Hook v Commissioner of Police

[2020] NSWCATAD 250

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hook v Commissioner of Police [2020] NSWCATAD 250

Hearing dates:

2 October 2020

Date of orders:

14 October 2020

Decision date:

14 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof GD Walker, Senior Member

Decision:

(1) The decision under review is set aside;

(2) A category AB firearms licence is to be issued to the applicant.

Catchwords:

LICENSING – firearms – licence refusal – assault conviction – apprehended violence order – public interest.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5;

Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240;

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Constantin v Commissioner of Police, New South Wales Police Force [2012] NSWADT 172;

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16;

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

Fielden & Fielden v Commissioner of Police, New South Wales Police Service [2000] NSWADT 156;

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89;

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117;

Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145;

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

McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354;

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

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

Tzoudas v Ministry of Transport [2008] NSWADT 350;

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28;

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

Category:

Principal judgment

Parties:

Matthew JG Hook (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/00204151

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant, Mr Matthew JG Hook, applied to this tribunal for review of a decision by the respondent Commissioner on 29 April 2020 to refuse his application for a category AB firearms licence. The decision was the subject of an application for internal review lodged on 9 June 2020. On that date and also on 19 June, the applicant lodged submissions in relation to the review. On 10 July 2020 the applicant applied for administrative review to this tribunal.

2. The applicant had previously applied for a category AB firearms licence for the reasons of recreational hunting/vermin control on 4 January 2013. That application was refused on the grounds that the legislation precludes a person from holding a firearms licence when they have been subject to an apprehended violence order (AVO) within the past 10 years, because the applicant had been convicted of a number of offences and because in the respondent’s view it was not in the public interest for him to hold a licence. Mr was consequently prohibited from being issued with a licence until 4 January 2020.

3. On 2 October 2019, the applicant applied for a category AB firearms licence, again for the reason of recreational hunting vermin/ control. As was noted above, that application was refused on 28 April 2020. The respondent’s position, briefly, was that the applicant had been the subject of a number of domestic violence reports to police, resulting in a conviction for common assault, an AVO in 2009 and reports to police in 2019. He had been the subject of high-speed police pursuits in New South Wales and the Australian Capital Territory, for which he was disqualified from driving for four years. The respondent took the view that the applicant’s repeated breach of traffic laws and regulations aimed at ensuring public safety indicated a disregard for a regulatory scheme itself aimed at ensuring public safety.

Applicable legislation

4. Among the objects of the Firearms Act is the provision that strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: s 3(2)(d). It is an offence under s 7A of the Act to possess or use a firearm unless the person is authorized to do so by a licence or permit. A category A or B licence authorizes the licensee to possess or use the firearm to which the licence applies, but only for the purposes established by the licensee as being the genuine reason for possessing or using it: s 8(1).

5. 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 have possession of a firearm without danger to public safety or to the peace: s 11(3)(a). Under s 11(7), the Commissioner has a discretion to refuse to issue a licence if the Commissioner considers that issuing it would be contrary to the public interest.

6. The Commissioner in this case does not submit that the applicant it is not a fit and proper person to have possession to a firearm. The issue in this application is therefore whether it would not be in the public interest for a licence to be issued to him.

The evidence

7. The respondent called no oral evidence but relied on documentary material, including the s 58 documents (exhibit R1). The applicant gave oral evidence and called one witness.

Mr Matthew Hook

8. The applicant gave oral evidence during which he adopted his statement filed on 7 September 2020 (exhibit A1), in which he said in relation to answering “no” on the application in response to a question about previously having been refused a licence, that he must have misread the question. When he had applied for a licence in 2013, he had never heard anything back about that application. He received no refusal documentation about the application and thought it must have been missed in the application process.

9. After lodging the application he had not received a number that would enable him to check his application online, and indeed at that time, to the best of his recollection, he had not known that it was possible to ascertain the progress of an application online.

10. He had two major driving offences, but he had not thought that he would be refused on that ground, given how long ago the offences had occurred. He did not know that a driving offence could lead to a refusal. Back when those offences occurred, he had been young and thought he was “unbreakable”, as most teenage boys see themselves.

11. Since going through the process with his solicitor, he had enrolled in and completed a traffic offender intervention course. He had also joined the Rural Fire Service (RFS) in 2015 in order to give something back to the community by way of compensation for his wrongdoing. While serving with the RFS and attending numerous vehicle accidents, he had seen the results, including the impact and the fatalities that can occur in a person’s life. By seeing such serious accidents, he now knew how serious his actions could have been when he was younger and committed those offences.

12. He had also undertaken a psychological evaluation in order to show how remorseful he was over his past behaviour.

13. The first AVO had been brought against him by his brother-in-law and his sister. The report relating to that order shows the reasons why the altercation took place and what had occurred. The AVO had been obtained because his sister and brother-in-law did not know how to keep him under control.

14. Since receiving that AVO and the good behaviour bond, he had come to see the reasoning why they brought it against him and it made him realize that he had to wake up to himself and get his life on track. Since then he had always held steady jobs and had stayed out of trouble.

15. He had been married for over five years in the course of a 10-year relationship. During the time that his second AVO was applied for, he had just learned that his wife was having an affair. After finding out, he had confronted her about it and tried to save the marriage. He was never violent or physically abusive towards her. The reason she obtained the AVO against him was that he kept trying to salvage their marriage.

16. Neither of the AVOs was referred to on the refusal letter. They had only been brought out since he started contesting the refusal of his firearms licence.

17. He stressed that he acknowledged his wrongdoing. As time goes by, he seeks nothing but to better himself, not only as a person but for those around him. He had done that by changing his life around and always working hard, altering his attitude towards life, caring about those around him and always making sure that somebody knew that they could rely on him.

18. He hardly drinks or gambles, preferring to spend time with family or friends. He has attempted to make a better life for himself. He has “a great job” on the farm where he resides. He is now in a new, stable relationship and his partner has a daughter who he treats as his own.

19. He sees the joy in the small things in life. He can see how much he has changed and achieved since that young person that he once was. As he talks to young people now who were the same age back then when he made those terrible mistakes, he tells them that it is something that they should highly reconsider now, as they would learn to regret it later on in life.

20. The whole reasoning for his wanting to acquire a firearms licence was not only the fact that he wanted the licence, but that it would be beneficial in his work for dealing with the vermin that come onto the property and kill livestock. He fully understands that a firearms licence, like a driver’s licence, is a privilege and not a right.

21. In oral evidence by telephone at the hearing, the applicant said that he works as a farmer and stockman on three properties between Yass and Jugiong, looking after livestock and poultry, preparing sheep for shearing and generally looking after them. The properties cover 10,000 acres [4046 hectares] in all and are part of the holdings of a Mr Richard W*****, who owns five properties in the area.

22. The traffic offences before 2009 occurred when he was young, immature, and thought he was 7 feet tall and invulnerable. His record was “shocking”. Since then he had learned much, partly through the traffic offenders’ program, but the “biggest wakeup” was working with the RFS, where he had attended many vehicle accidents and had seen the results.

23. As regards the 2013 firearms licence application, he had not heard anything back from the registry. He had telephoned them, and had been told that he needed to wait 10 years because of the 2009 AVO. He had undertaken the traffic offenders’ safety course and had sent in the records relating to it, but they had said he needed to wait 10 years because of the AVO.

24. In the 2019 application, he had not properly read the question and had thought it related to any kind of licence, not specifically a firearms licence. He had not received any refusal documents in relation to the firearms application.

25. The domestic violence incident in 2009 with his brother-in-law and sister, and the resulting charges had been the reason for refusal of his licence. The episode had taught him that no matter what you do in life, there are consequences to your actions. He had been drinking and had struck his brother-in-law. He had been working with him for two years. There had been no breach of the AVO.

26. The incident in May 2019 occurred when his marriage was breaking down. He still lived under the old ways that believed that marriage was for life. He had found out that his wife had cheated on him. He moved out of the house, taking the television set with him, but wanted to work it out. It had been very hurtful and he had learned that in marriage, no matter how much you love someone, it has to be both ways.

27. Currently, he has been with his new partner for 12 months. She has a daughter aged six, and he has a father role. His ex-wife herself had three boys, and he had performed the same role in relation to them.

28. He had been reckless, silly and carefree. Now he works every day, in a steady job and has a serious relationship. He hardly drinks, nor does he gamble except for an occasional lottery ticket. Those things if taken to excess can break a relationship.

29. Cross-examining on behalf of the respondent, Ms M Norquay pointed out that in his 2013 firearms licence application, in response to the question about AVOs (exhibit R1, pp 29-30, part H, q. (f)), he had marked the “no” box. He replied that he had misread the matter and had thought the question related to whether there was a current AVO.

30. It was then pointed out that in his 2019 application, he had responded “no” to a question about having been refused a firearms licence (exhibit R1, P 34). He replied that he had not looked down to where it said a firearms licence and had thought it meant any one of a variety of licences.

31. He had replied in the negative to the question about an AVO in the past 10 years, but that had been correct. The 10-year period had expired in 2019 and the registry had told him that he would be eligible to apply after that. He had thought that the 10 years ran from when he had turned himself in to the police over the incident with his brother-in-law. He had been told the 10 years expired in September 2019, even though the AVO report gave the date of 13 December 2019 date for the incident.

32. Two letters notifying him of the licence refusal in 2013 had been sent out, but as the documents showed, they had been returned to the registry unclaimed. He had thought that the RTA would transfer notification of his address change over to the firearms registry, as is done now.

33. The witness was then asked about the 19 July 2019 incident (event E 261473498, exhibit R1, p 48), a traffic stop involving a vehicle that the police took to be fitted out as a hunting vehicle, with a large spotlight on the roof. The applicant, who was driving, said when asked that he believed there were knives in the vehicle and gave the officers permission to search for them. They located two knives and spoke to the applicant, giving him an official warning in relation to the safe keeping of the knives.

34. The applicant said he had been filling his tank at a Mobil service station when the police car pulled up. The vehicle was registered in his brother-in-law’s name, and he has a gun licence. He said he had no firearms himself but when asked about knives he opened up the canvas bag with a padlock in which they were stored. The vehicle was rigged out for hunting, but when he went out with his brother-in-law, he never did any shooting, but simply drove the vehicle.

35. Event E71552058 (exhibit R1, p 53) is a report dated 12 May 2019 that he had texted the victim (his estranged wife) twice and had been driving past her house daily for a week. The report stated that police spoke to him at some length, suggesting that he find another avenue of venting and cease contacting the victim, otherwise he would end up with an AVO or would be charged. The report noted that there are alternative routes that the applicant could take while driving to work at the Gundagai meatworks and that it was unclear why he continued to drive past the victim’s residence and honk his horn.

36. The applicant said that the report was correct. He had contacted his wife because he wanted to try to work things out. But “this generation has a different attitude to marriage”. He had contacted her in the first week after their separation, but thereafter not at all. He agreed that he had driven past her house on the way to work, because he had picked up a fellow-worker to take him to work at the meatworks. Recently his current partner had received text messages about the divorce. An AVO was brought before the court but on the first occasion she did not appear, and on the second her solicitor announced that the AVO application was not proceeding.

37. He was currently working on three properties. He did not need a gun every day and it was not an actual requirement for his employment, but in practice he needed a licence in order to be able to protect the sheep from predators and to put down injured cattle.

38. He agreed that he had accumulated some offences up until last year, three that he could think of. One was for not keeping left, at a time when he was towing a car trailer that was used as a mobile sheep processing unit.

39. His 12 months’ licence suspension had been a wakeup call for him, and his service with the RFS had shown him what the results of carelessness could be. He had seen the psychologist because he was emotionally “twisted” after his marriage breakup. He had no-one to talk to help him to get over the shock, and it had helped. He had also had legal advice about it.

40. In re-examination by Mr Kable the witness said he had never held a firearms licence, so there was no requirement for him to notify address changes to the registry. He had notified Services NSW when he had moved. He was no longer working at Gundagai meatworks and consequently did not have to drive past his ex-wife’s house. He had left that employment because he did not want to give her a reason to come after him. He works full-time, five days a week or more, on Mr W*****’s properties, and resides there.

Mrs Nita Sunnucks

41. Mrs Nita Sunnucks is the applicant’s sister. In her oral evidence by telephone at the hearing, she adopted her statement of 7 June 2020 (part exhibit A1) in which she is said that “Unfortunately, as seems to be the situation with a lot of young men, when my brother was younger, he was reckless and didn’t think about the consequences of what his actions could result in”.

42. He had been in some serious trouble with the police over driving offences, which gave him a very big reality check. Since then she had watched Matthew grow from an immature boy into a responsible young man. He had been in a serious relationship that lasted for over 10 years, in which he became the stepfather to three young boys and tried to set an example for them by working hard and providing for his family, and teaching them respect for all people.

43. When that relationship ended, he handled it with maturity beyond his years. He relocated and obtained a new job. Since the breakdown she had seen him become more involved with her three boys, his nephews, and he is always calm with them and explains to them that bad behaviour does not provide rewards and that they need to respect the adults in their lives.

44. Matthew is now in a new relationship for which he has again become a stepfather figure, and she sees him being the same as he was previously – calm, respectful and dedicated. He has become a very hard-working, responsible and loving and caring family man over the past 10 years. He enjoys recreational fishing and hunting and does so in line with all guidelines for those activities.

45. She does not believe that anyone is a tougher critic on a person than their family, and 10 years ago her brother was going off the rails and the family was all incredibly worried for him. But to see how he had learned and changed his life around and grown through age and life experiences, she is so impressed with the man he has become and will continue to become.

46. Asked in cross-examination whether she knew that the applicant had been convicted of assault, she replied that she did not know, but was aware that he had gone to court. On the occasion of the incident on 12 December 2008 (which was the basis for the assault conviction), she had shoved him to get him to leave the house. She had not sustained any injuries, and the AVO was sought just as a means of waking him up.

Mr Michael Kruger-Davis

47. Mr Kruger-Davis is an experienced, award-winning, consulting psychologist who prepared a detailed report on the applicant dated 28 August 2019 (part exhibit A1). He performed a number of assessments, a mental status examination, an AISRAP (Australian Institute for Suicide Research and Prevention) risk assessment protocol and a clinical interview.

48. He found no indication of an “at risk mental state” for self-harm and the applicant had expressed genuine remorse about his dangerous driving, especially as he now saw the potential consequences of his acts. Now that he is in the RFS and attends motor vehicle accidents, he can see how reckless behaviour can have disastrous effects on the lives of the people involved.

49. He acknowledged that when he was given a 12-month good behaviour bond for the driving incident, he was very careful to execute the bond without incident. Mr Kruger-Davis noted that the applicant was 18 at the time he was involved in dangerous driving, while the prefrontal cortex, the executive function centre of the brain, is now known to be unlikely to be developed in adolescent males until the age of 25 years. The references he had supplied indicated that he had matured and was not the person he had been. From the discussions, it was apparent that he would not act in a similar manner because he now sees the applications and the ramifications of not obeying the law.

50. Concerning the harassment of his ex-wife, he stated that at the time he had not wanted the relationship to end, but now understood that it was over. He had entered into a new relationship and his new partner was doing the negotiating with his ex-wife to organize divorce proceedings. He demonstrated remorse that he had been unable to let go of the relationship, but now feels that he is over her.

51. Mr Kruger-Davis concluded that the applicant is genuinely remorseful for his actions in 2008 and would be very unlikely to act in a similar manner now. He appears to be a changed person and is involved in community activities such as the RFS, is a valued employee and is in a substantial relationship. The change was most likely due to the maturation of his prefrontal cortex and his ability to consider the consequences of his actions. That brain maturation is the reason that he is unlikely to reoffend.

52. He did not have a history of violence, criminal association or drug use, and for the past 10 years had not been involved in any activities that would be considered anti-social. He did not appear to have any mental disorders or personality disorders. He lives on a stretch of the Hume Highway that is regularly patrolled by the Highway Patrol and his driving behaviour over the past 10 years has been significantly more socially appropriate. There are no indications that he would not be able to exercise the same responsibility to maintain public safety while in possession of, or using, a firearm.

References

53. The applicant tendered six references dated in June 2020 (part exhibit A1). They are uniformly supportive and bear witness to the positive changes in his attitudes and conduct over the years since his misconduct in 2008 and 2009. They are considered in more detail below.

Respondent’s submissions

54. At the hearing the respondent relied on written submissions filed on 23 September 2019 which, after sketching the background of the matter, noted that as a result of the common assault charge arising out of the 12 December 2008 incident, the applicant was made subject to an AVO which remained valid until 4 January 2010. He had also entered into a good behaviour bond for 12 months and was fined $450.

55. In early April 2019, the applicant and his ex-wife separated. On 7 April 2019, the applicant contacted his ex-wife by text message. She did not respond, but had a friend speak to the applicant and ask him to stop messaging her. The following day, after a series of text messages, the applicant attended his ex-wife’s property and allegedly verbally abused her, stating that he had found out she had been seeing another man. She locked the screen door as he approached, but he pulled the handle and the striker plate was pulled out of the soft timber frame.

56. After the applicant entered the house, removed the television and left the property, his ex-wife contacted her sister, who in turn notified police. This was the occasion when police spoke to the applicant at some length and suggested he find another avenue of venting and cease contact with his ex-wife, or he would end up with an AVO or being charged.

57. The applicant subsequently attempted to text his wife a further two times and allegedly drove past her house daily at a slow pace and honked his horn. An AVO was recommended but not issued.

58. The respondent pointed out that since obtaining a licence in 2005, the applicant had received a total of 12 traffic infringement notices, including for negligent driving, exceeding the speed limit, not displaying P plates and not keeping to the left (2 January 2016).

59. He had also been charged with traffic infringements in the Australian Capital Territory. On 18 April 2008, he had been the driver in a high-speed police pursuit, attaining speeds estimated at in excess of 200 km/h in a 100 km/h zone. He received two-year good behaviour bond and a fine for failing to obey a police officer’s direction and driving at a speed dangerous. On 24 August 2009, he was again the driver in a high-speed police pursuit, this time in New South Wales. He was estimated to have been driving at 155 km/h in a 50 km/h zone, before the vehicle broke down and he was arrested. At the time he was unlicensed and the car was unregistered and uninsured.

60. On 10 October 2009, he was convicted at Yass Local Court of driving in a manner dangerous or at a speed dangerous, driving without a licence, using an unregistered motor vehicle and using an uninsured motor vehicle. He was disqualified from driving for a period of four years from 25 August 2009 to 24 August 2013.

61. On 22 July 2019, he was given an official warning in relation to the safe keeping of two knives, which were stored under the seat of his vehicle.

62. As was noted above, his 4 January 2013 application for a category AB firearms licence was refused in part because a person is precluded from holding a firearms licence when they have been subject to an AVO within the previous 10 years. The applicant was thus prohibited from being issued a licence until 4 January 2020. His 2 October 2019 application for a category AB licence was refused on 29 April 2020.

63. The respondent relied on two provisions of the Firearms Act, s 11(7), which provides that the Commissioner may refuse to issue a licence if the issue would be contrary to the public interest, and s 70 of the Act, which provides that a person must not, in connexion with an application under the act or regulations, make a statement or provide information that the person knows to be materially false or misleading. After outlining the objectives of the legislation and the case law relating to the concept of public interest, the respondent submitted that there were three main areas of objection to the applicant being issued with a licence:

• the applicant’s extensive history of traffic infringements,

• his repeated and continued involvement in domestic disputes, resulting in an AVO in 2009,

• and his supplying information on his application that was false or misleading in a material particular, being that he did not identify that he had previously been refused a firearms licence.

64. In relation to the third ground, his evidence that he “must have misread the question” ignored the fact that he had contacted the registry by telephone. On 23 April 2012, he had confirmed with registry staff that he was subject to an AVO, and it would be assumed that he would have been advised of the consequential mandatory refusal.

65. The applicant relied on a number of character references from friends and family that speak highly of him. Although some of the references indicated a change of behaviour and personal growth, none of them, other than his sister’s reference, indicates knowing the applicant for a significant period greater than 12 months. The references were also embedded within a personal association or friendship. Consistently with the tribunal’s reasoning in Tzoudas v Ministry of Transport [2008] NSWADT 350, [42], that where referees do not demonstrate an awareness of all the circumstances giving rise to the refusal (for example, his past AVOs), the references should be given little or no weight.

66. The applicant had tendered a psychologist’s report from Mr Michael Kruger-Davis dated 28 August 2020, although the respondent had not raised any concerns regarding the applicant’s mental health or requested that a risk assessment be prepared. Viewing the applicant’s conduct as a whole, it could not be concluded that there is virtually no risk in issuing a licence to the applicant.

67. In oral submissions at the hearing, Ms Norquay reiterated those points, highlighting the fact that his involvement in the high-speed police pursuit in the Australian Capital Territory resulted in a 2-year bond, but the next year he had done the same thing, this time in New South Wales, and his female passenger had been placed in danger. He had been convicted of two assault offences in relation to the 2008 domestic violence incident, but no further AVO had been taken out in 2019 in relation to his ex-wife. He therefore had a domestic violence history, and not only when he had been young. As it took him some time to realize the significance of his actions, he still represented a risk.

68. As there had been no mental health issue raised, the psychologist’s report was of limited relevance. It also contained some discrepancies, as the applicant does have a domestic violence history.

69. His licence applications were significant because he had given false answers to some important questions, questions that had been expressed quite clearly. It was also clear that his disqualification resulting from the AVO expired in January 2020. His claim that he was told he would be able to reapply in September 2019 was not supported by any documentary evidence. His answer had been false and he had not sought any help in completing the application. That was significant because the requirements placed on holders of firearms licences are detailed, and his false statements created a concern that he might not comply with statutory requirements in the future.

70. There was no clear evidence that he actually requires a firearms licence for the purposes of his work. There are other options available, such as a captive bolt gun to put down injured livestock. He had not given primary production as a reason in his application. He had known in 2013 that his licence application had been refused because the registry told him so on the telephone. All the records relating to the AVO and the 2018 incident gave clear dates.

Consideration

71. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

72. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act (CAT Act) (s 30) and the Firearms Act, including the Commissioner’s refusal to issue a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

73. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states 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 have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s intemperate habits or being of unsound mind.

74. These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and in s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. Nevertheless, the civil standard of proof, the balance (preponderance) of probabilities, is accepted as a useful guide for tribunal deliberations.

The public interest

75. In this matter the respondent does not contend that the applicant is not a fit and proper person to hold a firearms licence. Instead, the respondent submits that it is not in the public interest for a licence to be issued to the applicant.

76. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest. The “public interest” allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

77. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, [130].

78. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner’s decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. “The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” (at [7]).

79. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, 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 WalesPolice Force [2017] NSWCATAD 97, [64] – [66] 66].

80. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that 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”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

The applicant’s record

81. The facts of the case are not significantly in dispute. As regards traffic offences, since obtaining his licence in 2005, the applicant has received a total of 12 traffic infringement notices, including, before 2009, negligent driving, not displaying a P plate, and exceeding the speed limit. More recently, he incurred two speeding notices (by not more than 10 km/h) in 2016 and 2019 respectively, and another for failing to keep to the left on 2 January 2016.

82. More significant were the two police pursuit matters. On 16 April 2008, the applicant was the driver in a high-speed police chase in the Australian Capital Territory, at speeds exceeding 200 km/h in a 100 zone. For that he received two-year good behaviour bond, was fined and was disqualified for 12 months.

83. Yet a little over a year later, on 24 August 2009, he was again the driver in a high-speed police pursuit, this time in New South Wales. His speed was estimated at 155 km/h in a 100 zone and, into the bargain, he was unlicensed and the car was unregistered and uninsured. That episode earned him a disqualification for 4 years. As the respondent pointed out, following Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [76], [81], such a traffic history shows a disregard for public safety and of a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme and licensing structure focus primarily on public safety.

84. The applicant freely admitted that his record during that period was “shocking”, and the police pursuit episodes were indeed outrageous by any standard. Since then, however, his driving record has improved markedly. He did accrue two speeding infringements, one in 2016 and another in 2019, but as they involved speeds less than 10 km/h over the limit, they can be regarded as lying towards the lower end of the scale of culpability. An infringement in January 2016 for not driving on the left occurred at a time when he was towing a car trailer that had been fitted out as a mobile livestock treatment unit. How he came to be driving on the wrong side of the road was not explained, however. Nevertheless, his three contraventions since 2009 are of an entirely different order of magnitude from his atrocious episodes in 2008 and 2009 when he was 18.

85. The respondent also referred to an incident on 22 July 2019, when a police check of the vehicle he was driving (which belonged to his brother-in-law) found two knives stored in a canvas bag under the seat of the vehicle. The applicant was given an official warning relating to the safe keeping of knives (exhibit R1, p 49). It was not, however, submitted that he was in breach of any particular statutory provision.

81. The second basis on which the respondent opposed the grant of a licence to the applicant involved an incident of domestic violence and later conduct causing his ex-wife some disquiet. The respondent relied on the applicant’s involvement in a physical altercation with his sister and her then boyfriend (now husband) on 12 December 2008. He had been affected by alcohol and became distressed when asked to leave his sister’s house. He pushed his sister over, causing her to her sustain a cut to her right ankle and pain in her right index finger. He then struck the boyfriend in the face twice. This resulted in his being charged and convicted of common assault. As a result of the assault charge, he was made subject to an AVO on 5 January 2009, which remained in force until 4 January 2010. He was also required to enter into a bond for 12 months and was fined $450.

82. At the hearing, his sister, Mrs Sunnucks, when referring to the incident, said that she had pushed the applicant in order to get him to leave the house. He had in turn pushed her, but she had sustained no injuries. The fact sheet, however, refers to a cut to her right ankle and pain in her right index finger. That discrepancy could indicate that she wishes to diminish the circumstances of the assault or no longer regards the injuries she sustained as significant. She pointed out that they had taken out the AVO, not because of any fear for their safety, but because they wanted to shake him up and induce him to behave responsibly. At all events she was emphatic that he had matured and was completely different now, trying to make a life for himself. He was in a steady job and had taken on responsibility for three children when he was married, and now took a similar role in his new relationship.

83. The applicant and his ex-wife separated in early April 2019. On 8 April, after he had learned that she had been having an affair with another man, there was an angry scene at her house when he verbally abused her and left with the television set.

84. It is not disputed that the applicant at no time used any violence or threat of violence against his ex-wife, whether before, during or after the marriage. After the 8 April incident, his ex-wife became concerned because he was driving past her house in the morning and sounding his horn. He said he was driving past in order to collect a fellow-worker on the way to the Gundagai meat works, and it was only for the first week after the separation. He had then left that employment so that his ex-wife would not be able to complain of him driving past her house. An AVO applied for after the 8 April incident was not proceeded with.

85. It may be noted that none of the applicant’s domestic altercations involved any threatening behaviour with, or brandishing of, firearms. At that time the applicant had no licence and did not possess any firearms. As the respondent’s submissions implied, any involvement of firearms in such episodes would be a highly concerning factor, as the tribunal noted in Fielden & Fielden v Commissioner of Police, New South Wales Police Service [2000] NSWADT 156, [56], “Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement”.

86. Given that the only physical assault took place 12 years ago and there has been no repetition since, I think it is going a little too far to describe the applicant as having “a record of domestic violence”, as the respondent does.

87. The respondent’s third ground of objection was Mr Hook’s application history. As the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], “the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act”.

88. In his application for a firearms licence dated 9 January 2013, he had responded “no” to a question whether in the past 10 years he had been the subject of an AVO (other than an order that was revoked) (exhibit R1, p 21, Part H, question (f)). His explanation was that he had thought the question was asking about current AVOs, whereas the order against him had expired on 4 January 2010.

89. Again, in his application dated 2 October 2019 he had answered “no” to question whether he had been refused or precluded from holding a firearms licence. In fact, his 2013 application had been refused on 7 May 2013. It was not disputed that the two notices of refusal sent to him had been returned unclaimed, but the respondent pointed out that he had telephoned the registry to enquire about the progress of the application (see file notes for 2013, part exhibit R2) and presumably been told that the application had been refused. Indeed, the registry’s telephone log for 23 April 2013 (part exhibit R2) contains the note “Confirmed with the customer he was subject to an AVO”. The applicant himself said in evidence that he had discussed the AVO on the telephone with registry staff. There would have been little point in discussing the existence of an AVO except in reference to the 10-year disqualification rule.

90. The applicant’s position was that “must have misread the question” and as he had received no official written notification, he had thought he was justified in saying that his application had not been refused. He also thought in relation to the 2019 application that he had not fully read the question as he had thought it related to all other kinds of licences.

91. The applicant’s explanations are less than impressive and at best suggest a degree of carelessness in completing an official document. The meaning of the questions was clear enough if one took the trouble to read them properly. At the same time, it must be borne in mind that he has at all times worked in rural industry on the land in a variety of capacities that probably have not involved much legal form-filling. In my view his incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70, and I so find.

92. The case may be contrasted with Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172, [48] – [53], which dealt with the “fit and proper person” requirement, in which a pistol licence refusal was upheld in a case where the applicant had knowingly concealed a Queensland conviction for armed robbery. The offence was a serious one, involving violence, and the intent to deceive was clear. Even so on appeal the Appeal Panel, though dismissing the appeal, expressed misgivings about the result (Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16, [26]):

We have some concern over a finding as to lack of fitness that is so narrowly based. While the appellant's account was self-serving and his understanding of his personal responsibilities for ensuring the accuracy and truth of an application misguided, minds might differ on whether a single event of this kind should lead to the very serious finding that a person is unfit to be granted a licence.

The references

98. The applicant relied on six character references dated in June 2020 (part exhibit A1), the first being from his sister Nita Sunnucks. Its contents have been outlined above, but in essence Mrs Sunnucks states that when he was young her brother was reckless and did not think about the consequences of his actions. He had got into some serious trouble with the police over driving offences, which gave him a major reality check. Since then he had grown from an immature boy into a responsible young man. When he was married he took on a father role in relation to his wife’s three sons and has done so again in relation to his new partner’s daughter. He has become a hard-working, responsible, loving and caring family man over the past 10 years. Back then the family was very worried about him as he was going off the rails, but he had learned and changed his life around, growing through age life experiences.

99. Crystal Hayes wrote that she had known him for over 12 months at that stage, and said that he has always been upfront about his past and the mistakes that he made. He has tried to give back to the community. He is a hard worker, kind, generous and always offering a helping hand. Since those past incidents he had been staying out of trouble and had helped their community alongside other people to fight the bushfires that hit the area. She trusted Matthew Hook and believes he is a changed person since those incidents occurred and that he is doing everything he can to better himself. The way he has taken on a father role is admirable, as he treats his partner’s child as his own.

100. Mandy and Anthony Foster of Tumbarumba, the applicant’s partner’s parents, wrote that they had known the applicant for over 12 months. They have found him to be a very kind and well-natured person and a hard worker. They had often seen that in his position as a farmer he is kept busy, but he goes to all lengths to ensure that his manager gets the job completed. He takes pride in everything he does and gives back to the community as much as he can. He can be counted on to help anyone who needs it.

101. In December 2018 when bushfires hit their community, he made sure that they had evacuated safely to his place, in which he knew they would be safe, and went to fight the fires in the community using the equipment that he had as part of Gundagai RFS. He knew that the people at Tumbarumba needed help, and he did not hesitate, but stayed for over 2 weeks helping to fight the fire.

102. He is a great partner to their daughter and has taken on the position to be their granddaughter’s stepfather. They could not think of a better person to take on the role of being a father, as he treats her as his own. He has always been honest about his past and realizes the mistakes he had made, and is trying to correct them by giving back to the community. Since then he has matured and is definitely somebody trustworthy.

103. Mr Stephen Wilesmith, of Tumbarumba, has known the applicant since November 2019. Since knowing him he has found him to be a kind and generous person who is not afraid of hard work or helping somebody in need of help. He has admitted his past driving offences and since then has tried to give to the community as best he can. He has greatly matured since those incidents. In December 2019, the Dunns Road bushfire hit their community, but Matthew knew that they needed help and did not hesitate to join their crew in helping them to fight the fire for over two weeks.

104. Douglas and Ruth Foster of Rosewood also highly praised the applicant’s enormous contribution during last summer’s bushfires. They also described his kind and considerate treatment of Douglas Foster, who suffers from advanced cancer, and his unstinting generosity with his time.

105. Alice Foster, the applicant’s partner, describes how he has grown from the person he was 11 to 12 years ago when he made the driving offences which he still regrets. In the 12 months they have been dating, she has found him to be caring and kind-hearted. She knows she can trust him, especially in the way that he has taken on the father figure role for her daughter. He is a hard worker and takes pride in everything he does. He works as a farmer, but also does fencing jobs on top of working at the property he lives at.

106. He is the type of person who will help anyone who needs it. He gets along with her whole family, as they think he is a kind and generous person and the best person for herself and the best father figure for her daughter. The help that he gave her father and brother during the bushfires was admirable. He did not hesitate to make sure that her mother had evacuated and was safe, before proceeding to help with the fires. He is a member of Gundagai RFS, one of the reasons he joined being that he regretted the mistakes he had made and wanted to take some steps to right his wrong. He takes full responsibility for the mistakes he made and has always been open and honest about them. She did not know him when those incidents happened, but she knows the person he is today and that he has changed since that time.

107. The respondent submitted that the references should be given little or no weight as they arose within a personal association of friendship, and most of them (except Mrs Sunnuck’s) did not indicate no the applicant for a significant period greater than 12 months. While all the references are from friends or relatives, some, such as the one from Alice’s parents, are from people who would not automatically be favourably disposed towards him. But all the references are unanimous in their praise for his character and for the way in which he has put his reckless youth behind him. And what the referees lack in length of acquaintance with the applicant, they make up for in emphasis.

108. The respondent also submits that the referees do not demonstrate awareness of all the circumstances giving rise to the refusal of the licence, such as his past AVO, but they do show full awareness that he had been involved in serious trouble with the law in earlier years and stress that he has always been completely open about his troubled past. The references should thus receive some weight.

Psychologist’s report – Mr Michael Kruger-Davis

109. The psychologist’s report from Mr Kruger-Davis dated 28 August 2020 has been outlined above. Its main conclusions are that the applicant is genuinely remorseful for his actions in 2008. He understands the consequences of his acts then and would be very unlikely to behave in a similar manner now. According to himself and the referees, he is a changed man. He is involved in community activities such as the RFS, holds down a job as a valued employee and is in a substantial relationship.

110. The change is most likely due, the report states, to the maturation of his prefrontal cortex and his ability to consider the consequences of his actions. He is able to regulate his behaviour and think about his thinking (metacognition): “That brain maturation is the reason that Mr Hook is unlikely to reoffend”. He has been able to demonstrate that over the last 10 years he has been able to exercise rational control and willpower while in charge of a motor vehicle. There are no indications that he would not be able to exercise the same responsibility to maintain public safety while in possession of, or using, a firearm.

111. The respondent submitted that the report should be given little or no weight because the applicant’s mental state or capacity are not in issue in the present application. While that is correct, the report is of value in the present context as it corroborates the genuineness of his remorse over his past actions and the radical change in his attitudes and sense of responsibility, including through his membership of the RFS. It provides a scientific explanation for part of that change and gives support to the view that the applicant is unlikely to reoffend.

Conclusions

112. The applicant is now aged 31 and his worst infringements occurred when he was 18. On the basis of all the evidence, I conclude that the applicant, if issued with a firearms licence, is now unlikely to present any significant, noticeable or realistic danger to public safety.

113. Also in relation to the issue in this case, there is a public interest in law-abiding farmers, graziers and their employees having access to long arms for the purpose of protecting the environment and primary industry from predators and other vermin and, where it is necessary, humanely putting down sick or injured livestock.

114. While not an actual requirement for the applicant’s position, the evidence is that it would be very helpful in his work, and possibly also if he is to progress in that field. The respondent submitted that the function of dispatching sick or injured stock can be performed by use of a captive bolt gun, which is no doubt correct, but such an implement would be of no use in countering ferals and other destructive vermin. At the same time, he does need to exercise more care in his compliance with statutory requirements if he is to meet the stringent standards imposed by firearms legislation.

115. The totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the applicant, and I so find.

Orders

1. The decision under review is set aside;

2. A category AB firearms licence is to be issued to the applicant.

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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: 14 October 2020