Jones v Chief Commissioner of Police
[2024] VSC 432
•25 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2024 02329
| BRENDAN WILLIAM JONES | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Determined on the papers |
DATE OF JUDGMENT: | 25 July 2024 |
CASE MAY BE CITED AS: | Jones v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2024] VSC 432 |
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FIREARMS REGULATION — Plaintiff found guilty of a domestic violence offence under Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1) and sentenced to conditional release order — Plaintiff deemed a ‘prohibited person’ for the purposes of the Firearms Act 1996 (Vic) — Firearms licence cancelled — Application to be declared not to be a prohibited person pursuant to Firearms Act 1996 (Vic) s 189 — Relevant considerations — Application dismissed — Russo v Chief Commissioner of Police [2024] VSC 179 — Firearms Act 1996 (Vic) ss 1, 3, 5, 46, 189.
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HER HONOUR:
Until March 2024, Brendan Jones was the holder of a Category A and B Longarm Licence issued by the Chief Commissioner of Police under the Firearms Act 1996 (Vic). On 15 March 2024, the Licensing and Regulation Division of Victoria Police advised Mr Jones that his licence had been cancelled, because he had become a ‘prohibited person’ for the purposes of the Firearms Act.
Mr Jones became a prohibited person on 10 October 2023, when he was found guilty in the Deniliquin Local Court in New South Wales of stalking or intimidating with intent to cause fear of physical or mental harm, a domestic violence offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). A person who has in the previous 12 months been found guilty by a court of an indictable offence becomes a ‘prohibited person’, and may not possess, carry, or use a firearm.[1] Any firearms licence held by the person is automatically cancelled upon becoming a prohibited person, and the Chief Commissioner must not issue any new licence while the person remains a prohibited person.[2]
[1]Firearms Act 1996 (Vic), ss 3(1) (definition of ‘prohibited person’, paragraph d(iii)), 5 (Firearms Act).
[2]Firearms Act, ss 17(1)(a), 46.
In this proceeding, Mr Jones applied for a declaration under s 189 of the Firearms Act deeming him not to be a prohibited person.[3]
[3]Firearms Act, s 189(1A). The application is made to the Supreme Court rather than the Magistrates’ Court of Victoria because the finding of guilt was made by an interstate court: see Firearms Act, s 189(3)(b).
The Chief Commissioner was notified of the application, but did not oppose it or seek to be heard. Mr Jones was content for his application to be determined on the papers, which comprised two affidavits made by his solicitor and a short written submission.
The authorities concerning applications under s 189 of the Firearms Act were recently surveyed by Daly AsJ in Russo v Chief Commissioner of Police.[4] I gratefully adopt her Honour’s distillation of the following principles from those authorities:[5]
(a) the discretion contained in s 189 of the Act is broad, but its limits are to be determined by implication from the subject matter, scope and purpose of the Act;
(b) the purpose of the Act is to give effect to the principle ‘that the possession, carriage, use, acquisition and disposal of firearms are conditioned on the need to ensure public safety and peace’;[6]
(c) factors relevant to the exercise of the discretion include the purposes for which the applicant wishes to possess and use firearms, the reasons why the ADVO was made, the views of the person protected by the ADVO,[7] the views of the police, and the risks to the protected person and the community generally of the applicant being able to possess and use firearms;
(d) the views of the police may be of particular importance given that the police force is said to represent the public interest, and also has the necessary expertise to reach an informed opinion on the risk posed by particular individuals having access to firearms; and
(e) it may be appropriate to impose conditions upon an order granting an application under s 189 of the Act, including limiting the purpose for which firearms may be possessed and used by reference to the reasons for which a licensed person may be permitted to hold a firearms licence.
[4][2024] VSC 179, [32]–[36] (Russo). The authorities surveyed included Pickford v Chief Commissioner of Police [2002] VSC 435, referred to in Mr Jones’ written submissions.
[5]Russo, [37] (citations omitted).
[6]Referring to Firearms Act, s 1.
[7]‘ADVO’ refers to an apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
In Russo, the applicant became a prohibited person as a result of an apprehended domestic violence order made by a Local Court in New South Wales.[8] In this case, Mr Jones is not subject to an order of that kind, but is a prohibited person because he was found guilty of an indictable offence. As a result, the second and third factors identified at [37](c) of Russo are not relevant in this case. In my view, additional factors that are relevant to the exercise of the discretion for a prohibited person found guilty of an offence include:
[8]Firearms Act, s 3(1) (definition of ‘prohibited person’, paragraph (c)).
(a) the seriousness of the offence of which the person was found guilty;
(b) the nature and circumstances of the offence, including whether it involved a firearm; and
(c) the sentence imposed and any sentencing remarks available.
I will now consider the relevant factors in this case.
How serious is the offence?
Mr Jones was found guilty of stalking or intimidating with intent to cause fear of physical or mental harm, a domestic violence offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act. The offence created by s 13(1) is an indictable offence. The maximum penalty for the offence is imprisonment for five years or 50 penalty units or both.
The designation of the offence as a domestic violence offence indicates that it was committed against another person with whom the offender had (or has had) a domestic relationship.[9] Section 12(2) of the Crimes (Domestic and Personal Violence) Act requires that a finding of guilt for a domestic violence offence be recorded on the offender’s criminal record as a domestic violence offence.
[9]Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 11 (Crimes (Domestic and Personal Violence) Act).
What were the nature and circumstances of the offence?
The offence was committed on 9 March 2023, between 8:45am and 10:00am. The victim was Mr Jones’ then wife, to whom he had been married since 2016 and with whom he has two children.
The police brief of evidence alleged the following facts:
On the 3rd of December 2022, the victim told the accused she wanted a divorce. When the victim told the accused this he began … threatening her saying things along the lines of “if you ever cheat, leave the country”. The Victim interpreted this as a threat believing he would kill her if he ever caught her cheating.
At 8:45am on the 9th of March 2023, the accused confronted the victim about an affair she has had whilst the accused was away. The accused asked the victim to follow him into the guest house next to the main dwelling. Before the victim followed him in, he requested she leaves her phone on the couch. The victim complied and left the phone on the couch.
As they both entered into the bedroom of the guesthouse the accused asked the victim is there anything you want to tell me. The victim confessed to the affair. This aggravated the accused which resulted in him smashing up furniture on the room. The accused smashed both the bedside tables onto the ground with some of the debris landing on the victim and on the bed. This did not hurt the victim but caused the victim to feel scared as … if she was next. The accused continued to smash a dresser which had the victims mother perfumes on it. Whilst the accused this this he said “this is my heart”.
After about 5 minutes the accused began cleaning up he began asking her questions about the affair. Questions along the lines of where and when the affair occurred. When the victim did not answer, the accused poked the victim in the shoulder using a broom wanting her to answer the questions. Whilst the accused did this he said something similar too “i haven’t hurt you, but i could have done this too you”.
The victim told the accused where and when as she was scared the accused would kill her if she did not tell him. She told him it occurred on the bed they are sitting on. This made the accused angry and began asking the [victim] what side, what position, the accused made the victim show him how and what position. After this the accused began getting upset about the other males genitalia and proceeded to pull his own genitalia out. The accused made the victim have a close look at his own genitalia whilst explaining that he is clean and the other guy is dirty. Shortly after the accused continued cleaning up.
The accused told the victim “I had a few scenarios going through my head, one was to take all your shit onto the front lawn and pour petrol on it and burn it” These threats made the victim feel scared as if the accused was going to kill her or carry out these threats.
After a few more minutes of the accused yelling at the victim he walked out and shut the door behind him. At first the victim was to scared to move and felt as if she was being held captive. When the victim did get up she had noticed that her phone was gone and she could not call for help. A short time later the victim left the location and spoke with a friend in relation to the incident. This phone was later located in the accused firearm safe.
Mr Jones did not directly use a firearm during these events. However, I infer that it was a feature of his intimidation of his wife that he hid her phone in his firearms safe. This accentuated the presence of firearms in the home, and magnified the threatening nature of his behaviour.
On 10 March 2023, Mr Jones was arrested and charged with three offences: the offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act, destroying or damaging property, contrary to s 195(1A) of the Crimes Act 1900 (NSW), and common assault, contrary to s 61 of the Crimes Act. In addition, a police officer made a provisional apprehended domestic violence order (ADVO) against Mr Jones, prohibiting him from:
(a) assaulting, threatening, stalking, harassing, or intimidating his wife, or intentionally or recklessly destroying or damaging any property or harming an animal that belongs to her or was in her possession;
(b) approaching or contacting his wife in any way, unless through a lawyer; and
(c) going within 50 metres of any place where his wife lived or worked.
The provisional ADVO also prohibited Mr Jones from possessing any firearms and required him to give up all his firearms to police. It appears that police took custody of Mr Jones’ firearms when they arrested him on 10 March 2023.
What sentence was imposed?
At a hearing at the Local Court at Deniliquin on 15 September 2023, police withdrew the charges of destroying or damaging property and common assault. Mr Jones pleaded guilty to the remaining charge of stalking or intimidating with intent to cause fear of physical or mental harm, and the magistrate accepted his plea of guilty. The matter was listed for sentence on 10 October 2023.
On 10 October 2023, a magistrate imposed the following sentence:
The offender, BRENDAN WILLIAM JONES, is found guilty, but without proceeding to conviction, is sentenced to a Conditional Release Order for a period of 2 years to commence on 10 October 2023 and expiring on 9 October 2025.
This Conditional Release Order is subject to the following standard conditions:
a) The offender is not to commit any offence while subject to this Conditional Release Order
b) The offender must appear before the Court if called upon to do so at any time during the term of the Conditional Release Order.
This Conditional Release Order is subject to the following conditions:
1. The offender is subject to supervision by a Community Corrections Officer at Albury Community Corrections District Office for the period of the Conditional Release Order.
2. To complete a Men’s Behaviour Change Program.
Not to assault, threaten, stalk, harass, intimidate [the victim] or intentionally or recklessly destroy or damage property or harm any animal that belongs to or is in the possession of [the victim].
Not to approach [the victim] or contact her in any way unless that contract is a.) through a lawyer, b.) to attend accredited or court-approved counselling, mediation and/or conciliation, c.) as ordered by this court or another court about contact with child/ren, d.) as agreed in writing between the defendant and the parent(s) about contact with child/ren.
Not to go within 50 metres where [the victim] lives or works.
The magistrate revoked the provisional ADVO made on 10 March 2023. However, the conditions of the provisional ADVO were reproduced as conditions of the conditional release order.
Mr Jones submitted a psychologist’s report that he had obtained for the purpose of his plea hearing. The psychologist’s opinion was that Mr Jones presented as being of ‘sound mind’ and had no diagnosable disorders. While his behaviour towards his wife was inexcusable, it was the result of grief and associated anger. The psychologist considered that Mr Jones had shown the coping skills not to create issues with his wife, noted that he had completed an online conflict resolution course, and considered he was unlikely to behave in a similar manner again. He recorded that Mr Jones had expressed what appeared to be sincere remorse for his behaviour.
I infer from the conditions of the conditional release order that the magistrate did not share the psychologist’s opinion that Mr Jones was unlikely to reoffend. There was no evidence as to whether Mr Jones had yet completed the required men’s behaviour change program.
For what purpose does Mr Jones wish to use firearms?
The reasons for which Mr Jones held a firearms licence were for primary production and hunting, specifically vermin and feral animal control. I understand that he wishes to regain a firearms licence so that he can resume that activity.
Mr Jones did not provide any information about the effect of being unable to use firearms to control vermin and feral animals, or the importance of that activity to his livelihood.
What are the Chief Commissioner’s views?
The Chief Commissioner advised that he did not oppose Mr Jones’ application, and therefore did not seek to be heard. I infer from this position that Victoria Police does not know of or consider that there may be any reason why the application should not be granted.[10]
[10]Pickford, [7].
What are the risks to the community?
Mr Jones is a prohibited person because he was found guilty of a domestic violence offence against his then wife. It was a serious offence, involving frightening violent behaviour that was accompanied by threats. While I gather that Mr Jones now lives separately from his former wife, they share responsibility for their two children and necessarily remain in contact with each other. The magistrate who sentenced Mr Jones was sufficiently concerned about the prospect of further offending to impose conditions prohibiting Mr Jones from approaching or contacting his former wife.
Domestic violence is unacceptable behaviour in any form, because it is contrary to the fundamental social value of non-violence.[11] The Victorian Royal Commission into Family Violence recognised that domestic violence is often part of a longer-term pattern, that it can have long-lasting and serious physical and psychological effects, and that its negative effects can be particularly profound for children.[12] The risk to the community of domestic violence is not to be minimised because it usually takes place in private and is often directed towards an intimate partner, as occurred in this case.
[11]Family Violence Protection Act 2008 (Vic), Preamble; Crimes (Domestic and Personal Violence) Act, s 9.
[12]Royal Commission into Family Violence: Summary and recommendations (March 2016) 17.
That said, there is no evidence to suggest that Mr Jones poses a risk to the wider community. He provided character references from people with whom he had undertaken feral deer control using a firearm. These people attested to his reliability and sound approach to firearm safety.
Consideration
Mr Jones seeks a declaration under s 189(1) of the Firearms Act, deeming him not to be a prohibited person by virtue of being found guilty of an indictable offence.
There are a number of considerations that weigh in favour of making the declaration. There is evidence that Mr Jones is remorseful for his offending behaviour, and that he has taken steps to improve his approach to conflict resolution. He has a legitimate purpose for possessing and using firearms, and there is evidence that he has previously used them for that purpose safely and reliably. Significantly, the Chief Commissioner does not oppose a declaration being made.
On the other hand, the offence was a serious one, involving violent and frightening behaviour. Although firearms were not directly involved, Mr Jones’ intimidation of his then wife was magnified by the fact that he hid her phone in his firearms safe. Mr Jones has indicated no insight into the menacing nature of that act. I might have been reassured by evidence that he had undertaken the behaviour change program required by his sentence, but there was no such evidence.
A particular feature of this case is that the two-year conditional release order imposed by the magistrate included conditions that might otherwise have been included in a final ADVO. Had that been the case, Mr Jones would have been a prohibited person for five years from the expiry of the ADVO — possibly until October 2030. I take into account the evident policy of the Victorian Parliament that a person who is subject to a final ADVO should be automatically disqualified from possessing and using firearms for a much longer period than applies to a person found guilty of an indictable offence.
On balance, I am not persuaded that Mr Jones has made out a case to be relieved of the consequences of his offending for the purposes of the Firearms Act. He will remain a prohibited person until 9 October 2024 — less than three months hence. After that time, he will be eligible for a new firearms licence, subject to the Chief Commissioner being satisfied that he is a fit and proper person and is otherwise suitable to hold a licence.[13]
[13]Firearms Act, s 17.
The application will be dismissed. In circumstances where the Chief Commissioner did not seek to be heard against the application, I do not propose to make any order as to costs.
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