Hocking locked his ute.
• During that evening, Mr Hocking had not used the Sterling 22 rifle.
• The next morning, on his way to work, Mr Hocking noticed that the driver’s side door of his ute was opened. He also noticed that the back driver’s side window had been forced open. Mr Hocking also noticed that the ammunition, bullets and magazine for his Sterling 22 were lying on the floor of the ute. It was then that he realised that he had left his Sterling 22 in the back of the vehicle when he returned home that evening.
• The following day, at about 3.10pm, after he had finished work, Mr Hocking attended the local police station and reported the incident to the police. The police advised him to advertise for the return of the firearm. Mr Hocking did this but the firearm has never been recovered.
• Mr Hocking acknowledged that he should have taken the Sterling 22 inside and locked it away. He stated that he realises that safety is paramount and that firearms are to be kept safely at all times to ensure that they do not come into the hands of any criminal. He stated that this had never happened to him previously and the only reason he did not take it inside on this occasion was the fact that he forgot that it was there behind the seat. He forgot because he had not used the firearm during that evening and it was not stored on the back seat, which was his usual practice. He further stated that he was not aware that at the time there had been a spate of thefts of firearms from vehicles, which were owned and used for spotlight shooting.
• Mr Hocking pleaded guilty to the charge that had been laid against him.

10 Sergeant Michael Allen Williams gave evidence as follows:

• He has known Mr Hocking for about 19 months. He has known him through his security work, which required a high level of cooperation with the Police Service.
• At the time Mr Hocking’s vehicle was broken into there were a number of firearms thefts, with Mr Hocking being one of the first.
• Following police investigations, police arrested certain youths who had been responsible for these thefts. These youths were aware that shooters work long and hard hours and they knew which vehicles to target and when to target them.

11 The Firearms Act sets out a scheme for licencing people to possess and use firearms. Section 24(2) of the Act sets out grounds on which the Commissioner may revoke a licence which has been issued. These grounds include the following:

"s.24(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) ... , or
(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) ...".

12 Section 11 of the Firearms Act sets out the general restrictions on the issue of a licence. Section 11(5)(d) provides that "a licence must not be issued to a person who is subject to a good behaviour bond, granted in NSW or elsewhere".

13 The principles and the objects of the Firearms Act are set out in s.3. The underlying principles of the Firearms Act are set out in s.3(1). These include the principle that the possession and use of a firearm is a "privilege that is conditional on the overriding need to ensure public safety" (s.3(1)(a)) and to improve public safety which involves the promotion of safe and responsible use and storage of firearms (s.3(1)(b)(ii)).

14 The objects of the Firearms Act are contained in s.3(2) and includes the object "to ensure that firearms are stored and conveyed in a safe and secure manner" (s.3(2)(e)).

15 Part 4 of the Firearms Act contains a specific provision relating to the safe keeping of firearms. Section 39 is a general requirement and provides as follows:

"s.39(1) A person who possesses a firearm must take
all reasonable precautions to ensure:
(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is nor authorised to possess a firearm".

16 A failure to comply with s.39(1) of the Firearms Act constitutes an offence. Section 39(2) also provides that the regulations may specify the precautions that are taken to be reasonable precautions for the purpose of this section. No regulations have been made pursuant to this particular provision.

Submissions

17 Mr Tunks for the Commissioner submitted that the relevant test to be applied by the Tribunal is that which was stated by the Deputy President in Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127 at para 19. That is, the onus was on Mr Hocking to show that there were persuasive and relevant considerations, which took his matter outside the ordinary case of what constituted reasonable precautions to ensure the safe keeping of his firearm. He went on to submit that the fact that Mr Hocking forgot that he had his Sterling 22 firearm in the vehicle was not sufficient a reason to take his application outside the ordinary case. The objects of the Firearms Act were clear in that Parliament intended for there to be strict control on the safe keeping of firearms as public safety was paramount. He went on to submit that the privilege referred to in s.3 was contingent on the holder of the licence taking due care not to leave weapons and ammunitions unattended in a vehicle. He further submitted that Mr Hocking’s character and the issue of loss of income were not relevant to the Tribunal’s determination as to whether the Commissioner’s decision was the correct and preferred one.

18 Mr Latham on behalf of Mr Hocking submitted that s.24(2) of the Firearms Act gives the Commissioner a discretion as to whether a firearms licence is to be revoked or not. That is, Parliament intended the Commissioner to exercise his discretion in the appropriate way. In this case he submitted that evidence of character was relevant, particularly in determining the voracity of Mr Hocking’s evidence. That evidence was that this was the only occasion where Mr Hocking had left his Sterling 22 firearm in his ute. He submitted that if the Tribunal accepts Mr Hocking’s evidence, it must accept that this was a one-off occasion and that Mr Hocking at all times takes the necessary reasonable precautions to ensure the safe keeping of his firearms. He also submitted that the Tribunal should equally accept Mr Hocking’s evidence that in future he would take steps to ensure that the same thing would not happen again. That is, Mr Hocking has conceded his error and to revoke his firearm licence would impose a penalty that far exceeded the maximum penalty that could be imposed for a contravention of s.39(1) of the Firearms Act.

Reasons and Decision

19 I found Mr Hocking to be a frank and truthful witness. I also find that Mr Hocking is a person of good character who is regarded highly within the community and by those for whom he works or has worked.

20 While the evidence is not disputed, there is a dispute as to how this evidence is to be regarded in the exercise of the Commissioner’s discretion under s.24(2) of the Firearms Act.

21 While s.24(2) of the Firearms Act sets out the circumstances in which the Commissioner may revoke a person’s firearms licence, the section does not given any guidance as to how that discretion should be exercised in each individual case. The Deputy President has stated in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at para 23 that "the discretion should be exercised in a way which promotes the principals and objects of the Firearms Act".

22 As mentioned above those principles are that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety (s.3(1) of the Firearms Act). Included in the objects of the Act is the need to store and convey firearms in a safe and secure manner.

23 While I agree with the abovementioned statement by the Deputy President, in my opinion the following matters are also of relevance when determining how that discretion is to be exercised in each individual case:

(a) the nature and seriousness of the applicant’s conduct, which gave rise to the Commissioner’s decision to revoke the applicant’s firearms licence ("the improper conduct");

(b) the applicant’s explanation of the circumstances giving rise to the improper conduct;

(c) the consequences, if any, for the applicant if the licence is revoked; and

(d) the likelihood of the applicant repeating the improper conduct in the future.

24 I do not agree with the submissions of the Commissioner that the question of loss of income is an irrelevant factor in the exercise of his discretion as the licensing scheme under the Firearms Act specifically requires an applicant for a firearms licence to specify a genuine reason for which a licence is sought, and those reasons must be one of those which are specified in s. 12 of the Act. In some circumstances these reasons include matters of employment or for businesses purposes (e.g. vermin control, primary production, vertebrate pest animal control, business or employment and occupational requirements relating to rural purposes). While this is a relevant consideration it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations.

25 In this case there was no evidence before the Tribunal on what reasons Mr Hocking set out in his application as being the genuine reasons for which he required a licence. However, on the evidence before the Tribunal it can be assumed that this was for vermin and vertebrate pest animal control and he clearly did this for financial reward. Accordingly a loss of his licence will have a detrimental effect on him financially. However, this is by no means the primary source or only possible source of income for Mr Hocking. If anything it is a hobby, which has generated income during recent years as the demand for professional shooters has increased in the Warren area. In any event, as I have already stated this is only one factor, which needs to be taken into consideration and to be weighed against the overriding need for public safety.

26 In my opinion, the character references are relevant to the credibility of Mr Hocking’s evidence and as I have already stated I found Mr Hocking to be a truthful witness. However, I do not accept Mr Latham’s submission on behalf of Mr Hocking that a revocation of Mr Hocking’s licence must be determined having regard to the maximum penalty a court could impose for a conviction of an offence under s. 39 of the Firearms Act. By the express words of the Act, Parliament has clearly intended that licence holders under the Act, who breach a provision under the Act, are to be subject to criminal prosecution as well as being deprived of their licence. Ss. 39 and 84 provide for criminal prosecution of a failure to keep firearms safely and s. 24(2)(b)(ii) provides for the revocation of a licence if a licence holder contravenes a provision of the Act. There are no qualifying words in s. 24(2)(b)(ii) or elsewhere which qualify the Commissioner’s discretion of revocation, indeed the section expressly gives the Commissioner such a power regardless of whether the licence holder has been convicted of an offence.

27 While I accept that Mr Hocking did not deliberately leave his firearm in his ute and that it was left there because he forgot he had taken it, in my opinion this improper conduct must be considered in light of the obligations placed on him under the provisions of the Firearms Act. It is clear from the principles and objects of the Act that the safe keeping of firearms is a fundamental requirement under the Act. That is, the licence holder is required to ensure the safe keeping of his firearm at all times. Mr Hocking acknowledges that there is such a requirement and that it is of paramount importance. However, he also states that in August last year when he forgot to take his firearm inside this was an oversight, which will not happen again.

28 In my opinion, the inference to be drawn from Mr Hocking’s evidence is that he forgot that he was carrying his firearm, not that he forgot to take it inside and lock it into his cabinet at home. Having regard to the structure of the Firearms Act, in my opinion this is a serious matter. No holder of a licensed firearm should forget, even inadvertently, that he/she is carrying a firearm.

29 It is not disputed that Mr Hocking was placed on a good behaviour bond by the Local Court at Warren when he pleaded guilty to the charges. That bond is not due to expire until March next year. Had Mr Hocking been applying for a licence at the time this application was heard, the Commissioner would have been required to refuse his application by virtue of s. 11(5)(d) of the Firearms Act. Accordingly, Parliament considered such an order of the court to be a serious matter justifying the refusal of a licence. However, as I have already mentioned, under s. 24(2)(a) of the Act the Commissioner is given a discretion in this regard, but it must be exercised having regard to the serious nature in which Parliament regards such orders.

30 Having regard to all the evidence in this case, in my opinion the decision of the Commissioner is the correct and preferred decision. Mr Hocking’s breach of the Firearms Act was a serious breach of a fundamental requirement of that Act. I accept that a revocation of his licence may have a detrimental effect on Mr Hocking’s income but Parliament has made it clear that the possession of firearms is a privilege and that it is conditional on the over-riding need to ensure public safety. In this case Mr Hocking’s conduct of forgetting that he was carrying a firearm created a serious risk to public safety.

31 While there are several mitigating factors in favour of Mr Hocking in that I accept that this was a one off occasion, that it was not a deliberate act, and that the Commissioner accepted that in all other respects Mr Hocking was carrying his firearms safely, on balance it is my opinion that his contravention was of sufficient seriousness to warrant his licence to be revoked. However, these mitigating factors should be taken into account, if and when Mr Hocking makes a further application for a firearms licence.

32 Accordingly, I order that the Commissioner’s decision to revoke Mr Hocking’s category AB firearms licence be affirmed.