Hogan v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 289

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hogan v Commissioner of Police, NSW Police Force [2023] NSWCATAD 289

Hearing dates:

23 August 2023

Date of orders:

02 November 2023

Decision date:

02 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is set aside.

Catchwords:

Administrative Law - Firearms Act - firearms licence - revocation of licence - safe storage requirements - fit and proper person - public interest.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Austin v Commissioner of Fair Trading [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 182

Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 61 IR 455

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWATAP 16

Cook v Commissioner of Police [2003] NSWADT 30

Cusumano v Commissioner of Police [2001] NSWADT 50

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409

Grant v Commissioner of Police [2020] NSWCATAD 158

Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28

Johns v Commissioner of Police, NSW Police Force [2021] NSWCATAD 283

Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227

Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145

Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Ward v Commissioner of Police [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

David Wayne Hogan (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
Ms J Hopper (Applicant)
Solicitors:
Davis Faulkner Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2023/00140167

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr David Hogan (“the Applicant”) for review of a decision by the Commissioner of Police (“the Respondent”) under the Firearms Act 1996 (“the Act”). The decision was to revoke the Applicant’s category AB firearms licence.

Background

2. The Applicant is a shearer and primary producer. He has had access to firearms since he was issued a minors permit in 1995. He has held a firearms licence under the Act since 1999. The licence has been renewed several times since it was first issued. The licence expires on 26 February 2024. However, it was suspended in April 2002 and revoked in February 2023.

3. In April 2022 police attended the Applicant’s residence as a result of a complaint by the Applicant's wife. The decision was made to suspend the Applicant’s firearms licence and to seize his firearms. He was not charged with any domestic violence related offences nor was he the subject of an Apprehended Domestic Violence Order (“ADVO”). However, he was charged with the offence of Holder of Category A or B licence not have approved storage'.

4. That charge related to the Applicant’s storage of his firearms and was unrelated to the complaint by the Applicant's wife. When Police attended the Applicant’s residence in April 2022, his firearms’ safe was inspected. Police observed ammunition stored with firearms on the floor of the safe and also noted that one of the firearms was loaded. Whilst the firearm was loaded, the bolt had been removed.

5. The Applicant was charged and ultimately convicted of the offence, and he received a $1200 fine.

Applicable legislation

6. The general principles are set out in section 3 of the Act, which provides:

3 Principles and objects of Act

(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

…

(2) The objects of this Act are as follows:

…

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

7. Section 75 of the Act provides for the review by the Tribunal of a decision to revoke a firearms licence.

8. Section 63 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

63 Determination of administrative review by Tribunal

(1)   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.

   9. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought by either party. The Tribunal is not restricted to the consideration of the material that was before the Respondent but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. There is no presumption that the Respondent’s decision is correct.

   10. Section 24(2) of the Act provides as follows:

(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) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, 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) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

11. The Tribunal regularly has regard to the terms of section 24(2)(a) of the Act in its statutory context. As Senior Member Lucy commented in Grant v Commissioner of Police [2020] NSWCATAD 158 that context includes the Act’s principles and objects.

12. Clause 20 of the Firearms Regulation 2017 (“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 a licence”.

13. In relation to the issue of a firearms licence, section 11 of the Act provides:

11 General restrictions on issue of licences

…

1. A licence must not be issued unless—

…

(c)   the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

…

(5)

A licence must not be issued to a person who—

…

(b)   has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

14. Clause 5 of the Regulations 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

...

15. It is not in dispute that the Applicant has been convicted of an offence relating to the possession or use of a firearm. As noted, the licence expires in February 2024. The Applicant will then need to reapply for a category AB firearms licence if he wishes to continue to possess and use firearms. However, if the Applicant were to reapply after that expiry, he would not be eligible to be granted a licence because of the operation of section 11(5)(b) of the Act.

16. Section 19 of the Act provides:

1. 19 Conditions of licence

2. A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

3. Without limiting subsection (1), each licence is subject to the following conditions—

(a)   the licensee must comply with the relevant safe keeping and storage requirements under this Act,

…

1. A licence is subject to such other conditions as may be prescribed by the regulations.

   17. The general requirements for safe keeping are set out in section 39(1) of the Act:

39 General requirement

(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 not authorised to possess the firearm. …

18. The Applicant held a category AB licence. The specific requirements for the AB category are set out in section 40(1) of the Act:

40 Category A and category B licence requirements

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations….

Issue for determination

19. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant’s firearms licence.

20. This determination requires consideration of whether the Applicant is no longer a fit and proper person to hold a licence and whether it would be contrary to the public interest for him to continue to hold a licence.

Fit and Proper Person

21. The term “fit and proper person” carries no precise meaning, a determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28.

22. Determination of whether a person is “fit and proper” is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated that:

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.

23. These statements have been considered at some length in numerous decisions of the Tribunal. See for example the Appeal Panel’s decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 where it is stated at paragraph [58]:

The passages from the authorities set out by the Tribunal (at [26]-[30]) emphasised:

(1) The very purpose of the words “fit and proper” is to give the widest scope for judgment and for rejection on that ground.

(2) “Fit” with respect to an office is said to involve honesty, knowledge and ability.

(3) 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.

(4) 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 it will not occur, or whether the general community will have confidence that it will not occur.

(5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question.

(6) The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.

24. When considering the question of whether an applicant is a fit and proper person to hold a licence under the Act, the Tribunal has had regard to the activities in which the applicant will be engaging. In the context of the Act, Judicial Member Higgins stated in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22]:

22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.

25. What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant’s character; it is also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder: Austin at [58].

26. The firearms licensing regime is concerned with protecting the public, not punishing individuals: see the discussion in Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at paragraph [6]:

The likelihood of risk is something to be assessed by reference to the Applicant’s prior conduct see Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 182 at [41]. 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. See Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. ... The public’s right to safety outweighs an individual’s privilege to possess and use firearms.

27. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

28. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety:

“27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

29. Ward v Commissioner of Police dealt with the issue of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134].

30. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at paragraphs [64] – [66].

31. In determining this issue, 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 at paragraph [32].

Public Interest

32. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the 'public interest' was an inherently broad concept providing the decision maker with the ability to consider matters where character was either not relevant, or where the objection to character would not be sufficient, alone, to warrant refusal or revocation of a firearms licence. The appeal panel expressed similar consideration regarding the breadth of the term public interest in Constantin v Commissioner of Police [2013] NSWATAP 16.

33. The Appeal Panel’s statements in Toleafoa and Constantin reflect the statement in Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 61 IR 455 at 479-480:

The purpose of the reference to ‘‘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 Commission’s consideration. The effect of the reference is to amplify the ‘‘scope and purpose’’ of the legislation.

34. The discretion allowed under the relevant provisions of the Act must be exercised to promote the objects of the firearms legislation. Consideration of whether it is in the ‘public interest’ for the Applicant to hold a firearms licence is confined to the subject matter, scope and purpose of the legislation: Senior Member Walker stated discussed this issue in Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315 at paragraphs [30] - [31]:

30. The … general ground for revoking the applicant’s license was that it was not in the public interest for the applicant to continue to hold it, within the meaning of ss 11(7) and 24(2)(e) and cl 19. The phrase “public interest” is not defined in the Firearms Act.

31. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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. In Cook v Commissioner of Police [2003] NSWADT 30 I stated at paragraph 34:

1. The public interest requires that all licensees be aware of and comply with the legislative requirements.

Material before the Tribunal

36. The Applicant relies on his own evidence. He attended the hearing, gave evidence, and was cross-examined. He also relies on character references provided by Mr Scott Schlunke and Mr Tony Medway. The references were originally provided in relation to the Local Court proceedings. The Applicant’s solicitor also provided written submissions.

37. The Respondent relies on a bundle of material lodged pursuant to section 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”); the statement of Senior Constable Shane Collier dated 4 August 2023; the statement of Sergeant Vladimir Mijok dated 4 August 2023; and the statement of Senior Constable Natalie Booth dated 10 August 2023. Senior Constable Collier and Sergeant Mijok attended the hearing, gave evidence, and was cross-examined.

38. The Respondent’s solicitor also provided written submissions.

The Respondent’s case

39. As noted, the Respondent relies on the evidence of several police officers. Those officers attended the Applicant’s premises in response to contact with police by either the Applicant or his wife. This evidence includes video footage from body worn videos.

40. In regard to the charge for which the Applicant was convicted, the Respondent’s records include the following account:

“About 11. 15pm on Saturday 17th April 2022 Police attended [the Applicant’s premises] for the purpose of suspending the accused firearms license and seizing his firearms and ammunition after a reported domestic violence verbal argument. Police knocked at the door for several minutes, the accused answered the door. Police introduced themselves and explained the reason as to being there:

The accused was compliant with Police and cooperated fully. The accused took Police to a adjacent garage where the firearms safe was located. Police walked with the accused to the safe. Upon opening the safe, Police saw about 6 boxes on .22 calibre ammunition, containing 50 rounds in each, on the floor of the firearms safe. Police saw about 30 rounds of shotgun ammunition also on the floor of the safe. Police saw 1 box of .243 ammunition on the floor of the safe. Police also saw 4 firearms located in the safe with the ammunition.

The accused passed Police a single barrel shotgun with the serial number of H04638. The accused then retrieved a Weatherby Vanguard .243 rifle with a serial number of VSll0362, from the safe, Police saw that there was no bolt attached, however Police could see into the chamber and saw that there was a magazine attached and rounds in the magazine. Police directed the accused to remove the magazine, which he did. Police then directed the accused away from the safe so Police could inspect the remaining firearms and ensure that they rendered safe. The remaining firearms, a Norico .22 with the serial number of 9203350 and a Stirling .22 with a serial number of 626507 was seized by Police.

Police seized about 3000 round of .22 calibre ammunition and shotgun ammunition from the locked ammunition safe at the top of the firearm safe. When asked, the accused stated that he received the ammunition his uncle and did not have enough room in the top of the safe, that is why he stored the remainder in the bottom of the safe, when asked the accused stated that he knew that he could not store ammunition with firearms. When asked in relation to the loaded Vanguard, the accused stated that he uses that firearm to shoot foxes and left it loaded but always took the bolt out. When asked the accused confirmed that this was his normal practice. Police also seized the bolt for the Vanguard.

Police informed the accused that they would return and he would be receiving further paperwork in relation to the breaches. The accused stated that he understood.

All firearms and ammunition booked into EFIMS.”

41. The Respondent contends that the circumstances surrounding the offence revealed that the Applicant:

• had not stored ammunition in a separate locked receptacle;

• had not had the firearms individually secured in a locked device within the safe;

• had kept a firearm loaded with ammunition; and

• had allowed this state of affairs to continue for some time.

42. The Respondent contends that this shows that the Applicant did not fully understand the safe storage requirements in the legislation.

43. The Applicant explained that he had not stored ammunition in a separate locked receptacle because of the large quantity of ammunition and that there was insufficient space to store it separately to the firearms. The Respondent contends that the Applicant’s explanations for his failures are not adequate and satisfactory. He should not have taken possession of ammunition that he could not store safely, and he should not have kept a firearm loaded for his convenience.

44. The Respondent submits that the safe storage requirements are not negotiable; nor do they bend to suit the needs of licence holders. She says that the Applicant's failure to comply with the safe storage requirements was egregious, deliberate, and serious and that ammunition and firearms which are stored incorrectly and unsafely, pose a risk to public safety.

45. There are no reports that the Applicant has ever engaged in physical violence. The Applicant has never been charged with a domestic related offence, nor have police applied for an ADVO. However, the Respondent contends that the evidence demonstrates that, since April 2022, the Applicant has been involved in a number of domestic incidents involving drinking and intoxication, accompanying aggressive and threatening behaviour. It has been alleged that his conduct has made his wife and children uncomfortable and scared. In July 2023, the Applicant's wife told police that the Applicant’s conduct has been getting worse.

46. The Respondent relies on the video footage of interactions between the Applicant, his family and police. The Respondent submits that the Applicant has continued to exhibit belligerent, argumentative, rude and angry behaviour in interactions with police officers, who have attended his residence to assist in further domestic disturbances where the Applicant was highly intoxicated and disruptive.

47. The Respondent further submits that the Applicant has demonstrated in interactions with police that he has no ability to reflect on or show remorse for his own behaviour nor accept full and proper responsibility for his admitted breaches of the regulations around safe storage.

48. In the circumstances the Respondent argues that the Applicant has already established that he is incapable of complying with the safety requirements demanded of a firearms licence holder. He has demonstrated an inability to self-reflect, accept responsibility or show remorse. Therefore, the Tribunal could not be satisfied that the Applicant should have the privilege of a firearms licence.

49. The Tribunal could also not be positively satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety. Even if so satisfied, the Tribunal would consider that the issue of the licence would, in all the circumstances, be contrary to the public interest. Accordingly, the Commissioner's decision to revoke the licence should be affirmed.

The Applicant’s case

50. The Applicant was issued with a firearms licence at the earliest opportunity. He was granted a minor’s permit when he was 15 years old and a full licence when he turned18. His record since then has been unblemished until he was charged with the safe storage offence. He submits that he does not even have a single entry on his traffic record.

51. The Applicant entered a plea of guilty in regard to the charge. This was an acceptance that he had committed the offence with which he was charged. It was not an admission to the allegations made regarding any domestic violence incident. He denies that he told police that his normal practice was to keep the firearm that he used to shoot foxes loaded.

52. As noted, the Applicant has never been charged with a domestic related offence, nor have police applied for an ADVO. In that regard, the Applicant submits that the reason for the lack of police action following an alleged domestic incident was that there was insufficient information to support police taking either action, charging the Applicant or the application/issuing of an ADVO. The body worn video recording supports this contention.

53. He denied that he has a drinking problem. He said that he only drinks at home and that he never accesses his firearms when he is drinking.

54. The Applicant submits that there is nothing in the nature of the offence to support the Respondent’s view that he is not fit to have possession of a firearm or that it would be contrary to the public interest for him to do so.

55. The Applicant submits that his criminal history, and criminal history alone, is not enough to characterise him in the manner presented by the Respondent. He submits that it would not be contrary to the public interest for him to hold a firearms licence. In the circumstances, other than one isolated incident, the Applicant is a man of exemplary character with no other blemish recorded on his criminal or traffic history.

56. The Applicant submits that the decision of the Respondent should be set aside and that instead the Tribunal should find that the there is no basis for the Applicant's firearm licence to be revoked.

Discussion

57. As has been noted, the Applicant’s licence expires in February 2024. As a result of his conviction for an offence relating to the possession or use of a firearm, after that expiry date he will not be eligible to be granted a licence should he reapply. Nevertheless, it is not in dispute that there is discretion in regard to the review of the decision to revoke the Applicant’s licence.

58. There are a number of decisions of this Tribunal and the former Administrative Decisions Tribunal which speak of that situation as an anomaly. In Johns v Commissioner of Police, NSW Police Force [2021] NSWCATAD 283 Senior Member Walker observed at paragraphs [72] - [73]:

1. ... 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].

2. 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].

   59. In the present matter, the Applicant has a long record of conscientious compliance. As Senior Member Walker also noted in Johns, it may be seen as appropriate to waive an isolated breach of the regulatory scheme.

   60. The Tribunal’s discretion should be exercised in a way which promotes the principles and objects of the Act: see Cusumano v Commissioner of Police at paragraph [23].

   61. It is clear that gun ownership and use is a privilege which is conditional on the overriding need to ensure public safety. The Act places “strict controls” on the possession and use of firearms and public safety is promoted by safe storage requirements. The legislation does not leave it to the discretion of licensees as to when they will comply with the safe storage requirements. Further, it is a requirement of the legislation that licensees maintain an up-to-date knowledge of the legislation and ensure that they comply with its requirements.

   62. I note the Applicant’s explanation for his failure to safely store his firearms and his ammunition. I agree with the Respondent that the Applicant should not have taken possession of ammunition that he could not store safely, and he should not have kept a firearm loaded for his convenience. As a licensee the Applicant had an obligation to comply with the legislation.

   63. On the evidence before me I am that the Applicant has sufficient knowledge of the legislative requirements in regard to the possession, storage, and safety of firearms. However, he chose not to comply with those requirements. I have viewed the video footage that is in evidence. It is my view that there is some doubt about whether the Applicant intended to inform police that his normal practice was to keep the firearm that he used to shoot foxes loaded. In his intoxicated state, it is possible that he was responding to an earlier question.

   64. I am satisfied that the Applicant has the requisite knowledge of the duties and responsibilities of the holder of a firearms licence and that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with a licence. In my view, the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace. He is a fit and proper person to do so.

   65. I note the Respondent’s concern that the Applicant has been involved in a number of domestic incidents involving drinking and intoxication. I share that concern. However, there is no basis on which I could find that there is more than a minimal risk that the Applicant will misuse his firearms.

   66. Notwithstanding the seriousness of any breach of the safe storage requirements, the fact that the Applicant had in fact stored his firearms and ammunition in an approved safe distinguishes these breaches from situations where firearms have been left totally unsecured. The risk to the public from the Applicant’s breaches is somewhat reduced. It is also my view that the breaches are unlikely to be repeated. Based on all the evidence, I have confidence that the Applicant would not pose a risk to public safety if he had access to firearms. I am not satisfied that it would be contrary to the public interest for the Applicant to have access to firearms.

   67. It follows in my view that the correct and preferable decision is to set aside the decision to revoke the Applicant’s firearms licence.

Order

The decision under review is set aside.

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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: 02 November 2023